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Practice Tips: Your Client’s Mental Decline: Is it really dementia and why does it matter? . . . Page 9 Schooled in Ethics: What We Have Here is a Failure to Communicate (or Maybe a Failure to Supervise?). . . Page 21

A Monthly Publication of the Knoxville Bar Association | October 2017


AROUND THE BAR By: Reggie E. Keaton Frantz, McConnell & Seymour, LLP

KNOXVILLE BAR FOUNDATION MAKING A DIFFERENCE FOR OUR PROFESSION The Knoxville Bar Foundation plays a key role in supporting our legal community. Established in the early 90’s, the Foundation provides a means for charitable gifts to be made to support important programs and projects. The funding for the charitable gifts comes primarily from the Fellows of the Foundation. This year the new Class of 2017 Fellows was introduced and welcomed into the Foundation at its annual dinner held on May 11. The members of the 2017 Class are the following: John C. Burgin, Jr. Charles C. Burks, Jr. W. Tyler Chastain David W. Long Mary Elizabeth Maddox David D. Noel Cheryl G. Rice Ellis A. Sharp Mark E. Stephens James R. Stovall Hanson R. Tipton Brent R. Watson The Fellows program of the Foundation publicly honors and recognizes attorneys who have distinguished themselves in the legal profession and in service to the Knoxville legal community. Each new Fellow for the Class of 2017 has earned this distinction, and the Foundation is proud to honor and recognize each one. The Fellows were selected from an outstanding list of nominees from the members of the Foundation. This list was narrowed by vote of the Board of Directors due to the limited number of Fellows that can be chosen for each class. After being selected, the Fellows were introduced at the annual dinner. The introductions provided a brief summary of their background and accomplishments along with some interesting and humorous anecdotes from their past. The reputation that each new Fellow holds in our legal community reveals that the Class of 2017 exemplifies the highest of ethical and professional standards and consists of individuals who continue to have a positive impact upon our profession. The Foundation is also proud to announce that it has awarded grants this year to the following entities: • • • • • •

• •


Foundation Fellowship for hiring a law student for the Pro Bono Project YWCA of Knoxville to support the Victim Advocacy Program

The total sum of all grants awarded this year is $24,900.00. The Foundation’s goal is to facilitate and support projects and programs that seek to improve the administration of justice, to enhance the public’s understanding of and confidence in the legal system, to support access to the legal system, and to serve the legal profession. Since 1997, the Foundation has awarded grants totaling approximately $395,000.00. Each year the Foundation solicits and receives multiple applications for grants. This year the grant requests totaled approximately $78,000.00. Each application was reviewed by the Board of Directors, and a determination was made as to what, if any, sum should be awarded for each application. This year the Foundation also received contributions to fund judicial portraits for the following former judges: Chancellor Daryl Fansler, Criminal Court Judge Mary Beth Leibowitz, Circuit Court Judges Wheeler Rosenbalm and Dale Workman, and Fourth Circuit Court Judge Bill Swann. The Portraits Committee, chaired by board member, John Harber, led the effort to have the judicial portraits made. The ceremony for the unveiling of the portraits was held on July 12, and the planning and organizing for the ceremony was accomplished by board member, The Honorable Deborah Stevens. The Foundation was proud to participate in this ceremony celebrating the dedication, hard work, and honorable service of these former members of our judiciary. The Foundation is also grateful for all of the monetary contributions received from attorneys and law firms in our legal community making it possible to complete this project. The Foundation’s Board of Directors for the preceding year were Heidi Barcus, Bill Coley, John Harber, Reggie Keaton, Morris Kizer, Harry Ogden, Mary Ann Stackhouse, The Honorable Deborah Stevens, and Charles Swanson. If you would like to make a financial contribution to the Foundation to help support its important work or if you would like to learn more about the Foundation, please feel free to contact me, or our treasurer, Harry Ogden, or any other member of the Board of Directors. Contributions to the Foundation are tax deductible in accordance with applicable law.

Blount Mansion Association for pocket constitutions for student visitors CASA (Court Appointed Special Advocates) of East Tennessee, Inc. for recruiting and training volunteers Catholic Charities of East Tennessee, Inc. in support of its Office of Immigrant Services Knox County Juvenile Court in support of the ASIST program for status offender cases Knox County Public Defenders Community Law Office for recruiting master’s level social work students Knoxville Bar Association Archives Committee to support interviews of senior members of the bar Knoxville and Knox County Community Action Committee Office on Aging in support of its Grandparents as Parents Program Legal Aid of East Tennessee to continue funding the Knoxville Bar


October 2017

In This Issue

Officers of the Knoxville Bar Association

Cover Story

President President Elect Amanda M. Busby Keith H. Burroughs

Treasurer Wynne du Mariau Caffey-Knight

Immediate Past President Wayne R. Kramer

Secretary Hanson Tipton

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

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

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

The Knoxville Bar Association Staff


Justice Sharon G. Lee and the Power of Dissenting Opinions


President’s Message



Jonathan Guess Database Administrator

Lacey Dillon Programs Administrator

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

Tracy Chain LRIS Administrator

Adelyn Bryson LRIS & Membership Assistant

Volume 44, Issue 9


DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522). DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. October 2017

Dicta is the official publication of the Knoxville Bar Association

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

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

Managing Editor Marsha Watson KBA Executive Director


The KBA Wants Your Help in Recruiting New Members!

Practice Tips Legal Update

Sixth Circuit, Sixth Circuit, Make Me a Match: Comparing Tennessee’s Aggravated Burglary Statute to the Generic Version in Stitt

A Friend Indeed: How to Support to a Grieving Co-Worker

Getting Started Setting Up a Paperless Office


Tammy Sharpe CLE & Sections Coordinator

Critical Focus

Your Client’s Mental Decline: Is it really dementia and why does it matter?


Marsha S. Watson Executive Director

October 2017

18 21

23 2

7 8 10 15 18 19

Management Counsel: Law Practice 101

Solo & Small Firm Practice Tips Your Monthly Constitutional

Can you Sue the President?

Schooled in Ethics

What We Have Here is a Failure to Communicate (or Maybe a Failure to Supervise?)

Evolving Legal Marketplace

To Encrypt Or Not To Encrypt?

Conventional Wisdom Around the Bar

Making A Difference for Our Profession

Outside My Office Window


Hello, My Name is

Meghan Bodie

Time Out



The Future is Now

Your Monthly Constitutional

Why Did Lincoln Save the Union?

Around the Community

One Year of Serving Those Who Served For All Of Us

Honoring Lawyer Andrew Jackson in Bronze and Stone

Turning Fall Failures into Fall Fabulousness

20 24 26 27 28

4 19 29 30 31

Of Local Lore and Lawyers Life Hacks

Life and Law in Harmony

Clearing out the Clutter


The Credibility Gap

Bill & Phil’s Gadget of the Month

IOS 11 (Beta Version) & IPAD PRO Laptop Replacement at Last?

Common Ground

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




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. Alternative Dispute Resolution Section The ADR Section has monthly CLE programs planned through the end of the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720).

October n 2

ADR Section CLE

Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). If you would like to volunteer for Pro Bono Debt Relief please sign up by clicking on November 4th on the event calendar at

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Diversity CLE & Reception

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148).

n 16 Diversity in the Profession Committee

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

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Law Office Tech Committee Meeting Fall Hike

n 11 Professionalism Committee Meeting n 11 Veterans Legal Advice Clinic n 11 Barristers Meeting

n 12 Judicial Committee Meeting

n 17 Functions Committee Meeting

n 18 KBA Board of Governors Meeting n 19 Lunch & Learn CLE

n 24 Solo & Small Firm/Family Law CLE n 24 Publications Committee n 25 n 30

In Chambers with Judge Reeves Barristers Golf Tournament

n 31 Wills & Estates CLE

November n 1

Barristers Mixer with TSCPA and YPK


Swearing In for New Lawyers

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n8 n 9 n 9

Ain’t Behavin’ Judges CLE

Solo & Small Firm/Family Law CLE

New Admittees Welcome Reception

Law Office Tech Committee Meeting Veterans Legal Advice Clinic Barristers Meeting

Lunch & Learn CLE

Judicial Committee Meeting

n 13 Bankruptcy CLE

n 14 CLE Committee Meeting

Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050).

n 14 Professionalism Committee Meeting

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

n 18 Diversity in the Profession Committee

Solo Practitioners & Small Firms Section The goal of the Solo & 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. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (546-8030) or Tripp White (712-0963).



n 14 Access to Justice Committee Meeting n 15 KBA Board of Governors Meeting n 17 Juvenile Court GAL CLE n 17 Memorial Service

n 23 Volunteer Breakfast

Mark Your Calendar KBA Annual Meeting & Elections Friday, December 8, 2017

October 2017

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

THE KBA WANTS YOUR HELP IN RECRUITING NEW MEMBERS! If you have a work colleague or a friend who practices law who is not a member of the Knoxville Bar Association, we would like you to ask them to join before the end of this year. Completing a KBA membership application is easy. They can submit their application on the KBA’s recently updated website at by just clicking on the “Join” tab at the top of the webpage, or they can complete an application in person by coming by the KBA office. If they join between now and the end of the year, they are entitled to KBA membership for the remainder of 2017 at no additional cost and their KBA membership will last through December 31, 2018. This includes a free hour of online CLE ($40 value) for 2017 and a free hour of online CLE ($40 value) for 2018 to help them meet their CLE requirements. Also, if they join before October 13, 2017, they can attend the “Ain’t Behavin’: What Not To Do—A View from the Bench” CLE program on November 3rd from 1:00 – 4:15 p.m. in the Main Assembly Room of the City County Building at 50% off the regular registration price (a savings of $45). This extended CLE program features 5 of our local area judges and will earn attendees 3 hours of dual CLE credit for 2017. Membership in the KBA is a great value. Among other things, KBA membership provides you with education and resources, information on how to start and grow a law practice, and unique opportunities to make connections with other attorneys, judges, and prospective clients. KBA Membership dues are only $145-195 per year with certain discounts available for new, part-time, out-of-county, government and nonprofit attorneys, and for non-adjunct law school professors. Membership fees are even waived for law students and are also waived for new attorneys for the first two calendar years in which they are admitted to practice in any state. If you are a member of a firm, we encourage you to talk to your newly admitted attorneys about becoming KBA members. As a KBA member, you know the value of your KBA membership. The KBA provides a multitude of networking opportunities to develop and maintain professional relationships. Each year KBA members get reliable contact information for attorneys, judges and courts with a free printed Attorneys’ Directory and access to the KBA online Attorneys’ Directory on the KBA website. KBA members also get registration discounts for CLE programs (20-30% off the regular price) for live and online programs and the KBA files your hours promptly with the CLE Commission upon you turning in your completed attendance form at the end of the CLE program. The KBA can also help members increase their client base when members join the Lawyer Referral Service (LRIS), entitling them to receive screened referrals of prospective clients in Knox and surrounding counties. The KBA website also affords its members online access to: relevant resources such as judicial profiles, local rules, the online version of DICTA, and a document forms library; practice tools to help build and manage a law practice; and guidance on ethical issues and status updates on proposed rule changes. If you know someone who is a solo or small firm attorney who is not a KBA member, the benefits they get from our Solo Practitioner & Small Firm Section are a great reason they should join the KBA! Law firms of five or fewer attorneys comprise over 1/3 of current KBA members. This

October 2017

Section, chaired by KBA members Heather Anderson and Tripp White, works hard to develop high quality CLE programs of particular interest to solo/small firm attorneys to enhance and improve their practice and assist them with law office management issues. During the next few months, this Section plans to introduce a Listserv as an added resource to its section members with information about specific fields of law, ethics, practice management, technology, referrals, networking, and on occasion, just plain fun. The KBA Solo Practitioner & Small Firm Section wants its members to get to know each other better, learn about each other’s practices and personal insights, and share information of interest with one another. This Section is also in the process of scheduling regular face to face gatherings so that Section members have an opportunity to meet, learn, and get to know each other better. The KBA wants you as a KBA member and we want your colleagues and friends too! If you are unsure whether someone is a KBA member or not just look on the KBA website, in your KBA Attorneys’ Directory, or, call the KBA office at (865)522-6522 and the KBA staff will be glad to look them up for you. On the website (, if you do an attorney search and lookup the attorney in the online Attorneys’ Directory, you can tell if the attorney is a KBA member or not because it will say Non-KBA Member in the Membership Type category on the right-hand side of the attorney’s profile page. In the printed version of the KBA Attorneys’ Directory, the abbreviation NONMBR appears next to the name for all attorneys who were not KBA Members in July of 2017 when the directory was printed. If you or your lawyer colleagues and friends have any questions about KBA membership, please do not hesitate to contact me at (865)249-8011, and I will try to answer your question or direct you to someone on the KBA staff who can assist you. Or, you can contact KBA staff directly at the KBA office (865)522-6522. Thank you for any assistance you can offer in encouraging others to become KBA members. I hope to see you and your colleagues and friends at a KBA event soon!





Please join us for the Memorial Service on Friday, November 17, 2017 at 3:00 p.m. at the Tennessee Supreme Court Building. Similar to prior years, attendees will hear brief personal stories and anecdotes, some serious and, occasionally, some humorous, about each of the deceased from a lawyer colleague. Joining KBA President Amanda Busby in the reflection and celebration of the lives of these individuals will be Rev. Charles Fels and Hon. D. Michael Swiney, Presiding Judge, Tennessee Court of Appeals, Eastern District.


KBA Memorial Service 2017

DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier. DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at





October 2017

OUTSIDE MY OFFICE WINDOW By: Robert E. Pryor, Jr. Pryor, Priest & Harber

WINTERGREEN In the fall of 1990, something was brewing in unit 18 of Lake Terrace Condominiums on the campus of the University of Tennessee. The formation of one of the worst flag football teams in modern history - Captain Bob’s Fabulous 14 - took about 2 hours. This band of unlikely heroes was thrust together two days after the team-submission deadline for on-campus intramural flag football. Due to our late arrival on the scene, my brother and I were forced to look to a list of candidates who had not been chosen by the many teams already in existence. Quite frankly, none of the candidates considered and ultimately signed had been real considerations for any other team. The finalized roster was a who’s who of kids picked last on their neighborhood teams growing up. There are no photographs of this team. No one would take our picture. Our starting inside linebacker was an uncoordinated and slow hemophiliac who’d never played organized sports. Our projected starting quarterback ended up missing most of the season due to pre-game anxiety. The roster included a suspended member of the Golf team, several on academic probation, and at least 5 players who could not run under a 10 second 40. Half the team smoked cigarettes on the sideline and all but a couple drank to excess before kick-off. Our only fan was my girlfriend, and “fan” was a strong word. Looking back over the roster, we wouldn’t have been preseason favorites at anything unless it was a team hot-dog-eating contest. As the season approached, we found our strength - drinking beer and talking about our various theories of how success could be accomplished on the field. Travis, the dreamer of the group, a man who would go on to write number one hits in Nashville, became our chief play designer. John, my brother, was the designated driver. As our first game approached it became apparent that I’d be the starting quarterback by default. No one else could throw it beyond 10 yards. A couple of weeks before the first game, Travis designed a play that would alter the landscape of football in a profound way and create a code word that would become part of my everyday vocabulary. The play was a wide-receiver audible. Yes, a wide-receiver audible. An audible, usually called by the quarterback, is a change in play called at the line of scrimmage immediately before the ball is snapped. Our play, code named - Wintergreen - was a true innovation in the game. The audible would be called by Travis, not the quarterback, if he believed he could blow by his defender. Travis would run a straight fly pattern to the end zone. Suffice it to say, I didn’t think this would ever come up. Primarily because I didn’t believe we had one receiver, including Travis, who could run a fly pattern without stopping for a Gatorade half way down the field. “We’ll use it later in the season,” he said, “when we’ve gotten used to our positions.” In the weeks leading up to the first game, Wintergreen was often discussed with great reverence and hilarity. There was great speculation about how the play would be called and what circumstances would qualify it as a viable option. The first game finally arrived. Beneath stadium lights on a cool fall evening, Travis and I walked to mid-field for the coin toss. I sized up our opponents. They were wearing matching shorts and shirts, each player with a new pair of cleats. They looked to be members of the university’s track team, a team that would go on to win the SEC Championship that year. Our team, clad in Fruit of the Loom white t-shirts with sharpiewritten numerals, looked like prisoners of war being returned to a defeated nation.The coin was tossed and possession granted to us. We trotted out onto the field of battle and huddled up for the first time. The faces staring back at me reminded me of the faces of the men October 2017

in the opening scene in Saving Private Ryan as they huddled inside the troop carriers about to land at Normandy. Some vomited into the dirt, others prayed. In order to lead men it is important to be stern and confidant. It is also important not to go overboard on the “Rah Rah” stuff. Striking the balance is what being a leader is all about. “It doesn’t look so good” I said. With that and knowing we were at a real speed disadvantage, I called a short pass play, took a deep breath and said “here we go.” As we approached the line of scrimmage, unified only in our belief of impending doom, I held back in the shotgun position and assessed the defense. Every defensive back was up in press coverage and the linebackers, who had the physical prowess and crazed looks of tigers in the wild, were set to blitz me. Travis was wide right. I realized at that moment that I’d never seen Travis so much as run to the mailbox. He could play guitar and tell jokes, but I’d never seen him engage in an athletic endeavor in my life. I adjusted my flags on my waist and looked over the mismatches at every position, preparing to run for my life. “Down... Set...” I began. Then, suddenly from my right, on the first play of the first game, came a booming call from a familiar voice “Wintergreen!!!!!!” rang out into the night and echoed off the fraternity houses. Everyone on our team began to laugh. Our opponents looked at each other dumbfounded. “Hut!” I called while laughing. Travis sprinted by his man and as the ball left my hands, I knew it was true. Travis was five yards beyond his confused defender when the ball hit his hands, his chest and then the ground. Surprisingly, we went on to make the playoffs that year. We had some great games and Wintergreen was used to greater success. Since that night, Wintergreen has been called many times. It has been mine and Travis’s code word to leave a party. It has been used to signal trouble among my friends. I recall one night in a famous musician’s palatial home where it was used to signal “let’s get out of here!” It has been used by my wife and I when we need to signal each other that we don’t know someone’s name at a party or, as it was the other night, to indicate to each other it is time to leave. There have been plenty of times I wanted to yell it out in a courtroom. This is the legend of Wintergreen. Thank God for good friends.




. . .


By: Katheryn M. Ogle McDonald, Levy & Taylor

In my few years of practicing law, I have learned that attorneys may not remember who they represented or even the subject of the litigation in some of their first cases, but they always seem to remember those attorneys who showed kindness to the new member of the bar. For me, I will always remember showing up for my first day of court and meeting Meghan Bodie. She was still fairly new at lawyering herself, but on that day, her year of experience was more comforting to a newly sworn attorney than having all of the outlines for first-year law school courses the first week of class. Growing up in Kingsport, Tennessee, Meghan attended DobynsBennett High School and was a member of the largest high school marching band in the state. She was involved in the flag and rifle corps, and has fond memories of marching in the Rose Bowl parade. After graduation, she continued her education at Emory and Henry College in Emory, Virginia. It was in college that Meghan began exploring a possible career in the law. She majored in Political Science and was also selected for Pi Sigma Alpha and the Cardinal Key honor societies. She then went on to Samford University’s Cumberland School of Law and while there, worked as an intern in the Alabama Attorney General’s Office and with the Tennessee Supreme Court. Meghan also had the opportunity to serve as a clerk for The Honorable James P. Smith in Huntsville, Alabama following her law school graduation. During the last several years, I have had the opportunity to work with Meghan on several cases, and have learned that her kindness extends to all those she meets. In 2016, she took a leap of faith and opened The Law Office of Meghan Bodie. Here, she practices all aspects of family law, with a specific focus on Adoption. Meghan was led to this particular field after serving as a Guardian ad litem in local juvenile courts and realizing the need for permanency in custody situations. “Working


with this population opens your eyes to the needs of children that are involved in the justice system through no fault of their own. I feel fortunate that I can help bring families together, often following difficult situations.” It is widely known that Meghan is an avid supporter of the Crimson Tide, as her father was born and raised in Alabama. This inherited fandom as certainly brought Meghan her fair share of chiding since she’s lived in East Tennessee most of her life. However, Meghan remains steadfast in her support of Alabama, and is teaching her son Thomas to cheer, “Roll Tide!” Outside of work, Meghan enjoys cooking and spending time with family. Recently, she also began taking golf lessons and hopes to continue growing in this sport. While I know Meghan will be another fierce competitor on the greens, I also look forward to her continued comradery both in and out of the courtroom.


October 2017


Kelly G. Frere

Guyton & Frere

YOUR CLIENT’S MENTAL DECLINE: IS IT REALLY DEMENTIA AND WHY DOES IT MATTER? John has been your business client for years. During a recent because there is currently no cure, there is no absolute determination as meeting he was confused and forgetful, and for the first time in your to its cause (although there is a genetic component to some cases of early presence had angry outbursts and used profanity. At the end of the onset Alzheimer’s), there are worsening stages of the disease through meeting you felt very uneasy. You assume that John is suffering from which people travel at different paces, and the victim can “die” cognitively dementia - probably Alzheimer’s because you read somewhere that long before they die physically. Alzheimer’s disease is the most common type of dementia. You note your Other incurable dementia diseases are becoming more often “diagnosis” in John’s file, then notify your secretary to archive the file diagnosed. Frontotemporal disorder, referred to as FTD (or, Pick’s because you believe you can no longer represent a client with dementia. disease) directly affects personality, social skills and emotions so it’s hard Let’s back up a few steps before to recognize at first that it’s a dementia we jump to conclusions. Then let’s disease. Angry outbursts and use of he correct diagnosis will not only discuss why it’s important for attorneys profanity can be an indication of FTD. assist you in whatever business and/or Another is Lewy Body disease which is of all disciplines to have at least a basic estate planning you may be doing for determined by abnormal protein deposits. understanding of cognitive impairment (CI). the client, but may also determine your client’s Parkinson’s disease is a form of Lewy The topic of CI is complex because Body if the victim of Parkinson’s also eligibility for certain government benefits. there are many medical conditions having develops dementia. The list goes on and a diagnosis of CI that mimic one another, is further complicated by the fact that a and a CI condition in one person may progress differently in another person can have more than one type of dementia at a time. Alzheimer’s person. Problems with clear and focused thinking, memory loss, and and Vascular dementia are often seen together. dramatic changes in personality traits show up in many different medical Why this much medical detail for non-medical professionals? conditions. Some of those conditions can be treated with the realistic Because the attorney may be incorrectly assuming an irreversible goal of a cure, and some can only be managed with palliative care in the and degenerative condition which may actually be curable or at least hope that the client will die with dignity and in as little pain as possible. improved to the point where our state’s presumption of sufficient mental The correct diagnosis will not only assist you in whatever business and/or capacity is not easily challenged. Even if the diagnosis is one of the estate planning you may be doing for the client, but may also determine incurable dementia diseases those diseases all worsen in stages meaning your client’s eligibility for certain government benefits. that a diagnosis is not an absolute bar to the client’s ability to participate Before you assume your client has a disease as serious as Alzheimer’s - at least for a while - in his or her legal matters. ask if testing has been done for “acquired” cognitive deficits that can arise Knowing what type of dementia disease your client has may directly out of food and environmental allergies, high blood pressure, diabetes, result in money in their pocket or government-provided long term care. dehydration, excessive alcohol consumption, depression, sleep apnea, For example, do you have a client who worked in a hazardous materials certain drugs, and even high cholesterol. All of these can be treated with environment and now has Parkinson’s? An additional diagnosis of a reasonable expectation that some or all cognition can be restored. Parkinson’s dementia can result in a greater federal compensation benefit If cognitive deficits have been ruled out or successfully treated, but or the provision of direct personal care. your client still appears to be “out of it” at times or mentally “slipping” It may feel awkward at first, but there are times when you should get when faced with familiar tasks, you still cannot assume that decline of very personal with your clients, especially if you note a change in function cognitive functioning is a result of dementia. A condition known as or personality or if a family member expresses concern. Ask: Are you Mild Cognitive Impairment (MCI) has become a popular diagnosis for sick, or worried you might be sick? Have you been diagnosed with any persons who have problems with mental functions but those problems condition, disease or disorder? What medications are you taking; what are not so severe that they significantly interfere with daily activities. treatments are you receiving? Has anyone close to you expressed concern Although there is no cure for MCI, some MCI clients never worsen into about your actions, behavior, or memory? And a biggie: Has anyone one of the diseases with dementia - and some MCI clients actually get stated that you shouldn’t be driving? better on their own. Not only can you continue to represent your client who exhibits If acquired deficits have been diagnosed and treated, or ruled diminished mental capacity, but you have the guidance of RPC 1.14 to out, but your client has cognitive problems that are consistently and take protective measures to help you maintain as “normal” a client-lawyer negatively affecting their personal and/or financial safety then a thorough relationship as possible. medical evaluation should be done to determine if they are suffering from Excellent resources for in-depth information can be found through one - or more - of the many types of dementia diseases that have now the National Institute on Aging at, through Mayo been identified. The disease mentioned most often is Alzheimer’s disease Clinic at, and Alzheimer’s Tennessee at www. because it is the most common cause of dementia. It’s also the scariest


October 2017



TIME OUT By: Ann C. Short The Bosch Law Firm

Cussing I remember the first time I heard my daughter swear. I was a nervous passenger riding with her not long after she was issued her learner’s permit. The driver in the car that she was tailgating slammed on his breaks. “Damnit! Shit!” she screamed and then sheepishly looked in my direction. I kept my composure for maybe three seconds before bursting out in laughter. I quickly followed up with a lecture, delivered in a stern “Mom” voice, on the dangers of tailgating. Speaking of offspring, even the most carefully disguised swearing can backfire. Katie’s Dad once referred to Florida’s college football uniforms as “fugly.” Katie, who we did not think had been paying attention, asked the inevitable question: “Daddy, what does fugly mean?” “Very ugly, Sunshine,” he calmly replied. “It means very ugly.” Less than a month later, I was at birthday party for one of my daughter’s friends, when Katie announced that one of the parents’ cars was fugly. The adults in attendance shot judgmental (not in a good way) looks in my direction, and I fled to find more birthday cake. In fairness Katie, the popsicle grape Prius was very ugly. Cursing, I confess, comes naturally to me. George Carlin’s “7 Words You Can’t Say on TV” is a classic. I am mostly a situational offender. Spill coffee on my freshly dry-cleaned skirt. Forget to set my alarm clock. Lose my cell phone. Arrive home without buying the most critical item on my shopping list: toilet paper. Read a particularly stupid or out-of-touch Supreme Court decision. The profanity flies. Read a particularly stupid, racist, pompous, sexist, etc. Twitter remark, and the profanity can soar for minutes. Some hold with the idea that that swearing is not simply a sign of language poverty or lack of general vocabulary. Language is a sophisticated toolkit, and swearing can be a language feature that an articulate speaker can use to communicate with maximum effectiveness. “Frankly, my dear, I don’t give a damn,” comes to mind. I am not, however, a fan of the F-Bomb, primarily because it IS so overused. More than once I have turned off a movie on cable television after five or ten minutes. The dialogue writers clearly had little imagination or no dictionary handy. It’s a noun; it’s a verb; it’s both in one sentence: f&^% you f*@#. I’m not impressed. So, why the #$%! do we swear? By now, you must be wondering what this topic has to do with decompressing. Well, personally speaking, yelling and cursing tend to have a cathartic effect. Studies have found that expressing emotions through profane language can help you cope with stress, elevate endorphin levels, and calm down. There is even a medical term, I learned, to describe this phenomenon known as “lalochezia.” It means “emotional discharge gained by uttering indecent or filthy words.”1 Research at Keele University, in Staffordshire, England suggests that swearing can actually play a role in raising your pain tolerance. Researchers had a group of volunteers hold their hands in freezing cold water, first while swearing and then while emitting inoffensive phrases. When the volunteers used strong language, they were able to keep their hands submerged longer, and the effect was especially powerful among volunteers who did not ordinarily use bad words.2 The researchers found that the enraged yelling raised the heart rate. Dr. Richard Stephens, who worked on the project, told the British newspaper the Telegraph, “Swearing has been around for centuries and is an almost universal human linguistic phenomenon. It taps into


emotional brain centres and appears to arise in the right brain.”3 That is, unlike normal language, which relies on the outer few millimeters in the left hemisphere of the brain, expletives hinge on evolutionarily ancient structures buried deep inside the right half. One such structure is the amygdala, an almond-shaped group of neurons that can trigger a fight-or-flight response when our heart rate climbs and we become less sensitive to pain. In another study, researchers put 29 participants through an intense workout on an exercise bike while both swearing and not swearing. A second group of 52 participants squeezed an isometric hand-grip, also while cursing and not cursing. Those who cursed while working out had increased strength and stamina. The participants who cursed while pedaling had an increased peak in power of an average of 24 watts. Those who swore while clutching the hand grip improved their strength by about 2.2 pounds.4 Finally, two additional studies have identified other positive aspects of swearing. University of Rochester researchers found that “intelligent” people are more likely to swear than the less intelligent folks. They asked 1,000 people about 400 everyday habits – ranging from singing in the shower to swearing – and found potty mouths tend to have higher IQs. They also found that “smart” people are more likely to eat spicy breakfasts and walk around their homes naked.5 Another well researched article published by Maastricht University, the Netherlands, is entitled “Frankly, we do give a damn: The relationship between profanity and honesty.”6 I say well researched because it includes calculations and formulas that are meaningless to me, such as LIWC category rate user X = (User X word count for LIWC category in all status updates) (User X word count in all status updates) The provocative Abstract for this article reads, There are two conflicting perspectives regarding the relationship between profanity and dishonesty. These two forms of norm-violating behavior share common causes, and are often considered to be positively related. On the other hand, however, profanity is often used to express one’s genuine feelings, and could therefore be negatively related to dishonesty. In three studies, we . . . found a consistent positive relationship between profanity and honesty; profanity was associated with less lying and deception at the individual level, and with higher integrity at the society level. So, from everything I’ve read, I declare that Lenny Bruce said it best: “Life is a four letter word.” Farlex Partner Medical Dictionary (2012). See 3 See 4 See 5 See 6 See 1 2


October 2017

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

SIXTH CIRCUIT, SIXTH CIRCUIT, MAKE ME A MATCH: COMPARING TENNESSEE’S AGGRAVATED BURGLARY STATUTE TO THE GENERIC VERSION IN STITT Victor Stitt was convicted in federal court of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).1 A federal sentence can only be ascertained after calculating a defendant’s offense level and criminal history category. With no criminal history (other than being a previously convicted felon), Stitt could have been sentenced to approximately 15 to 21 months’ imprisonment.2 But because Stitt had several prior Tennessee convictions for aggravated burglary, the district court judge applied the Armed Career Criminal Act (ACCA) enhancement and sentenced Stitt to 290 months’ imprisonment.3 The ACCA allows for a mandatory minimum of 15 years when a defendant has been previously convicted of three “violent felonies,” and burglary is considered one of several “violent felonies” that can trigger the ACCA.4 The question is whether Tennessee’s aggravated burglary statute fits the definition of “burglary” under the ACCA. The federal district court in United States v. Stitt said it did; an en banc panel of the United States Sixth Circuit Court of Appeals said it did not. Therefore, post-Stitt, a conviction under Tennessee’s aggravated burglary statute does not count as a prior “violent felony” under the ACCA, according to the Sixth Circuit. Several federal courts have attempted to make sense of what prior convictions (in particular, state burglary statutes) can be considered under the ACCA. In Taylor v. United States,5 the U.S. Supreme Court determined that when Congress referred to burglary as a prior violent felony in § 924(e), Congress meant it in a “generic sense in which the term is now used in the criminal codes of most States.”6 The generic meaning of “burglary” includes the following elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”7 As long as the state statute matches these elements (or the statute is narrower than the generic version), a burglary conviction under the state statute can be considered a “burglary” for purposes of a § 924(e) enhancement. Comparing the statute’s elements to “generic” burglary elements is known as the categorical approach. What if the state statute is broader than the generic version, that is, it includes conduct outside the scope of the generic version? Using the categorical approach, the state statute would not be considered as an ACCA predicate. However, the next Supreme Court case, Descamps v. United States,9 added a wrinkle to this analysis by pointing out the difference between “divisible” and “indivisible” state statutes.10 An “indivisible” statute does not contain alternative elements.11 If an indivisible statute’s elements are broader than the generic version, a court using the categorical approach should find the ACCA does not apply to that state statute.12 An indivisible statute lays out alternative means to fulfilling a single element rather than alternative elements. A “divisible” statute, however, contains “multiple, alternative versions [elements] of the crime.”13 For example, a Massachusetts statute prohibiting “‘Breaking and Entering at Night’ in any of four alternative places: a ‘building, ship, vessel, or vehicle,’” is a divisible statute.14 In this instance, courts must use a “modified categorical” approach and review “a restricted set of materials,” such as the indictment or plea agreement and colloquy, to determine the set of elements within the statute to which the defendant pled guilty.15 The modified categorical approach is meant to act as a tool to “focus on the elements, rather than the facts, of a crime.”16 The modified approach “is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates ‘several different . . . crimes.’”17 It “merely assists the sentencing court in identifying the defendant’s crime of conviction.”18 If the defendant pled guilty to elements that meet the definition of burglary under the generic version, that burglary conviction applies under the ACCA. Tennessee defines aggravated burglary as “the burglary of a October 2017

habitation,”19 and “habitation” includes “mobile homes, trailers, and tents” and any “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant.”20 The statute includes burglaries committed in vehicles, and therefore, is outside the scope of the “generic” burglary definition. The question is whether these options (mobile homes, trailers, tents, vehicles) are elements of the statute (making it divisible) or alternative means (making it indivisible). An en banc panel of the Sixth Circuit found that the list of types of “habitation” are means rather than elements and determined the statute was indivisible.21 Therefore, the Sixth Circuit applied the categorical approach and found that even though vehicles and movable enclosures in the Tennessee statute must be “habitable,”22 they are broader and fall outside the scope of a generic burglary.23 The generic version refers to a “building or other structure” and “excludes all things mobile or transitory.”24 Thus, the Sixth Circuit overruled precedent25 and found Tennessee’s aggravated burglary statute does not categorically qualify as an ACCA predicate.26 Where does this leave us? Using the categorical approach causes sentencing courts to “turn a blind eye to a defendant’s prior convictions for burgling houses merely because the applicable burglary statute allows for the possibility of conviction for burgling an RV, even if, factually, the court knows full well that the defendant standing before it habitually burgled houses.”27 If this leaves you confused, you are not alone. Perhaps the Supreme Court will one day take up this topic again28 and further define what exactly is a “building or structure” and what approach to take. In the meantime, Stitt’s case was remanded for sentencing, and his prior Tennessee aggravated burglaries will not count towards an ACCA sentencing enhancement. And those defendants in federal court who previously committed an aggravated burglary in Tennessee regardless as to where it occurred, inside a home, building, tent, or vehicle, will benefit from this decision. United States v. Stitt, No. 14-6158 at 2 (6th Cir. June 27, 2016). U.S.S.G. §2K2.1(a)(6). 3 Id.; 18 U.S.C. § 924(e). 4 18 U.S.C. § 924(e). 5 110 S.Ct. 2143 (1990). 6 Id. at 2158. 7 Id. 8 Id. at 2158-60. 9 133 S.Ct. 2276 (2013). 10 Id. at 2281-83. 11 Id. at 2281. 12 Id. at 2282. 13 Id. at 2284. 14 Id. at 2284 (citing Nijhawan v. Holder, 557 U.S. 29, 35 (2009)). 15 Id. at 2283-84. 16 Id. at 2285. 17 Id. at 2285 (citing Nijhawan, 557 U.S. at 41). 18 Id. at 2288. 19 Tenn. Code Ann. § 39-14-403. 20 Tenn. Code Ann. § 39-14-401(1)(A). 21 Stitt, No. 14-6158 at 10. 22 “Habitable” means “designed or adapted for the overnight accommodation of persons.” Tenn. Code Ann. § 39-14-401(1). 23 Stitt, No. 14-6158 at 5. 24 Id. at 6. The Sixth Circuit decided that the term “structure” referred to its “locational element, a place’s form – rather than its adaptation for habitability.” Id. at 8. 25 United States v. Nance, 481 F.3d 882, 887 (6th Cir. 2007). 26 Stitt, No. 14-6158 at 12. 27 Id. at 20 (Boggs, J., concurring). 28 Id. at 21 (Boggs, J., concurring). 1 2



Annual Fall Hike October 7 The Professionalism Committee invites you to the annual fall hike on Saturday, October 7 at 10:00 a.m. at Frozen Head State Park in Wartburg, which is approximately an hour from downtown Knoxville. Frozen Head State Park is situated in the beautiful Cumberland Mountains of Eastern Tennessee. We will hike to the Debord and Emory Falls, which is about a three-mile roundtrip. We will meet at 10 a.m. at Picnic Shelter A (it’s on the right, about two minutes from the park entrance). Everyone should bring snacks and water for hiking as well as food and your favorite beverage for a post-hike picnic lunch. Please confirm your participation by registering online (click on October 7 on the event calendar at If you have questions about the hike, please contact James Stovall at jstovall@rddjlaw. com. And if you plan on bringing food or drink, please let James know that as well. Everyone is welcome to bring their family, and join us on Saturday, October 7!



Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Althea H. Creel BPR #: 023579 SSA ODAR 12 Tech Park Drive Middlesboro, KY 40965-2270 Ph: (877) 600-2851 Joseph A. Fanduzz II Law Office of Joseph A. Fanduzz BPR #: 026296 First Tennessee Plaza 800 South Gay St., Ste. 2250 Knoxville, TN 37929-9730 Ph: (865) 474-9907 John E. Eldridge Eldridge & Blakney, P.C. BPR # 006667 400 W. Church Ave., Ste. 101 Knoxville, TN 37901-0398 Ph. (865) 523-7731 Fax: (865) 544-2015

Chelsea C. Moore Law Office of Joseph A. Fanduzz BPR # 016693 First Tennessee Plaza 800 South Gay St., Ste. 2250 Knoxville, TN 37929-9730 Ph. (865) 474-9907 Ronald A. Rayson The Law Office of Ronald A. Rayson BPR # 013393 P.O. Box 10346 Knoxville TN 37939-0346 Ph. (865) 963-5890

October 2017

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Cathy Shuck East Tennessee Children’s Hospital

A FRIEND INDEED: HOW TO SUPPORT A GRIEVING CO-WORKER Two articles in last month’s DICTA offered insights on how to support yourself when you are dealing with grief. But how do you support someone else who is grieving? Most people must return to work shortly after a loss, even though they are still in the early stages of grief. Offering support to a grieving co-worker can be awkward at best and difficult at worst. In an excellent recent article in the Harvard Business Review,1 author Sabina Nawaz offers insights into how to support a grieving co-worker. Although every situation is different, Nawaz offers tips to help get over the awkwardness and reach out in a way that is meaningful. Nawaz groups the ways we can support someone who is grieving into two broad categories: Being and Doing. “Doing” is something that comes naturally to most lawyers. We organize meal deliveries, we cover motion hearings and meetings, and we make donations. Concrete actions come naturally to us. And they are certainly helpful ways to support someone experiencing a loss. For example, when my father was killed in a car crash several years ago, one of the attorneys at my firm worked with my assistant to cover everything on my calendar for the week. I made one phone call to let her know what had happened, and she took care of the rest. That act of Doing helped me to get through the initial shock and deal with my family responsibilities, without having to worry about missing deadlines or returning client calls. In my experience, the key to “Doing” in a helpful way is to relieve the person in need of having make specific requests or decisions, especially after a sudden death or other loss. If you know your co-worker needs something, just take care of it. “Being” can be harder for lawyers, but it is an equally important way to offer support. Being means simply being present and available to someone who is grieving. Here are some suggestions: Less is more: Reach out to let the person know you are thinking of them, but don’t do it in a way that requires an action or even a response from the person who is grieving. Just say, “I’m thinking of you,” or “I’m holding you in my thoughts,” or let them know that you’re praying for them. A short note, email, or voicemail lets the person know you care without requiring them to do anything. As anyone who has experienced a loss knows, it can be overwhelming just to deal with yourself and your family, let alone dealing with anyone else. Just “Be” for a moment: If you are offering support in person, say something and then sit quietly for a few moments. Maybe the person will say “thank you” and move on, or maybe the person needs to cry, or tell a story, or share a memory. Just allowing space for the person to respond to you – in whatever way works for them in that moment—can be helpful. If the person wants to talk, listen: Sometimes the person will just want to focus on work or on the task at hand, but sometimes the person will want to talk. Grief, it has often been observed, does not move in a straight line and the “right” time to offer something can be hard to predict. So if you can, just be available. I will be forever grateful to a law school classmate who happened to ask me about my mother one day several weeks after her death, and then stood patiently in the hallway

listening to me talk about her for over an hour. For whatever reason, it was extraordinarily helpful to me, in that moment, to have someone listen. Don’t force it, but be aware of listening opportunities if they occur. Don’t try to fix it: As lawyers, we are in the advice business. So it is very tempting to tell someone who is grieving what they should do, or what worked for you, or about the experience of someone you know. But grief isn’t something you can fix. If the person asks for help or advice, by all means offer it. But don’t burden the person with “help” that they may not want. If you need to fix something, fix dinner. Don’t ignore the loss: People often avoid acknowledging a loss because they are afraid of saying the wrong thing. While it is true that some sentiments are more helpful than others, simply acknowledging the person’s loss is almost always preferable to ignoring it. If you don’t know what to say, just say “I’m sorry about your loss.” And don’t think you are “reminding” the person of their loss. You don’t forget that you have lost a parent, a spouse, a child, or anyone important to you. You eventually regain your ability to function, but you never forget. As Maya Angelou said, “[a]t the end of the day people won’t remember what you said or did, they will remember how you made them feel.”2 Show your grieving co-worker that you care; that will be enough. 1 Sabina Nawaz, How to Offer Support to a Grieving Colleague, HARVARD BUSINESS REVIEW, April 3, 2017. 2 This quote has been attributed to numerous sources, see, e.g. http://quoteinvestigator. com/2014/04/06/they-feel (visited 9/10/17), but I like the version attributed to Maya Angelou, which one of my co-workers keeps taped above her desk.

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

October 2017



SOLO & SMALL FIRM PRACTICE TIPS By: Patrick Slaughter LaFevor & Slaughter

GETTING STARTED SETTING UP A PAPERLESS OFFICE This month we continue with our series about setting up your practice to allow you the freedom to work from anywhere on the planet, including – in my case – Walt Disney World. The first step in the process is to go paperless. The idea of “going paperless” was intimidating at first. There is so much hoopla over this process in the legal world right now. My take is that instead of going paperless you are really just learning to work with less paper. I did some research and reached out to a few folks. Ernie Svenson of “The Paperless Chase” was the single best resource I found for information on going paperless. You can find him at He also offers a subscription course called Law Firm Autopilot that is also worth checking out at Tell him I sent you. Ernie is a friend of mine. At the heart and soul of the paperless office issue are three things: 1) You have to decide where your digital files are going to live; 2) You have to decide how you are going to get the digital documents into their digital home; and 3) You have to decide how you are going to organize your digital space so that you can find things when you need them. The first thing to decide is what online repository you want to use to handle storing your files in the cloud. You are probably already familiar with these services. There are Dropbox, Box, iCloud, Sugar Sync, etc. We use Dropbox. All of these services are pretty inexpensive (particularly when you consider the cost of storing paper in either an office or storage unit). I chose Dropbox because of its ease of use. Dropbox works across PC and Mac platforms and is already incorporated into the Mac operating system. (We are a Mac based office.) I also like that Dropbox uses redundant backups in various data centers across the United States. Dropbox is pretty inexpensive. We spend about $100 a year for each user. Our plan provides for one terabyte (TB) of storage which is about 1024 Gigabytes (GB). Over the past four years we are up to a whopping 80 gigabytes. We have plenty of room to grow. You can also always buy more space when you need it. Dropbox just works for us. Whichever provider you decide to use, just make sure you know how their product works and what can screw up. You need to develop a plan to deal with whatever emergency or unexpected situation might come up, i.e. a file or document getting deleted inadvertently. Making sure you get all of your documents into the digital file is crucial to making everything work. You need to spend some time figuring out where all of your documents come from and then create a system to make sure all of the documents that come from each source wind up in your digital file. We figured out that our files come from the following sources: 1) we create documents ourselves; 2) we get documents in the mail; 3) we receive emails with documents attached; and 4) we receive faxed documents. We assign one person to make sure that everything ends up where it is supposed to. This person does all the scanning so that there is no confusion over whether something is scanned or not. This person receives all of the incoming mail and faxes before anyone else. They make sure everything is scanned and filed appropriately. Whenever we receive a document in email, that email is forwarded to the “scanner person” for them to file as well. In case you are wondering which scanner you should use, the industry favorite hands down is the Fujitsu Scansnap Pro. The scanner


will set you back around $500, but it is well worth it. Once you figure out where your files are going to live, you need to set up a structure for those files that makes it easy for you to find stuff. We set up a Client File Template that is a primary file for each client matter with several subfolders contained within. These subfolders are arranged by subject such as Court File; Pleadings, Motions, Orders, Discovery, etc. Then each time we open a new matter we can just copy the Client Template file with all of its subfolders contained within and rename it appropriately. Each user can file the documents they create in the appropriate place in the digital file. It’s important to establish a standardized naming convention to be used on every file and document. We use a date, client last name, description of the document to name our files. This way the files are automatically sorted by date by the computer and we know to which client the document belongs as well as what it is. It also makes it easy to use the computer’s search function to pull up whatever it is you need without having to go digging around to find something. There is probably a lot more to “going paperless” than what I’ve described above, but these were the first steps that we followed and the rest kind of worked themselves out through trial or asking a friend. I don’t have enough space to go into how you can insert your signature digitally into a pdf; redact documents; bate stamp documents without developing a sprained wrist, etc. However, I will say that I haven’t found anything yet that I couldn’t accomplish with an electronic file as opposed to a paper file. Dedicate a Friday afternoon to deciding which service to use to store your files. Then figure out a system to make sure you get everything in the file. Do not expect it to be perfect. Just get started. You can always adjust and edit along the way and don’t be afraid to ask for help. Soon you will be blasting off into hyperspace heading to the world of Tomorrow.


October 2017

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

THE FUTURE IS NOW From time immemorial, every year around the first or second week of October, a shudder runs through the Knoxville Bar as the class of [insert year here] gets the results of the July bar exam. I remember my year like it was yesterday. I didn’t actually know what day the results were going to be published. As a later-in-life attorney, I did not have a social media account so I could watch my classmates chatter. Plus, my year, the Tennessee Board of Law Examiners was particularly good at hiding the publication date somewhere on its website. So, that particular day, I just went to work because that is what most lawyers do. They work. It took three different attorneys popping in to tell me that no one at our Firm had ever failed to pass the bar exam before I started to catch on to the fact that the results might be announced soon. To this day, I can’t exactly remember how I found out that I had passed. I do, however, remember that, a couple of hours later, our Firm’s managing shareholder came by my office and asked me if I had heard the news. Apparently, the Board of Law Examiners had just discovered that the number of students taking the Bar Exam with me at the University of Tennessee had exceeded the maximum under rules. They were going to have to disqualify the results for everyone who took the Bar Exam in that room and make them re-take the exam. Keep in mind that my room did have a number of “irregularities.” For example, after I and my colleagues were about 90 minutes into the essay portion of the exam, the on-site examiners told us to stop. They explained that the people administering the exam in Nashville had discovered an error in fact pattern #1. They then proceeded to read to us what the fact pattern should have been and told us we could go back and revise our answers to fact pattern number 1, if we wanted to do so. It was nice to have options. Not since the invention of the type writer has the sound of typing been so loud or anguished. Then, after the first break, someone’s computer stopped working. We all had to wait while the tech folks tried to bring the computer back to life. My classmate ended up having to finish the bar exam by hand (Don’t worry. She passed). If our nerves were not already fried, they were by then. My laptop died the day after the exam. When I took it to the Apple store, the Genius at the Genius Bar asked one question: “What the *$%# were you doing with your laptop?” Apparently, the letters on the “N,” “R,” and “S” keys were completely rubbed off, and the space bar was as non-responsive as your brother-in-law after Thanksgiving Dinner. You should also keep in mind that I had not seen the UT v. LSU game the weekend before. (Seriously, how did 13 defenders end up on the field?) It took more than one attorney and a review of the video clip of the last play of the game on before I started to come back off the edge. Pranking the new associate is a right of passage at our Firm. Some of my colleagues are particularly good at the fake e-mail mimicking the bar-results announcement. Another one of my colleagues removed everything from an associate’s office (literally including the pictures on the wall) and set it all up in an empty office across the hall. That is the danger of not being the last person to leave the office. Apparently, we aren’t the only ones. Multi-national law firm, Weil, Gotshal & Manges sent out an e-mail to all associates announcing that the firm was going to the European model of banning work-related e-mail from 11:00 p.m. to 6:00 a.m. on weekdays and on Saturdays, Sundays, and during associate vacations.1 Pranked! October 2017

Not to be outdone, in 2001, the Denver Bar Association ran an article explaining the Colorado Supreme Court’s new rule intended to address the trend toward “business casual” in the legal profession: attorneys would be required to wear uniforms to court. Men were required to wear tan slacks in the summer and gray flannel in the winter. Women had to wear plaid skirts and white bobby sox.2 Pranked! It may seem like a prank, but it isn’t. In July 1823, the Tennessee Supreme Court published a list of books which all students must have read before they would be allowed to sit for the bar exam. The list included light reading like Blackstone’s Commentaries, Coke’s Institutes; Chitty on Pleading; Adams or Remington on Ejectment; and Buller of Siliveras’ Nisi Prius.3 Needless to say, the people were not thrilled, and four months later, the General Assembly passed a resolution suspending this requirement.4 A couple of weeks ago two, newly hooded graduates of the University of Tennessee College of Law joined our Firm. In a couple of weeks, we will get their bar exam results and welcome them as lawyers. After all, no one from our Firm has ever failed to pass the bar exam. We will get to introduce them to the Tennessee Supreme Court and perhaps get a selfie with Supremes. We will take them to court and introduce them to our colleagues of the bar. There may be a prank or two. But, all pranks aside, on the shoulders of our Firm’s new associates and those who will take the oath with them, rests the legacy and the future, of our Firm and also the Knoxville Bar. For being willing to protect the legacy of hundreds of years of legal tradition while shaping the future of the legal profession for decades to come, each one of these new attorneys is thankworthy.

Susie Poppick, Law Firm’s April Fool’s Joke About Work-Life Balance Backfires (Apr. 2, 2015), (last visited Sept. 11, 2017). 2 April Fools! Three Great Law-Themed Pranks from the Past (Apr. 1, 2010), http://blog. great-law-themed-pranksfrom-the-past/ (last visited Sept. 11, 2017). 3 Lewis L. Laska, Our Sordid Past: Anecdotes of Tennessee’s Legal Folklore, Tenn. B. J. 26 (May/June 1995). 4 Id. 1




Dissenting opinions can have great value and a powerful impact on the legal system. Former U.S. Supreme Court Chief Justice Charles Evans Hughes famously wrote that a dissent is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”1 A dissenting opinion can sharpen and improve the writing of a majority opinion. Justice Ruth Bader Ginsburg writes that “there is nothing better than an impressive dissent” to cause the author of a majority opinion to improve her legal analysis.2 The first Justice John Marshall Harlan earned the moniker “the Great Dissenter” for filing solitary dissents in civil rights cases. Some of his language became constitutional lore, such as his famous dissent in Plessy v. Ferguson: “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”3 Justice Louis Brandeis wrote a persuasive, oft-cited dissent in Olmstead v. United States, a Fourth Amendment case, “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously….If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”4 Over the past year, Tennessee Supreme Court Justice Sharon Gail Lee – currently the lone representative on the Court from the Eastern Grand Division – has filed dissents in the spirit of the first Justice Harlan and Justice Brandeis. Her dissents have questioned majority opinions that provide inadequate constitutional protection against unreasonable searches and seizures, deprive parents who are facing termination of their rights the effective assistance of counsel, and erect barriers for inmates’ access to the courts. Unreasonable Searches and Seizures When the State violates a citizen’s right to be free from unreasonable searches and seizures


guaranteed by the Fourth Amendment to the U.S. Constitution and Article I, Section 7 of the Tennessee Constitution, courts suppress evidence under the exclusionary rule. In two recent decisions, the Tennessee Supreme Court did not apply the exclusionary rule. Instead, the Court adopted a limited good faith exception to the exclusionary rule and upheld the police practice of a warrantless “knock and talk” even though the defendant posted “No Trespassing” signs on his property

In the first decision, State v. Reynolds, a police officer obtained a blood sample from the defendant without a warrant.5 The Tennessee Supreme Court held that police violated the defendant’s rights under both the state and federal constitutions.6 Despite this violation, however, the Court would not suppress the evidence.7 The Court adopted a good-faith exception to the exclusionary rule when police conduct a search in good-faith reliance on binding precedent that is subsequently overruled.8 The Court contended that, like the federal exclusionary rule, the purpose of the exclusionary rule under the Tennessee


Constitution was to deter police misconduct.9 It found that the police officer in Reynolds obtained the blood sample in “objectively reasonable good-faith reliance” on binding judicial precedent that the U.S. Supreme Court had overruled after police had obtained the evidence.10 Thus, the Court held that suppressing the blood test results would not further the deterrence objective of the rule.11 Justice Lee wrote a clear and forceful dissent. She agreed that the warrantless blood draw violated the defendant’s constitutional rights.12 She contended, however, that adopting the good faith exception to the exclusionary rule “undermined the integrity of the judicial process,” because the Court had created “a category of cases in which a police officer may violate constitutional rights with no consequences.”13 She argued that the Court could and should, as it had in the past, interpret the Tennessee Constitution as providing greater protections than the U.S. Constitution.14 For Justice Lee, the exclusionary rule did more than deter police misconduct.15 It promoted judicial integrity, held the government accountable for its wrongs, and provided a remedy for the violation.16 Justice Lee acknowledged the great costs associated with excluding evidence in such cases.17 However, the Tennessee Constitution compelled our courts “to maintain a remedy for violations of those protections, and to promote judicial integrity and fairness.”18 In State v. Christensen, law enforcement officers entered the defendant’s property without a warrant, despite multiple “No Trespassing” signs posted at the entrance of his property.19 When police stepped onto the defendant’s porch, they smelled methamphetamine and asked the defendant for permission to enter.20 When the defendant refused, police forced their way inside his mobile home and discovered a methamphetamine lab.21 The defendant asked the court to suppress the evidence as an unreasonable search and seizure.22 The majority held that the police officers’ entry onto the defendant’s property without a warrant was constitutionally permissible despite the “No Trespassing” signs.23 The October 2017

COVER STORY By: Emily H. Harvey Senior Law Clerk, Hon. Frank G. Clement, Jr., Tennessee Court of Appeals, Middle Section

David L. Hudson, Jr

Director of Academic Affairs & Legal Writing, Nashville School of Law

Court contended that a “No Trespassing” sign, standing alone, was too ambiguous to remove the implied invitation for the general public (which includes police) to enter the property.24 To remove the ambiguity, a homeowner would need to erect a fence or some other barrier along with the sign.25 Justice Lee dissented, arguing that the maxim “every man’s house is his castle” applies “whether the house is a castle, a cottage – a mansion or a mobile home.”26 She acknowledged that, while visitors generally have an implied invitation to enter another’s property, that invitation can be revoked.27 Moreover, she contended, “Revocation of implied consent to enter one’s property should be available to all – not just to those citizens who can afford to erect a fence and a gate and live in an area where this form of barricade is possible.”28 The defendant’s “No Trespassing” signs clearly communicated his desire to keep visitors from entering his property.29 Thus, police violated the defendant’s constitutional rights when they entered his property without a warrant.30 Assistance of Counsel in Parental Termination Proceedings Tennessee law provides that a parent is entitled to legal counsel at all stages of a parental termination proceeding. However, the Tennessee Supreme Court determined in In Re Carrington H. that this statutory right to counsel does not include the right to the effective assistance of counsel.31 Justice Lee filed a dissent in part on the question of the effective assistance of counsel. She recognized that “providing counsel for an indigent parent but not requiring counsel to render effective representation is an empty gesture.”32 The right to counsel is of “little value unless we hold counsel’s performance to some standard of effectiveness.”33

vote based on its reading of the statute, which provided in part: “Except as provided by subsection (b), on notice of assessment of any fees, taxes, costs and expenses under this part, a clerk of a court may not accept for filing another claim by the same inmate until prior fees, taxes, costs and other expenses are paid in full.”35 In her dissent, Justice Lee employed a common-sense reading of the statutory language, including the key words “under this part.” Mr. Hughes’ divorce action was not related to the underlying purpose of the statute, which was designed to curtail frivolous inmate claims. A divorce is not a frivolous lawsuit. Justice Lee reasoned that the majority engaged in a “misapplication of the act,” and that resulted in a “gross injustice” to Mr. Hughes.36 Justice Lee’s opinion showcased her concern for access to the courts. Conclusion In the past year, Justice Sharon Lee has written a series of clear and powerful dissenting opinions. She has also exhibited an admirable independent streak in other cases, showing a different, and one might argue, a more nuanced understanding of the fightingwords doctrine37 and the rights of parolees.38 Hopefully, Justice Lee’s presence on the Court will consistently drive it to sharpen its legal analysis and “to strive for a better, clearer result.” But, will her dissents appeal to the “intelligence of a future day?” Only time will tell.

1 Charles Evans Hughes, The Supreme Court of the United States 68 (1936). 2 Ruth Bader Ginsburg, The Role of Dissenting Opinions, 95 Minn. L. Rev. 1, 3 (2010). 3 163 U.S. 537, 559 (1896) (J. Harlan, dissenting). 4 277 U.S. 438, 485 (1928) (J. Brandeis, dissenting). 5 State v. Reynolds, 504 S.W.3d 283, 289 (Tenn. 2015). 6 Id. at 309. 7 Id. 8 Id. at 312. 9 Id. 10 Id. at 314. 11 Id. at 312-313. 12 Id. at 315 (Lee, J., dissenting).

Id. at 315-16. Id. 15 Id. at 319. 16 Id. 17 Id. 18 Id. 19 State v. Christensen, 517 S.W.3d 60, 64 (Tenn. 2017). 20 Id. 21 Id. 22 Id. 23 Id. at 78-79. 24 Id. at 76. 25 Id. at 76-77. 26 Id. at 79 (Lee, J., dissenting) (quoting Weeks v. United States, 232 U.S. 383, 390 (1914)). 27 Id. at 80. 28 Id. at 79. 29 Id. at 82. 30 Id. at 84. 31 483 S.W.3d 507 (Tenn. 2016). 32 Id. at 540 (Lee, J., concurring in part and dissenting in part). 33 Id. at 542. 34 Hughes v. Tenn. Bd. of Probation and Parole, 514 S.W.3d 707 (Tenn. 2017). 35 Tenn. Code. Ann. § 41-21-812(a). 36 Hughes, 514 S.W.3d at 732 (Lee, J., dissenting). 37 State v. Mitchell, 343 S.W.3d. 381 (Tenn. 2011). 38 State v. Turner, 297 S.W.3d 155 (Tenn. 2009). 13 14

Inmate Access to the Courts Inmate Reginald Dion Hughes sought to appeal the Tennessee Board of Probation and Parole’s latest denial of his parole.34 Mr. Hughes had unpaid court fines of just less than $50.00 from a divorce proceeding. A chancery court and the Tennessee Court of Appeals rejected his appeal because of these unpaid costs. On further appeal, the Tennessee Supreme Court narrowly affirmed by a 3-2 October 2017



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

WHY DID LINCOLN SAVE THE UNION? The greatest constitutional crisis in American history was the Civil War – the only time we’ve ever had to physically fight one another to resolve a constitutional debate. That debate, of course, was over slavery – if you have any doubt, simply read what the seceding states said themselves.1 Their desire to protect the institution of slavery led them to secede, and, ultimately to fire upon Fort Sumter only weeks after Abraham Lincoln’s first inauguration. However, for Lincoln, the decision to respond with military force was not about slavery, it was about protecting the Union. As Lincoln wrote to newspaper editor Horace Greeley, “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery.”2 In oft-quoted words, he went on to say: If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union.3 Let’s be clear: Lincoln was very much anti-slavery. Indeed, later in his letter to Greely, he noted that, “I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men everywhere could be free.”4 Only a month later, he issued his Preliminary Emancipation Proclamation. Still, Lincoln’s primary object in waging war was not to abolish slavery, but to protect the Union. To our modern sensibilities, this may seem backward. Indeed, one might be tempted to ask, “Why?” Why was saving the Union so important to Abraham Lincoln? I recently asked that very question of someone who knows: Dr. Charles Hubbard, the Executive Director of the Abraham Lincoln Institute for the Study of Leadership and Public Policy at Lincoln Memorial University. Charlie has written several books on Lincoln and the Civil War, and has been recognized, repeatedly, for his notable scholarship. He and I recently sat down for an interview on my public radio show, Your Weekly Constitutional. Here’s the takeaway: Lincoln believed in the American Experiment. That experiment was best defined by another great patriot, Alexander Hamilton, who began the Federalist Papers with the observation: It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.5


Lincoln realized the fundamental truth in Hamilton’s statement.

We, in this country, were trying something that had rarely been attempted before, and which had almost always failed: democratic self-government. Indeed, as Charlie notes, Lincoln called our nation “the last best hope of earth.”6 If the United States failed, humanity would fail. How did slavery fit into this equation? Could Lincoln really have preserved the Union without abolishing that evil institution? He had his doubts, dating back at least to 1858, when he famously quoted Jesus of Nazareth: “A house divided against itself cannot stand.”7 In 1862, just a few months after sending his letter to Greely, Lincoln told Congress essentially the same thing, in words that Aaron Copland would later set to music: Fellow-citizens, we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us. The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation. We say we are for the Union. The world will not forget that we say this. We know how to save the Union. The world knows we do know how to save it. We – even we here – hold the power, and bear the responsibility. In giving freedom to the slave, we assure freedom to the free – honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best hope of earth.8 To the eloquence of Lincoln, and the words of Jesus, I have but one addition: Amen. 1 See, e.g., Confederate States of America - Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union, Yale University, The Avalon Project, 2 President Lincoln, Letter to the Editor, A Letter from President Lincoln; Reply to Horace Greeley. Slavery and the Union The Restoration of the Union the Paramount Object, N.Y. Tribune, Aug. 22, 1862. 3 Id. 4 President Lincoln, Letter to the Editor, A Letter from President Lincoln; Reply to Horace Greeley. Slavery and the Union The Restoration of the Union the Paramount Object, N.Y. Tribune, Aug. 22, 1862. 5 The Federalist No.1 (Alexander Hamilton). 6 Abraham Lincoln, Second Annual Message to Congress, December 1, 1862, https:// 7 Abraham Lincoln, House Divided Speech, Jun. 16, 1858, part4/4h2934t.html. 8 Abraham Lincoln, Second Annual Message to Congress, December 1, 1862, https://


October 2017

AROUND THE COMMUNITY By: J. Spencer Fair London & Amburn, P.C.

ONE YEAR OF SERVING THOSE WHO SERVED FOR ALL OF US Despite the considerable amount of political discord in our current times, honoring our veterans is one concept that is universally accepted. However, while most agree with “supporting the troops,” many veterans of the United States military are struggling in life. Even beyond news reports of denied benefits and long delays for medical services,1 many veterans are battling additional serious issues such as unemployment, substance abuse, mental health problems, and homelessness.2 They are all heroes, but many of them are still seeking their hero’s reward. How can we make an impact as attorneys? As the readers of this article may or may not know, various local organizations joined together in 2016 to create a monthly legal advice clinic for veterans in the Knoxville community. The inaugural clinic was held on September 7, 2016, and has continued monthly since that time. Specifically, the clinic takes place on the second Wednesday of each month from 12:00 p.m. to 2:00 p.m. at the Knox County Public Defender’s Community Law Office, 1101 Liberty St., Knoxville, TN. We should celebrate the efforts of the Veterans’ Legal Advice Clinic over the past year because it involves attorneys sacrificing their time and utilizing their expertise to help those in need. It will never be enough to solve all of the aforementioned issues that many veterans are facing, of course, but any effort to help these heroes is worth undertaking. The Veterans’ Legal Advice Clinic is ultimately a product of community. The clinic was created as a combined effort of the Knoxville Bar Association, Legal Aid of East Tennessee, the Knox County Public

Defender’s Office Community Law Office, and the University of Tennessee College of Law. In addition to those organizations, numerous veterans’ services organizations and media outlets in the Knoxville community have offered invaluable assistance by spreading the word to veterans in need. Most of all, we would like to thank the 58 attorney volunteers who have sacrificed their time for this venture. Your service and commitment is greatly appreciated. I would like to list all of you by name, but Marsha only gave me 500 words. Because of your efforts, the Veterans’ Legal Advice Clinic has served 182 veterans in the Knoxville community over the past year. Finally, this article would not be complete without giving special recognition to Tracy Chain and Lacey Dillon from the Knoxville Bar Association, and Kathryn Ellis from Legal Aid of East Tennessee, who are the individuals truly responsible for the clinic’s operation. Thank you to all who have been involved and who will be involved in the future, as this clinic will continue indefinitely in its goal of helping veterans in the community. 1 See “Despite $10B ‘Fix,’ Veterans Are Waiting Even Longer to See Doctors” by Quil Lawrence, available at attempted-fix-for-va-health-delays-creates-new-bureaucracy See “Critical Issues Facing Veterans and Military Families” by SAMHSA (Substance Abuse and Mental Health Services Administration), available at veterans-military-families/critical-issues

barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month beginning at 5:00 p.m. at the Bistro by the Bijou (807 South Gay Street). The next meeting will be held on October 11, 2017. There are many opportunities to get involved, so please contact Barristers President Samantha Parris ( or Vice President Mitchell Panter ( for more information.

HUNGER AND POVERTY RELIEF The Hunger and Poverty Relief Committee’s annual coat drive will take place October 9-23.Coats will be collected at various locations around town as part of KARM’s Coats for the Cold Initiative. Please keep an eye on KBA publications and communications for more details! Contact Courtney Houpt ( or Meagan Collver ( with any questions.

SEEKING NOMINATIONS OFFICERS TO SERVE IN 2018: The following officers for the 2018 bar year are open for nominations: · Vice President · Secretary/Treasurer · (2) At-Large Executive Committee Seats Please notify Lacey Dillon at by Monday, November 6th, 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 2019 bar year. Candidates must be current KBA members. ACCESS TO JUSTICE: The next Veterans Legal Clinic is scheduled for noon on October 11, 2017, at the Knox County Public Defenders’ Community Law Office. If you are interested in signing up for the Veterans Clinic, you can do so on the KBA’s website: ATHLETICS This year’s charity golf tournament will take place on October 30, 2017, at Holston Hills Country Club. We are currently seeking sponsors for the event. If you or someone you know is interested in sponsoring, please contact the Athletics Committee co-chairs, Luke Ihnen ( or Jeremey Goolsby (jgoolsby@ October 2017

MEMBERSHIP COMMITTEE The Barristers are sponsoring a Welcome Reception for New Bar Admittees on Monday, November 6th from 5:30-7:00 p.m. at Calhoun’s on the River, 400 Neyland Drive. KBA Members are encouraged to attend this festive occasion to welcome the 2017 new admittees to our local legal community. One drink ticket will be provided to each KBA member and some light refreshments will be provided. Enjoy mixing and mingling with members of the bench and bar in a relaxed, informal environment. New this year, we are offering a CLE Program from 4:305:30 p.m. entitled “How to Start a Law Practice 101” featuring Michael J. Stanuszek, with the Stanuszek Law Group, PLLC before the New Admittee Reception. The program is approved for 1 hour of Dual CLE Credit. Register online at VOLUNTEER BREAKFAST The Barristers Volunteer Breakfast Committee is looking for a sponsor for the November 23rd Volunteer Breakfast. The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. that provides and serves breakfast at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, TN 37917. This is a great chance to partner with members of your firm, involve your staff in a group philanthropic effort, or serve the community with your law school classmates or friends. If you would like to sponsor or volunteer, signup forms are available on the KBA’s website. If you have any questions, please e-mail committee co-chairs Paul Wehmeier at (865) 546-7000 or Matt Knable at (865) 360-5044.



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

Honoring Lawyer Andrew Jackson in Bronze and Stone Not many attorneys can brag a larger than life statue of themselves, prominently featured in a public park, but as we well know, Andrew Jackson was no ordinary attorney. A statue of Andrew Jackson at the Battle of New Orleans occupies the center of Washington D.C.’s Lafayette Square, a sevenacre public park located directly north of the White House. According to the National Park Service, Lafayette Park has a rich, varied, and colorful history. It has been used as a race track, a graveyard, a zoo, an encampment for soldiers during the War of 1812, and for many political protests and celebrations. The surrounding neighborhood became the city’s most fashionable 18th century residential area - home to a number of Washington personalities including Lincoln’s Secretary of State William Henry Seward, and South Carolina Senator John C. Calhoun.1 Getting back to Jackson’s statue, a group of prominent senators and congressmen who dubbed themselves “the Jackson Monument Committee” met at Apollo Hall in Washington D.C. in 1848 to raise funds to erect an equestrian statue designed to emphasize Jackson’s military rather than political career. As the plan grew, so did its popularity and committee membership which included John Peter Van Ness, a former congressman from New York who later became the 10th mayor of Washington City; James Hoban Jr., son of the architect of the White House; Cave Johnson, postmaster general under President James K. Polk; and Benjamin B. French, commissioner of public buildings. When it was erected in 1853, Jackson’s effigy was the first bronze statue cast in the country, and the first equestrian statue in the world to be balanced solely on the horse’s hind legs. The sculptor, Clark Mills, had never seen an equestrian statue before, let alone one where the horse balances on two legs. Studies abound as to the supposed meaning of the position of horses’ hooves on equestrian statues. Some are plausible, while others border on the absurd. One study I came across that seemed as credible as any other, suggests that one raised hoof indicates the rider was wounded in battle, while two indicate the rider died in battle. When the rider is standing beside his horse, both were presumed to have been killed in battle.2 Jackson did not die in battle, hence it is safe to assume Mills gave no credence to such things. It is interesting to note that, at the time of receiving his commission, Mills was a little-known artist with modest experience, and to everyone’s amazement (both within and outside of the artistic community) was awarded $12,000 in 1848 to complete the project. Another interesting fact about Mills was that he was entirely self-taught, albeit, by the time he was commissioned to cast the statue, he was already recognized for his talents in and around Washington. After being orphaned in Onondaga County, New York, at the age of five, Mills had lived with a maternal uncle, who was cruel to him. At age 13, he ran away and worked on a farm. Several years later he settled in Charleston, South Carolina, where he learned the art of plaster modeling. In 1835 he developed a new and advanced method of making life masks. These masks were far more popular than death masks (which were obviously cast after a person had shuffled off the mortal coil) because they depicted the three-dimensional likeness of a person and their features exactly as they appeared at a point in their lives. He progressed to sculpting busts, first in plaster and then in marble. His marble bust of native son John C. Calhoun in 1844 won him immediate recognition and a gold medal from the mayor and city council of Charleston.3 The job took several years and suffered various setbacks, but eventually the 15-ton sculpture, cast in ten different parts, was completed. It was dedicated with much fanfare on the 38th anniversary of the Battle of New Orleans in 1853. An elaborate parade preceded the dedication. A distinguished group of gentlemen, including General Winfield Scott, Senator Stephen A. Douglas of Illinois, and the mayor and city council of Washington, marched to the entrance of the White House, where they were greeted by President Millard Fillmore and his cabinet. Joining a crowd of more than twenty thousand, they marched across the street to Lafayette Park for the dedication. Senator Douglas gave an address on the military accomplishments of General Andrew Jackson and then introduced Clark Mills. Mills was so overcome with emotion that he could not speak and only pointed to the statue, which was then unveiled amid cheers and the salute of General Scott’s artillery.4 In the end, the statue weighed 15 tons and is inscribed with the words ““Our Federal Union It Must Be Preserved.” Mills went on to make replicas of his accomplishment for New Orleans in 1856, and for Nashville in 1880. Beginning in 1860, the Statue of Freedom, which sits atop the United States Capitol, was cast in five main sections by Mills, whose bronze foundry was located on the outskirts of Washington. Mills passed away in his sleep in 1883 in his beloved Washington D.C. and in the shadow of some of his greatest works.5 3 4 5 (Congressional Record (1928), 1200 1 2



October 2017

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

WHAT WE HAVE HERE IS A FAILURE TO COMMUNICATE (OR MAYBE A FAILURE TO SUPERVISE?) Many lawyers rely heavily on their staffs when it comes to lawyer’s argument that his staff bore much of the blame for the failure to communicating with clients and maintaining client files. A recent prosecute the case and communicate with the client, noting that a lawyer disciplinary case before the Tennessee Supreme Court involved a lawyer is ultimately responsible for the shortcomings of the lawyer’s staff. facing potential professional discipline stemming, in part, from mistakes The most interesting aspect of the decision is the dissent from Justice made by his staff in terms of failing to communicate with clients and Kirby. According to Justice Kirby, the client’s complaints “arise from misfiling documents. The case raises some interesting questions about a the actions or inactions of [the lawyer’s] staff.” While acknowledging lawyer’s duties of communication, diligence, and supervision of nonthat a lawyer is responsible for the shortcomings of the lawyer’s staff, lawyer employees. Justice Kirby took the position that because the lawyer’s infractions were Garland v. Board of Professional Responsibility, No. E2016-01106based on his supervision of his non-lawyer employees, the Board should SC-R3-BP, 2017 WL 3440558 (Aug. 10, 2017), involved a lawyer who have proceeded under Rule 5.3. The Board’s failure to do so and its had what the dissenting opinion described as, a “high-volume practice decision instead to proceed on the basis of other rule violations caused focusing on family law.” The lawyer employed one full-time and one Justice Kirby to dissent. Rule 5.3(a) requires a partner in a firm to “make part-time employee, both of whom communicated with clients on behalf reasonable efforts to ensure that the firm has in effect measures giving of the lawyer. One of the lawyer’s divorce clients sought the lawyer’s reasonable assurance that the nonlawyer’s conduct is compatible with the assistance in a stepparent adoption, which required obtaining the exprofessional obligations of the lawyer.” Rule 5.3(c) provides that a lawyer husband’s signature to a consent order. After the signature was obtained, is responsible for the conduct of a non-lawyer that would amount to a one of the employees mistakenly placed the order in the client’s closed violation of the Rules of Professional Conduct if the lawyer “knows of divorce file instead of the open adoption file. Neither employee notified the nonlawyer’s conduct at a time when its consequences can be avoided the lawyer that the order had been signed. or mitigated but fails to take reasonable remedial action.” Ultimately, the Thus began a two-year process in which the client repeatedly majority rejected Justice Kirby’s apparent view that the Board’s failure to contacted the lawyer’s office seeking information about the status of the charge the lawyer with a violation of Rule 5.3 should have precluded a matter before the adoption was granted. A few months after the exfinding that the lawyer violated Rules 1.3 and 1.4. husband signed the consent order, the client emailed the office trying to Justice Kirby is absolutely correct that the Board could have and determine the status of the matter. Apparently, she received no answer. probably should have brought a 5.3 charge against the lawyer. Whatever Two months after that, the Knox County Chancery Court entered an measures the lawyer put in place to ensure adequate communication with order requiring the lawyer to prosecute the adoption matter. It was clients, they failed in a rather dramatic fashion, thus raising a question as only then that the lawyer discovered the to whether the lawyer complied with Rule awyers owe a duty to diligently pursue 5.1(a). By failing to address the possible misfiling of the consent order. Paperwork a client’s matter and to reasonably was then later mistakenly sent by the staff Rule 5.3(a) violation, the Board missed a to the client’s old address. The client sent golden opportunity to provide Tennessee communicate with a client. several emails and left several voice mails lawyers with guidance as to the types of over the course of the next few months measures a lawyer should adopt to ensure trying to determine the status of the matter. None were returned. Finally, that non-lawyer employees are engaging in conduct that complies with a member of the lawyer’s staff contacted the client and was able to the lawyer’s own ethical obligations. straighten out some of the confusion. Eventually, an adoption order was But the decision has at least two important takeaways. First, the entered. fact that a lawyer has delegated responsibility for a task to a non-lawyer The client filed a complaint against the lawyer, and the Tennessee employee does not excuse the lawyer if task is not completed. Lawyers Board of Professional Responsibility alleged violations of TRPC Rules owe a duty to diligently pursue a client’s matter and to reasonably 1.3 (diligence), 1.4 (communication), and 8.4(a) (violation of rules). communicate with a client. The fact that these things do not occur is Affirming the BPR’s determination, the Court held that the lawyer failed ultimately the responsibility of the lawyer, regardless of whether the to keep the client “reasonably informed about the status of the adoption lawyer has assigned the task to a non-lawyer employee, and the lawyer case and failed to promptly comply with her reasonable requests for may face professional discipline for the failure. information.” The Court also affirmed the Board’s conclusion that the Second, the case also should serve as a reminder that lawyers owe lawyer failed to act with reasonable diligence. The lawyer attempted to duties with respect to their non-lawyer employees. Rule 5.3(a) requires defend himself by noting that he conducted a review of his client files that lawyers make reasonable efforts to adopt measures to ensure that every 30 to 45 days. The Court concluded that the fact the client’s file non-lawyer staff are living up to the lawyer’s own duties of diligence, was inactive for long periods of time during the thirty-five months that communication, etc. The fact that the client in Garland was not able to the lawyer was handling the uncontested adoption case demonstrated speak to anyone in the office for a lengthy period of time suggests that the either that the reviews did not occur as frequently as the lawyer suggested measures that were in place to ensure communication were not adequate. or that the reviews were not effective. Finally, the Court rejected the


October 2017




NEW ATTORNEYS Tyler A. Crosby Tennessee Department of Veteran Services Austin B. Lucas

C. Parke Masterson, Jr. Andrew Vance Anne Weier Garner & Conner, PLLC

NEW LAW STUDENT MEMBERS Kristen D. Anderson Ruth Aramburu Kristine A. Bridges Colleen Conboy Cole Corder Peter R. Culpepper Monica Davis Alexander D. Edlin Lindsey E. English Jonathan A. Estes Colleen Foley Checovoia L. Foster Dave Hall Brook Heavener Mary Beth Hendershott


Charlotte A. Houser Erika Ivey Katie McCullough Rebecca H. McNabb Tippany D. Patrick Janaya Robinson Thomas B. Shank II Erin E. Steelman Jennifer Svilar Tyler S. Williams Macey Woldt Emma G. Wolfenbarger Samantha Warchol Bei Yang


October 2017

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

TO ENCRYPT OR NOT TO ENCRYPT? In May of this year, the American Bar Association updated its Formal Opinion 99-413 regarding lawyers’ obligations of confidentiality when emailing clients with Formal Opinion 477, “Securing Communication of Protected Client Information.” In the immediate wake of the Equifax data breach, it is not difficult to imagine why we should be concerned about electronic communications regarding sensitive materials. When Formal Opinion 99-413 came out in 1999, typical methods of communications certainly included email, but it was not nearly as widespread as it is today, and email was not accessed by the variety of devices that it is today: “desktop, laptop and notebook computers, tablet devices, smartphones, and cloud resource and storage locations.” Cybersecurity is also a bigger concern now than it was in 1999, and law firms are targets due to their possession of a high concentration of sensitive material that may not be safeguarded as well as it should be. In 2012, the Model Rules were updated to include “technology amendments,” requiring that lawyers “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” The ABA Commission on Ethics 20/20 explained that lawyers need to understand basic features of relevant technology and that a lawyer who does not know how to use email or create an electronic document “would have difficulty providing competent legal services in today’s environment.” The Model Rules were also updated in 2012 to require lawyers to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” In Formal Opinion 477, the ABA recognized the intersection of the obligation to keep up to date on changes in technology and to make reasonable efforts to prevent the disclosure of or access to confidential information. The ABA declined to require specific security measures but adopted an approach requiring the lawyer to develop a process to “assess risks, identify and implement appropriate security measures responsive to those risks, verify that they are effectively implemented, and ensure that they are continually updated in response to new developments.” Lawyers should regularly employ a fact-based analysis considering the following factors:

2. Understand How Client Confidential Information is Transmitted and Where it is Stored. Lawyers should understand how their electronic communications are created, where the client’s data is stored, and what options there are to access the information. This understanding is necessary to assessing the risk of inadvertent or unauthorized disclosure of client information. Where there are multiple devices and access points, each should be evaluated for risks and compliance.

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7. Conduct Due Diligence on Vendors Providing Communication Technology. When selecting a vendor to assist with communication technology, the lawyer should consider a variety of factors, which may include reference checks, credentials, security policies and protocols, hiring practices, the use of any confidentiality agreements, conflicts check system, and the method to resolve any violations of the vendor agreement.

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the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). The ABA further offered additional considerations, including:

1. Understand the Nature of the Threat. “Reasonable efforts” in matters involving proprietary information in highly sensitive industries (e.g., healthcare, banking, defense or education) will generally mean greater effort. October 2017

3. Understand and Use Reasonable Electronic Security Measures. Options to safeguard communications include using secure internet access methods to communicate, using unique complex passwords that are periodically changed, using firewalls and antivirus software, utilizing encryption software, and applying all necessary security patches and updates to communications software. 4. Determine How Electronic Communications About Client Matters Should be Protected. The lawyer should communicate with the client at the beginning of the relationship to discuss levels of security and methods of communication. The lawyer should also advise the client about which computer or email the client is using, as using computers or email accounts subject to the access or control of a third party (like an employer, or a spouse) could waive the attorney-client privilege and confidentiality of communications. 5. Label Client Confidential Information. Lawyers should mark client communication as “privileged and confidential” to alert anyone receiving the communication by mistake of the confidential nature of the communication. 6. Train Lawyers and Nonlawyer Assistants in Technology and Information Security. Supervising lawyers have the duty to make reasonable efforts to ensure that other lawyers conform to the applicable ethical rules and that nonlawyer assistants are acting consistently with the ethical duties of the lawyer.

Ultimately, if the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access to client information, the lawyer may transmit information relating to client representation over the Internet. If the nature of the information requires a higher degree of security, or if the client requires, the lawyer may be required to take special security measures.



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

TURNING FALL FAILURES INTO FALL FABULOUSNESS I have always loved Fall. To me, there is no better time of the year. The air gets cooler, and the days get shorter. I get to wear my favorite clothes… and boots! The trees in our area put on their magnificent show, turning to beautiful shades of yellow, orange and red. I have a birthday. And Knoxville comes alive when we hear the words, “It’s Football Time in Tennessee.” As much as I love it, though, I am best described as a “Fall Failure.” Except for a few birthday parties for Trace (and, sadly, since he is now a middle schooler, he doesn’t want any more of those), I really don’t do Fall well. My normally green thumb turns brown. The Fall flowers that I plant usually die within days. My Halloween decorations leave much to be desired, and my deck and planters continue to wear the effects of fake blood that I used on the jack-o’lanterns from Halloween a couple of years ago. And, as much as I love football, I have never mastered the art of the tailgate. A few years ago (and before I started working at UT, necessitating my working before football games), Hugh and I planned an “epic” tailgate. I worked for days preparing just the right food… caprese skewers with balsamic vinaigrette, ham rolls, chicken tenders, spinach dip, blood orange brownies, and assorted other things. I got a set of orange dishes, with matching cups, and various football-themed serving platters. I purchased a UT-themed cornhole set. I got the magnetic Power T’s for the car. I even convinced Hugh to drive “Red Velvet,” his 1975 Caprice Classic Chevrolet, to the game. Everything was perfect. Or so I thought. Then, things got dicey. In the two decades that Hugh and I have been together, I have driven “Red Velvet” exactly twice. Hugh makes Trace and me put towels on the seats before we sit down so that our pants don’t scratch the seats. To say he is particular about the car is an understatement. On that day, though, he let me back “Red Velvet” out of the garage so that I could load her massive trunk with our massive amount of stuff. Because of the car’s age and size, it takes two people to lower the top. As the top went down, the crunching began. With the overloaded trunk, there was nowhere for the top to go… and the glass window shattered as it hit my meticulously prepared tailgate, leaving glass chards in all of my containers and in any food that was not inside a cooler. The game had not started… but I had already lost. Undeterred, the next week I planned “epic tailgate – part two” but decided that Sweet P’s could make it so much easier. I purchased barbecue, a bunch of great sides, and their famous banana pudding. At our tailgate, my cousin Todd wanted banana pudding, but he worried about eating the last of the banana pudding when others (including Trace, age 4) had not had any. I told him not to worry… I had packed plenty. As Todd ate the last bite of one of the large containers, Trace decided he wanted some. Hugh started opening the remaining containers….. all of which were potato salad. Trace still blames Uncle Todd for eating all the banana pudding in what our family affectionately calls “Banana Pudding-gate.” As much as I love it, I do not do Fall well. I’m lousy with gardening. I’m lousy with tailgating. And I am always at a loss as to fun things to do with my family. I asked around for some ideas – some “life hacks” – to make my Fall Pinterest-worthy. Mary Beth Maddox insists that I am doing the tailgate wrong. “You know my tip – go to the tailgate, socialize, and soak up the atmosphere, and then drive home with no traffic as the game starts and watch it in your comfy clothes (unless you are sitting in the box!)” Crista Cuccaro suggests an alternative to the football tailgate. “Our favorite fall activity is going to Tennessee Soccer games. The Regal Soccer Stadium is located off of Neyland, and the backdrop is the scenic bluff across the river. The games are free to attend and are very family friendly – plus, the team is off to a great start this season!” LeAnn Mynatt suggest that Fall is best spent enjoying our beautiful mountains. “As a native Knoxvillian, I’ve grown up going to Cades Cove in the Smokies, especially in the fall: camping, picnicking, hay rides. Fall is when the humidity’s gone, when they exhibit how to make molasses, and when campfire smoke permeates the air. Now I take my nephews. We throw football, skip rocks in the creek, and grill burgers. There’s nothing better.” Justin Martin, though, suggests that the best Fall evenings are spent a little closer to the hearth. “My favorite Fall evening is spent at home with a fire. Throw in chili, football, s’mores, and kids, and life is pretty much perfect.” These are some great suggestions. With a little luck and the helpful advice of friends, perhaps I will master Fall this year. Happy Fall, y’all!



October 2017

October 2017



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


CLEARING OUT THE CLUTTER There are few things I enjoy like an organized closet or desk. The act of purging unneeded things helps me to feel freer and more focused. The same is true with the junk in my head. When I feel unfocused, sluggish, or anxious, I know it’s time to take peek inside and see what’s going on. When I do, I always find old opinions and beliefs that are no longer useful. Here’s a list of my top three: Worry I’m a planner. Unfortunately, I’m also a worrier. Too often planning is just my attempt at soothing my worry by pretending I have everything under control. Of course, that’s not true and trying to keep up with my plans is exhausting. I’ve begun to realize that worry isn’t something that serves me well. It wastes my time, and keeps me from enjoying large chunks of my life. Unfortunately, managing worry isn’t as simple as deciding not to do it anymore. (I wish…) I know I rely on worry to avoid a feeling I dislike more. For me, that’s usually the feeling of being out of control. Rather than admitting that whatever I am fretting about is ultimately not up to me, I let my worry run and run and run. The truth is, however, that if I just acknowledge that I’m feeling out of control, it ultimately passes. I save myself the time and energy I devote to worry, and can put my focus elsewhere. Worry also allows me to feel like I’m doing something, when I’m not. Obsessively researching how much money I need to retire comfortably without ever putting a penny in the bank doesn’t get me any closer to my goal. Spending hours considering organizational systems doesn’t get rid of the unworn clothes in my closet. Yet, planning and worrying can make you feel so productive. Instead of getting bogged down in worry, I try instead to recognize it quickly for what it is. Then, I decide for myself what parts of the situation I can take action on and which ones I can’t. I give up those things that aren’t in my control and instead focus on what I can do right now to move forward.

Overwhelm Being overwhelmed has become a badge of honor in our society. We’re too busy, too tired, and struggling to get it all done. It’s almost as if managing our time well means we aren’t successful. “I don’t even know where to start.” “I’ll never get it all done.” “There’s just too much to do.” I tell myself these things endlessly. No wonder I feel overwhelmed! Then, I end up feeling stuck and my to-do list gets even longer. I deal with overwhelm by first reminding myself that there is almost nothing in life I have to do. Most things are choices. Those choices have consequences, sometimes serious ones, but they are still choices. Then, I make a list of what I want to accomplish, without editorializing about them. (No “stupid meetings” or driving “all the way across town” for a baseball practice.) I ask myself whether the list is physically doable; if not, I reprioritize those things that aren’t as important. Then, I replace the story that I’m overwhelmed with something new. Some possibilities are: “Anything I get done is better than nothing.” “I don’t have to get it all done. I just want to make progress.” “I can prioritize what most needs to be done and the rest can wait.” Does overwhelm still creep in? Sure. But, I don’t spend my days staring at my computer screen or my calendar and wondering where to start. I can feel it happening, and I know how to get myself back on track. Just like clearing your desk, clearing your head of old ideas that are weighing you down can leave you feeling free and focused. What thoughts can you let go today?

Fear of Failure I’ve long struggled with perfectionism. It’s probably no surprise, then, that I have a wicked fear of failure – something I know can cause me real problems. Like worry, the fear of failure offers the illusion of safety. “If I stay right here, where I know what I’m doing, I won’t fail. I won’t be uncomfortable.” The cost of this safety, however, is steep. It means staying stuck right where I am forever. I’ve decided that price is too high. Now, I try to respond to the nervousness that comes with stepping outside my comfort zone the way I do when I see the same fear in my children. “I don’t want to take my training wheels off. I might fall.” “ You might, but you’ll be fine. Soon you won’t even need them.” “I don’t want to go to that event with all those strangers. I might make a fool of myself.” “That’s possible, but not likely. But whatever happens, you will be fine.” Failure is always a possibility, but one we survive. Acknowledging that fact is often all we need to face down our fear.



October 2017

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

THE CREDIBILITY GAP “We find the Defendant’s testimony not credible.” If you are reading an opinion and you come across the preceding sentence, you are pretty sure what is coming next. The Defendant is in for a long afternoon. More so than any statute, case law, or regulation on the books, I would argue that credibility is the primary factor in determining whether a person will win or lose in a lawsuit. Sure, you can have the most honest client in the world and, if the law is against them, they can still lose (arguably, that case should have settled). However, even if your legal theories are sound, if people think your client is a liar, it will be hard for them to come out well. As practicing lawyers, I think it should be a given that we are truthful (sadly, that is not the public perception), but even an honest lawyer has to deal with credibility issues as relates to our ability to accurately evaluate and opine on matters. If you are an attorney who constantly assesses situations incorrectly, you are an attorney that people will stop hiring. On the other hand, if you consistently predict outcomes well and give sage advice, clients will be more likely to return and refer others to your practice As anyone can tell you, it takes a lifetime of consistent work to build credibility and it can all be wiped away in a fleeting moment. Take, for instance, the credibility I have with my wife when it comes to raising our children. I like to think my wife trusts me and respects my decision making. She married me, she hasn’t divorced me, she allows me to participate in most decision making for the family and, on occasion, she will seek my input. One area in which credibility comes into play in our marriage is in decisions regarding the children. We agree on almost everything. We want to raise confident, hard-working, honest and altruistic children with open minds and big hearts. We encourage and nurture them as best we can while also allowing opportunities for them to fail. We present a united front supporting each other when the kids challenge one of us. However, there is one area of child rearing in which we occasionally butt heads – risk taking. I tend to want our children to take more risks and the occasional bump or bruise does not concern me. I recall all of the stupid things I did as a child that threatened life and limb and I want my kids to have the same stupid experiences. My wife, the true nurturer of the family, would protect them a little bit more. She doesn’t want them to live in a glass bubble and she is fine with a cut or scratch, but she gets nervous anytime they engage in an activity that could produce real injury. We have had debates over this issue several times. So it was, against this backdrop, that we were sitting in the media room one Friday night in early August when my wife got a text on her phone. She immediately groaned. The mother of our son’s best friend was planning a birthday party for her daughter. They wanted to keep it small and were only going to invite a few kids, including my son (age 12) and daughter (age 8). Sounds great so far. The kicker – The party was going to take place at an indoor trampoline facility. My wife hates those places. She has heard of too many kids getting injured in them. In her mind, trampoline facility is synonymous with Thunderdome (two kids enter, one kid leaves). For my part, I fondly remember the trampoline my family owned when we were kids. My dad, inexplicably, placed it right next to the woods in our backyard on a slope and the fun was watching friends come over and see how long they could stay on the trampoline before flying into the trees. October 2017

In any event, Carol Anne expressed great reservation about letting either of our children go. I laid it on thick. I decided that this was where I was going to make my stand. “We have to let kids be kids. They’ll be fine. What’s the worst that could happen?” My wife countered with “What if something does happen. The first week of a new school is coming up. I’d have to cancel our trip to New York. We’d have to give up the Hamilton tickets we purchased.” In the end, my credibility was just enough to carry the argument (that and she didn’t want to disappoint the kids) and she agreed to let them go. She remained nervous, a situation that did not improve when she had to sign the release a few days later that mentioned “risk of death.” The day came and I dropped the kids off at the party, and went into the office to get a few hours of work done. Within thirty minutes, my wife texted me a picture of Janie’s swollen ankle which she injured while jumping onto one of the trampolines. I turned the car around to pick up our daughter. She couldn’t flex her ankle or put any weight on it. This did not look good. I stayed optimistic. “It’s probably just a sprain and will be fine when the swelling goes down.” A day later, the swelling had not gone down and that evening the orthopedist confirmed that my daughter had fractured her ankle in two places. Seven weeks later, we are out of the cast and almost done with the walking boot. Adjustment to a new school has gone well. My wife did miss the New York trip, and we took a bath trying to sell our Hamilton tickets. Janie appears to be no worse for the wear, but my credibility is a dumpster fire. I have gotten very good at saying “whatever you think is best” when my wife expresses an idea about the kids’ well-being. I’ll get back there one day, but it will be a long road.



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

Phil Hampton

Founder and CEO, LogicForce Consulting

IOS 11 (BETA VERSION) & IPAD PRO – LAPTOP REPLACEMENT AT LAST? Ever since Steven Jobs released the first iPad in April 2010, Apple has claimed that the iPad will ultimately replace the laptop computer for both business and personal use. That prediction has yet to come to pass, and, in fact, iPad sales have been decreasing since its sales apex in 2013. Now, however, Apple has released two new iPad Pro models, and it has released a Beta (trial) version of iOS 11. Apple now claims that when iOS 11 is combined with the iPad Pro models, it truly becomes a “laptop killer.” We have two observations about these developments. First, we are still not convinced that an iPad can be a complete laptop replacement. Second, since we are the suspicious type, we believe Apple has created the new iPad Pro models and iOS 11 in an effort to convince buyers to ditch their old iPads, and buy a new iPad Pro -- since the compelling features of the new iOS 11 certainly work best with an iPad Pro. First, let’s talk about the iPad Pro models. After seven years, Apple, with these new pro devices, has taken a giant step forward in its attempt to make the iPad a laptop killer. The 12.9” iPad Pro is not significantly different from previous 12.9” versions, but it does have a faster processor and some other bells and whistles. The big change is in the smaller iPad Pro. The smaller iPad Pro is now a 10.5” model rather than a 9.7” model. The 10.5” is exactly the same overall size as the 9.7”, but it has a thinner bezel, so it now has a 10.5” screen rather than a 9.7” screen. Both models have a long battery life, significantly longer than most laptop computers. Apple’s new A10X processor is extremely powerful and fast, and it is very stable when combined with iOS 11. However, both models are expensive. The 10.5” model sells for $649 for a 64-gigabyte model, and the 12.9” model costs $150 more than the 10.5”. In order to take full advantage of the capabilities of the Pro models and move it closer to a laptop replacement, you will need to buy a keyboard (cost approximately $159) and the Apple Pencil ($99). It won’t be long until you have $1,000 in your potential laptop killer. We believe you can buy a very, very good laptop computer for $1,000. Now, onto iOS 11. iOS 11 is still in its beta version, but anyone can download the beta version and give it a try. There are numerous great features of iOS 11, and it is a substantial improvement over previous iPad operating systems. We experienced a slight learning curve when we tried it out, but the curve was not so steep that it prevented us from taking advantage of these new features. The biggest change in the operating system is probably in the control center. The look is completely different when you swipe the screen to the right. You get an almost unlimited number of “toggles” you can add to the control center screen for easy access. But don’t get carried away; if you add too many it will be hard to find the ones you use most often. Bill’s favorite new feature is the Notes app. He uses it a lot in his day-to-day personal and work life. Notes now supports drag and drop, a built-in scanner, handwriting markup tools, and handwriting recognition. You can tap on the home screen with your iPad pencil, and it will automatically open up Notes. You can then jot down notes, and they will be converted into text -- as long as your handwriting is not too terrible. Another great feature is the brand new Files app. On older iPad and iOS versions, you could not easily manage files stored on the iPad


or on Cloud services. Now there is a dedicated app that allows you to manage your file storage and easily find the files you need, when you need them. Another neat feature is the new “dock.” It sits at the bottom of the screen ready to pop back up when you need it. You can use it to drag one app over another, for example. The “floating” app will be in a separate window, or you can snap it to the side. You can also drag and drop content between apps, which can be very handy, and is “laptop-like.” There are many more neat, new features in iOS 11 when combined with the iPad Pro. We really like them a lot, but we still cling to our laptops. There are many iPad apps that do everything we need to do for office and work, but we do not feel we can meaningfully work without a mouse and menus. iPads will not allow the use of a mouse. We think “mouselessness” is a real draw back. We just cannot get used to all the mouseless pinching, holding, swiping, dragging and all that stuff. Maybe this is just an indication that we are old fossils and can’t get used to the new interface metaphors, and the new ways iOS 11 and the iPad Pro do things. We understand the power, and the ability is there. We just don’t think it works as well as the traditional menu-driven mouse-centered interface. But, the new iPad system is getting there. If you can afford it, give it a try. See you next month.


October 2017

BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations. Email submissions to by the 10th of each month. ANNIVERSARY CELEBRATION Plan now to attend the UT Legal Clinic’s 70th Anniversary Celebration on Friday November 17, 2017, from 7-10 p.m. at The Emporium (100 S. Gay Street). The event will honor those who have served the Legal Clinic as students, staff, and faculty and pay tribute to our 70 year legacy of legal representation. The event is free but please register online. BEST LAWYERS IN AMERICA FOR 2018 Kramer Rayson is pleased to announce that fourteen of the firm’s twenty-seven attorneys were recently selected by their peers for inclusion in The Best Lawyers in America© 2018. Two of the attorneys are being given the honor for the first time. In addition, Best Lawyers named four of the firm’s attorneys as “Lawyer of the Year” in their respective areas of practice. Lewis Thomason is pleased to announce its Knoxville attorneys that have been selected for inclusion in The Best Lawyers in America® 2018: Leslie F. Bishop, John J. Britton, David A. Draper, Lawrence F. Giordano, Janet S. Hayes, Benjamin W. Jones, John King, Richard W. Krieg, Sarah Y. Sheppeard and R. Loy Waldrop, Jr. MGC is pleased to announce that Joshua Wolfe has been included in the 2018 edition of Best Lawyers in America for his work in construction law. Wolfe practices litigation, employment and workers’ compensation in the firm’s Knoxville office. He is a member of the Tennessee Bar Association, Knoxville Bar Association, Hamilton-Burnett Inns of Court and Federal Bar Association, where he is as a Past President. LEGAL AID ATTORNEY RECEIVES STATEWIDE HONOR Legal Aid of East Tennessee (LAET) is proud to announce that staff attorney Christina Magráns-Tillery has received the 2017 New Advocate of the Year Award. This award, given annually by the Tennessee Alliance for Legal Services (TALS), recognizes individuals who have been with a legal services program for five years or less and “who use their legal skills in an active, creative way that produces outstanding benefits for individual clients and the communities in which they live.”

October 2017

RED MASS SCHEDULED Bishop Richard F. Stika extends a special invitation to those serving in the legal and law profession to join him for the annual “Red Mass” on Sunday, October 8 at 11:00 am at the Cathedral of the Most Sacred Heart of Jesus at 711 S. Northshore Dr. in Knoxville. As a time honored tradition of the Catholic Church, the Red Mass is celebrated to honor and to pray for our judges, attorneys, law school professors, students, and government officials, and to invoke the guidance of the Holy Spirit upon all who serve in the judiciary and legal profession. Please direct questions to Paul Simoneau or 865-862-5753. LEGAL CALL-IN SHOW Knoxville has a new legal live television call-in program and you can be a part of it! WVLT Local 8 LawCall will air Sunday night at 11:35 right after the news. The Producers say the show will cover such varied topics as divorce, traffic accidents, careers in the law and bankruptcy, along with many others. There will be a new topic each week. The station has partnered with The Law Offices of Ogle, Elrod and Baril to act as the legal hosts of the program. They are also underwriting this public affairs show. The host will be local broadcaster Sara Mitchell. If you would like to be a guest or have any questions please contact the producer PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association will hold monthly meetings at the Blount Mansion Visitors Center at noon: October 12, Daniel A. Sanders, of the Knox County Law Director’s Office, will offer Understanding of Tennessee Tax Foreclosure; and November 9, Chris W. McCarty of Lewis Thomason, will present What Is a Hostile Work Environment? A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at or (865) 637-2442 for additional information and/or lunch reservations.


2,870 sq ft 2nd floor office space with large reception area, 5 private offices, board room, two large work-rooms/ offices, common rest rooms & kitchen/ break room with one other tenant on the floor. Zoning C-3, Office Space Class B. Excellent high-visibility location with views of downtown Knoxville. Other tenants are a late-afternoon/evening youth music school downstairs (sound-isolated), and a single attorney. Ample parking and easy freeway access. An additional 1,500 sq ft of adjacent space is available if desired. Contact Frank Graffeo at 525-6806.

Furnished office space available in West Knoxville. Convenient to I-40 and Downtown. Quiet atmosphere perfect for sole practitioner or mediator. Contact Dana Holloway at Holloway Law & Mediation Center. (865) 719-1644 or (865) 643-8725

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

TN BAR FOUNDATION LEGAL HISTORY PROJECT ONLINE The Tennessee Bar Foundation is pleased to announce that its 100+ video interviews of senior Tennessee lawyers and retired Supreme Court justices are now available on the internet. The Legal History Project’s complete collection has been posted on a YouTube channel. The Project’s webpage, legal-history-project/ lists all interviewees. The interviewees, from across Tennessee, recount personal biographical information, significant legal topics dealt with during their careers, as well as the important social and political issues of their day. The Project continues to conduct interviews, so check back frequently to see who’s been added.



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

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

October is my favorite month. It always has been, and not just because my birthday is in the middle of it. The air gets cooler, the colors change, football season is in full swing, and the month is topped off by Halloween. Homecoming celebrations are held all at high schools and colleges everywhere. Children get excited about picking out their costumes for trick-or-treating. Pumpkin carving is taken to all new levels year after year. Candy corn, caramel apples, apple cider, hay rides, and corn mazes. I never thought I could love October more, but working at LAET has now added two more things to the list. October is both Pro Bono Month and Domestic Violence Awareness Month. Any of you who know me know that I am passionate about coordinating Pro Bono civil legal services for members of our community and that I am passionate about assisting victims of domestic violence. So, for the next month, I will be working hard to make the most out of October and hope that many of you will join me! To volunteer for any of the events listed below, or for additional information, please contact me at or (865) 251-4951. September 30 – 9:00 to 2:00 at the Public Defender’s Community Law Office (1101 Liberty Street, Knoxville) We will be kicking off Pro Bono Month with our Knox County Super Saturday Bar. This is a large, open legal advice clinic that is open to anyone in our community. We will need as many attorneys as we can get to volunteer from 9:00 to 2:00 (you can come for all or part of it!) to answer questions about a wide range of legal issues including family law, debt and bankruptcy, wills and estates, powers of attorney, housing, drivers’ licenses, benefits, and anything else you can think of. If you speak Spanish, we could definitely use your help at this clinic!

October 11 – 12:00 to 2:00 at the Public Defender’s Community Law Office (1101 Liberty Street, Knoxville) Join us for our monthly Veterans Legal Advice Clinic. This clinic is open to all veterans, as well as family members, who have general civil legal questions, as well as issues related to their Veterans benefits. This clinic is co-sponsored by the KBA Barristers Access to Justice Committee.

October 13 – 4:00 to 6:00 at LAET’s office (607 W. Summit Hill Drive, Knoxville) We will be holding a Pro Se Divorce Clinic for clients who need assistance with the forms for an agreed divorce (no children). At this clinic, students from the University of Tennessee’s College of Law assist clients who have been prescreened and scheduled for the clinic with completing the AOC forms. We will need one or two family law attorneys to review the forms when they are completed and to make sure everything is done correctly. The clients leave the clinic with their forms in hand to go file!

October 14 – 9:00 to 12:00 at Blount County Library (508 N. Cusick St., Maryville) Join is for the Blount County Super Saturday Bar – it’s just like the one in Knoxville on September 30, but it’s in Maryville! Last year, we had nearly eighty (80) clients meet with attorneys, so if you’re available we can use you!

October 17 – 5:30 to 7:00 at Smithview Pavilion (601 Smithview Dr., Maryville) If you live or work in Blount County, please considering attending the Blount County Task Force against Domestic Violence’s annual Candlelight Vigil honoring both victims and survivors of domestic violence.

October 20 – 6:00 to 9:00 at Ironwood Studios (119 Jennings Ave., Knoxville) After you have helped us out all month long at clinics, come help us celebrate another successful Pro Bono Month at this year’s Forging Justice Pro Bono Celebration! This year, we will be honoring Cheryl Rice (Pro Bono Attorney of the Year), London & Amburn (Pro Bono Law Firm of the Year), Tyler Sims (Pro Bono Student of the Year), and the Volunteer Ministry Center (Community Partner of the Year). And, we will be inducting Terry Woods into the Donald F. Paine Memorial Pro Bono Hall of Fame. Tickets and more details are available at

October 28 – 9:00 to 12:00 at Beck Cultural Exchange Center (1927 Dandridge Ave., Knoxville) Finally, come help out at the Expungement Clinic being co-sponsored by the UT College of Law, Knoxville Community Step Up, and others.

I hope to see you all during the month of October!!!

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



October 2017

Q: A:


Jack H. (Nick) McCall

Stephanie, what prompted you to write a book on U.S. Supreme Court Justice (and longtime Knoxvillian) Edward Terry Sanford? STEPHANIE L. SLATER Senior Law Clerk for Judge John W. McClarty, Tennessee Court of Appeals

Why write a book about a somewhat forgotten U.S. Supreme Court Justice who died in 1930? The operative word is “forgotten.” In the early 1990s, I was serving as a law clerk for then Magistrate Judge Thomas W. Phillips with the United States District Court for the Eastern District of Tennessee. The federal court was still located in the old post office. The magistrates did not use the main courtroom often, but when we did, I enjoyed looking at a portrait that hung behind the bench. A history fanatic, I decided to learn more about the man staring back at me. I learned that the portrait was hanging in the courtroom because its subject, Justice Edward Terry Sanford, had once sat on the Eastern and Middle Districts of Tennessee from 1908 to 1923. What separated Sanford from other fine jurists who had worn the robes of the Eastern District court was that he was the only one elevated to the U.S. Supreme Court, where he served from 1923 until 1930. As a three-time graduate of the University of Tennessee, I was embarrassed that I had never heard of Sanford, a Knoxville born UT alumnus. I went into research mode. A folder of material eventually swelled into an expandable file. All the while, Don Ferguson with the Eastern District Court’s Historical Society was urging me to try my hand at writing a book. Soon, however, the project was shelved due to the dementia battle of one family member, followed by the terminal illness of another loved one. In 2008, Tennessee Supreme Court Justice Sharon Lee suggested that returning to my research and pursuing the dream of writing the book might help me clear my head. I began spending a great deal of time in libraries and historical centers. The Internet revealed more discoveries, such as newspaper archives and online governmental records. A Washington, D.C. trip to the National Archives and Library of Congress will forever rank as this historian’s dream vacation. About three years ago, I began the task of actually publishing the book. I discussed potential publishers with authors known to me. Because of the subject matter, I decided to pitch my idea to the University of Tennessee Press. From the Press’s website, I obtained the requirements for a book proposal and submitted the requested materials. My proposal was selected by an editor for review by anonymous evaluators–if they found the project worthwhile, it would be presented to the board members for a vote. The editor gave me some helpful hints to improve the presentation for the evaluators. Nearly two months later, I received positive feedback from the review, along with further suggestions. The Press’s board only meets twice each year, so waiting for its approval was agonizing. After what seemed like an eternity, my proposal was accepted and I was sent a contract. The real work of editing and re-editing began at that point. However, watching the transformation of the draft into a more polished work has been a memorable experience. This experience has provided me many pleasures and surprises. The best part of writing the book was the historical research. Sanford’s legal practice and his political aspirations were intertwined with the business pursuits of his father, Edward Jackson Sanford, an extremely successful businessman of the Gilded Age. As his father’s legal representative, Sanford was an eyewitness to significant local historical events, such as the Coal Creek Mining Rebellion and the lawsuits following the Fraterville Mine Disaster of 1902. He was also active in the development of Lenoir City as a proposed “utopian” community. During the period that Sanford lived in Knoxville, he was involved in the improvement of teacher training across the South. A much acclaimed program, “The Summer School of the South,” was started on UT’s campus during Sanford’s tenure on the Board of Trustees by his friend, UT President Charles Dabney, with whom Sanford was active in the Southern Education Board. Sanford also served an influential role in the development and growth of Nashville’s George Peabody College for Teachers. After a rewarding stint with the Department of Justice, during which he was involved in 1906 in United States v. Shipp, 203 U.S. 563, the only Supreme Court criminal trial in its history, Sanford was named district court judge by President Theodore Roosevelt. Sitting in Knoxville, Greeneville, Chattanooga, Nashville, and Cookeville, Sanford heard countless moonshining cases and other interesting matters dealing with such diverse topics as ex-slave pensions, WWI espionage, and the tobacco wars of the Black Patch area of Middle Tennessee. I particularly enjoyed exploring the 1920s, a period much like today, when the middle and upper classes felt threatened by immigration issues, economic woes, and other forces impacting the normal order of society. Sanford’s 1925 opinion in Gitlow v. New York, 268 U.S. 652, often defines his short time on the Supreme Court. Speaking for the Court, Sanford declared that the core civil liberties in the Bill of Rights applied to the states as well as the federal government. Gitlow is cited as precedent for the expansion of civil rights and civil liberties in the 1950s and 1960s. The decade also saw Sanford’s concurrence in a decision now described by many as one of the greatest miscarriages of justice in U.S. history, Buck v. Bell, 274 U.S. 200 (1927), in which the Court accepted eugenical arguments and collaborated in the involuntary sterilization of scores of powerless women. Sanford, an enlightened and fair-minded man, failed to register any dissent in face of the popularity of the eugenic cause. The case ultimately was cited by Nazi defendants at Nuremburg in defense of their wartime crimes. In view of the many ways that Sanford impacted our state and our country, I believe it is important to recognize this Supreme Court Justice. Now, after years of starts and stops, a book is emerging to help us remember. EDWARD TERRY SANFORD: A Tennessean on the U.S. Supreme Court By Stephanie L. Slater, University of Tennessee Press 2017

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at October 2017





P.O. Box 2027 Knoxville, TN 37901


Supreme Court Dinner 2017 The KBA’s Annual Supreme Court Dinner was held on September 6, 2017 to pay tribute to the Justices of the Tennessee Supreme Court. The dinner is an opportunity for the bar to thank all of the judges for their service. The featured speaker this year was Cassius Cash, the 16th superintendent of the Great Smoky Mountains National Park. During the dinner, Allan Ramsaur, TBA Executive Director Emeritus, was honored for his many years of service to the bench and bar in Tennessee.

DICTA.October 2017  
DICTA.October 2017  

October 2017 Volume 44, Issue 9