DICTA.September2019.pdf

Legal Update: U.S. Supreme Court Holds Title VII’s “Charge-Filing Requirement” Non-Jurisdictional . . . Page 15 Schooled in Ethics: Disorder/Decorum in the Courtroom . . . Page 21

A Monthly Publication of the Knoxville Bar Association | September 2019

Abortion Rights in Tennessee under the Current U.S. Supreme Court

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DICTA

September 2019

In This Issue

Officers of the Knoxville Bar Association

COVER STORY

September 2019

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Abortion Rights in Tennessee

under the Current U.S. Supreme Court

CRITICAL FOCUS

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President Wynne du Mariau Caffey-Knight

President Elect Hanson R. Tipton

Treasurer Cheryl G. Rice

Immediate Past President 9 Keith H. Burroughs

Secretary Jason H. Long

KBA Board of Governors Hon. Suzanne H. Bauknight Jamie Ballinger-Holden Loretta G. Cravens Kathryn St. Clair Ellis Elizabeth B. Ford

Rachel P. Hurt Allison S. Jackson Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller

T. Mitchell Panter Robert E. Pryor Jr. Mikel Towe

The Knoxville Bar Association Staff

President’s Message

Chicken Wire and Cement

Practice Tips

Drafting Government Contracts: “We need to talk about your [lack of] flair!”

Stop It Bully! Tennessee Expands Anti-Bullying Law to Private Employers

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Management Counsel: Law Practice 101

Schooled in Ethics

Disorder/Decorum in the Courtroom

15

Legal Update

U.S. Supreme Court Holds Title

VII’s “Charge-Filing Requirement” Non-Jurisdictional

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Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

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 www.knoxbar.org Tracy Chain LRIS Administrator

Leslie Rowland LRIS Assistant

Volume 47, Issue 8

Dicta

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

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment).

Exceptions to this policy must be cleared

by KBA Executive Director Marsha Watson (522-6522).

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Jennifer Dobbins Elizabeth B. Ford Joseph G. Jarret F. Regina Koho

Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe

Managing Editor Marsha Watson

KBA Executive Director

Judicial News

Then and Now: 100 Years of Workers’ Compensation in Tennessee

WISDOM

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Around the Bar

KBA’s 2019 Health and Wellness Expo - Why you should care

Outside My Office Window

In Search of Hemingway

Hello My Name Is

Tegan Couch

Vite et crede

What is Justly Due

“Who’s On First?”

The Initial Conversation: The First Key to Philanthropic Giving

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Bill & Phil Gadget of the Month

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Legal Myth Breakers Around The Community

Bill and Phil’s Top Tech Tips for 2019

Well Read

Review of Full Court Press

Your Monthly Constitutional

Monsters and Guns

Long Winded

Knoxville Boy Makes Good?

Grammar Grinch

“Decease and Desist” and Other Linguistic Phenomena

COMMON GROUND 4 20 23 29 30 31

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

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members.

September 2019

DICTA

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SECTION NOTICES & EVENT CALENDAR

event calendar

Section Notices

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

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE programs “Mediating Business or Commercial Disputes – Understanding the Business Owner’s Agenda and Playbook” on September 9 featuring Brian Quist and “Are we there yet? The Evolution of the Mediation Process” on October 14 featuring Dana Holloway. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777).

Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year.

Join the Bankruptcy Law Section for the upcoming CLE program “Bifurcated Fees and Unbundling of Services in Chapter 7: Access to Justice” on September 10 featuring Hon. Suzanne Bauknight. In conjunction with the CLE, the “Second annual Celebration of the Pro Bono Debt Relief Clinic” will also be held on September 10. The celebration and reception will be held from 3:00 p.m. - 4:30 p.m. on the Fourth Floor of the Howard H. Baker Jr. United States Courthouse. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

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

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Join the Criminal Law Section for the CLE program “Criminal Law Update” on November 21 featuring Sarah Keith and Josh Hedrick. The section plans regular CLE throughout the year. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Hedrick (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. Join the Employment Law Section for the CLE program “Getting to Yes! How to Make Your Employment Mediation a Success” on October 15 featuring Chad Hatmaker. 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. Join the Environmental Law Section for the CLE program “Avoiding a Legal Disaster in the Wake of a Natural Disaster” on October 1 featuring Catherine Anglin. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law section for the CLE program “Family Law Update” on December 3 featuring K.O. Herston. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. Join the Government & Public Lawyers section for the upcoming CLE program, “Scary Ethical Issues for Government Lawyers” on October 31 featuring Sandy Garrett. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. Save the date for the Annual Juvenile Court extended CLE program on November 15. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2017 will automatically be opted-in to the section. Join the New Lawyers section for the upcoming CLE program, “Bootcamp for New Lawyers: Working with Partners and Practice Development Tips” on October 24 featuring Sean Martin. The program will be held from 4:00 – 5:00 p.m. at Schulz Brau Brewing Company. For information about the Section, please contact Section Chairs Erica Green (525-5134) or Jimmy Snodgrass (545-4228).

Senior Section The KBA Senior Section will meet next on Wednesday, September 4, 2019 at Calhoun’s on the River. The program title is “The 2019 Volunteers: A Football Preview” and will feature Tim Priest. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307).

Solo Practitioners & Small Firms Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).

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September

2 Law Office Tech Committee Meeting 4 Senior Section Luncheon 4 Supreme Court Dinner 9 ADR Section CLE 10 Pro Bono Debt Relief CLE & Reception 10 Professionalism Committee 10 Access to Justice Committee Meeting 11 Veterans Legal Advice Clinic 11 Barristers Meeting 12 Lunch & Learn 12 Judicial Committee 13 Wellness Conference 16 Diversity in the Profession

Committee Meeting 18 Board of Governors Meeting 18 Summer Fun CLE 24 CLE Committee Meeting 25 Cannabis CLE

October 1 1 2 3 8 9 9 10 14 15 16 17 21

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Law Office Tech Committee Meeting Environmental Law Section CLE Professional Mixer Diversity CLE & Reception Professionalism Committee Veterans Legal Advice Clinic Barristers Meeting Judicial Committee ADR Section CLE Employment Law CLE Board of Governors Meeting Lunch & Learn Diversity in the Profession Committee Meeting NLS Section ‘New Lawyer Bootcamp CLE” Member Appreciation & Welcome New Lawyers Celebration Craft Brews for Coats Bankruptcy Section CLE Gov’t Section CLE

Mark Your Calendar Wellness Conference September 13, 2019 September 2019

PRESIDENT’S MESSAGE By: Wynne Caffey-Knight Elmore, Stone & Caffey, PLLC

CHICKEN WIRE AND CEMENT

Sharing stories can take circular journeys that also, in oxymoronic fashion, move us forward. Every month, I share DICTA with my siblings.

Lochlin and Christina who live in Nashville. Margaret, the eldest, lives in Santa Fe. Our “South African brother” Errol is a citizen of four countries living in Melbourne. KBA’s raconteurs struck a chord. Reading the personal stories of people willing to “put themselves out there” inspired Errol to lead by story-telling, sharing his deeply personal story with the leadership team of his international professional association. The context was embracing our vulnerabilities in times of turmoil, with the courage and integrity to reach despite our differences in pursuit of worthy purposes greater than self. He described for them a telephone call seeking counsel from my sister: “She told me three things that will live with me always. One of them is cement and chicken wire.

But first, she said, ‘Errol, in all the years I have known you, you remind me of the person in the poem The Man in the Arena. This formed part of a speech in Paris in April 1910 by President ‘Colonel’ Teddy Roosevelt known as The Citizen Speech. I do not see myself as this person, but then again, I never do know how others see me, nor is that my business, but would love in any event to share this poem with you and respectfully reframe it as The Person in the Arena: It is not the critic who counts; not the person who points out how the strong person stumbles, or where Lochlin W. Caffey, Sr. the doer of deeds could have done them better. The credit belongs to the person who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is not effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions, who spends themselves in a worthy cause; who at the best knows in the end triumph of high achievement, and who at the worst, if they fail, at least fails while daring greatly . . .

Then my sister told me two things about our father that I did not know, notwithstanding all those many long, fascinating and memorable evenings of the two of us speaking quietly together at the dinner table to many chimes of the grandfather clock in the adjoining lounge after the family had gone to sleep.”

“She said, ‘Did you know that Dad was awarded the Distinguished Service Medal by the President?’ She then explained and forwarded me the citation accompanying the medal of what he accomplished in a period of just five years from August 1970 to June 1975. My mind boggled and still does not comprehend the immensity of what one person, one engineer, could achieve in undertaking causes that were so much greater than self. Yet in an instant I knew it was so in my memory of the depth of kindness, humility and authenticity I recall in his eyes that so inspired people to dig deep and reach well beyond themselves.”

“Then my sister told me about cement and chicken wire. ‘Did you know Dad also received a similar such medal from the president of Vietnam?’

The story she then relayed is the sole and soul reason why [we began this project]. As I recall the story, he was in a village of some many hundreds of September 2019

local civilian people, together with his engineering personnel. The command from HQ came through that the enemy were approaching and that the army unit was to be airlifted to safety. This was the only form of escape given that the village was on a peninsula surrounded by water and the only land exit was in the path of the approaching opposing forces. There were no boats nor were there any trees to build boats. Unfortunately, the command was soldiers-only to be airlifted, which meant that the locals would likely perish.”

The commands did not sit well with my Dad. So, he risked his life (and his career should they succeed) to challenge his personnel to come up with an alternative plan. Talk about Neil Armstrong holding his nerve with 30 seconds of fuel left to land on the moon. His team willingly followed.

All that was available was cement, chicken wire, a team of well-motivated and inspired engineers and hope. And with that, they constructed the boats that evacuated everyone to safety.”

Errol shared the story to encourage others to be the engineers who care for people by solving seemingly unsolvable problems, embracing their differences and disagreements, and leading by example. As it happens, he is a Barrister – fancy word for attorney – and asks me: “The world is counting on us. If not us, who?

If not now, when?” Very timely and relevant questions for me and for our legal profession.

Rebel on Rabbit Patrol

Speaking of timely and relevant, I must take a moment to tell you about the Economics and Law Office Management Survey. The KBA Membership Committee has spent two years adapting this completely confidential survey to gather information to help guide your management and planning decisions and to monitor trends within the profession locally. The link to this KBA-specific survey is in an August 19 email from the ABA Division of Bar Services. Please take the few minutes to participate. You will provide important insight and you might win the $500 American Express gift card incentive.

Thank you for letting me share this story within a story within a story.

It depicts leadership in its purest unselfish form -- supporting others to be their best selves for the good of all. Exemplified by a commander with his personnel, between siblings, and among colleagues, leading with a servant’s heart has a place in every aspect of our lives.

This message is for you and dedicated to my father, whose birthday would be this month. Clearly, I did not inherit his skills with chicken wire.

He entered Georgia Tech at age 16, graduated, obtained a second engineering degree at the United States Military Academy West Point, and served 30 years in the Army, including three wars. Always focused on the needs and well-being of others, he did not talk about his successes and accolades. We learned of those from other people. He was born on September 11, 1922. I was calling to wish him a happy birthday as the first plane struck. We spoke throughout the day as each tower fell and during the strike on the Pentagon, where he had been stationed on our family’s return from Germany. You see, he would not turn on the news out of concern for upsetting my mother, who was very ill. He remained completely calm for her. Daddy was servant leadership personified. He was the Person in the Arena.

DICTA

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Photo Ops

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BREWS FOR BACKPACKS The 2nd Annual Brews for Backpacks event sponsored by the Barristers was a big success. The event was held at PrintShop Beer Co. and we collected 16 backpacks full of supplies and raised $840 that purchased school supplies that were donated to Childhelp Tennessee: Foster Family Agency and Children’s Center. This event would have not been possible without our generous event sponsor, TCV Wealth & Trust Management.

DICTA

September 2019

AROUND THE BAR By: Joanie

Stewart

KBA’S 2019 HEALTH AND WELLNESS EXPO - WHY YOU SHOULD CARE

Do you remember “The Giving Tree?” If this somehow didn’t cross your childhood, “The Giving Tree,” is a 1964 book by Shel Silverstein.

The central characters are a tree and a boy. Throughout the story, the tree gives up everything to support the child into old age. While some argue the story is about unconditional love, others point out that it is a cautionary tale about losing yourself by giving up too much.

Stop it. Just stop. Stop enabling a legal culture that does more harm than good to its own. Recognize traditional wisdom, “a lawyer who represents him or herself has a fool for a client,” is merely a conditional statement. This statement may be sage advice in a courtroom, but when it comes to your health, every single lawyer should advocate for balance initiatives in their lives.

I agree with the latter sentiment and find it has a relevant application to the practice of law.

If you believe this to be “soft,” know that the workforce is changing. By 2025, Generation Y will make up 75% of the workforce. This generation of millennials places substantial weight on choosing jobs that support a balanced life outside of work. As the first members of Generation Z enter the workforce, “balance” has surpassed trend status to cement itself as a core value. Is your firm or workplace prepared to recruit and retain this talent, or will your firm structure become obsolete? “Change is the law of life. And those who look only to the past or present are certain to miss the future.” - JFK.

If you are truthful with yourself, any lawyer can make a list of sacrifices they have made for the sake of their career. What is on your list?

Have you canceled or put off medical appointments? Missed out on family time? Bailed on a workout? Lost sleep? Networked at happy hour instead of eating dinner?

As attorneys, we are driven to achieve and champion the causes of others. Indeed, our profession is rooted in zealous advocacy and hard work.

When we fail to temper the grind with compassion for ourselves, however, it is a recipe for disaster.

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Aside from the evolving workforce, this change has been a long time coming. The ABA Working Group to Advance Well-Being is working to emphasize the roles we all can play in addressing this problem. Within our local bar associations, we must educate the legal profession to emphasize well-being as an integral part of a lawyer’s duty of competence.

ithin our local bar associations, we must educate the legal profession to emphasize well-being as an integral part of a lawyer’s duty.”

In 2016, the American Bar Association Commission on Lawyer Assistance Programs (CoLAP) and the Hazelden Betty Ford Foundation conducted a study of lawyers across America. They found that 21 percent of licensed attorneys qualify as problem drinkers.

The study also revealed that 28 percent of lawyers experience depression, and 19 percent have anxiety symptoms. The problems are more pronounced among young attorneys in their first ten years of practice.

Evidence shows that compared to other highly-educated professions, lawyers suffer from increased levels of suicide, work addiction, and sleep deprivation.

I am willing to bet none of these statistics come as a shock to you, but let us think beyond those stats. When an attorney self-medicates with substances or internalizes stress, the problems do not go away. Indeed, they spread. The tension creeps into our personalities, cases, our families and communities. In their 2017 report, the National Task Force on Lawyer Well-Being shined a spotlight on the casualties of lawyers’ failure to thrive.

You already know this. You see it every day. By giving up too much, we risk losing ourselves, and what ultimately matters.

September 2019

On September 13, the Knoxville Bar Association will address these issues during the first annual “Wellness Conference.” The morning will feature free sessions focused on the small personal steps we can take to live better lives. These are simple acts of self-care, including taking a walk, taking a deep breath, and cleaning out the clutter from our lives. The afternoon offers CLE credit in sessions designed to confront the elephant in the room - addiction to work and substance. We are going to be talking about the importance of self-care, but also the ethical obligation we have to help our fellow bar members lead healthy lives. If you remain unconvinced wellness should be a priority, I suggest attending Dr. Monica Crane’s presentation on the connection between stress and Alzheimer’s Disease.

I hope you will support the Wellness Conference and offer suggestions to build a stronger bar for the future. Let us have meaningful conversations about where we need to go. Let us have honest discussions about where we failed in the past. We are just getting started, and we are already overdue.

DICTA

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Photo Ops

BARRISTERS SUMMER PARTY

The Barristers Summer Party, Fiesta on Central, was held on July 26th at Central Collective.

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September 2019

PRACTICE TIPS By: Stephanie L. Prager Tennessee Valley Authority

DRAFTING GOVERNMENT CONTRACTS: “WE NEED TO TALK ABOUT YOUR [LACK OF] FLAIR!”1 about your [lack of ] flair!”1

When I accepted a consultant position in the Power Customer Contracts group at Tennessee Valley Authority, truth be told, I didn’t exactly know what I was in for. Sure, I thought I had a thorough understanding of the ins and outs of contract drafting. After all, I had excelled in my contracts courses in law school and had been drafting a multitude of various agreements for years. However, when I left private practice and stepped into the realm of government contract drafting, I was (at first) often left wondering if I knew anything at all about practical contract prose.

The form and expectations for government contract drafting are starkly different from other types of legal writing. Rather than the persuasive and expository nature of motion or brief writing, government contracts can be especially limited in style. Like all basic agreements, they do state facts, regulate conduct, detail obligations and risks, and bind two or more parties to a deal; however, they do so without much added fanfare. Government contracts are not meant to tell a story. In our agreements, you would be hard-pressed to find any overly embellished, robust language or seemingly endless items in a series naming every heir, successor, and assign under the sun. And, woe to those drafters who attempt to sneak the ever-superfluous “whereas” or “heretofore” in the recitals of a government contract; they will soon find these extraneous words stricken therefrom.

I have come to find that the noticeable absence of panache with respect to government contracts is actually a good thing. So often with “traditional” legal writing, readers must tackle an onslaught of redundancy and repetition, pore over frenzied sentence structures, and wade through rivers of excessive archaisms. In short, standard contract language can be- and often times is- dysfunctional.2 Agency agreements all but eliminate the obscure legalisms and inconsistencies of traditional legal writing. The drafter must write with precision. Every sentence should have a purpose. Active voice is almost always the best choice. The great challenge in government contract drafting is saying exactly what is needed to get to the substance of the agreement with as few words and as little delay as possible. It is easy to conceptualize, but can be rather difficult in practice.

First, consistency is key. Often times with government contracts, you may be dealing with an underlying agreement that was executed several years, if not decades, ago. At TVA, we have contractual relationships from the 1930s, which continue even today. It’s important to research historical documents before amending an older base contract. Defined terms used in the initial agreements should remain the same to the extent they still make practical sense as time goes on. Changing a term from one contract in a series to another can make for a difficult game of connect the dots, which (trust me) you’d rather not have to play. Do your homework before you start writing, and be consistent.

Similarly, it is imperative to know your audience with respect to government contracts. Among TVA’s chief customers are 154 local power companies, some of which are large enough to have their own legal departments, while smaller municipalities may not employ full-time counsel. Our contracts must be written with readability so that anyone from our smallest customer to an in-house contract attorney is able to quickly decipher meaning to ultimately execute the agreement.

Furthermore, with greater than 44,000 contracts on file, over 11,000 of which are active, our department is principally responsible for drafting and maintaining the agreements between TVA and its customers that secures TVA’s right to more than $11.2 billion in operating revenue.

The stakes are high, and the consequences of delayed review or extended negotiations due to unclear language can be catastrophic, especially when you consider that TVA provides reliable electricity to nearly 10 million people in parts of seven southeastern states. No one wants their power disconnected for any reason, particularly because of a dispute regarding obscure contract language! Therefore, nuances in drafting government contracts should be avoided at all cost, especially when there’s so much riding on the agreement.

By the same token, conventional legal wisdom may tempt you to copy-and-paste tried and true contract language. However, this concept of using previously “tested” contract language is not always best practice, particularly in government contracts when your terms usually can and should be expressed as concisely as possible. If particular language was previously tested before a tribunal, the reason is likely that the parties failed to clearly state their intent in the first place. Why continue to repeat this practice if you run the risk of ending up back in court to see if the old language still holds true?

Thinking that the drafter should not deviate from language that has been subject to litigation is a grave misnomer that assumes all courts ascribe equivalent meaning to the same contract language. As we all know, judges interpret contracts based on the unique circumstances of each case, which is not uniform across every jurisdiction. Government contract drafting dispenses with the notion that there is and is not tested language. Instead, the goal is always to give meaning to the agreement by expressing the parties’ intent as unmistakably as imaginable.

With respect to government contract drafting, if you stick to these basic principles, “What’s left is the deal, which is what readers will focus on. That means you might not get a pat on the back for your drafting prowess, but readers will get to the substance with less delay and confusion, so your job will be easier.”3 Be consistent. Know your audience.

Write clearly.

1 2 3

Office Space. Dir. Mike Judge. 20th Century Fox (1999).

Ken Adams. Adams on Contracts: A Manual of Style for Contract Drafting (1997).

Ken Adams. Adams on Contracts: A Manual of Style for Contract Drafting (1997).

Any views and opinions expressed in this article are attributable to the author and do not necessarily represent the opinions of TVA or the U.S. government.

No TVA endorsement is intended or implied.

September 2019

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TENNESSEE CHAPTER Knoxville Area Members recognized for Excellence in the field of Mediation or Arbitration

Gail ASHWORTH (615) 254-1877

Bob ARRINGTON (423) 723-0402

Hon. Daryl FANSLER

(865) 546-8030

Lewis HAGOOD (865) 546-7000

Paul HOGAN Jr. (865) 546-2200

Dana HOLLOWAY (865) 643-8720

James LONDON (865) 637-0203

Richard MARCUS (423) 756-0414

David NOBLIT (423) 265-0214

Franklin NORTON (865) 971-4600

Mark TRAVIS (931) 252-9123

William VINES (865) 637-3531

Howard VOGEL (865) 546-7190

Check preferred available dates or schedule appointments online directly with the state’s top neutrals TennesseeMediators.org is free, funded by members

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September 2019

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: J. Chadwick Hatmaker Woolf, McClane, Bright, Allen & Carpenter, PLLC

STOP IT BULLY! TENNESSEE

EXPANDS ANTI-BULLYING LAW TO PRIVATE EMPLOYERS

It has long been said that the best way to deal with a bully is to stand up to him (or her). Recently, the Tennessee General Assembly stood up to bullies by expanding the law that prohibits bullying in the workplace.

Accordingly, employers should conduct training that is designed to prevent bullying from occurring and which educates employees on what to do if they believe they have been the victim of bullying.

In 2014, Tennessee passed the Healthy Workplace Act (HWA).

Also known as the Anti-Bullying Law, when originally passed, the HWA applied only to public employers.

The HWA prohibits “Abusive Conduct” which is defined as follows: “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment such as: (A) repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; (B) verbal, nonverbal, or physical conduct of a threatening , intimidating, or humiliating nature in the workplace; or (C) the sabotage or undermining of an employee’s work performance in the workplace.” TCA§50-1-502

Employers should also treat internal claims of bullying like complaints of harassment or discrimination. Claims of bullying should be investigated promptly and thoroughly. And, if the investigation establishes that bullying occurred, prompt corrective action should be taken to remedy the situation and prevent it from reoccurring in the future.

Employers should not delay in adopting a policy that complies with the HWA to take advantage of the immunity that the Act offers and taking the other steps discussed above. The failure to do so could prove to be costly in the future.

Unlike harassment or discrimination laws, the HWA prohibits “Abusive Conduct” even though the conduct is not based on a protected class or activity.

On April 23, 2019, Governor Lee signed a bill expanding the HWA to private employers. The expansion took effect that day. The amendment does not, however, create a private cause of action.

So what should private employers do in light of this significant development? First, adopt a policy in accordance with the HWA. The HWA provides that if an employer adopts the model policy created by the Tennessee Advisory Commission on Intergovernmental Relations (“TACIR”), or adopts a policy that: 1. Assists employers in recognizing and responding to Abusive Conduct in the workplace; and 2. Prevents retaliation against any employee who has reported Abusive Conduct in the workplace the employer is immune from suit for any employee’s conduct that results in the negligent or intentional infliction of mental anguish or emotional distress. The immunity does not extend to any employee who engages in Abusive Conduct.

The TACIR model policy can be found on pages 13-17 at this website https://www.tn.gov/content/dam/tn/tacir/commissionmeetings/2015-january/2015Tab%204HealthyWorkplace.pdf.

Will an existing anti- harassment policy comply with the HWA? If the policy only prohibits harassment based on a protected class, as most all do, it will not. The HWA focuses on the conduct, not the motivation or reason for the conduct.

Even though employers can obtain immunity by adopting an appropriate policy, the goal is to prevent bullying in the workplace.

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.

September 2019

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

IN SEARCH OF HEMINGWAY

I’d never been to Europe. At fifty years of age, this fact seemed ridiculous to me. I had about given up on the idea until a little spark lit a fire under me. Like most adventures in my life, this one was created by one of my children. Cori was behind this one.

Cori is my step-daughter. It seems silly to give her that title. I feel like I’ve raised her, and I love her like she was mine. Her mother and I married when she was 5 years old. When she told us that she was going to join the Peace Corps and move to Africa for 2 years, we didn’t blink.

She has always been independent. She graduated from the University of South Carolina with honors in Marine Science, packed her bags, and set off for Guinea. When Nancy and I were reunited with her on July 11, 2019, we had been separated for a full year. The reunion took place in front of a sidewalk cafe on Rue de Miromesnil in Paris. It will forever hold a prominent place in the halls of my memory. For the next two and half weeks, we saw Paris and traveled to Barcelona, Madrid, Porto and Lisbon. It was a magical trip. The reunion in Paris was exquisite evidence of the love shared between a mother and her child. It was emotional for all of us.

In preparation for my trip, I studied Paris - its structure, its history, and its treasures. From the Louvre, the Eiffel Tower, Notre Dame and Sacre’ Coeur, we promised each other we would see it all, and we did. However, for me, the allure of Ernest Hemingway rang in my head from the day we purchased the plane tickets. I’d long ago read A Moveable Feast, a memoir written by the man about his days living in Paris in the early 1920’s. I read it as a young man, and it carried more weight in my developing interest in the writer than his novels.

I read it again on the flight across the Atlantic Ocean. I considered a walking tour, complete with an English-speaking guide, but in the end decided to go it alone with guide books and my own notes. Each man’s life represents a road toward himself, and a little alone time on my own path was in order. It was Bastille Day - the French 4th of July - and the streets were crowded. The crowds faded as I approached the great River Seine and after crossing into the Latin Quarter and the neighborhood of St. Germain, the crowds faded, and I was alone with Hemingway.

& Company, a book store owned by Sylvia Beach, where the burgeoning great American writer took his mail and discussed everything from literature, love, and Paris with the likes of Ezra Pound and F. Scott Fitzgerald. It was a beautiful day, and I immersed myself in the life of the man by reading passages of his descriptions of Paris as I walked his path.

In the end, it wasn’t the fact he was an author that drew me to Hemingway’s Paris. He wrote several bad books, and I am at times a lukewarm fan at best. However, A Moveable Feast provides some of his best writing, and his striking affection for that time in his life is inescapable. He wrote these passages with such love for that time period in his life. I began to realize that the places my feet took me that day were where Hemingway had been his happiest, where he wrote with great enthusiasm and loved like he never would again. He wrote about Paris and his wife:

There is never any end to Paris but maybe this will give you some true part of the people and places and the country when Hadley and I believed that we were invulnerable.

T

his profession is many times the greatest distraction when it comes to seeing the beauty in life and appreciating those you love.”

There are those times in life where we are much too busy to recognize the beauty around us. Hemingway was so busy writing and getting advice that he didn’t realize he was in the midst of the happiest days of his life with the person he would forever love more than any other (he was married 3 more times). He wrote, “I wished I had died before I ever loved anyone but her.”

In the coming week I’ve been asked to speak to law students about stress and how to handle the difficulties of this profession. I’ve been trying to figure out what to say. This profession is many times the greatest distraction when it comes to seeing the beauty in life and appreciating those you love. Finding happiness isn’t the easiest thing to do for those of us dedicated to this profession. We all struggle to balance. I still haven’t figured out exactly what I am going to say to them, but I know that I don’t want to busy myself with writing about my happiest days or think they are in the past. I’d rather be busy living them.

Thank you Mr. Hemingway.

At my first stop, I sat and sipped Jack Daniels on the rocks at Brasserie Lipp and read the menu at Les Deux Magots on the Boulevard Saint Germain. These were places where Hemingway ate and drank and wrote parts of The Sun Also Rises. I walked the same streets where he talked with James Joyce and Gertrude Stein and passed the Closerie des Lilas where he began writing perhaps his best short story, Big TwoHearted River. I followed my Google Maps (what an innovation) through winding streets past Joyce’s apartment to 74 Rue de Cardinal Lemoine, where Hemingway lived in a third floor apartment with Hadley, his first wife, and their son, Jack. He called his son “Mr. Bumby,” and his beloved cat, “Mr. Feather Puss.” The book paints the picture of the young, happy family. I was mesmerized by this section of the city. I could imagine the sounds of the street cleaners and smell the croissants at the corner bakery, and see a smiling, poor Hemingway in the glow of love and idealism, strutting down the sidewalk confident in his talent and believing there would never be an end to the exciting feeling buried deep in his chest - a feeling he couldn’t identify and would struggle the rest of his life to recapture - happiness. I walked almost a mile from there to Shakespeare

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September 2019

SCHOOLED IN ETHICS By: Alex B. Long Williford Gragg Distinguished Professor of Law University of Tennessee College of Law

DISORDER/DECORUM IN THE COURTROOM

Back in July, Jared Garceau of Lewis, Thomason, King, Krieg & Waldrop, P.C. and I did a CLE for the Knoxville Barristers all about the ethical and professionalism issues raised by the movie My Cousin Vinny, starring Joe Pesci and Marissa Tomei. It was a fun event that was well-attended (and I’m sure attendance had nothing to do with the wine tasting that followed). One of the things we talked about was Vinny’s courtroom decorum (or lack thereof ) and his resulting citations for contempt of court. We focused primarily on Vinny’s courtroom attire (specifically his leather jacket and rusty-red vintage suit, complete with tailcoat) but also talked a little about other forms of courtroom conduct that might lead to disciplinary charges.

A recent disciplinary decision from the Tennessee Board of Professional Responsibility that came out after our CLE illustrates how a lack of courtroom decorum may result in contempt charges as well as professional discipline. Greeneville attorney Edward Lee Kershaw was representing a client accused of assaulting his girlfriend when Kershaw engaged in some overly zealous representation. At one point, the victim became emotional and began crying. After the witness was offered some tissue, Kershaw walked over to the court’s assistant and asked “in the most sarcastic tone possible” if he could have some tissue as well because he had to cry too after listening to the witness.

According to the court order in the case, Kershaw repeatedly asked questions of witnesses regarding various issues “that the court had already sustained objections to for either being irrelevant, for being ‘asked and answered.’” But it was Kershaw’s cross-examination of the victim that seems to have ultimately landed Kershaw in hot water.

The witness testified that Kershaw’s client had forcefully pulled her into his car against his will. This prompted Kershaw to ask on crossexamination whether “angels magically protect[ed] you from getting marks?” When the judge admonished Kershaw and told Kershaw that he was trying the judge’s patience, Kershaw responded, “That goes both ways.” According to the court order in the matter, “[W]hen Kershaw made the statement, it was as if the entire courtroom, which was pretty full due to the court’s heavy docket, gasped and a look of shock and surprise came across the face of many individuals in the courtroom.” At this point, Kershaw was held in contempt. After being held in contempt, Kershaw informed the judge that “he would be filing a warrant of ‘citizen’s arrest’ against the court and would be reporting the court to the Court of the Judiciary.”1

Things didn’t end there, however. In a bizarre twist, Kershaw placed an ad in the local paper accusing the judge of having yelled at him, and on social media said the judge was “the most unethical judge in the state” while also accusing several other judges in Greene County of being unethical.2

Kershaw was brought up on disciplinary charges, including violating TRPC Rule 3.5(e), which prohibits a lawyer from engaging in conduct intended to disrupt a tribunal. The Board of Professional Responsibility found that Kershaw’s actions during trial were intended to disrupt the judicial proceedings and amounted to a violation of Rule 3.5.

(Other situations in which lawyers have been sanctioned for violation of this rule include a case where a lawyer stuck his tongue out at a litigant and called her a “nut case” and “stupid idiot” and a case where a lawyer repeatedly interrupted or spoke over the presiding judge and disobeyed an order not to say another word. See Florida Bar v. Martocci, 791 So. 2d 1074 (Fla. 2001); In re Moncier, 550 F. Supp. 2d 768 (E.D. Tenn. 2008).)

The Board also found that his courtroom conduct violated Rule 4.4 insofar as he asked questions that had no purpose other than to embarrass a witness, and that his accusations against the judges violated Rule 8.2. Kershaw was suspended for four months, with thirty days on active suspension and three months on probation.3

Kershaw engaged in two forms of questionable conduct during the proceeding: his behavior toward witnesses and his behavior toward the judge. Query whether Kershaw’s conduct toward witnesses, standing alone, would have and should have earned him professional discipline, or whether his statement to the judge was the straw that broke the camel’s back.

1 Ken Little, Attorney Challenging Judge After Contempt Charge, Greeneville Sun, Nov.

10, 2017.

2 Debra Cassens Weiss, Lawyer who threatened to pursue citizen’s arrest of judge is

suspended for 30 days, ABA Journal, Aug. 8, 2019).

3 See Greene County Lawyer Suspended, https://docs.tbpr.org/kershaw-2846- greene-county-lawyer-suspended.pdf

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

September 2019

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13

HELLO MY NAME IS...

By: Jennifer Franklyn Leitner Williams Dooley Napolitan

TEGAN COUCH

The “Hello My Name Is” column is introducing a new q-and-a format with Attorney Tegan Couch, who is a member of the KBA, as well as the American Bar Association, National Organization of Social Security Claimants Representatives and Tennessee Association of Criminal Defense Lawyers. I hope you enjoy getting to know Tegan, and be sure to say hello the next time you see her at a KBA event.

Who has been the most influential person in your life?

Apart from my late grandmother, my father has had the most impact on my life. He has an amazing work ethic and made every effort to make sure my brother and I had everything we needed, and most of what we wanted as children. That was not an easy feat for a coal miner.

Most importantly he always placed his faith and his family first. He continues to be extremely supportive of my new career, and for that I am grateful.

What do you do in your free time?

I enjoy traveling with my family when we have time. Vacation planning usually leads us to return to the same city, Savannah, Georgia.

It may not be an exotic destination, but it is charming while still offering sand and salt water for my girls.

Tell me about your family.

My fiancé and I have two daughters, Landry and Leighton. Both are involved in sports, which leaves little down time for mom and dad.

We are extremely proud of their accomplishments on the court/field and in the classroom. Hopefully having an attorney for a mother and a police officer as a father will lead them to careers in our legal system.

Where do you currently work?

Burton McKinnish, PLLC, as an Associate Attorney

We also have pets! We probably have too many dogs at the moment, but they are loved and cherished members of our family.

My best buddy is our English Bulldog, Nelson. He’s never too busy to meet me at the front door after a long day at the office.

What are your practice areas?

Worker’s compensation, Social Security Disability, personal injury, and criminal defense Where did you go to law school, and when did you graduate?

LMU Law, May 2018 Where are you from?

I am originally from Hyden, Kentucky, a small town in Southeastern Kentucky.

What is your favorite vacation spot?

My favorite travel destination has been Grand Cayman Island. I took a girls’ trip with a friend just before graduating law school. It was the reset button I needed prior to enduring bar prep season.

What brought you from Kentucky to Knoxville?

I moved to Knoxville when I began attending LMU Law. It did not take long for my family and I to decide that East Tennessee was our new home. My daughters loved their new school and having opportunities to participate in year-round sports. We were delighted to find that East Tennesseans were very welcoming and kind to us.

The scenery is beautiful, without any doubt, but the best part of East Tennessee is the people.

Why did you decide to go to law school?

My grandmother was the Circuit Court Clerk in my hometown in Kentucky for many years. As a child I was in and around the courthouse during summers and after school to visit. The Circuit Court Judge sitting in our county often allowed me to sit at the bench with her during court. I was fascinated by the attorneys in the courtroom and how friendly banter in the hallway turned into heated discussions before the judge moments later. A couple of decades later, after working as a paralegal for more than 14 years, I decided to take the leap and apply for law school. It wasn’t an easy decision, but was one that I knew my grandmother would be proud of.

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September 2019

L E G A L U P DAT E By: Regina Koho Attorney, Tennessee Valley Authority, Office of the General Counsel 1

U.S. SUPREME COURT HOLDS TITLE VII’S “CHARGE-FILING REQUIREMENT” NONJURISDICTIONAL el1 When is a statutory rule or requirement jurisdictional? The answer to this question is an important one. If a rule works to limit a court’s jurisdiction, a challenge can be brought at any point during litigation.2 But if it is a non-jurisdictional (or “claim-processing”) rule, any challenge to compliance must be timely raised or else it is waived.3 Title VII, which prohibits various types of discrimination in the workplace,4 requires claimants to first file a charge with the Equal Employment Opportunity Commission (“EEOC”) before bringing a lawsuit in federal court.5 Because the circuits were split on whether this requirement was jurisdictional or non-jurisdictional,6 the Court took up the question recently in Fort Bend County v. Davis.

describing a statutory rule or requirement in this manner.14 Noting that “Congress may make other prescriptions jurisdictional by incorporating them into a [statute’s] jurisdictional provision,”15 the Court concluded that this had not been accomplished with Title VII’s charge-filing requirement – district courts exercised jurisdiction over Title VII claims both under the general federal-question jurisdiction provision and Title VII’s own jurisdictional provision.16 The charge-filing requirement, found in separate statutory provisions that made no mention of a court’s authority,17 was “a processing rule, albeit a mandatory one,”18 and therefore was “properly ranked among the array of claim-processing rules that must be timely raised to come into play.”19

Background

Takeaways

Lois Davis worked in Fort Bend County’s information technology department, and at some point during her tenure, the department’s director began sexually harassing her. She reported the harassment to human resources, and following an investigation, the director resigned. After that, Davis’s supervisor began retaliating against her for reporting the director’s sexual harassment by “curtailing her work responsibilities.” In response, Davis submitted an “intake questionnaire” regarding the sexual harassment and retaliation and filed a formal charge with the EEOC a month later.7

In Title VII cases, the obvious takeaway for plaintiffs is that they must ensure that they raise all potential claims in their formal EEOC charge or they may be precluded from subsequently asserting them in a federal court lawsuit. And defendants must now take care to lodge challenges to claims not filed first with the EEOC at the beginning of litigation or else forfeit the ability to do so.

While that charge was pending before the EEOC, Davis was asked by her supervisor to come into work on a Sunday. She explained that she had a commitment at church and even arranged for another employee to work in her place, but her supervisor insisted that Davis work the shift. When Davis did not appear at work, she was fired.

Following her termination, she attempted to supplement her EEOC charge to add a claim for religious discrimination. Although she added it to her original intake questionnaire, she did not make the change to the formal charge document.8

After Davis received a right-to-sue letter from the EEOC, she filed a lawsuit in district court, asserting claims of religious discrimination and retaliation for reporting sexual harassment.9 After a first round of litigation and appeals,10 the case returned to district court on the religious discrimination claim only. Fort Bend then moved to dismiss, arguing for the first time that the district court lacked jurisdiction because Davis did not state a religious discrimination claim in her initial EEOC charge.11 Although the district court granted the motion, the Fifth Circuit reversed, concluding that Title VII’s charge-filing requirement was “a prudential prerequisite to suit” and that Fort Bend forfeited its challenge by failing to raise it until after “an entire round of appeals all the way to the Supreme Court.”12 The Court’s Decision

The Court unanimously affirmed the Fifth Circuit. Beginning with the observation that the Court itself had been less-than-precise in its use of the word “jurisdiction,”13 Justice Ginsburg, the opinion’s author, reiterated that the term “is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)” due to the serious consequences that accompany September 2019

Beyond the Title VII-specific question before the Court, the opinion also provides guidance for distinguishing between jurisdictional and non-jurisdictional statutory rules and requirements in future cases.

It is clear that the Court views the term “jurisdictional” to have a cabined meaning,”20 and although a statutory requirement may be a mandatory precedent to suit, that does not mean it is “a jurisdictional prescription delineating the authority of courts.”21

Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority.

See, e.g., Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1849 (2019) (“Unlike most

arguments, challenges to subject-matter jurisdiction may be raised by the

defendant ‘at any point in the litigation,’ and courts must consider them sua

sponte.” (quoting Gonzalez v. Thaler, 565 U.S. 134, 141 (2012))).

3 Id. 4

See 42 U.S.C. § 2000e–2(a)(1) (prohibiting discrimination on the basis of race,

color, religion, sex, or national origin).

5

42 U.S.C. §§ 2000e–5(e)(1) & (f)(1).

6

Compare Davis v. Fort Bend Cnty., 893 F.3d 300, 306 (5th Cir. 2018), with Jones v.

Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009).

7

Davis, 139 S. Ct. at 1847. As noted in the opinion, Davis initially submitted these

documents to the Texas Workforce Commission, which passed them along to the

EEOC “under a ‘worksharing’ agreement between the two agencies.” Id. at n.2.

8

Id. at 1847.

9

Id. at 1847–48.

10 The district court granted Fort Bend’s motion for summary judgment on both

claims, but the Fifth Circuit reversed on the religious discrimination claim. Fort

Bend’s petition for certiorari was subsequently denied. Id. at 1848.

11 Id. 12 Davis, 893 F.3d at 307–08.

13 Davis, 139 S. Ct. at 1848.

14 Id. at 1848–49 (internal quotation marks omitted).

15 Id. at 1849.

16 Id. at 1850 (citing 28 U.S.C. § 1331 & 42 U.S.C. § 2000e-5(f)(3)).

17 See supra n.5.

18 Davis, 139 S. Ct. at 1851.

19 Id. at 1846.

20 Id. 21 Id. at 1851.

1

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Abortion Rights in Tennessee under the Current U.S. Supreme Court

Tennessee’s Fetal Heartbeat Bill, 1 which would prohibit all abortions once a fetal heartbeat is detectable, usually in the sixth week of pregnancy, has stalled in the Tennessee Senate based on a concern that it would be, if enacted, invalidated by the federal courts.2 This makes Tennessee a relative outlier as compared to other, nearby red states. For example, in 2019, Alabama enacted an abortion law banning all abortions and criminalizing doctors who perform the procedure. Laws enacted in Arkansas and Utah ban abortions 18 weeks into a pregnancy; and Georgia, Kentucky, Louisiana, Mississippi, Missouri and Ohio have laws that, like Tennessee’s proposed legislation, would effectively ban abortions from the moment a fetal heartbeat can be detected.3 None of these laws has gone into effect because they either have a delayed implementation date or they have already been enjoined by lower federal courts. At the same time, many blue states such as Illinois, Maine, Nevada, New York, Rhode Island and Vermont have enacted prophylactic abortion rights legislation making abortion rights fundamental under state law.4

Roe, Casey, and the Abortion Rights Debate

In 1973, the U.S. Supreme Court established nationwide abortion rights in Roe v. Wade, a 7-2 decision that broadly interpreted Fourteenth Amendment Due Process rights to include abortion rights for all women.

At the time, there was a trend in state legislatures toward liberalizing state abortion laws, but Roe effectively facilitated a political backlash against abortion rights that led many to believe that the decision would be reversed and the abortion issue returned to state legislatures.

Accordingly, the Court’s decision Planned Parenthood v. Casey,5 surprised the legal community because it maintained federal due process abortion rights.6 Casey, however, replaced Roe’s strict scrutiny paradigm for evaluating abortion restrictions with a looser, “undue burden” standard allowing governments to implement broad regulations on abortion providers, including waiting periods, informed consents laws, and the disallowance of public funding.7 Indeed, rather than providing a forthright jurisprudential defense of nationwide abortion rights, the Casey plurality opinion, co-authored by Justices O’Connor, Kennedy and Souter, focused on stare decisis, or the principal of following established precedent, as its rationale for affirming Roe.

Abortion Rights in Tennessee

About five years after Casey, broad objection to federal abortion rights led Tennessee, to enact criminal abortion statutes that imposed criminal liability on physicians who failed to inform patients that abortion is a “major surgical procedure,”8 satisfy a two-day abortion waiting period,9 or implement a second trimester hospitalization requirement.10 Although these restrictions likely were consistent with Casey’s undue burden framework, in Planned Parenthood of Middle Tennessee v. Sundquist,11 the Tennessee Supreme Court, concluded that the criminal abortion laws violated relevant provisions of the Tennessee Constitution, which provided broader privacy-based reproductive rights than its U.S. counterpart.12 Far from resolving the issue, Sundquist further politicized the statewide abortion debate, and many believe it facilitated a complete Republican

16

takeover of state government.13

After the 2012 election, Republican legislators and their twothirds supermajority proposed four state constitutional amendments for consideration on the 2014 general election ballot. One of the proposed amendments would not just reverse Sundquist, but would eliminate all privacy-based reproductive rights.14 The amendment passed and was adopted by the voters as Article I, Section 36 of the Tennessee Constitution. The proposed Heartbeat Bill is a legislative enactment designed to prohibit abortion in the event the current conservative U.S. Supreme Court chooses to end federal abortion rights.

Abortion Rights under the Current U.S. Supreme Court

Deep division on the issues of privacy and reproductive rights remain a part of the current political climate. For example, U.S. Senate Majority Leader Mitch McConnell denied President Obama’s Supreme Court nominee, Judge Merrick Garland, confirmation hearings in advance of the 2016 general election and paved the way for President Trump’s appointment of Justice Neil Gorsuch.15 This maintained the Court’s ideological balance after Justice Scalia’s passing. However, with the retirement of Justice Kennedy in 2018, there was an opportunity for the Court to shift toward a more conservative ideology. Justice Kennedy was a Republican conservative and Reagan appointee who co-authored Casey and took a liberal position on social issues. The nomination and confirmation of conservative U.S. Court of Appeals Judge Brett Kavanaugh may harken an end to the Court’s substantive due process jurisprudence related to abortion rights.

With Kavanaugh’s appointment, the Court has a social conservative majority, and abortion opponents have successfully lobbied state legislatures to enact abortion restrictions that are manifestly inconsistent with Casey’s undue burden standard. This appears to be a clear effort to force the Court to revisit the issue.

However, public sentiment complicates matters. A 2017 survey indicates that 69% of Americans, and 53% of Republicans, oppose overturning Casey and Roe and leaving abortion rights to state legislatures.16 Thus, if the Court were to overturn Casey, it risks a broad backlash against both the Court and possibly the Republican Party.

This may well explain the Court’s action in Box v. Planned Parenthood of Indiana.17

Earlier this year, the U.S. Supreme Court declined to review an Indiana abortion law provision which was invalidated by a lower court.

The statute purported to bar the knowing provision of sex-, race- or disability-selective abortions.18 In view of the Court’s clear conservative majority and the fact only four of nine justices were needed for review,19 the Court’s decision to deny certiorari indicates that some of its conservative members deliberately avoided revisiting the abortion rights issue at this time.

The Court’s refusal to hear the appeal in Box demonstrates that the current Court may look askance at revisiting abortion rights in the

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September 2019

COVER STORY By: M. Akram Faizer LMU Duncan School of Law near term. Apart from undermining the Court’s institutional prestige, the decision could result in a stinging rebuke against the Republican Party nationwide and a dramatic setback for jurisprudential conservatives in other important areas.20 Republicans and the Court’s majority are in a difficult situation. They have waited for nearly a half century to reverse what they perceive has been an ill-conceived judicial adventure. They finally have the votes on the Court to dramatically change course, but could end up sabotaging themselves should they move too quickly. The dilemma was experienced here in Tennessee when Senate Republicans effectively killed the Fetal Heartbeat Bill in committee, most likely because they felt it was too early and unwise to present such a test case to the U.S. Supreme Court.21

The Likely Path Ahead

A judicial reversal of nationwide abortion rights most likely will not arise in the near term. Rather, anticipate continued political exploitation of the issue by both major parties, in conjunction with a trend toward making abortion a more elusive procedure based on Casey’s undue burden standard.

SB1236/HB77 https://www.nashvillepublicradio.org/post/tennessee-fetal-heartbeat-bill-likely-not- moving-forward-amid-concerns-senate#stream/0 3 https://www.usnews.com/news/best-states/articles/2019-06-27/a-guide-to- abortion-laws-by-state 4 Id. 5

505 U.S. 833 (1992) 6

Casey concluded that all women have a pre-viability right to an abortion that states

cannot unduly burden, while Roe had concluded that all women have first trimester

abortion rights that cannot be restricted.

7

Casey concluded that wait times and informed consent laws are constitutional. Public

funding, which has been disallowed by the federal Hyde Amendment, was found

constitutional in Harris v. McCrae, 448 U.S. 297 (1980).

8

See Planned Parenthood of Middle Tennessee v. Sundquist, 39 S.W.3d 1, 3 (2000); 1 2

September 2019

see also Tenn. Cod Ann. Sec. 39-15-202(b).

Id. Id. 11 Id. 12 Plaintiffs filed suit seeking declaratory and injunctive relief under both the state and

federal constitutions and allege the criminal abortion statute violates a woman’s right

to liberty, privacy, procreational autonomy, due process, equal protection, freedom to

travel, freedom of conscience and free speech under Article I, secs. 1, 2, 3, 7, 8, 19

and 27 and Article XI, secs. 8 and 16 of the Tennessee Constitution and Article I, sec. 8

and Article IV, sec. 2. See Planned Parenthood of Middle Tennessee, 39 S.W.3d at 25.

13 http://www.tnledger.com/editorial/ArticleEmail.aspx?id=62477&print=1. This was

the first two-thirds supermajority in both Houses of the Tennessee General Assembly

since Reconstruction. A two-thirds supermajority in each House of the Tennessee

General Assembly is necessary to amend the Tennessee Constitution because of

Tennessee’s highly complicated constitutional amendment procedure that requires

two-thirds of each House to approve a proposed constitutional amendment before it

can be submitted for public approval at the next Gubernatorial election.

14 Amendment 1 provided that “[N]othing in this Constitution secures or protects a

right to abortion or requires the funding of an abortion. The people retain the right

through their elected state representatives and state senators to enact, amend, or

repeal statutes regarding abortion, including, but not limited to, circumstances of

pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

15

https://www.nytimes.com/2018/02/01/opinion/abortion-democrats-compromise.

html (The New York Times columnist and public intellectual David Brooks attributes

Donald Trump’s election to the single issue activists who want pro-life judges).

16 https://www.pewresearch.org/fact-tank/2017/01/03/about-seven-in-ten-americans- oppose-overturning-roe-v-wade/ 17 587 U.S. __ (2019).

18 Id. 19 Supreme Court custom provides that four justices are needed to grant a writ of

certiorari to hear an appeal.

20 By this I mean, among other things, conservative approaches to standing,

Congressional legislative power, justiciability doctrines, federalism, gun rights,

deconstruction of the administrative state, the Fourteenth Amendment’s Equal

Protection Clause and legislative districting.

21 https://www.tennessean.com/story/news/politics/2019/04/09/tennessee-fetal- heartbeat-bill-fails-goes-senate-summer-study/3417452002/ 9

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JUDICIAL NEWS By: Judge Timothy W. Conner Tennessee Workers’ Compensation Appeals Board

THEN AND NOW: 100 YEARS OF WORKERS’ COMPENSATION IN TENNESSEE Part One: Benefits

An interesting exercise for members of any longstanding institution is to consider the institution’s origins and compare those origins to the status quo. The Tennessee Workers’ Compensation Law, originally called the “Workmen’s Compensation Act,” is ripe for such an exercise. At the beginning of the twentieth century, after nearly a decade of study and consideration, the Tennessee legislature passed the first version of this law in April 1919. It was signed by Governor Albert Roberts on April 15 and became effective on July 1, 1919. We now mark the 100-year anniversary of that law by comparing some of its original provisions to the current law.

An obvious first step is to analyze the benefits to which an injured worker was entitled in 1919 and compare that to a similarly-situated worker today. Suppose a 42-year-old construction laborer with an eighthgrade education fell from a scaffold in July 1919 and herniated a disc in his low back. Suppose further that he missed twelve weeks of work, and his physician assigned him 10% permanent medical impairment as a result of his injury. He was advised not to return to work in the construction industry due to the limitations resulting from his injury. Finally, assume that this employee was a high wage earner and qualified for the maximum weekly compensation rate.

Under the 1919 law, this employee would have received temporary disability benefits at a rate of $11.00 per week (the maximum weekly rate at the time). For his twelve weeks of missed work, he would have received $132.00. He would then have received compensation for his permanent disability of $11.00 per week for thirty weeks (10% of 300), or $330.00.

Therefore, the total amount of disability benefits this injured worker would have received is $462.00. In today’s dollars, this would equal about $6,825.00. If he had been deemed permanently and totally disabled due to his injury, he could have received a maximum of $5,000.00 (which equals about $73,850.00 in 2019). Finally, his employer’s obligation to provide medical benefits would have terminated thirty days after it received notice of the injury, with a maximum liability for medical benefits of $100.00.

Now assume the same set of facts, except that the employee was injured in 2019, one hundred years later. Such an employee, qualifying for the maximum weekly rate (which is now different for temporary disability benefits than for permanent disability benefits), would receive $12,262.80 in temporary disability benefits and a minimum of $41,805.00 in permanent disability benefits. Assuming he is unable to return to work at an equal or greater rate of pay within 45 weeks of his date of maximum medical improvement, he would qualify for increased permanent disability benefits of at least $31,000.00, for a total of about $72,805.00. If his case were deemed extraordinary in accordance with Tennessee Code Annotated section 50-6-242, he could receive up to $255,475.00 (275 weeks of permanent disability benefits) or, if he were deemed permanently and totally disabled, he could potentially qualify for over $1.2 million in permanent disability benefits, although he could not receive this amount in a lump sum. Future medical benefits would remain open indefinitely.

As you can see, the scope and duration of benefits has changed dramatically in the last 100 years. An injured worker now qualifies for reasonable and necessary medical treatment for his or her lifetime, as long as that treatment is due to the work injury. Moreover, the scope of wage replacement benefits has expanded drastically, even when comparing the results in today’s dollars.

Part Two: Coverage

Another interesting comparison is the scope of coverage in 1919 versus now. When the law was first enacted, it applied only to employers “using the services of not less than ten persons for pay.” Now, employers

18

with “fewer than five persons . . . regularly employed” are excluded from coverage (unless the employer is a construction services provider, which must have workers’ compensation coverage for even one employee). The 1919 Act also excluded “common carrier[s] doing an interstate business”; “casual” employees; domestic servants; farm or agricultural workers; state, county, and municipal employees; and coal mining operations.

Most of those exclusions remain in the law today in one form or another. For example, common carriers remain excluded, but only if such common carrier is “already regulated as to employer’s liability or workers’ compensation by act of congress.” The 2019 law still excludes casual employees, domestic servants, and farm or agricultural workers, except that employers of farm or agricultural workers can now elect to be covered by purchasing a workers’ compensation insurance policy. Likewise, the state, counties, and municipalities may elect to be covered by the Act, as can “leased owner-operators of a motor vehicle under contract to a common carrier.” Coal miners are now covered and, in cases where miners suffer from occupational diseases, are also protected by federal laws such as the Coal Mine Health and Safety Act of 1969 and the Black Lung Benefits Act of 1972.

Part Three: Administration

A final comparison involves the manner in which the Act is administered. According to the 1919 Act, a dispute over compensation was to be submitted to the “Judge or Chairman of the County Court in which the accident occurred.” Such judge or chairman was directed to conduct a hearing “not more than fifteen days after the filing of the petition unless for good cause shown.” A party dissatisfied with this result could appeal “to the next term of the Circuit Court” and that circuit court judge would hear the case “de novo” without a jury. As an alternative to presenting a claim to the Judge or Chairman of the County Court, a party was authorized to “file the same as an original petition in either the Circuit, Criminal, or Chancery Court of the county in which the petitioner resides or in which the alleged accident happens.” Thereafter, any party dissatisfied with the result was allowed to appeal the case directly to the Tennessee Supreme Court.

In 2019, the administration of workers’ compensation claims looks quite different. All workers’ compensation disputes are initiated by filing a Petition for Benefit Determination with the Tennessee Bureau of Workers’ Compensation, an administrative agency that is part of the executive branch of government. The claim is then assigned to a mediator, who will contact the parties and seek to resolve as many of the disputes between the parties as possible. If not all disputes are resolved, the mediator will file a Dispute Certification Notice, and the claim will be handled by a judge on the Court of Workers’ Compensation Claims, who will conduct hearings, rule on motions, set a pre-trial discovery schedule, and conduct a final hearing in the case. Any party dissatisfied with this result can appeal to the Tennessee Workers’ Compensation Appeals Board, and, ultimately, to the Tennessee Supreme Court. The Supreme Court will likely refer such an appeal to its Special Workers’ Compensation Appeals Panel, although it has the option to hear the case itself.

In sum, the workers’ compensation law in 2019 is very different from its 1919 counterpart in terms of the scope of benefits, the extent of coverage, and the administration of claims. However, some aspects have remained consistent over the last 100 years. Most significantly, the Act keeps in place the “Grand Compromise” that seeks to protect both employees and employers by supplying security to injured workers while fairly distributing the costs of that security to the consumers. Striking the right balance in the Grand Compromise is the overriding goal of any workers’ compensation system.

DICTA

September 2019

VITE ET CREDE By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

WHAT IS JUSTLY DUE

In 1808, the Cherokee Nation occupied around 14,000,000 acres of land in North Carolina, South Carolina, Georgia, Alabama, and Tennessee.1 But, through a series of treaties over the next several decades, the Cherokee’s land was systematically reduced. With the passage of the Indian Removal Act of 1835,2 Congress gave President Andrew Jackson the authority to negotiate a treaty that would relocate the Cherokee to lands west of the Mississippi and pay them for their land.3

On December 29, 1835, the U.S. signed a treaty with a small group of the Cherokee who purported to represent the entire Nation.4 Under that treaty, the Cherokee would leave their 14,000,000 acres and move to approximately 800,000 acres west of the Mississippi over a 2-year period.5 In exchange, the U.S. promised to pay $5,000,000 for the land – around $500 per person – $600,000 to pay the total cost of relocation, and a stipend of $150 per person for one year.6

Although the Cherokee representatives signed the treaty, it was soundly rejected by the majority of the Cherokee Nation. They protested it and passed resolutions condemning it.7 Around 16,000 Cherokee remained in their ancestral territory, and they refused to leave. So, in 1838, the United States began forcibly removing the Cherokee from their homes and lands and relocating them to other lands west of the Mississippi. During the fall and winter of 1838 and 1839, over 4,000 Cherokee died during the long march west that became known as the “Trail of Tears.”8

As if the forced relocation was not a sufficient insult, the U.S. Government was slow to pay to the Cherokee the promised funds – very slow to pay. First, the U.S. insisted that they had to reduce the payment by around $500,000 as the cost of the relocation (which, under the 1835 treaty, was supposed to be paid by the U.S.). Then, it subtracted about $18,000 for the part of the National Debt allocated to the Cherokee and another $61,000 for “claims” that U.S. citizens had against the Cherokee.9

By the time the U.S. government had finished its calculations, the U.S. had whittled down the nearly $7.1 million it had promised to just under $1.4 million or around $140 per person total.10 The Cherokee Nation protested.11 The U.S. government would not budge and paid out these respective amounts.12 They required each person to sign a release before they could get paid.13

To make matters worse, the Cherokee could not even sue. At the time, no U.S. court had jurisdiction over this kind of dispute. Finally, in 1889, fifty years after the Trail of Tears, Congress passed a law conferring jurisdiction on the Court of Claims to [T]ry said cause and to determine what sum or sums of money, if any, are justly due from the United States to said Indians, arising from or growing out of treaty stipulations and acts of Congress relating thereto, after deducting all payments heretofore actually made to said Indians by the United States, either in money or property; and after deducting all offsets, counterclaims, and deductions of any and every kind and character which should be allowed to the United States under any valid provision or provisions in said treaties and laws contained, or to which the United States may be otherwise entitled.14

The Cherokee Nation needed a lawyer who wasn’t afraid to take on the U.S. government and who would not be discouraged by the longest of odds. They found that lawyer in Belva Lockwood.

Belva Lockwood was a fighter. She married at the age of 18, had her daughter at 20, and was a widow at 22. She went to college at September 2019

the age of 24, started teaching school, and after the Civil War moved to Washington D.C. with her daughter where she started the first coeducational school in 1866.15

In 1869, at the age of 40, she applied to Columbian College of Law. She was refused admission with the following letter.16 Madam, The Faculty of Columbian College have considered your request to be admitted to the Law Department of this institution, and, after due consultation, have considered that such admission would not be expedient, as it would be likely to distract the attention of young men.

Respectfully, Geo. W. Samson, Pres.

Undeterred, she applied and was accepted to the National University Law School. Upon finishing her classes, the College refused to issue a diploma . . . because she was a woman. Undeterred, she wrote a letter to President Ulysses S. Grant, who was also the President ex-officio of the University.

To His Excellency U.S. Grant, President U.S.A.: SIR, --- You are, or you are not, President of the National University Law School. If you are its President, I desire to say to you that I have passed through the curriculum of study in this school, and am entitled to, and demand, my diploma. If you are not its President, then I ask that you take your name from its papers, and not hold out to the world to be what you are not.

Very respectfully,

Belva A. Lockwood17 Grant never responded, but the next week, she had her diploma. Then, she got herself admitted to the D.C. Bar – only the second woman to do so.18 Most of her practice focused on representing Civil War veterans in obtaining their pensions, but in 1874, about 12 years into her career, she needed to be admitted to the U.S. Claims Court to litigate a patent dispute. She asked another attorney to move for her admission. He agreed. Here is how she described it: There was a painful pause. Every eye in the courtroom was fixed first upon me, and then upon the court; when Justice Drake, in measured words, announced, “Mistress Lockwood, you are a woman.” For the first time in my life, I began to realize that it was a crime to be a woman; but it was too late to put in a denial, and I at once pleaded guilty to the charge of the court.19

She tried three times for admission, but the Court persistently refused. So, she applied for admission to the U.S. Supreme Court. That Court refused stating, “As this court knows no English precedent for the admission of women to the bar, it declines to admit, unless there shall be a more extended public opinion, or special legislation.”20

That was all Belva Lockwood needed to hear. She took the matter up with Congress and after two years of personal lobbying in both the House and Senate, on February 7, 1879, Congress passed a law admitting women to the bar of the United States Supreme Court.21 Less than a month later, the U.S. Supreme Court granted her admission.22

(Continued on page 20)

DICTA

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barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m. The next meeting will be held on September 11, 2019. There are many opportunities to get involved, and you are encouraged to contact Barristers President Mikel Towe (mtowe@lewisthomason.com) or Vice President Allison Jackson (ajackson@emlaw.com) for more information.

STAFF THE VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/ Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. We serve approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two (2) clinics, which will be held on September 11 and October 9 from 12:00 to 2:00 p.m. at the Knox Co. Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on September 11 and October 9 in the Event Calendar at www.knoxbar.org.

SEEKING TEAMS AND SPONSORS FOR CHARITY GOLF TOURNAMENT The Barristers and the KBA joined together to co-host the annual fourperson golf scramble on Monday, October 21, 2019 at the Holston Hills Country Club. Revenue from the tournament goes directly to funding various charitable endeavors of the Barristers, including the efforts of the Hunger & Poverty Relief Committee. Regular Registration is $125 per player. Registration for Law Students & Attorneys Licensed 2015-19 is $100 per player. A limited number of team spots remain! Registration

includes green fees, cart, range balls, buffet lunch, water, sports drinks, and beer while golfing, commemorative tournament gift, other prizes & a complimentary reception following the tournament! The Athletics Committee is still looking for sponsorships for this event. If you know of someone who would like to sponsor, please contact the Athletics Committee co-chairs, James Parker (jparker@hdclaw.com) or Patrick O’Neal (patrick.oneal@leitnerfirm.com).

BREWS FOR BACKPACKS - THANK YOU! The Hunger and Poverty Relief Committee would like to thank everyone who attended our 2nd Annual Brews for Backpacks event on August 5 at Printshop Beer Co. We collected more than 15 backpacks filled with school supplies and raised over $830 to purchase more school supplies to donate to ChildHelp Foster Family Agency of East Tennessee! We would also like to thank our event sponsor, TCV Trust & Wealth management, for helping make this event possible.

BARRISTERS SOCIAL HOUR AT HI-WIRE BREWING Join the Barristers for an Arcade Social Hour on Thursday, August 29, 2019 from 5:00-7:00 p.m. at Hi-Wire Brewing located at 2020 Barber Street. Open to all KBA Members. Come out and have a drink at one of Knoxville’s newest Breweries. This is a great opportunity to network, meet new faces, and get involved, so join us. Register at www.knoxbar.org by clicking August 29th in the Event Calendar.

JOIN US FOR THESE UPCOMING SUMMER FUN CLE’S Are you a fan of the show The Office? Join Caitlyn L. Elam, Lewis, Thomason, King, Krieg & Waldrop, P.C. on September 18th at Schulz Bräu Brewing Company to learn about employment law issues from the perspective of Michael Scott. If you’d like to know more about the cannabis industry and check out Blühen Botanicals, join us on September 25th. Local lawyer and hemp farmer, Dan Pilkington, Watson, Roach, Batson, Rowell and Lauderback, will present Cannabusiness – What Lawyers should know about Cannabis Legalization. See the insert for more details.

WHAT IS JUSTLY DUE (Continued from page 19)

The Cherokee Nation’s case was the last case that she argued before the U.S. Supreme Court. It was 1906, and she was in her seventies.

In the Court of Claims, she won the Cherokee Nation an additional $1,134,248.23, plus interest calculated from 1835, plus attorneys’ fees and costs. The case was appealed to the Supreme Court, and the judgment was affirmed with a slight reduction in the judgment to $1,111,284.70 plus interest and attorneys’ fees.23

Belva Lockwood was the right attorney for the Cherokee Nation at this moment in history – not just because of her education or experience but because she knew how to see past the word “No.” For Ms. Lockwood, seeing really was believing.

Le Ann Potter, A Bill to Relieve Certain Legal Disabilities of Women, Social Education

Vol. 66(2) p. 118-120 (2002), available at http://www.socialstudies.org/sites/default/ files/publications/se/6602/660206.html.

16 Quoted in Belva A. Lockwood, My Efforts to Become a Lawyer, Lippincott’s Monthly

Magazine (Feb. 1888). Ms. Lockwood’s fascinating account in her own words is

available at https://likelincoln.org/wp-content/uploads/2013/04/Belva-Lockwood- Article.pdf.

17 Id. 18 Id. 19 Id. 20 Id. 21 An Act to Relieve Certain Legal Disabilities of Women (Feb. 15, 1879), available at https:// www.loc.gov/law/help/statutes-at-large/45th-congress/session-3/c45s3ch81.pdf.

22 Lockwood, supra n. 16.

23 U.S. v. Cherokee Nation, 202 U.S. 101 (1906).

15

Cherokee Nation v. U.S., 40 Ct. Claims 252 (Mar. 20, 1905).

The full text of the Indian Removal Act, can be found in the archives of the

Library of Congress at the following website: https://memory.loc.gov/cgi-bin/ ampage?collId=llsl&fileName=004/llsl004.db&recNum=458.

3

Id. 4

Cherokee Nation, 40 Ct. Claims at 265.

5

Id. 6

Id. at 266-67.

7

Id. at 267.

8

Library of Congress, Research Guides, Indian Removal Act, https://guides.loc.gov/

indian-removal-a, last visited Aug. 8, 2019.

9

See id. at 280-282.

10 See id. at 281-282.

11 See id. at 282.

12 Id. 13 Id. 14 Id. at 286.

1 2

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DICTA

September 2019

LEGAL MYTH BREAKERS By: David E. Long MGC Member

“WHO’S ON FIRST?”

Yeah…So what… I’m old enough to remember Abbott and Costello, or at least the re-runs, on Saturday TV. I mean …c’mon, you’ve not really giggled like a breakfast-cereal-sugar- fueled moron until you’ve watched “Abbott and Costello Meet Frankenstein” followed by the classic short “Who’s on First” routine. So, pick it up on YouTube or “whatever dot com” sometime. If you don’t chortle at least a little, you don’t have a “silly” bone in your whole body.

The legal version of “who’s on first” involving depositions is interesting and the memory of attending one of my first. One of my first depositions comes to mind. As the lawyer for the defendant, I prepared to take the deposition of the plaintiff first. The plaintiff ’s attorney, who shall remain unnamed (he probably didn’t watch Abbott and Costello either), announced he wanted to “take the defendant first.” I was actually prepared for that scenario, having been warned by the partner on the file in advance. He told me “it might come up with this guy,” and gave me a litany by which to exorcise that procedural demon. First, I started with the admonition “the plaintiff has the burden of proof at trial,” followed up with the liturgical coup de grace “ it’s always been local custom….”

The “demon” didn’t blink. In fact, plaintiff ’s lawyer came right back at me with the most irritating retort: “There’s no law on it. Show me the Rule that says we have to do it your way.”

Well, give the devil his due. He was right then, and essentially correct now, but no more so than me. The Rules of Civil Procedure give hints, but not definite answers to the question.

The Tennessee Rules of Civil Procedure have a few Rules, and safety valves… of sorts. The first Rule is TRCP 26.04 (Sequence and Timing of Discovery) which essentially says that unless the Court, upon motion, orders otherwise, the parties can utilize methods of discovery in any sequence they wish “…and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.” Obviously, the Rule was meant to facilitate ease of discovery, not create a maelstrom of confusion. TRCP 26.04 in its purest form, means that the plaintiff can decide to take the defendant’s deposition first if she chooses to do so. Or she can wait until later and utilize interrogatories first, etc. The defendant has the same options.

Of course, there is that pesky part of Rule 26.04 which begins with the word “unless” and gives the Court, upon motion, the right to order otherwise for “…the convenience of parties and in the interests of justice.” TRCP 26.04 implicates TRCP 16 and the convenience of scheduling conferences and orders. Does TRCP 26.04 also contemplate that “local custom” could become a standing local court “rule” in various jurisdictions, assuming a court did not want to hear this type of discovery dispute continually, or continually have to hear TRCP 16 proceedings/ arguments? Perhaps, but the language of TRCP 26.04 suggests more of a case-by-case inquiry. There would appear, on first blush, however, nothing to prevent local trial courts having standing local Rule 16type rules stating a preference absent a showing otherwise by opposing counsel.

do party depositions at the same time” group outing most of us employ?

We do it for various reasons, most of all, because it saves our clients time and money. What standard of witness presentation should we utilize then, absent a scheduling order, discovery conference, or previous agreement among counsel? The Rules are effectively fairly “loose” about the procedure. TRCP 30 certainly provides a few “shalls” and some strong “mays”, but TRCP 29 allows the parties to stipulate to about any procedure they wish to take with regard to discovery, assuming they can agree and put it in writing.

In an effort to encourage us to “play nice,” TRCP 29 allows for the parties, absent a court order, to stipulate to “…any time or place, upon any notice, and in any manner….” but the stipulation has to be in writing and signed by all parties or counsel.

TRCP 30 contemplates depositions by notice most of time, and notices state which party will be deposed, when, how, etc. The reality is that most of the time, depositions by notice are not favored by either the parties or the courts in this region. Notices that are filed are generally worked out and amended between the parties, or by the courts which are reticent to force a party and lawyer (who often has a legitimate conflict of schedule) to a noticed deposition. Practically speaking, “unofficial” Rule 16 meetings and conferences are being held informally all of the time. Most of those issues, if any, are resolved by word of mouth and telephonically prior to any issue about it coming up. The Rules have some fall back provisions, which mostly involve a court hearing. With respect to our learned judiciary, we all know how most judges feel about the “squabbling” discovery arguments. The Rules, for the most part, however, contemplate a bit of professional good faith on the part of parties and counsel in cooperating in the discovery process, and getting “The Boss” involved in something like this is not a particularly good idea.

TRCP 30.03 has a nice little suggestion. I say “suggestion” because it utilizes the word “may.” It simply states with regard to depositions “[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the Tennessee Rules of Evidence.”

I suggest that means in “party deposition” situations, the plaintiff should go first, as they do at trial. But again, timing and difficulty tends to rule the day in a specific case.

Of course, my co-writer of this column, Brad Fraser, points out that sometimes the plaintiff ’s lawyer calls the defendant as the first witness at trial. Well…crap….

The bottom line, however, is that if the players cannot agree through pre-discovery stipulation, or otherwise, the court decides who’s on first, second and otherwise. By analogy to my childhood, however, I am reminded of my Mom telling my brothers and me to “work it out, or none of you are going to like what I decide.” That is probably a wise word of caution.

Batter Up!

It is one thing to apply, or debate, TRCP 26.04 in the context of the noticed deposition, but what about the agreed-upon standard “let’s all

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

September 2019

DICTA

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AROUND THE COMMUNITY-PHILANTHROPY By: Tamara Boyer East Tennessee Foundation General Counsel + Vice President for Advancement

THE INITIAL CONVERSATION: THE FIRST KEY TO PHILANTHROPIC GIVING

For some, there is no greater gift than the gift of giving. As professional advisors, we hold the key to identifying unique and often the most beneficial ways for a client to give. Today, more than ever before, charitable gifts are increasing in our country and in our own home state of Tennessee.

According to a recently published report, Giving USA 2019: The Annual Report on Philanthropy for the Year 2018, American individuals, bequests, foundations, and corporations gave an estimated $427.71 billion to U.S. charities. These 2018 charitable donations reflected an increase of 0.7% over 2017, which had already been a record-breaking year of giving.

In Tennessee, we certainly live up to our nickname, The Volunteer State. That moniker is reflected in the ways we give to and serve others, at home and around the world. A February 2019 Insider article, “The Top 20 Most Charitable States,” identified Tennessee as the No. 2 state in the nation for annual dollars donated by individuals and tied for the No. 10 spot for the percentage of residents who gave back the most. Such remarkable numbers reflect a philosophy certainly alive and well where we call home.

While giving away money is ostensibly an easy task to accomplish, as professional advisors and no matter our area of legal expertise, we know that purposeful charitable gifts require an intentional plan. As a potentially strategic partner to your client’s decision making, you hold the keys to philanthropic giving which can open the doors to a myriad of rewarding possibilities, and not just to the charitable community, but also to your client. Whether it is that gift of giving that rewards the giver, or it is the role modeling and lessons learned by family members who likewise are more probable to become engaged in philanthropy, the value of that gift serves a much broader role.

Sharing the benefits of philanthropic giving during one’s life is as meaningful as sharing the benefits of philanthropic giving upon death.

In fact, there are boundless rewards to your client as the donor as well as the recipients, because your client can see and experience the meaningful impact of the gift. Philanthropic giving can produce a momentum of engagement beyond the monetary gift. The ability to contribute time and talent can also result in meaningful shared experiences and deepen connections to our community. For the legal professional, no matter our area of legal expertise, the key to philanthropic advancement may just be the one that initiates the conversation, shares an overview of the various ways philanthropy can be incorporated into a life, health and financial plan, and stresses the value of advance preparation. While you may not be the legal expert to answer all the important aspects of a potential giving plan, you may be the only advocate in your client’s life to equip and challenge them with the basic tools for consideration.

While we know that every key is unique to the lock it opens, so, too, should be the approach to philanthropic planning. With proper information, and the periodic nudge, even more in our community will have the opportunity to understand and perpetuate the meaningful rewards of philanthropy.

The first strategic key to philanthropic giving is providing the opportunity to our clients to address those items on what I would call The Life Checklist, in other words, initiating the conversation presenting the inevitable life events alongside the possibilities. These initial and periodical conversations should be set, ideally, on a similar schedule as a health and wellness check-up. Not every area of our lives requires an annual visit to our legal or healthcare professional, but life events happen which will drive us to one or the other, unprepared for what is about to occur next.

These inevitable life events, both the good ones and the challenging ones, can be far more rewarding, and, if possible, enjoyable, with advance planning. Deliberative decisions to have meaningful life conversations with your client before the events occur, place the necessary emphasis on the importance of thoughtful and strategic thinking, researching, and decision making, void of any sense of urgency and clouded emotions which could adversely impact or limit the decisions made. For most of us, thoughtful decisions require time to reflect on the consequences, weighing and balancing of one action or dollar amount over another in consideration of the outcomes. When an opportunity is presented to spur on these decisions in advance of the necessity to do so, the emotional and mental process required to arrive at these decisions can be enormously rewarding and most often will result in satisfying and sustainable outcomes, which may also be much more economically beneficial.

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DICTA

September 2019

BAR HOPPING By: Julia Hale Lewis, Thomason, King, Krieg & Waldrop, P.C.

Back for 2019, Bar Hopping usually highlights one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Congratulations to Emily Taylor, Brian Bibb, Linda Glasgow, and Jade Peters for correctly identifying the Gibson County Courthouse.

This month we will turn to the neighboring state of Georgia.

There we find a courthouse that was the location of a fictional court case portrayed in a 1992 film starring Joe Pesci and Marisa Tomei.

Think you can name this courthouse? Email jhale@lewisthomason. com with your answer. Correct answers will receive a shout-out in the next issue of DICTA. Check back next month for the reveal and a list of the big winners.

Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.

BAR LEADERS EVENT

September 2019

DICTA

23

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 By: Phil Hampton Founder and CEO, LogicForce Consulting

TOP TECH TIPS FOR 2019

Here are some of our favorite tech tips that we have discovered and use both at work and at home.

Amazon Alexa Lists: Amazon’s popular Echo products with the Alexa digital assistant are everywhere. Alexa is being integrated into a wide array of consumer products from audio speakers to light bulbs. Alexa’s capabilities expand weekly with numerous new skills being added by developers. One function that we love to use with Alexa is a built-in feature that does not require the installation of a new skill. The Alexa list function is very useful, allowing us to dictate a list of to-do’s or reminders verbally. Whether we are using one of the Echo devices in our office or just the Alexa app on our smartphone, rather than write down a reminder on paper, we simply just dictate “Alexa, add ‘follow-up with Bill on presentation’ to my ‘Priority’ list.” Alexa dutifully complies; and, later on, we can get Alexa to read back any of our lists, or simply just access the list from the Alexa app. iPhone Magic Cursor: One of the curses of operating a smartphone is trying to type a lengthy message on a tiny, onscreen virtual keyboard.

Perhaps people with smaller fingers don’t sweat it like we do; but we tend to make a lot of typing mistakes and are frequently having to go back to correct embarrassing typos. Moving the cursor within a text block you want to edit is a pain as well. We discovered that you can access a hidden track pad (like a track pad on a laptop for moving the cursor) on your iPhone by pressing and holding your finger on the onscreen keyboard for a few seconds. The keyboard disappears and a track pad appears that you can use to move the cursor around with your finger, just like you do on a laptop. What a relief!

Rocket Book and OneNote: We have been using the amazing Rocket Book for over a year now. With this special notebook we can take notes with pen on paper, which we prefer over typing on a laptop or laptop during a business meeting. However, we really do like to keep our notes in an electronic filing system for organized, easy access. No problem with Rocket Book. Using the Rocket Book app we can simply designate with a pen stroke that a particular note is to be stored in a custom Microsoft OneNote folder, take a photo of the notes, and the note is stored in the correct notebook in our OneNote app. We have the best of both worlds: taking notes the traditional way with pen and paper; and storing the notes electronically where we can access them from any device at any time.

Saent: This device is an aid for people that follow the Pomodoro Technique for time management (which we cover in our latest Bill and Phil Show presentation). With the Saent device plugged in to our computer, we start a focus session (such as writing this article).

While engaged in our focused task, the Saent device keeps a timer for our session, blocks digital distractions (such as e-mail or social media interruptions), and lets us know when it’s time to take a break. We welcome this time management coaching and find that it really does boost our productivity.

Todoist: In our opinion, this is the best to-do list app out there. It works on any device. It is free, but the Premium version ($36 per year) is best.

It has many great features, and is very easy to use. You can add due dates, reminders, set priorities, organize items by projects or topics, or subprojects or topics. You can collaborate with others on projects and it provides suggested templates for several sample projects to get you started.

Echo Input and Echo Dot: If you are too cheap to pay $150 for the standard Amazon Echo, and, like us, you have a good portable speaker, you should save money and get an Input ($14.99 on sale) or a Dot ($24.99 on sale). They both work great and you can even plug them into your auxiliary input in your car to use Alexa on the road, if you have a portable wifi connection via your phone or a hot spot.

PDF PrintFriendly: This tip not only solves a big heartburn problem for us but is environmentally friendly as well. Have you ever read a really interesting article online that you wanted to either printer or capture in a PDF to share with someone else? You go to print the two-page article; and the printer spits out five pages because you print out a lot of junk that appears on the webpage in addition to the article. PrintFriendly is a free browser extension available for all popular internet browsers that allows you to print just the article that you want and not all the extraneous ads and junk on the webpage. We can print either a hardcopy on a printer or to a PDF file. Either way the printout is much cleaner; and we probably save a ream of paper over the course of a year.

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DICTA

September 2019

WELL READ By:

Jason H. Long London Amburn

REVIEW OF FULL COURT PRESS

As late as the 1970s, the state body governing high school athletics, Tennessee Secondary Schools Athletic Association (“TSSAA”), adhered to an outdated set of rules for girls’ high school basketball.

While the boys played the traditional five-on-five full court game, the girls were relegated to a six-person half-court game. In this variation, a girls’ team was allowed to have six players on the court at one time but those six players were divided up into three guards and three forwards.

The guards were only permitted to play on the defensive end of the court and the forwards could only play on the offensive end. No player was allowed to cross the half court line at any time during the game. Guards would get a stop and have to pass the ball up the court to the forwards and allow them to play offense. Under this system, there were high school girls who played their entire careers never attempting a shot. The purpose of the different set of rules was to “protect” girls whose allegedly fragile constitutions could be put in jeopardy by the more physically taxing fiveon-five full court game.

Enter four women who would dispel these antiquated notions, change the course of high school basketball in the state, offer opportunities to countless girls and women, and drag Tennessee one step closer to an era of equality for women, at least on the athletic field. The first woman, Victoria Cape, was really just a girl at the time. A girl who wanted to play high school basketball for her team in Oak Ridge but did not believe the six-person half court game was a suitable alternative. The next two were local attorneys sensing an opportunity to use their training to make a real impact, Dorothy Stulberg and Ann Mostoller. The last woman was a young coach beginning to make a name for herself at the University of Tennessee. She was known as Pat Head at that time, although generations of Tennesseeans would come to revere and adore her as Pat Head Summit.

case to where it is today is a compelling story told expertly by William Haltom and Amanda Swanson in their new book Full Court Press. Bill is a mainstay of legal literary circles in this state. In this latest book, Bill is able to combine several of his true passions: history, the law, and all things Tennessee athletics (particularly Pat Summit) and his enthusiasm for those topics shines through. Readers will find his easily accessible style prevalent in this book. Amanda is a newcomer to the scene but her credentials are impressive. She is currently a law student at the University of Virginia and has a background in women’s basketball operations, having worked at Mount St. Joseph University. As daughter of the KBA’s own Charles Swanson and Judge Pam Reeves, Amanda has grown up watching Pat Summit work her magic on and off the court and hearing stories of the east Tennessee legal community and its colorful characters. To say that Bill and Amanda were destined to collaborate on this book may be an understatement.

At one hundred forty-five pages, the book moves as quickly as the legendary Judge Taylor’s docket. Despite its quick pace, or maybe because of it, the book is able to take a deep dive into the personalities involved in the lawsuit and give substantial color to this important piece of east Tennessee history. For KBA members, it is full of familiar names and tells a compelling story of a fight for justice on the front lines. I highly recommend the read for anyone who has an interest in law, sports, or good historical storytelling. It is a fascinating chapter of our legal history and our Knoxville community. It gives greater insight into the Coach we all believe we know so well, and whose name is synonymous with our city.

Most importantly, it is the kind of story that will make you proud to be a lawyer.

On August 13, 1976, lawyers Stulberg and Mostoller filed suit on behalf of Victoria Cape against the TSSAA in the United States District Court for the Eastern District of Tennessee, alleging that the separate rules for girls’ high school basketball represented both a constitutional violation and a violation of the somewhat recently enacted Title IX of the Educational Amendments of 1972. The case was tried a mere 11 days later (and that after a continuance had been granted) before the legendary and colorful District Judge Robert Love Taylor. The star witness, Pat Head, was called to give expert testimony in the matter.

While Coach Summit has undoubtedly left an enormous footprint on women’s athletics and the landscape of east Tennessee over the course of her legendary life and career, arguably no moment was greater than her willingness to speak out against institutional inequality as she did, really for the first time, in this case.

I don’t want to give away any spoilers, although we all know that today high school girls are not playing under the six-person half court rules. However, how Tennessee got from the trial of the “Cape”

September 2019

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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

MONSTERS AND GUNS

My wife forgot to pack my lunch that day.

I spent the morning preparing for class and talking to students.

Grades had just come out and there were many long faces. One disappointed fellow, whom I knew only as “Peter O.,” complained to me about another professor. When Peter left my office, I headed out to our little town’s only restaurant.

Thirty minutes later, I overheard a snatch of conversation between two utility workers: “. . . shooting at the law school.” I looked across the street and saw hundreds of students on the sidewalks and in the parking lot. No one moved. No one spoke, except for a woman who stared at me and blurted, “Tom and Tony are dead.”

Tom Blackwell was my closest friend at the law school. Tony Sutin, also a good friend, was our Dean.

“Are you sure?”

She nodded again. “Peter O. shot them. He killed Angela Dales, too.”

“Where is Peter O.?”

“The police just took him away. Some students tackled him and grabbed his gun.”

I walked toward the main entrance. Yellow tape blocked my way. The doors were ajar. A body lay on the floor. I walked to the back entrance, where a sobbing student called out to me, “Professor Harris!

Don’t go in there!”

Upstairs, more yellow tape.

My office door was open. Tom Blackwell’s door, next to mine, was shut. I walked around the corner to Tony Sutin’s office. Also shut. A small silent group stood in front of the Board Room, our primary meeting place.

Wendy Davis, a colleague and friend, shouted, “Oh, my God! Stewart! Call Priscilla! Nobody knew where you were!”

I went into the Board Room, jammed with people, and straight to the phone. “I’m okay,” I told my wife, Priscilla. “Tom and Tony are dead.”

Priscilla fought back tears. She was within earshot of our children and Tom Blackwell’s children, all of whom were playing at our house that day. She struggled to maintain a conversational tone. She had been hovering by the phone for almost half an hour, waiting to hear if I was still alive.

Finally, she asked, “What does Lisa want me to do with the kids?”

I looked up. Lisa Blackwell, Tom’s wife, was sitting in a chair, surrounded by friends. “I’ll call you back.”

I went to Lisa and hugged her.

“Oh, Stewart.”

“Your children are safe,” I said, when I could speak. “What do you want us to tell them?”

“Nothing. Please. I’ll tell them later.”

Later turned out to be two hours later - two hours during which the Blackwell children did not know that their father was lying in his office in a pool of blood, a .380 bullet in his brain. They seemed to sense, however, that something was wrong. Ambulances raced by. Helicopters flew low overhead. My wife, despite her best efforts, was stricken. Finally, a family friend came to take the Blackwell children to their mother, who

was waiting for them at the law school. They all went into a small room.

Moments later, there was a scream.

That afternoon was a blur of tumult and confusion, but one memory stands out: Margaret Lawton, Tony’s wife, following her husband’s body as it was wheeled from the school. I went home soon afterward. I hugged my wife. Then I took my two sons, eight and eleven years old, and sat them down on the living room couch. They were silent, their eyes enormous.

And I explained to them that there really are monsters.

The shootings at the Appalachian School of Law, in the tiny town of Grundy, Virginia, happened over seventeen years ago. Tragically, what seemed a massive rampage at the time has been overshadowed by even greater massacres - Virginia Tech, Sandy Hook, Charleston, and, now, Dayton and El Paso.

I have not written about my own experience with mass murder before today. The subject is unpleasant and the memory painful. However, like many Americans, I feel compelled to speak out on the issue of gun violence. I can also shed some light on the Second Amendment, which frames the policy debate.

First, like every other provision in the Constitution, the Second Amendment is not absolute.1 The right to “keep and bear arms” does not mean that everyone may buy, sell, or own a weapon without qualification or restriction. We can enact reasonable laws designed to keep dangerous weapons out of the hands of those who should not have them.

Second, the “arms” that the Second Amendment says we can “keep and bear” are not infinite. We must draw a line somewhere. No one - I hope - believes that individuals have a right to own M-1 tanks or nuclear weapons. And any analysis of which “arms” are covered by the Second Amendment - and which are not - must at least begin with the original intent of the Framers of the Bill of Rights. When he drafted the Second Amendment, in 1789, James Madison was writing about single-shot, muzzle-loaded flintlocks. And swords.

Such a narrow “originalist” reading of the Second Amendment is unlikely to gain political or judicial approval. But the original meaning of the term “arms” is an appropriate starting point for constitutional analysis.

And it’s a safe bet that none of the Framers ever intended to create an absolute individual right to “keep and bear” weapons with which a single person can slaughter dozens of kindergartners in less than a minute.

I hope that Americans of goodwill - conservatives and liberals, hunters and vegans, Republicans and Democrats - can come together and support moderate legislation to reduce the chances of another Sandy Hook, another Virginia Tech, another El Paso. Another Appalachian School of Law. Peter O. had a long history of domestic abuse and mental instability.

He bought his gun, legally, just before shooting six innocent people.

There really are monsters among us. Let’s keep them away from the guns.

1

District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.

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DICTA

September 2019

LONG WINDED By:

Jason H. Long London Amburn

KNOXVILLE BOY MAKES GOOD?

I am always impressed by those who demonstrate a true entrepreneurial spirit. My comments about Mark Zuckerberg in last month’s column notwithstanding, I am envious of individuals who have the vision, drive and courage to chart their own path and successfully chase their dreams. Those people are true heroes. Historically, entrepreneurs have always been at the forefront of our modern democracy and our greatness as a nation. They represent the very best of who we are and their unique talents should be nurtured, safe-guarded, and celebrated.

Naturally, I take pride when any of my fellow Knoxvillians exhibit such entrepreneurial drive. They make me proud of my heritage and my upbringing. When a local boy or girl makes good, I stand a little taller. Enter one John Lambert, Knoxville native. Mr. Lambert first gained national attention three years ago when he and a classmate cofounded Students for Trump. Mr. Lambert became the face of millennials supporting then-candidate Donald Trump for President (Disclaimer here – it is ultimately irrelevant to this column that Mr. Lambert is a supporter of President Trump. Mr. Lambert could just have easily have founded Students for Hillary. This particular story has no political relevance, despite most people’s attempts to read political relevance into everything these days). Mr. Lambert appeared on television, at rallies and on campuses campaigning for the future president. He was articulate, passionate and charismatic – essential qualities of a good entrepreneur.

While the Trump campaign never acknowledged that Mr. Lambert and his friend were in any way formally tied to the official campaign, Mr. Lambert garnered some minor celebrity status as a young, up-andcoming conservative voice.

After the election was over, Mr. Lambert and his friend hung out their own shingle. That takes guts. Many here in our own community can tell you how brave and how committed you have to be to go out on your own as an attorney. In my opinion, it takes courage to practice law even when you are with a firm and have the support of lawyers all around you. I cannot fathom doing it all on my own. What’s more, Mr. Lambert chose to hang that shingle in Manhattan and begin representing clients in corporate and financial matters. Talk about walking out on a tight rope with no safety net. For a good ole southern boy to move to the Big Apple, strike out on his own and establish a law practice in the most competitive legal environment in the world speaks of a person confident in his own abilities and with the desire to take on the world.

revamp how we choose to deliver legal services. Mr. Lambert, as a good millennial, understood this intuitively. Many have felt uncomfortable with the notion that a time is coming when we may represent clients from start to finish, without ever meeting them in person. But more and more, this is the type of efficiency and convenience the market demands.

Mr. Lambert understood that reality and welcomed his clients in to his virtual law practice. Consults were had, engagements were made, and payments were received, all without the clients ever having to come to Mr. Lambert’s office to meet him face to face.

And that’s where the rub was. Mr. Lambert didn’t have a law office. In fact, he never had a law license. Mr. Lambert never went to law school. He never graduated from the Wharton School of Business.

His law firm never actually existed and he never performed the legal services for which he charged retainers. Instead, at age 23, he dropped out of college and created a website advertising the law firm of Dunn & Pope. He spoofed his phone to obtain a New York City area code, copied several bio pages from the prestigious Cravath, Swain & Moore firm to make it appear the firm had a team of associates, and he assumed the name Eric Pope, With all of that in place, he and his partner started taking on clients . . . or at least taking their money. Needless to say, it was not long after that complaints started, followed by indictments.

Apparently, Mr. Lambert’s partner began cooperating with investigators and it was only a matter of time before the shoe dropped.

Mr. Lambert pleaded guilty last week in the United States District Court for the Southern District of New York to one count of conspiracy to commit wire fraud. He is subject to up to 20 years in prison but apparently the Court is considering a plea agreement which would require him to pay back almost $50,000 he collected in legal fees and serve between 15 and 21 months in federal prison. As it turns out, an entrepreneurial spirit is important and can lead to great things. However, equally important is a moral compass, good ethics, and a sense of right and wrong.

Of course, Mr. Lambert was no fool. He had a strategy for success and he pursued it relentlessly. He built a personal brand. He touted his credentials as a graduate of the Wharton School of Business and NYU Law School. His pedigree was impressive. He built a business brand. He brought in a number of top associates and advertised his firm as a leader in “innovation and traditional efficiency” (“innovation” and “efficiency” are great buzzwords in the business community). On his website, he noted that “[h]e [was] sought after for his experience with corporate and financial matters due to his ability to mitigate legal scenarios while keeping the growth of his clients’ business a focal point.” In today’s world of technological revolution and fast paced commerce, Mr. Lambert’s brand seemed to be on point.

Perhaps even more impressively, Mr. Lambert was on the cutting edge of technology. I have preached for the past four years that the evolving legal marketplace is going to force us all to reconsider and September 2019

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GRAMMAR GRINCH By: Sarah M. Booher, OEB Law, PLLC

Esq.

“DECEASE AND DESIST” AND OTHER LINGUISTIC PHENOMENA

Gentle readers, this month we’re talking about spoonerisms, mondegreens, eggcorns, and malapropisms. And while they likely won’t help your pleadings look more polished or win any big cases for you, they will, as always, give you something to talk about at the ever-dreaded cocktail party. So let’s get to it.

Spoonerisms are errors in speech in which corresponding consonants, vowels, or morphemes are switched between two words in a phrase.1 Named for the tongue-twisted minister William Archibald Spooner who taught at New College in Oxford in the 1800s, the term ‘spoonerism’ was well-established by the early 1920s. He is attributed with jewels such as “it is kisstomary to cuss the bride?” instead of “is it customary to kiss the bride” and “the Lord is a shoving leopard” as opposed to “the Lord is a loving shepherd.” Today, a Spoonerism refers to any changing of sounds in this manner, and they can be either slips of the tongue or an intentional play on words, like the late Shel Silverstein’s fun story, Runny Babbit: A Billy Sook.

Mondegreens, on the other hand, are the mishearing or misinterpretation of a phrase as the result of “near homophony, in a way that gives it a new meaning.”2 Basically, we get the lyrics of a song wrong. Mondegreens were labeled as such by Sylvia Wright in a 1954 Atlantic article. When she was a child, she loved to recite a folk song about the Earl of Moray which included the lyrics, “They had slain the Earl the Moray/And laid him on the green.” However, Sylvia misheard these lyrics, thinking for a long time that a Lady Mondegreen was another victim of the tragic circumstances.3 It has been suggested our mondegreens are sometimes driven by cognitive dissonance, as the listener of a song cannot make out the words and the brain finds gaps in understanding uncomfortable and makes assumptions to fill them in.4

And we all have our favorite mondegreens. Personally, I’m a big fan of the Taylor Swift mondegreen, which sounds like “got a lot of Starbucks lovers, they’ll tell you I’m insane,” because that’s exactly what I heard. Turns out the true lyrics are a lot less caffeinated and a little less fun: “Got a long list of ex-lovers, they’ll tell you I’m insane.”

However, sometimes the mondegreen is equally as famous as the original song itself. Whether it is “hold me closer, Tony Danza” instead of “hold me closer, tiny dancer” in Elton John’s “Tiny Dancer” or “there’s a bad moon on the rise” misheard as “there’s a bad moon on the right,” the correct lyrics to Credence Clearwater Revival’s “Bad Moon Rising,” we probably all have a song we’ve been singing incorrectly our entire lives, or at least as long as the song’s played on the radio. Want proof? Visit www. kissthisguy.com, a mondegreen archive of countless flubbed lyrics, named of course for the Jimi Hendrix’s song “Purple Haze,” where listeners often confuse “’scuse me while I kiss the sky” for “’scuse me while I kiss this guy.”

Eggcorns are an “idiosyncratic substitution of a word or phrase for a word or words that sound similar or identical in the speaker’s dialect.”5 They were first name as an individual phenomenon in 2003 by linguistics professor Geoffrey Pullum, referencing a woman who misheard the word “acorn” as “eggcorn.”6 In essence, eggcorns happen when a speaker replaces a correct word with a different word that sounds similar but remain plausible. In the context of the originating eggcorn, wrote one grammar queen, the woman could have “been imagining that

28

an egg could grow into a chicken like the oat nut grows into a tree.”7 The phrase “old-timers disease” is a very common eggcorn substitution for “Alzheimer’s Disease.” Eggcorns can often be found substituting unfamiliar, archaic, or obscure words with something more ubiquitous from the more modern day lexicon. For example, we have culturally morphed “champing at the bit” into “chomping at the bit,” “free reign” into “free rein” and “real trouper” into “real trooper.” That’s right.

Originally, the expression “real trouper” meant a person who was part of a traveling company of performers and realized “the show must go on” regardless of disadvantages, setbacks, or personal issues surrounding a performance.8

Finally, malapropism is the use of an incorrect word in place of a word with a similar sound, resulting in a nonsensical and probably humorous utterance.9 They usually occur as errors in natural speech and show the complex process through which the brain translates thoughts into language. Named for Ms. Maloprop in the 1775 Richard Sheridan play “The Rivals” who was known for mixing up her words, the character’s name itself is derived from a French phrase meaning “badly for the purpose” or “ill-suited for the purpose.”10 Former Governor Rick Perry once mentioned “lavatories of innovation and democracy” instead of “laboratories.” Yogi Berra said that “Texas has a lot of electrical votes” (electoral). Former President George W. Bush gained notoriety as a modern day Ms. Malaprop. Probably my favorite of his was, “What we Republicans should stand for is growth in the economy; we ought to make the pie higher.”

So what does it all mean? If you take nothing else away after spending five minutes of your life trudging through my article, remember this much. Spoonerisms are the result of a speaker mixing up sounds.

Mondegreens come from a listener mishearing words. Eggcorns occur when people swap homophones (oh, remember those from a few articles back?!) in a phrase. Finally, malapropisms are what you get when someone substitutes a similar-sounding word for another.

[Think you’ve got it? Try this exercise. Maybe my article really will help you be a better attorney after all. Yesterday on a social media site for attorneys, one of the administrators mentioned she received an email that said, “Decease and desist.” Spoonerism, mondegreen, eggcorn, or malapropism?]

1

Mignon Fogarty, Spoonerisms, Mondegreens, Eggcorns, and Malapropisms, www. quickanddirtytips.com/education/grammar/spoonerisms-mondegreens-eggcorns-

and-malapropisms (August 5, 2019). Accessed August 8, 2019.

2

Id. 3

Gavin Edwards, Modegreens: A Short Guide, www.rulefortytwo.com/books

mondegreens. Accessed August 8, 2019.

4

Ira Hyman, A Bathroom on the Right? Misheard and Misremembered Song Lyrics,

Psychology Today (April 8, 2011). Accessed August 8, 2019.

5 Fogarty, supra note i.

6

Katy Steinmetz, This is What ‘Eggcorns’ Are (and Why They’re Jar-Droppingly Good),

Time (May 30, 2015). Accessed August 8, 2019.

7 Fogarty, supra note i.

8 Steinmetz, supra note vi.

9 Fogarty, supra note i.

10 Mark Ticak, What is a Malapropism?, www.grammarly.com/blog/what-is-a-

malapropism/ (July 5, 2016). Accessed August 8, 2019.

DICTA

September 2019

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

SECOND ANNUAL CELEBRATION OF THE PRO BONO DEBT RELIEF CLINIC The Pro Bono Debt Relief Clinic is a Partnership with the United States Bankruptcy Court for the Eastern District of Tennessee, Legal Aid of East Tennessee, and the Knoxville Bar Association. The second annual celebration will be held on September 10, 2019 from 3:15 p.m. – 4:30 p.m. on the fourth floor of the Howard H. Baker Jr. United States Courthouse.

Attorney volunteers from the past year of the program will be presented with appreciation certificates. Volunteers will speak briefly about their experiences at the clinic and share a story or two about the folks that they had the opportunity to help. A reception will follow.

This year, Judge Bauknight will present a one-hour CLE program, “Bifurcated Fees and Unbundling of Services in Chapter 7: Access to Justice”, from 2:00 to 3:00 p.m. in the Main Assembly Room of the City County Building.

Visit www.knoxbar.org for more details and click September 10 on the KBA’s Event Calendar to RSVP online. So that we may plan appropriately, RSVP by September 3rd to the Knoxville Bar Association.

DOUG TOPPENBERG JOINS KENNERLY, MONTGOMERY & FINLEY The attorneys of Kennerly, Montgomery & Finley PC are pleased to announce the addition of Douglas J. Toppenberg as Of Counsel. His practice concentrates in Family Law matters and litigation, including but not limited to Divorce, Child Custody, Support Issues, and Adoptions.

BENCH AND BAR IN THE NEWS NEW DEPUTY DISTRICT PUBLIC DEFENDER ANNOUNCED District Public Defender Mark Stephens announced the appointment of Eric Lutton as Deputy District Public Defender for the 6th Judicial District, effective July 17, 2019. Lutton succeeds Scott Carpenter, who is stepping down as Deputy District Public Defender after having served for over a decade. Mr. Carpenter has announced that he will retire in 2020 after a 30year career serving as an Assistant District Public Defender for the office.

VIEW THE CURRENT LIST OF KBA VETERANS The KBA thanks all of our Veterans for their service and dedication to our country. view the current list of members who have served in the military at www.knoxbar.org/veterans. If your name is not on the flyer and you would like to be added, please contact Jonathan Guess, Membership Coordinator | Database Administrator at jguess@ knoxbar.org by October 7th. An insert is planned in the November DICTA. NEW! VETERANS’ SERVICES ADDED TO AREAS OF PRACTICE The Membership Committee recently added Veterans’ Services as a new area of practice.

To add Veterans’ Services to your membership record, update your myKBA Profile at www.knoxbar.org.

PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association (“SMPA”) will hold its monthly meeting on Thursday, September 12, 2019, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Attorney Bailey M. Schiermeyer will be presenting on Special Needs of the Elderly.

The presentation will provide 1.0 hour of CLE for Certified and Advanced Certified Paralegals; however, all Paralegals are welcomed and encouraged to attend. A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@ smparalegal.org or (865) 215-3676 for additional information and/or lunch reservations. If you would be interested in speaking at a future SMPA

meeting, please contact April L. Denard, CP, First Vice-President, at aprileigh34@gmail.com.

SMPA ANNUAL PARALEGAL SEMINAR Smoky Mountain Paralegal Association Annual Paralegal Seminar will be September 27 – 28, 2019 at Wilderness at the Smokies. The speakers include: Steve Oberman, Oberman & Rice Law Firm; Melissia Ball, Myers & Ball, LLP; Casey Arrowood, United States Attorney’s Office; Nick DeBord, City Bonding and Shawn Blanton, Papa’s Bail Bonds; Honorable William T. Ailor, Knox County Circuit Court; and Ann Long, LMU-Duncan School of Law. All Paralegals are invited to attend. For information email president@smparalegal.org. Please contact Caroline Sudlow, ACP, at president@smparalegal. org or (865) 215-3676 for additional information and/or lunch reservations.

OFFICE SPACE AVAILABLE: • West Knoxville-Bearden Office Space West Knoxville lawyer has office space for rent at 4008 Sutherland Avenue. The rent includes internet, ample parking and common area maintenance. Inquiries: leslieahull@gmail.com.

•

3,000-plus s.f. of office space near downtown. Easy access. Downtown views.

Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865525-6806 for information. Contact Frank Graffeo at 525-6806.

•

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park.

Approximately 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. One Level.

Offices on either side occupied by long-term law firms. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

2019 KBA Attorneys’ Directory Available NOW One free copy of the directory has been reserved for each KBA member and additional copies are available for $20 if purchased by a KBA member. As in the past, the Attorneys’ Directory will be mailed in September to members whose office is located outside of downtown Knoxville. Also, if you practice outside of downtown Knoxville but have three or more attorneys at your location, please make arrangements to pick up your copies at the KBA Office, which is located in the basement of the Supreme Court Building at 505 Main Street, Suite 50.

September 2019

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

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

Want to Volunteer?

Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt

PRO BONO WORK – IT’S NOT JUST FOR ATTORNEYS!

All of the great Pro Bono work you all do for Legal Aid of East Tennessee’s clients throughout the year is inspiring. But, it’s not just attorneys who donate their time to LAET. There are many examples of non-attorney volunteers who help with planning and running Forging Justice each year.

and manning the event each year. They have helped line up caterers, choose menus, gather silent auction items, and set up for the event each year.

Each year at Forging Justice, we have been fortunate to have amazing live music and those musicians (yes, some have been attorneys – Judge Curwood Witt, Michael Davis, Roman Reese, and John Sterling Walsh) have all played for free. Last year, we were able to enjoy the great music of the Colonel Williams House Band, who performed pro bono, even more, thanks to Christina Horn and the students of her Production & Logistics Management class, which is part of the Audio Production Engineering program at Pellissippi State. Horn is known around Knoxville as one half of the electronic rock band Hudson K and for her collaborations with several other local artists. The students and Horn donated their time and equipment in 2018 to ensure that the sound quality during Forging Justice was second to none. They provided equipment and expertise that would have cost LAET significantly to rent, and brought a great energy to the event. And, they managed to address some of the interesting sound challenges of such a greatly unique venue as Ironwood Studios.

And, of course, there are many law students who volunteer their time. Each year, several law students from UT and LMU (and Case Western this year!) spend time during the summer lining up donations for our silent auction. Some of the most popular items we have offered have been donated by businesses approached by law students who thought outside the box. Students also help prepare bid sheets and descriptions for the silent auction. At the event each year, law students from UT have donned Forging Justice aprons and served tasty passed hors d’oeuvres to our guests.

Finally, Forging Justice would not be possible without the time and generosity of Ironwood Studios owners Preston Farabow and John McGilvray. Their donation of the venue gives LAET a unique location to celebrate each year.

So, when you attend Forging Justice this year, remember that while celebrating our amazing attorney volunteers, we are benefiting from the great work that musicians, artists, spouses, and students have done to help make the event amazing!

Thank you to everyone who contributes to LAET’s work and to Forging Justice every year!

FORGING JUSTICE PRO BONO CELEBRATION Tickets Available – https://app.etapestry.com/onlineforms/ LegalAidOfTennessee/2019ForgingJustice.html

Mark Your Calendars:

Sponsorship Opportunities Available – https://app.etapestry.com/ onlineforms/LegalAidOfTennessee/2019FJSPONSOR.html Photographer Bill Foster, who was recently voted Knoxville’s Finest Event Photographer and Knoxville’s Finest Wedding Photographer by the readers of Blank, has become a fixture at LAET’s Forging Justice events and also shot our Serving Justice event in May 2017. Following the presentation of our Pro Bono awards at last year’s Forging Justice, Foster let me know that he was so inspired by everything he heard about lawyers, law students, and community partners donating their time that he wanted to go ahead and commit to shooting Forging Justice 2019 pro bono. True to his word, Foster plans to be at Ironwood Studios on October 18 to take his signature style candids of our guests, award recipients, and musical performers.

In 2016, LAET had a committed paralegal volunteer, Mary Wheeler Carson, who provided hundreds of hours of work to our Pro Bono Project. When the concept for Forging Justice was first developed, she volunteered her husband, Josh Carson, to help with a logo design.

Josh, who studied at the School of the Art Institute of Chicago, donated his time designing not only the logo, but also the save-the-date cards, the invitations, and the program cover. Since 2016, even after he and Mary moved to Atlanta in May 2018, Josh has continued to provide updated versions of everything we need!

Attorney spouses have also donated their time to LAET by helping to plan Forging Justice each year. Linda Gay Blanc (Marshall Peterson), Betty Coley (Bill Coley), Desiree Eldridge (David Eldridge), and Denise DuBose (Francis Lloyd) have each served on our annual planning committee and contributed countless hours to brainstorming, planning,

* September 7 (9:00-12:00) – Free Legal Advice Clinic Co-Sponsored by LAET, the CAC’s Office of Aging, ETSU, and the KBA at the L.T. Ross Building (2247 Western Ave., Knoxville) * September 10 (2:00-4:30) – Debt Relief Clinic CLE and Reception (CLE at the City-County Building Main Assembly Room; Reception at the Fourth Floor of the Howard H. Baker, Jr., Courthouse) * September 11 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * September 21 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office __________________________________________________ * October 5 (9:00-12:00) – Knoxville Super Saturday Bar / Faith & Justice Clinic at Ball Camp Baptist Church (2412 Ball Camp Byington Rd., Knoxville) * October 9 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office

* October 18 (6:00-9:00) – Forging Justice Pro Bono Celebration at Ironwood Studios (119 Jennings Ave., Knoxville)

* October 26 (9:00-12:00) – Blount County Super Saturday Bar at the Blount County Library (508 N. Cusick St., Maryville)

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902

phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

30

DICTA

September 2019

THE LAST WORD

Q: A:

By:

Jack H. (Nick) McCall

Kelly and Matt, would you share with DICTA’s readers how you “downsized” your home life and made your transition to traveling and living in an Airstream trailer in a trailer park?

KELLY G. FRÈRE AND MATTHEW B. FRÈRE, GUYTON & FRÈRE

On May 13, 2018, we moved from our “stick & brick” home into a trailer park (much to the dismay of Kelly’s brother, Magistrate Judge Bruce Guyton, and her mother, retired attorney Arline Guyton). To clarify, the trailer park is technically an RV campground and our home is now our 31’ Airstream Custom Classic travel trailer, but “trailer park” has a certain non-conformist ring to it.

To answer the questions that typically come next: We made this move because we’re Elder Law attorneys who are also aging, and who understand the consequences of not having children to deal with our stuff when we die. We began to feel burdened by the trappings of our lives.

Here’s what we no longer have and how we compensate:

Left behind: Large house, garages for 4 vehicles, 4 HVAC systems, a basement “safe” room, 100 acres with an unparalleled view of the Smoky Mountains, housekeepers, and a grounds keeper.

Acquired: 240 sq. ft. Airstream. The one that looks like a silver “twinkie” going down the highway. (Kelly’s mother calls it a tin can.)

There’s a fire ring next to our outdoor patio, gravel parking for vehicles, view of the woods behind us, public (very clean/maintained) laundry mat, and the changing scenery of the other campers in the campground.

Left behind: Dishwasher, under cabinet ice maker, “cook’s kitchen,” garbage disposal, central vacuum, washer/dryer, chest and upright freezers, large flat screen TV’s, wet bar, large pantry and fireplaces.

Acquired: 2-burner propane cook top, microwave/convection, small trash can, whisk broom/tiny vacuum, 3-cubit foot freezer, 9 cubit foot fridge, and a 25” flat screen (which works fine when you’re only sitting six feet away). We now hand wash our dishes; the Sonic across from our office has great bagged ice.

an Airstream can be from other campers, but the quality rivals any materials that were used to build our “stick & brick” home.

Kelly does miss her soaking tub and the large John Deere tractor, but we have room for both a Keurig and a French press. There’s a second TV in the bedroom. We’ll never have to worry about radon. A Soda Stream really does take the place of cases of soft drinks. We have a subscription to Blue Apron which ships a box a week from which we make wonderful fresh and pre-measured meals. Matt’s tennis equipment fits nicely in the back of his car. And, two people really can live with one bathroom.

Our campsite is not far from our office, is in a beautiful setting, and costs $309 per month plus an average $50 for utilities. Our neighbors, also mostly full-timers, come and go. Our campground is very quiet and clean and is run by a no-nonsense woman who must be a direct descendant of Attila the Hun (which is actually a good thing), and outof-town visitors now have to stay in a hotel (which can also be a good thing).

This lifestyle is not for everyone. If you can’t let go of stuff; if you can’t live in the space in your immediate area; if you can’t stand dumping a black water tank; if you can’t stand the sound of rain on your metal roof; if you have to have a garage, and if you don’t like the person you live with (not just love, but like!), then this is not for you.

But, here’s best part: One of these days while we can still raft, and canoe, and hike, we’ll take down our shingles, sell our office building, hitch the truck to Moonshine, and hit the road. Unburdened. Want to come?

More than a year after selling our conventional home we are still extremely happy that we made the transition from the clutter of our former lifestyle to our new existence. It took a full two years to downsize.

Some stuff we crammed into our offices, some we donated to charities, and some we gave away. We receive our mail at our office.

To be completely transparent, we did purchase our aluminum Airstream “shell” brand new from the Airstream plant in Ohio then shipped it to Colorado where it was custom-outfitted to our specifications by Timeless Travel Trailers. It was then registered with Airstream, Inc. with the name “Moonshine.” From the surplus of wood cabinets constructed to hold our working clothes, to the 3’ x 3.5’ stainless steel shower, 2-bin stainless steel farmhouse sink, leather recliners, bamboo floor, custom blinds/drapes, and a real queen-size bed (not RV “queen”) we have everything we need. It’s hard to imagine how different

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com September 2019 DICTA 31

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