Practice Tips: Temporary Frustration as a Defense in Commercial Leases Post COVID-19 . . . Page 7 Schooled in Ethics: Lawyering Lessons from Placebo Research . . . Page 19
A Monthly Publication of the Knoxville Bar Association | September 2021
NOTICE , N G I S , N G SI E R E H W Y EVER A SIGN?
In This Issue
Officers of the Knoxville Bar Association
COVER STORY 16
Sign, Sign, Everywhere a Sign?
CRITICAL FOCUS 5 President Cheryl G. Rice
President Elect Jason H. Long
Treasurer Loretta G. Cravens
Secretary Catherine E. Shuck
Immediate Past President Hanson R. Tipton
Faster, Higher, Stronger - Together
Temporary Frustration as a Defense in Commercial Leases Post COVID-19
Compliance in Keys: The ADA and Website Accessibility
The Bottom Line in Caniglia v. Strom: Get Consent Before Entering a Home, Don’t Rely on the Community Caretaking Exception
Lawyering Lessons from Placebo Research
KBA Board of Governors Sherri DeCosta Alley Mark A. Castleberry Meagan Collver Jonathan D. Cooper
Daniel L. Ellis Elizabeth B. Ford Rachel P. Hurt Allison Jackson Eric M. Lutton
Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Carlos A. Yunsan
The Knoxville Bar Association Staff
Management Counsel Legal Update
Schooled in Ethics
It’s Just Pizza
The Importance of Visibility to Diversity and Inclusion Efforts
But I Don’t Want It….
Comical Justice: Then Came The Rain
The Angel and the Arbitrator
About a Book
Straight From the Horse’s Mouth : The Challenge and Meanings of Idioms
Hell and Other Destinations, by Madeleine Albright
Back to the Office
Cops and the Constitution
New and Improved SEC
A Great Deal of Luck
8 Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Chandler Fletcher Database Administrator Programs & Communications Coordinator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Rebecca Eshbaugh LRIS Assistant
Volume 49, 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 Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Eddy Smith Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
Outside Your Office Window
9 11 18 21 22 23 24 26 27 29 31
What I Learned About Inclusion and Why It Matters Around the Bar Legally Weird
Hello My Name Is Boat Builders
Of Local Lore and Lawyers Grammar Grinch
Bill & Phil Gadgets
Your Monthly Constitutional Long Winded
Tell Me A Story
COMMON GROUND 4 20 28 28 30
Section Notices/Event Calendar Barrister Bullets Change of Addresses Bench & Bar in the News Pro Bono Project
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. September 2021
SECTION NOTICES & EVENT CALENDAR
Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE programs “Getting to Yes: Applying the Principles of the Seminal Work on Negotiation in Mediation” scheduled for September 21 and “Mediation: Practice & Ethics Update 2021” on December 16. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. Save the date for the annual CLE program “Bankruptcy Case Law Update 2021” scheduled for December 14. 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 know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) or 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. Save the date for the annual CLE program “Criminal Law Rowdy Roundup 2021” scheduled for November 17. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. . Join the Employment Law Section for the upcoming CLE program “Mandatory Vaccination and Handling Vaccine-Averse Employees” on September 14. 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. 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) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics and provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the upcoming CLE programs “Document Automation & Templates/Using Modern Software to Increase Efficiency” on September 16 and “Tennessee Family Law Update 2021” on December 7. 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 Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. Join the Juvenile Court & Child Justice Section for the upcoming CLE program “Guardian ad Litem Update” on September 27. 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 2019 will automatically be opted-in to the section. There will be a New Lawyers Section Social Hour & program on September 22. Watch for more details. If you would like to get involved in planning Section activities, please contact Section Chairs Campbell Cox (330-2577) or Mary Newton (224-6591). Senior Section The KBA Senior Section will resume their regular lunch meetings this fall. Please join the section for the upcoming programs “East Tennessee Newsmakers: Where Are They Now?” on October 6 and “East Tennessee Veterans Memorial: A Pictorial History of the Names on the Wall, Their Service, and Their Sacrifice” on November 3. The luncheons will be held at Calhoun’s on the River from 11:30 a.m. to 1:00 p.m. The registration price includes an entree, side item, salad, and beverage. Register online at www.knoxbar.org or call the KBA at (865) 522-6522. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioner & Small Firm Section for the upcoming CLE program “Now is the Time: Succession Planning for Solo and Small Firms” on October 26. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).
event calendar n n n n n n n n n n n n n n n n n n
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September 2 7 8 8 8 9 9 13 13 13 15 15 16 21 21 24 27 28
Employment Law Section CLE Law Office Tech Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Bench & Bar Celebration CLE Webinar Judicial Committee Professionalism Committee Employment Law CLE Webinar Access to Justice Committee Board of Governors Meeting Barristers Meeting Family Law CLE Webinar ADR Section CLE Past Presidents Dinner Wellness Conference Juvenile Court CLE Webinar CLE Committee Meeting
October 1 5 5 6 7 12 13 13 13 14 14 15 20 22 25
Government Section CLE Law Office Tech Committee Family Law CLE Senior Section Luncheon Diversity CLE & Reception Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee Employment Law CLE Difficult Conversation Program Board of Governors Real Estate CLE Charity Golf Tournament
Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. September 2021
PRESIDENT’S MESSAGE By: Cheryl G. Rice Egerton, McAfee, Armistead & Davis, P.C.
FASTER, HIGHER, STRONGER– TOGETHER “Did you watch the Olympics?” the 5-year-old boy asked me, eyes wide and obviously awed by what he’d seen on television the night before. He talked about the swimming, the track, and the skateboarding, obviously excited and inspired. Yes, we watch the Olympics at my house. We stay up too late sometimes, rooting for our individual favorites and for team USA first and foremost. We also sometimes cheer for athletes representing other countries, especially those individuals we perceive as long-shots and/or who present rare opportunities for a small nation to experience success at the highest level. We marvel at the strength, speed, skill, and technique displayed by athletes of all types. Olympic athletes, so perfect in their skill and superhuman at times in their efforts, capture the imaginations of the young and the not-so-young. They are heroes to people across the globe. But the Olympics, and Olympians, are not without imperfection. This year we’ve watched as positive COVID-19 tests have forced numerous athletes to bow out of the competition and prevented trainers, officials, and others from filling their own roles in the games. Controversy has erupted as the person many believe could be the fastest woman in the world was disqualified from competing in Tokyo after testing positive for a banned substance. We’ve followed the roller coaster of Simone Biles’ struggles with the “twisties” that caused the perennially practically perfect American gymnast to pull out of the team final, followed by the all-around and three other individual event finals, only to then see her re-enter individual competition for the balance beam event, compete well and win bronze. Of interest to me was the story of the American sprinter, Noah Lyles. A high school athlete who went pro in lieu of heading to the University of Florida on a track scholarship after he placed fourth in the 2016 U.S. Olympic Trials, Lyles has won several golds in world championships meets and was widely regarded as a contender capable of taking more than one gold medal in Tokyo. After the games were delayed from 2020 to 2021, he failed to qualify for the 100 meters and ultimately took third in the 200 meters race. While his experience in many regards is seemingly similar to that of any number of the athletes competing this year in Tokyo, he was among the few who was willing to publicly share his personal struggles as a part of that experience. Lyle shed public tears of sadness and guilt over the fact that his brother, Josephus, also a world class sprinter who sparked Noah’s dream that the brothers would run in the Olympics together, could not join him in Tokyo. His openness about those feelings and about his long battle with anxiety and depression, especially during 2020 and leading up to the Olympics, and his choice to go on, and then off of, antidepressants as he tried to feel “right” while preparing for a chance at gold in Tokyo, was surprisingly and refreshingly vulnerable. This year we’ve seen a number of high-profile individuals willing to be candid about their personal challenges, even before Simone Biles and Noah Lyles took center stage for doing so: think Ariana Grande, Billie Eilish, Naomi Osaka, Ryan Reynolds, and Kit Harrington, among others. It’s widely recognized that in this pandemic time, a year-plus of mask wearing, limited social interaction, insecurity about the future, and distanced living have proven stressful for people in all walks of life, both young and old. This is no less true in our profession. The KBA wants to help its members thrive in the practice of law, September 2021
not just survive. To that end, we are bringing back the KBA’s wellness conference this September. Join us on September 24 at the City-County Building for a full day of wellness-centered activities, presentations, and CLE. The 2021 Theme for the conference is “Making Mental Health & Wellness Matter - Creating a Culture of Openness to Normalize Conversations About Health & Wellbeing” and it reflects the breadth of topics that will be covered. You may have noticed that some of the individuals who are most open about their mental health and wellness concerns today, including several of those I noted above, are members of the generations known as Millennials (born 1981 to 1996) and Generation Z (born 1997 or later). According to The Hartford’s 2021 Future of Benefits Study, 52% of GenZ/younger Millennials say they struggle with depression or anxiety most days compared to only 10% of the group known as Boomers. Interestingly, the same study finds that workloads and hours for everyone have increased overall during the pandemic but while Millennials are far and away the generation most interested in working remotely, members of GenZ are the least likely age group, next to Boomers, to want to do so. Keeping this in mind, I hope you’ll consider attending the wellness conference, and partake of offerings ranging from yoga and nutrition to avoiding burnout, coping with stress, meeting our professional duty of selfcare, and more. I particularly commend to you an afternoon panel CLE discussion to be led by Judge Kristi Davis, entitled “CrossGenerational Perspectives on Career Success & Work-Life Balance.” As we have more generations working in our profession than ever before, understanding what makes each other tick is key to building and maintaining a productive and successful law firm (or any other workplace full of lawyers). You will also soon receive the KBA’s Economics and Law Office Management Survey, which allows us to document demographic and financial information for practicing attorneys. The final results will also include the data from 2019 and, this year for the first time, there are several questions directed specifically to young lawyers. Please be sure to participate and earn your opportunity to win a $500 Amazon gift card. Whether you are a sole practitioner or a principal in a large firm, and regardless of the areas of law in which you practice or your experience level, this fully confidential survey will provide useful data on the economics of law practice and fiscal issues relevant to attorneys in East Tennessee. Getting back to the Olympics, the IOC also has recently recognized the global need for a focus on physical and mental wellness and the solidarity exemplified by the Olympic Games, especially in the wake of COVID-19. On the 20th of July 2021, the Session of the International Olympic Committee approved a change to the Olympic motto “Faster, Higher, Stronger” which was first adopted in 1894. The new Olympic motto now reads in Latin “Citius, Altius, Fortius - Communiter” or, in English, “Faster, Higher, Stronger - Together.” As International Olympic Committee President Thomas Bach said prior to the vote to modify the motto, “We can only go faster, we can only aim higher, we can only become stronger by standing together — in solidarity.” While, of course, he was referencing the Olympic Movement’s mission to make the world a better place through sport, his words speak to us all.
OUTSIDE YOUR OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber
IT’S JUST PIZZA Mid-June 2021. I was in Destin, Florida along with 85% of Earth’s population. Family vacation. This was one of those family vacations where “family” means parents, siblings, kids, their boyfriends, a dog, etc. - all under one roof. It was the first night, and my wife and I were the first to arrive. We took the responsibility of handling dinner. My parents, their dog, and my sister were en route from Knoxville, as were my brother and his family from Smithville. The skies were full of my children. One daughter and her boyfriend were flying in from Washington, one daughter from Arizona, and that daughter’s boyfriend from Virginia. Weather was horrible. Lightning and storms popped up all over the Southeast. I called a couple of places for pizza and wings. One place told me two hours, the other didn’t even answer the phone. Finally, I got Pizza Hut on the line - the corporate line. Who wants corporate pizza on vacation? It’s hard not to like a fifteen minute wait for carryout. POW! It was 6:45. On my way to get the gigantic order, and yet to relax, my phone started going nuts. Because of weather, my daughters were now arriving at separate airports…at the same time. As I pulled into the strip mall where the pizza should have been just about ready, I was figuring out how I was going to be at two airports at the same time. No worries. I had time to figure it out. They weren’t landing until 9:00. When I looked up after parking, I noticed the line to the Pizza Hut. It was a store-front delivery and carryout location. The line started inside the tiny entrance, extended out onto the sidewalk, and ran around the side of the building. I walked up to the end of the line behind Hazel from Kentucky. “This is a real mess,” she said. She went on to explain that the national call center had directed all the orders “from here to Pensacola” to this one little store. When I started asking questions (as lawyers tend to do) like “what time did you all call?” and “how big was your order?” it became apparent that most of the people around me hadn’t asked anything. They just ordered on the phone, drove up, and assumed their place in line without asking a thing. Within five minutes of asking questions and making suggestions, I was elected group spokesman and granted the power to approach the small opening in the store front to get answers. As I collected names and order sizes to take with me on my quest for information, I learned this was Hazel’s first time visiting the panhandle without a camper. She was a self-declared “hillbilly” and mourning the fact she’d rented a beach house. I told her I was a hillbilly, as well. She laughed. “Hillbillies don’t wear golf shirts.” Point taken. I made my way down the path to see the Wizard. As I made my way, more and more people began telling me their order and asking for my help. Most were angry, some anxious, and a few simply apathetic. It started raining. By the time I reached the end of the path I was cloaked in the power of the people, the designated representative of no less than 20 people who had themselves been duly elected by their families and friends (we’re talking hundreds of people) to find out just what in the Hell was going on. When I reached the counter, I carried with me the anger and betrayal of a community. I was ready for
the Wizard. Standing behind “COVID glass,” he was my age, the hair beneath his grease-streaked ball cap soaked in sweat. He was a broken man. His 3 young employees were running back and forth in a kitchen the size of a port-a-potty. Wearily he looked up, his eyes already pleading for reprieve and forgiveness. I looked at his name tag and respectfully asked, “How’s it going, Mark?” Mark and I talked as angry customers looked on. It became apparent that the rumors lining the path were true, and it was going to be a long time before mine or anyone else’s pizza got made. It was 7:30. I walked outside, called my constituents together and announced the bad news. I offered few details as they would not have improved the mood. Many gave up and walked to their cars, cussing Pizza Hut and making threats that would have placed them in jail if made near airport security. I had a choice. Leave and start the process over or wait it out. I couldn’t go home empty-handed. I got back in line and met Chris. His family owned a bunch of chicken restaurants in Georgia. He was a Bulldog fan, and we chatted about the upcoming season and our kids. It was 8:00. Then Trevor walked up. He wore a Budweiser tank top and was accompanied by his three-year-old son, Trevor, Jr, who was barefoot. Trevor (Sr.) was drinking a Budweiser tallboy, which led me to inquire whether he had a sponsorship of some kind with Anheuser-Busch. He was from Louisiana and had a Cajun accent so thick I began craving gumbo as I listened. Trevor had grown up poor, a child of the Atchafalaya basin. I noticed he and Chris weren’t angry about the pizza. I wasn’t angry. All the angry people had gotten in their cars. We waited and talked. It was 8:30. I got on the phone and made arrangements for my girls and my likely future sons-in-law to be picked up from their multiple airports, promising everyone that pizza was on its way and would be there for them. When I reached the front with Hazel, Chris, Trevor, and Trevor, Jr. it was after 9:00. Everyone was gone except us and a man about my age and a little girl, swishing her sundress back and forth. The man introduced himself as Tony. As it went, we all had more time, so he joined in our talk about life. He had the kind of Georgia accent that made you wish you were from Georgia…if only for a minute. He got around to telling me he was Daryle Singletary’s brother-in-law. Daryle was a country musician with several big hits in the 90’s who died suddenly at the age of 46 in 2018. He told us Daryle’s death left Tony’s sister-in-law with 4 kids under the age of seven, and that the whole family had been pitching in with the kids. I knew this story. I lived this story. Then he introduced me to Daryle’s youngest child, sweet little Charlotte Rose, only six years old and standing in the doorway of a Destin Pizza Hut. Then we all noticed. We all noticed no one was angry. Tony and I marveled out loud, with Mark and his team that never quit, with Hazel, Chris, Trevor, and Trevor, Jr. We marveled how happy we were to get our pizza despite having to wait two hours in the rain. “Why aren’t y’all mad?” asked one of Mark’s guys. “It’s just pizza,” Tony said with a smile. He picked up his large order, left a hefty tip, and reached for Charlotte’s hand.
PRACTICE TIPS By: Grant Thomas Williamson Realty Trust Group, LLC
TEMPORARY FRUSTRATION AS A DEFENSE IN COMMERCIAL LEASES POST COVID-19 While the focus, rightfully so, over the past year has been on shortterm impacts of COVID-19 on the practice of law, with more Americans getting vaccinated each day, the focus has begun to shift toward long-term impacts. Although recent cases are centered around unique circumstances resulting from COVID-19, the subsequent rulings provide guidance to transactional attorneys on how courts might interpret certain provisions going forward. In Bay City Realty, LLC v. Mattress Firm, Case No. 20-CV-11498 (E.D. Mich. Apr. 7, 2021) (“Bay City v. Mattress Firm”), the United States District Court for the Eastern District of Michigan took a close look at the provisions in a lease concerning the tenant’s failure to pay rent. Bay City Realty, LLC (“Bay City”) alleged that Mattress Firm, Inc. (“Mattress Firm”) had breached its lease by refusing to pay rent for three months. Relying on shutdown orders issued by the State of Michigan regarding COVID-19, Mattress Firm did not pay its base rental payments for three months in 2020.1 The question before the Court was whether Mattress Firm had an affirmative defense – frustration of purpose – for this breach.2 Bay City argued that language requiring Mattress Firm to pay base rent “without any setoffs or deductions whatsoever, except to the extent otherwise expressly provided herein” prohibited Mattress Firm from raising any defenses. Bay City further argued that language requiring Mattress Firm to bear costs associated with complying with “all laws, . . . regulations and orders of any governmental authority having jurisdiction concerning environmental, health or safety matters” contemplated the situation at hand. Mattress Firm countered that the lease was silent as to the “viability or availability of any substantive defenses to liability that may exist under the law” and that the latter provision contemplated environmental hazards, not public health concerns.3 After consideration, the Court determined that the language relevant to resolving the dispute was the phrase “without any setoffs or deductions whatsoever, except to the extent otherwise expressly provided herein.” The Court held that this language did not in any way bar Mattress Firm from asserting common law defenses, nor did any other language prohibit common law defenses. Other language in the lease requiring Mattress Firm to continue to pay rent “regardless of any defense, counterclaim or offset” was cited by the Court as further proof that other defenses were allowed under the lease because this language “would be superfluous if all defenses were identified in the contract.”4 Relying on language in the Second Restatement of Contracts, the Court stated that, for a valid frustration of purpose defense, “[t]he frustration must be so severe that it is not fairly to be regarded as within the risks . . . assumed under the contract” and “the non-occurrence of the frustrating event must have been a basic assumption on which the contract was made.”5 The Court began by looking to the language the parties agreed to in the lease: the premises would be used “for the retail sale of bedding products . . . [and] for storage and office uses incidental September 2021
to the permitted use . . . [.]”6 The Court found that, per the terms of the lease, the primary purpose was the retail sale of bedding products. While the lease permitted “portions” of the building to be used for “storage and office uses incidental to the permitted use” as well as “any other lawful retail use,” the Court found that the storage and office use was “predicated upon the main purpose of the lease,” and during the shutdown order no other retail use, the secondary purpose, was lawful. Therefore, the primary and secondary purposes were frustrated because of the shutdown orders.7 The Court granted Mattress Firm’s motion to dismiss and held that Bay City could not seek to recoup the base rent withheld by Mattress Firm.8 The Court’s holding in Bay City v. Mattress Firm is in stark contrast to other courts who have dismissed similar arguments by reasoning that “temporary closure[s], even if complete, [are] not substantial” and that such closures are “change[s] in economic circumstance[s]” that the parties could have foreseen and were risks that both parties agreed to take on. Generally, commercial landlords have argued that for frustration of purpose to apply as a defense, the entirety of the purpose of the lease must be frustrated. Therefore, it would not be sufficient that a business had to temporarily close.9 The major takeaway for transactional attorneys is that it is time to go back and review template documents and boilerplate language to ensure that a client does not run into a similar situation to Bay City. In commercial leases, attorneys might want to consider drafting permitted use clauses more broadly. Rather than allowing for a tenant to use the leased premises for “any lawful use” as a catch-all, it may be wise to permit the tenant to use the premises for their primary business purposes and spell out all possible ancillary business purposes. If Mattress Firm’s lease had, for example, clarified that storage and office uses could function as a primary purpose of the lease, the Court in Bay City v. Mattress Firm may have ruled differently. Transactional attorneys should also be careful when drafting provisions waiving defenses under a contract to ensure that these provisions actually waive all defenses that might be available, whether at law or in equity. Finally, transactional attorneys would benefit from a close review of all provisions within a contract to ensure that no ambiguities, or worse, inconsistencies, result that could lead a court to interpret terms differently from the drafter’s intent.
4 5 6 7 8 9 2 3
Bay City Realty, LLC v. Mattress Firm, Case No. 20-CV-11498, at *1-3 (E.D. Mich. Apr. 7, 2021). Id. at 3. Id. at *9-10. Id. at *9-11. Id. at *11-13. Id. at *5. Id. at *11-13. Id.. at *18. Aaron Gordon, Mich. Pandemic Rent Ruling Is A Critical Win For Tenants, Law360 (Apr. 21, 2021), https://www.law360.com/articles/1377207/mich-pandemic-rentruling-is-a-critical-win-for-tenants.
W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: John T. Winemiller Merchant & Gould, P.C.
THE IMPORTANCE OF VISIBILITY TO DIVERSITY AND INCLUSION EFFORTS I’ve appreciated the highly personal reflections on diversity and inclusion shared by KBA members in this series of columns. Two themes running through these offerings resonate for me: Having good role models and being seen and heard underlie success, confidence, and satisfaction throughout life, including one’s work as an attorney. I couldn’t agree more. Here is my take. I was a high school sophomore forty years ago when the world first began learning about HIV/AIDS. The news of an unstoppable virus was sobering in the extreme. The hateful, uncharitable reaction of far too many people was equally terrifying. Yet coming of age during that pandemic taught me valuable lessons of humility, humanity, and dignity. It also taught me the value of visibility. Mark C. was one of my closest friends in high school. As the only kid in my school who was out, his path was too often rocky. Even so, he focused on the things that mattered to him and lived his truth. Scott M. was one of my closest friends in college. Smart, outspoken, and proud, he is a gay Black man who taught me as much about advocacy and diversity as anyone. And that was before he went to Columbia Law School. Howard B. was my professor-mentor in graduate school (before I became a lawyer). He and his partner Roger W. were the epicenter of gay culture in the university community. Happy, generous, successful, they
were role models in the truest sense. Through examples like these, I quickly grasped that being visible is a key part of being included in the world. This is true for everyone, but it can be particularly important for people traditionally underrepresented in the legal profession. A few years ago, I participated in a program sponsored by the Leadership Council on Legal Diversity. One of the keynote speakers described the value of visibility with a catchy phrase: “To be one, you need to see one.” We all need role models. There’s a corollary to the importance of visibility: Supporting the goals of diversity and inclusion means taking affirmative steps to make others visible. When we acknowledge a colleague’s contributions – and sometimes just when we acknowledge their presence – we can empower and encourage them. There is no cost to us for such recognition, but the value to our colleague can be immense. But even more, we need to understand that recruiting and hiring diverse attorneys and staff, while essential, is not the end goal. We need to act intentionally to involve diverse attorneys in the work of our practices – in pitches and other business development efforts, in substantive work, and in billing credit. Such fulsome involvement and mentorship not only will promote our colleagues’ professional development, but also go a long way to retaining talent and building a better bar. It’s also simply the right thing to do.
AROUND THE BAR By: Stacie D. Miller Arnett, Draper & Hagood
BUT I DON’T WANT IT... If you practice in probate, how often do you get a phone call from an heir saying, “I don’t want my inheritance?” I usually get calls asking “When I am I getting my inheritance?” or “Why is it taking so long?” and “I want more,” but seldom (never) do I get calls from an heir asking how to refuse even part of their inheritance. Until recently…then within a 24-hour period, a colleague called asking if I was familiar with the revised statute on disclaimers and an heir called stating she wanted to refuse her interest in part of her inheritance. Time to research and learn something new. A disclaimer is the act of refusing to accept an interest in property or power over property. In 2019, the Tennessee Disclaimer of Property Interests Act was enacted. Tenn. Code Ann. §31-7-101 et seq. Power to Disclaim. A person may disclaim in whole or part any interest in property or power over property, including a power of appointment, even when the person creating the interest or power imposed a spendthrift provision or similar restrictions. A person may not disclaim when it is expressly restricted or limited by law or by the instrument creating the fiduciary relationship. A disclaimer must be in writing; declare the disclaimer and its extent; describe the interest or power disclaimed; and be signed by the person making the disclaimer or at their express direction with competent witnesses. A partial disclaimer can be in the form of a fraction, percentage, monetary amount, term of years, limitation of power or any other interest or estate property. 1 Disclaimer of Interests In Property Except for property held in trust or jointly owned with right of survivorship, a disclaimer takes effect at the time the instrument creating the interest becomes irrevocable or if the interest is pursuant to an intestate succession, at the time of the intestate’s death. The disclaimed property then passes according to the alternate provisions in the instrument creating the interest, or as set forth by statute and the laws of intestate succession apply.2 When one holder of jointly held property with right of survivorship dies, the survivor may disclaim, in whole or part that portion of the interest in the property to which he or she is entitled by virtue of the other’s death. Such a disclaimer is effective upon the death of the holder of jointly held property to whose death the disclaimer relates. 3 Disclaimer of Power A more common request is one to disclaim power, such as when an individual appointed as personal representative over a deceased person’s estate declines to serve. A fiduciary can disclaim a power held in a fiduciary capacity either before or after it has been exercised. If the power has not been exercised, the disclaimer is effective at the time the instrument creating the power becomes irrevocable. If the power has been exercised, the disclaimer September 2021
takes effect immediately following the last time the power was exercised. Such a disclaimer can be binding upon another fiduciary if the disclaimer so provides, and the disclaiming fiduciary has the authority to bind the estate, trust or other person for whom they are acting.4 Disclaimers of power not held in a fiduciary capacity are treated in a similar manner. Such a power can be disclaimed before or after it has been exercised. If it is disclaimed before it is exercised, the disclaimer is effective as of the time the instrument creating the power became irrevocable. If the power has been exercised, the disclaimer takes effect immediately following the last time it was exercised.5 Delivery or Filing of Disclaimer A disclaimer may be delivered by personal delivery, first-class mail, or any other method likely to result in receipt by the statutorily designated recipient. For an interest created by an intestate succession or by will, the disclaimer must be delivered to the personal representative or if no personal representative is serving, it must be filed with the court. There are similar provisions for delivery of disclaimers for both testamentary trusts and inter vivos trusts. Additionally, in some cases the disclaimer of an interest in personal property must be delivered to the person who is obligated to distribute the personal property. Further, the disclaimer of an interest in real property may require recordation in the office of the county register’s office where the property is located. Special provisions apply for who is entitled to notice when dealing with a disclaimer of power or jointly held property.6 Barring or Limiting Disclaimer Not all interest in property or powers can be disclaimed. A disclaimer is barred when there is a written waiver of the right to disclaim. A disclaimer of an interest in property is barred if the disclaimant accepts the interest before the disclaimer becomes effective or if they voluntarily assign, convey, encumber, pledge or transfer the interest before the disclaimer becomes effective. A disclaimer is also barred where a judicial sale of the interest is sought before the disclaimer becomes effective. A disclaimer is barred or limited where provided by other law.7 Conclusion The revised law on disclaimer has kept some familiar language but added some significant details. Next time someone says they want to decline or disclaim an interest or power, I encourage you to take a few minutes to review the code. 3 4 5 6 7 1 2
Tenn. Code Ann. §31-7-105. Tenn. Code Ann. §31-7-106. Tenn. Code Ann. §31-7-107. Tenn. Code Ann. §31-7-111. Tenn. Code Ann. §31-7-109. Tenn. Code Ann. §31-7-112. Tenn. Code Ann. §31-7-113.
L E G A L LY W E I R D By: Lisa J. Hall Hodges, Doughty & Carson
COMICAL JUSTICE: THEN CAME THE RAIN In Tennessee, we are instructed by Rule 8.05 of the Tennessee Rules of Civil Procedure, which provides, “Each averment of a pleading shall be simple, concise and direct.” If our pleadings are not specific or clear enough, Rule 12.05 allows us to file a motion for more definite statement. What sets Texas apart from Tennessee is that, if a defendant states in responsive pleadings that it cannot understand the claims against it, it appears that the plaintiff may amend its petition to include an entire petition in comic book form. This happened recently in the case of Crissa-Less, Inc. d/b/a Third Planet Sci-Fi and Fantasy Superstore, et al. d/b/a Crowne Plaza River Oaks, et al. Third Planet has been open since 1975 and holds itself out as the longest continuously running sole proprietorship comic bookstore in the country. It has been in its current location since 1988, next door to the Crowne Plaza, which allegedly seems to specialize in hosting criminal activity for all of its patrons – it has “long been a location for illicit activities.” The Crowne Plaza “towers over its humble one-story neighbor,” and its guests are alleged to often hang out on the open-air fire escape and throw all kinds of items onto the roof of Third Planet, including lit cigarette butts (which started two fires), mugs, plates, silverware, cinder blocks and luggage racks. In March of 2019, fourteen fire extinguishers landed on the roof, causing significant damage. “Then came the rain,” which damaged many one-of-a-kind collector’s items. In its third petition, Third Planet states that the defendant has stated that it “could not sufficiently understand the claims and allegations against it.” As such, Third Planet drew upon its resources and explained its claims and allegations in the way it knows best. A few excerpts are reproduced here:
Apparently, this has been done before, sort of – in 2012, Bob Kohn filed a federal amicus brief in comic-book form after being limited to only five pages by the judge in a case pending in federal court in the Southern District of New York:
We are in a profession that often seems to be resistant to change, but we also know that different people have different learning styles and that many people consider themselves “visual learners.” So, what do we make of this? I am not sure we achieve a higher point of poetic justice (comical justice?) than a comic book shop illustrating its claims in comic book form in response to the opposing party pretending that it does not understand information in written form. As I have said many times, sarcasm is the highest and best form of communication when you have to make your point. (Actually, I do tell my clients the opposite, because in real life I am responsible, but since when is kind and cooperative communication as entertaining as sarcastic and witty comebacks? Exactly.) Crowne Plaza may well have many valid defenses to throw at Third Planet. They may, in fact, hurl them over like fire extinguishers onto a roof, creating holes in Third Planet’s claims. I certainly do not know the outcome, but I can’t wait to see what happens next.
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Caitlyn Elam & Peyton Ritchie Lewis Thomason, P.C.
COMPLIANCE IN KEYS: THE ADA AND WEBSITE ACCESSIBILITY Over the past several years, courts (and businesses) have been questioning whether the protections of the Americans with Disabilities (ADA) apply to the virtual world in the form of website accessibility. In short, does the ADA require businesses to comply with standards that allow disabled persons equal access to products and services on its website? The most recent decision comes out of the the Eleventh Circuit. Gil v. Winn Dixie Stores held that websites do not qualify as places of public accommodation (“PPA”) under Title III of the ADA.1 In Gil, the plaintiff brought a cause of action against the grocery store chain based on his inability to access the store’s website with his screen reader software. The plaintiff suffered from a visual disability wherein he utilized screen reader software to vocalize the content of websites. The Eleventh Circuit rejected the argument that the plaintiff ’s inability to access Winn Dixie’s website with his screen reader, in and of itself, constituted a violation of Title III of the ADA. Rather, the Eleventh Circuit relied on the plain language of the statute and found that websites are not places of public accommodation (“PPA”) protected by the ADA. Instead, the statute expressly defines PPA as physical, tangible places, and the statute’s list of tangible spaces did not include websites.2 As the court held that websites did not constitute PPA, it considered the plaintiff ’s second argument – whether Winn Dixie’s website constituted an “intangible barrier” that prevented his “‘equal access to the services, privileges, and advantages of WinnDixie’s physical stores,’ which are a place of public accommodation.”3 The court held that the plaintiff ’s Title III claim likewise failed under the “intangible barrier” theory as the facts of this case demonstrated that Winn Dixie did not make direct sales through its website and the inability to access the website did not impede one’s access to the goods and services offered in store.4 The Eleventh Circuit cited to its “sister circuits” in support of its holding. Specifically, it noted that in Ford v. Schering Plough Corp., 145 F.3d 601 (3d Cir. 1998), the Third Circuit held that “the plain meaning of Title III is that a public accommodation is a place.” In Ford, the plaintiff was challenging the disparity between disability benefits for mental disabilities v. physical disabilities.5 The Ninth Circuit would reach a similar conclusion just two years later.6 This concept is further supported by our own Sixth Circuit’s holding in Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580 (6th Cir. 1995), which challenged the NFL’s prohibition of live football games when games were not sold out. At home spectators were left to listen to live radio broadcasts as one’s only option. The court held that “[a]lthough a [football] game is played in a ‘place of public accommodation’ and may be viewed on television in another ‘place of public accommodation,’ the ‘service’ of a televised
broadcast does not involve a ‘place of accommodation.’” While the Eleventh Circuit followed these concepts from cases published in the 1990s, it distinguished the Ninth Circuit’s arguably more relevant 2019 decision in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), finding the case to be “factually and legally distinguishable.”7 In Robles, the Ninth Circuit held that it did not have to answer the fundamental question of whether a website was, in and of itself, a place of public accommodation. Rather, it embraced the “nexus standard” and held that “Customers use the website and app to locate a nearby Domino’s restaurant and order pizzas for at-home delivery or in-store pickup. This nexus between Domino’s website and app and physical restaurants—which Domino’s does not contest—is critical to our analysis.”8 The Eleventh Circuit noted that unlike Domino’s, Winn Dixie did not provide direct sales and services via its website while Domino’s made pizza sales through its website and app. While the Eleventh Circuit went to great lengths to distinguish the cases from a factual standpoint, it is quick to note that it was not going so far as to adopt this “nexus” standard approach. Rather, the Eleventh Circuit reverted back to relying on the plain and unambiguous language of the ADA statute and its prior in circuit precedent. Now that a Circuit split exists, there may be a (better?) chance that the U.S. Supreme Court will consider the issue and provide some uniform guidance on the proper standards to apply with regard to the ADA and website accessibility. The Supreme Court denied cert in the Robles case and in Gil, the plaintiff/appellee has filed a Petition for Rehearing En Banc with the Eleventh Circuit.9 What does this mean for a recommended path forward? If you or your client are using your website to do anything more than merely advertise services, it may be best to ensure that your website is ADA accessible. It may be that by encouraging or even forcing your prospective clients to engage or interact with your website will prove to require you to comply with accessibility standards. Stay tuned – we might have more guidance on this issue in a few Supreme Court years. 3 4 5 6 1 2
9 7 8
Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1276 (11th Cir. 2021). 42 U.S.C. § 12181(7). Gil, 993 F.3d at 1278. Id. at 1284. Id. at 1277, n.13. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (holding that per the statutory context, places of public accommodation require some “connection between the good or service complained of and an actual physical place.”) Gil, 993 F.3d at 1283. Robles v. Domino’s Pizza, LLC, 913 F.3d 898,905 (9th Cir. 2019). Domino’s Pizza, LLC v. Robles, 140 S. Ct. 122 (2019) (denying cert.); Winn-Dixie Stores, Inc. v. Gil, Docket No. 17-13467, (11th Cir. April 15, 2021).
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 Caitlyn Elam at 546-4646. September 2021
L E G A L U P DAT E By: Melanie Reid LMU Duncan School of Law
THE BOTTOM LINE IN CANIGLIA V. STROM: GET CONSENT BEFORE ENTERING A HOME, DON’T RELY ON THE COMMUNITY CARETAKING EXCEPTION What is the role of a police officer? As Chief Justice Roberts notes in the Court’s recent opinion, Caniglia v. Strom, it is to prevent violence, restore order, and assist those seriously injured or threatened with such injury.1 But how do we define their role as it applies to the noncriminal “community caretaking” function? Can police enter the home of an elderly person who is not answering the phone, has not been seen for days, and may be seriously hurt or sick inside? Is there a broad “community caretaking” function that would justify such a search? Police have used such a justification to search and seize while responding to disabled vehicles or investigating car accidents.2 The source for this authority is found in Cady v. Dombrowski, in which Wisconsin police officers were called to the scene of an accident,3 where Dombrowski, a Chicago police officer, was drunk and drove his Ford Thunderbird into a guardrail and crashed into a bridge abutment.4 Being intoxicated and later comatose, Dombrowski was unable to make arrangements for the vehicle to be towed and stored, and therefore, police had the car towed to a garage.5 At the garage, police officers searched the vehicle for a service weapon because they believed Chicago police were required to carry a service revolvers at all times, and they wanted “to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands.” 6 The Supreme Court found that this type of caretaking search of a vehicle was reasonable: “[t]hese officers in a rural area were simply reacting to the effect of an accident – one of the recurring practical situations that results from the operation of motor vehicles and with which local police officers must deal every day.”7 The Court concluded that the officers reasonably believed the car contained a gun, “was vulnerable to intrusion by vandals,” and therefore, they had the right to search without a warrant.8 Does this “caretaking” exception apply to searches of homes? The Court decided not to extend this broad caretaking function to the search conducted in Caniglia. Caniglia and his wife had a heated argument, and at one point, Caniglia retrieved a handgun from the bedroom, put it on the dining room table, and asked his wife to “shoot me now and get it over with.”9 His wife left their house, and when Caniglia did not answer her calls the following morning, she called the police and told them she feared he had committed suicide or had harmed himself.10 His wife and several police officers went to the house and found him on the back porch. While his wife waited in the car, the police spoke to Caniglia and thought he posed a risk to himself or others. Caniglia told them he pulled out the firearm the night before because he was tired of the arguments and couldn’t take it anymore.11 Caniglia agreed to go to the hospital for a psychiatric evaluation after officers promised not to confiscate his firearms.12 What happened next is critical to the case. In an ideal world (and one in which we would never have heard about this case), the police officer would have then spoken to Caniglia’s wife and asked her if she feared for her safety and if she had a safe with a combination or knew of a friend’s house where she could store the firearms. If she did not have a safe place to store the firearms and feared Caniglia might retrieve them and harm her or himself, police should have asked for her written and verbal consent to enter the home, retrieve the firearms, and store them until Caniglia received a clean bill of health. However, in this case, police September 2021
misinformed the wife about Caniglia’s wishes, and they entered the home and retrieved the two handguns (presumably without valid consent).13 The prosecution chose not to litigate the consent issue, but rather argued the decision to retrieve the firearms in the home fell within the “community caretaking exception” to the warrant requirement.14 Does the community caretaking doctrine justify searches or seizures from the home? Caniglia’s attorney argued that such an exception swallows the warrant requirement because “virtually any criminal situation can also be described in health or safety terms,”15 which would allow “[t]he police [to] always say they are acting to protect the safety of potential occupants in the home.”16 In a unanimous decision, Justice Thomas referred back to Cady and explained there is a distinction between vehicles and homes. The majority held that there is no freestanding community caretaking exception that would apply to searches and seizures in homes – “what is reasonable for vehicles is different from what is reasonable for homes.”17 Chief Justice Roberts wrote a short concurring opinion to clarify that nothing in this decision disturbs the exigent circumstances exception, which would allow officers to enter the home without a warrant if there is “an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.”18 And while Justice Alito agreed with the majority opinion, he also felt it necessary to point out that in a different scenario (i.e., where Caniglia had refused to go with the officers for a psychiatric evaluation), the community caretaking exception may have justified a search or seizure for the purpose of committing a suicide.19 The Court decided to narrowly tailor the decision in Caniglia based on the specific facts of the case. Whether the decision creates any Fourth Amendment issues as to “red flag laws” passed by state legislatures, which allow police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons, is still unknown.20
5 6 7 8 9 2 3 4
14 15 12 13
19 20 16 17 18
Caniglia v. Strom, No. 20-157, Slip. Op. (May 17, 2021) (Roberts, C.J., concurring) (citing Brigham City v. Stuart, 547 U.S. 398, 406 (2006) and Michigan v. Fisher, 558 U.S. 45, 49 (2009) (per curiam)). Id. at 1 (majority opinion). 413 U.S. 433 (1973). Id. at 435-36. Id. at 436. Id. at 436, 443. Id. at 445. Id. at 448. Caniglia, Slip. Op. at 1. Id. Brief in Opposition to Petition for Writ of Certiorari at 4, Caniglia, 593 U.S. ___ (No. 20-157). Id. at 2. Id. Id. Oral Argument at 26:46, Caniglia, 593 U.S. ___ (No. 20-157), https://www.oyez.org/ cases/2020/20-157 (Counsel for Defense, Shay Dvoretzky). Id. at 26:55. Caniglia, Slip. Op. at 2. Id. (Robert, C.J., concurring) (citing to Fisher, 558 U.S. at 49). Id. (Alito, J., concurring). Id. (Alito, J., concurring).
SIGN, SIGN, EVERYWHERE A SIGN? In May of 1971 the Canadian musical group Five Man Electrical Band released “Signs” which the website SongFacts describes as “a prescient look at class division and property rights.1 Some of you may be more familiar with the 1990 cover of Signs released by the band Tesla. The song features the following chorus: Sign, sign everywhere a sign. Blockin’ out the scenery, breakin’my mind do this, don’t do that, can’t you read the sign? When Governor Lee signed House Bill 1182 into law on May 19th, he may have been envisioning signs on public bathrooms everywhere throughout the state. But the law that would make that vision a reality is on hold, at least for now. The so called “Business Bathroom Law” requires any public or private business or entity that operates a business or facility that is open to the general public to post signage if they have a formal or informal policy of allowing a “member of either biological sex to use any public restroom within the building or facility.”2 The statute defines “public restroom” as any “locker room, shower facility, dressing area or other facility or area that is open to the general public, designated for a specific biological sex [and is] a facility or area where a person would have a reasonable expectation of privacy.” Unisex, single occupant and family restrooms are exempt from this definition.3
Covered businesses or facilities must purchase signs that are at least 8 inches wide and 6 inches tall. The top third of the sign must be red and read NOTICE in yellow font.5 The bottom two-thirds of the sign must contain a white background with black boldface, block letters that read: THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION OF THE RESTROOM6 If a qualifying business or facility fails to comply with the law, the business or entity, once notified of noncompliance, will have 30 days in which to comply before any action is taken against it. Because the statute is part of the Building Regulations chapter of the Tennessee Code Annotated a violation results in a class B misdemeanor which is punishable by up to 6 months of jail time and/or a $500.00 fine.7 The Business Bathroom Law came under attack shortly after Governor Lee signed it. In May Davidson County District Attorney General Glenn Funk said he would not press charges against anyone refusing to post the required signs. Attorney General Funk deemed the law as “transphobic” and “homophobic” and said that his office “will not promote hate.”8
The Business Bathroom Law requires that businesses or facilities that allow individuals of either sex to use their bathrooms to post a notice at the entrance of each of their restrooms. The notice may be located either on the public restroom door or within one foot of the public restroom door frame.4 The law also
sets forth specifics on the signs that must be posted.
In June the American Civil Liberties Union and its Tennessee Chapter filed suit in Federal Court on behalf of two Tennessee businesses and their respective owners, Bongo Productions, LLC, Robert Bernstein, Sanctuary Performing Arts LLC and Kye Sayers.
COVER STORY By: J. Chadwick Hatmaker
Woolf, McClane, Bright, Allen & Carpenter, PLLC
Judge Trauger or an appellate court, Tennessee businesses currently do not have to comply with the Business Bathroom Law. Businesses should keep a close eye on this litigation because in the event the injunction is lifted, compliance will be mandatory and there will likely be a short time in which to comply. www.songfacts.com. House Bill 1182. Id. 4 Id. 5 Id. 6 Id. 7 Tenn Code Ann §40-35-111 (e)(2). 8 See Mariah Timms Nashville DA Won’t Enforce ‘Hate’ Bill Requiring Businesses To Post Signs For Transgender Bathroom Access, Tennessean (May 24, 2021), https\\ www.tennesseean.com/story/news/politics/2021/05/04/Nashville-da-not-enforcetrans-bathroo-signage-bill-tennessee/7422294002/. 9 Bongo Production, LLC v. Carter Lawrence, et al. Case No. 3:21-cv-00490 7-9-21 Mem Op. at pp. 17-18, 30-31. 10 Id. at pp. 30-31. 1 2 3
A second Lawsuit was filed a few days later. Both cases assert that the Business Bathroom Law is unconstitutional on multiple grounds, including that it violates the First Amendment right “against compelled speech”.9 On July 9th United States District Judge Aleta A. Trauger issued a Memorandum Opinion granting the Plaintiffs’ Motion for a Preliminary Injunction in Bongo. Judge Trauger found that the Plaintiffs’ had met their burden to obtain a preliminary injunction based on their claim that the Business Bathroom Law violated their right against compelled speech. Judge Trauger held as follows: “Some messages do not have to be compelled to be repeated; they surface, time and again, by dint of their persuasiveness and their importance. More than a dozen times, the Supreme Court, or a Justice of that Court writing separately, has repeated the classic declaration, originally set forth by the Court in West Virginia State Board of Education v. Barnette, that, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. That rule is not founded simply on an abstract love of unfettered and uncompelled speech. The First Amendment holds its privileged place in our constitutional system because, “[w]henever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines” both “our democratic form of government” and the very “search for truth” necessary for a thriving society to persist. Because that principle retains its vitality today, and because the law at issue in this case is a brazen violation of it, the court will grant the plaintiffs’ motion for a preliminary injunction. (internal citations omitted).”10 As of the date of this writing the preliminary injunction is still in effect. While the preliminary injunction could ultimately be set aside by September 2021
HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan
AMBER SPELMAN This month’s featured attorney is Amber Spelman, owner of Spelman Law, PLLC, where Amber practices family law, estate law, personal injury, and criminal defense. Amber is a 2018 graduate of the Lincoln Memorial University Duncan School of Law. Prior to law school, Amber graduated from the University of North Carolina at Charlotte, where she majored in criminal justice with a minor in international studies (European concentration). I hope you enjoy this month’s highlight on an ambitious attorney, who is already successful in her solo practice. Why did you decide to go to law school? I have been always interested in the legal field. My main career goal is actually to be a Special Agent with the FBI and getting my law degree is one of the steps I needed to achieve that goal. What do you enjoy most about your job? Helping families find a peaceful resolution that is fair and in the child’s best interest. I especially love my Guardian ad Litem work. Through my work as a Guardian ad Litem, I can ensure that the child is safe and taken care of and that their voice is heard in court. What have you learned so far in your career? After I passed the bar exam, I ended up opening up my own law firm. I’ve learned a lot with how to run a law firm, which admittedly required a lot of trial and error. I also learned that most attorneys are always willing to help out another attorney, especially a new one. What is the best advice you have ever received? Never be afraid to mess up; you are still learning. Describe the person who had the most significant impact on your career. My father is my biggest influence in my career. He has always encouraged and supported me. My father is the most giving person I know, always trying to help people and fight against injustice. How would your friends describe you in three words? Dependable, good-hearted, blunt What is your favorite travel destination? London, England What is your favorite movie? Dante’s Peak What TV show are you currently watching? The Expanse What are your favorite sports teams? The Patriots and the Boston Red Sox
SCHOOLED IN ETHICS By: Paula Schaefer Associate Dean for Academic Affairs and Art Stolnitz Professor of Law, University of Tennessee College of Law
LAWYERING LESSONS FROM PLACEBO RESEARCH1 In the past two decades, some researchers have begun studying the1 effectiveness of placebos in medical treatment.2 This is not traditional pharmaceutical research in which a medication is compared to a placebo. Here, the placebo is the star. Researchers want to know the conditions under which the placebo itself can be used to treat a medical condition. In studies conducted to date, researchers have found that placebos can be effective in treating subjective symptoms such as pain associated with irritable bowel syndrome,3 hot flashes in menopausal women,4 chronic low back pain,5 and fatigue in cancer patients.6 This research may hold promise for lawyers and our clients. That is because the placebo research also touches upon relationships. As the discussion that follows reveals, a doctor’s empathy, kindness, listening skills, and optimism may contribute to positive patient outcomes. For that reason, I think there is something here that is worthy of lawyers’ attention. In a 2008 study on Irritable Bowel Syndrome (“2008 IBS Placebo Study”), researchers divided IBS patients into three groups: a waitlist group that received no treatment, a group that received placebo acupuncture but only limited interaction with a doctor (“limited interaction group”), and a group that received placebo acupuncture and an augmented patient-doctor interaction (“augmented group”).7 Both the limited interaction and augmented groups received six identical placebo acupuncture treatments.8 In the second phase of the experiment, some patients in the two treatment groups received actual acupuncture, while others continued to receive the sham acupuncture.9 All participants knew they might receive placebo or real acupuncture, but no one knew which they had received throughout the experiment.10 In the limited interaction group, the practitioners spent less than five minutes with each patient and explained that in this “scientific study” they had been “instructed not to converse with patients.”11 In contrast, in the augmented interaction group, the initial visit lasted forty-five minutes. The practitioners followed a script that required them to engage in five behaviors: (1) warmth and friendliness; (2) engage in active listening; (3) express empathy (“I can understand how difficult IBS must be for you.”); (4) engage in thoughtful silence; and (5) express confidence and positive expectations (“I have had much positive experience treating IBS and look forward to demonstrating that acupuncture is a valuable treatment in this trial.”).12 The researchers found the augmented group had the best outcomes in all four measures of the study: global improvement, adequate relief, symptom severity, and quality of life.13 The next most effective relief was experienced by the limited interaction group, and then by the wait-list group.14 The outcomes of the augmented group were not only statistically significant, but were also “clinically significant in the management of IBS.”15 Researchers noted that the percentage of augmented group patients reporting adequate relief (over 60%) was comparable with that found in clinical trial of current IBS drugs.16 In recent years, open label placebo (OLP) studies have considered whether placebo treatment can be effective if patients are told they are receiving a placebo.17 In typical OLP studies, patients with a health condition are told they will be assigned to one of two groups: a placebo group or an existing treatment group.18 They are told that placebos are often an effective treatment for their condition, the placebo response is automatic, that it is okay not to believe, and that taking the pills is critical.19 The doctors frame the issue with the phrase “Let’s see what happens.”20 Consistently across studies, patients in the placebo group
report substantially more positive health effects than the existing treatment group.21 An acupuncturist with a degree in Chinese medicine, Ted Kaptchuk is one of the world’s leading placebo researchers and a member of the faculty at Harvard School of Medicine.22 Kaptchuk acknowledges that the doctor-patient interaction that leads to trust and rapport may have a positive impact in the open label placebo studies.23 He notes that ritualized behaviors, including warmth, empathy, and attention, as well as touch and interacting in a healing space may be significant to the patient’s response.24 He believes that an uninterested physician would likely negate the placebo benefits, and doubts that taking a placebo outside-of a doctor patient relationship would lead to the same results.25 The importance of this research for the attorney-client relationship may not be immediately apparent. After all, a client has a legal problem, which certainly cannot be cured with a placebo pill and a lawyer’s kindness. But just like the patient’s physiological condition (which also cannot be cured by a placebo),26 the client’s legal challenge is just one of the client’s needs. Clients often feel anxiety, stress, fear, and helplessness.27 The placebo research suggests that a lawyer’s empathy, kindness, touch, encouragement, and humor may positively impact these issues. The 2008 IBS Placebo Study provides a helpful guide for lawyers. The scripted interactions in the augmented placebo group lead to measurably better outcomes for those patients. The difference for those patients was the connection the doctor made by spending time with the patient, being warm, actively listening, showing empathy, touching the patient, and expressing positive expectations. Lawyers can follow this same script and it may very well result in the same positive outcomes for clients. While doctors in these placebo studies also provide a sugar pill (or fake acupuncture) to patients, it seems that lawyers have something just as valuable to offer. Like the OLP study doctors, lawyers can encourage their clients to have hope that their anxiety and worries are going to decrease during the representation. And like the doctors in the 2008 IBS Study, attorneys can encourage their clients to expect a good things from the representation. So, an attorney could say, “You do not need to worry about this legal problem so much anymore. I think it will help you navigate this [litigation, divorce, negotiation, etc.] if you let me take on this burden for you. I will let you know when there are things you need to know or worry about. A lot of my clients think it helps to hand off their worry to me.” This interaction is akin to the placebo studies: the lawyer is making a positive connection and offering something—although not in a pill form—that may relieve the client’s physical and emotional manifestations of a legal problem. There may be other positive impacts for clients—and lawyers— beyond the relief of a client’s fear or anxiety. The same relationship skills highlighted in the placebo studies have also been found to result in greater patient satisfaction,28 reduced risk of litigation,29 and improved adherence with treatment.30 Lawyers have very little to lose, and perhaps a great deal to gain, by working on these relationship skills.
This article is an excerpt from a larger piece that is forthcoming in the St. Mary’s Journal on Legal Malpractice & Ethics. Ted. J. Kaptchuk & Franklin G. Miller, Open Label Placebo: Can Honestly Prescribed Placebos Evoke Meaningful Therapeutic Benefits? 1 (October 2018). Ted J. Kaptchuk, et al., Components of Placebo Effect: Randomised Controlled Trial in patients with Irritable Bowel Syndrome, BMJ Online First, bmj.com 1 (March 2008); Sarah Ballou, et al., Open-Label Versus Double-Blind Placebo Treatment in Irritable Bowel
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If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. September 2021
barrister bullets BARRISTERS SEPTEMBER MONTHLY MEETING Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. The September monthly meeting will be on Wednesday, September 15th at The Firefly at the Hilton Knoxville. Networking will begin at 5:00 p.m., and committee reports will begin at 5:15 p.m. To attend, register for the meeting at www.knoxbar.org.
BREWS FOR BACKPACKS- THANK YOU! The Hunger and Poverty Relief Committee would like to thank everyone who attended our 3rd Annual Brews for Backpacks event on August 5 at Barrelhouse by Gypsy Cider. We collected more than 15 backpacks filled with school supplies and raised over $730 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.
OCTOBER COAT DRIVE The Hunger & Poverty Relief Committee would like Barristers to keep a look out for the annual coat drive, currently scheduled to take place this October. The committee will be accepting new or gently used coats on behalf of KARM’s Coats for the Cold program. VETERANS LEGAL CLINIC TO BE HELD IN-PERSON 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 8 and October 13 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 8 and October 13 in the Event Calendar at www.knoxbar.org. VOLUNTEER BREAKFAST COMMITTEE The Volunteer Breakfast Committee is now able to prepare breakfast at the Volunteer Ministry Center on the fourth Thursday of every month beginning at 6 a.m. A big thank you to everyone who participated in June’s Volunteer Breakfast event, especially this month’s sponsor: Egerton, McAfee, Armistead & Davis, PC! This month’s volunteers are pictured (left to right) Sallie Neese (Lewis Thomason), Emma Knapp (Lewis Thomason), and Committee Chairs Mitchell Panter (Lewis Thomason) and Matt Knable (Knable Law). The Barristers Volunteer Breakfast Committee is seeking a sponsor for the breakfast in October. Please contact Matt Knable (firstname.lastname@example.org) or Mitchell Panter (mpanter@ lewisthomason.com) for questions regarding sponsorship or if you would like to volunteer.
S C H O O L E D I N E T H I C S , continued Syndrome: Study Protocol for a Randomized Controlled Trial, Trials, 18:234, DOI 10.1186/ s13063-107-1964-x (2018). 4 Yiqi Pan, et al., Open-Label Placebos for Menopausal Hot Flushes: A Randomized Controlled Trial, Nature Research Scientific Reports, 10-20090 (2020), https://doi. org/10.1038/s41598-020-7725-z. 5 Claudia Carvalho, et al., Open-Label Placebo Treatment in Chronic Low Back Pain: A Randomized Controlled Trial, www.painjournal.com, Vol. 0, No. 0, 1 http://dx/doi/ org/10.1097/j.pain0000000000000700. 6 Teri W. Hoenemeyr, et al.Eric S. Zhou, et al., Open-Label Placebo Reduces Fatigue in Cancer Survivors: A Randomized Trial, Supportive Care in Cancer, (October 8, 2018) https:// doi.org/10.1007/s00520-018-4477-6. 7 Kaptchuk, Components, supra note 2, at 1-2. 8 Id. at 3. 9 Id. at 2. 10 Id. at 3 (explaining “dummy acupuncture” was used because there is evidence of its high placebo effects and it is indistinguishable from real acupuncture) and 4 (explaining that participants were told they had a 50% chance of receiving genuine acupuncture and that it was a “placebo controlled study,” but were not told the purpose was to study placebo effects). 11 Id. 12 Id. 13 Id. at 5-6. 14 Id. at 6. 15 Id. 16 Id. at 6. 17 Ted. J. Kaptchuk, Open-Label Placebo Reflections on a Research Agenda, Perspectives in Biology & Medicine, Vol. 61, No. 3, 311 (Summer 2018). 18 Id. at 316. 19 Id.
Id. See also Kaptchuk & Miller, supra note 1, at 1 (“The dialogue [with study participants] emphasized, ‘let’s see what happens.’”). 21 Kaptchuk, Research Agenda, supra note 16, at 316-318 (addressing outcomes in studies involving IBS, cancer related fatigue, allergic rhinitis, and migraines and concluding “[T]he consistency and magnitude of symptomatic relief across these several studies, involving a diverse set of medication [sic] conditions and implemented in different hospitals in the United States and Europe, suggest that a real therapeutic benefit may be produced by the OLP intervention.”). 22 Cara Feinberg, The Placebo Phenomenon An Ingenious Researcher Finds the Real Ingredients of “Fake” Medicine, Harvard Magazine, 37 (January-February 2013). 23 Id. 24 Id. 25 Id. 26 Kaptchuk & Miller, supra note 1, at 1-2 (explaining that placebos will not shrink tumors or treat malaria or high cholesterol, but they may effectively address symptoms like pain, hot flushes, and nausea. Id. at 2. 27 See, e.g., Barbara Glesner Fines & Cathy Madsen, Caring Too Little, Caring Too Much: Competence and the Family Law Attorney, 75 UMKC L. Rev. 965, 979 (2007) (noting the impact of clients’ fear, anger, and vulnerability on the representation and the need for lawyers to make connections through empathetic listening). 28 Verhulst, et al., The Medical Alliance From Placebo Response to Alliance Effect, J. of Nervous & Mental Disease, Vol. 201, No. 7, 546, 547 (July 2013), citing J.M. Traveline, et al., Patient-Physician Communication: Why and How, J. Am. Osteopath Assoc. 105:13-18 (2005). 29 Verhulst, supra note 27, at 547, citing H.T. Stelfox, et al., The Relation of Patient Satisfaction with Complaints Against Physicians and Malpractice Lawsuits, Am. J. Med. 118:1126-1133 (2005). See also Nathalie Martin, The Virtue of Vulnerability, 48 Sw. L. Rev. 367, 375 (2019) (“[S]imply put, patients do not sue doctors they like and trust.”). 30 Verhulst, supra note 27, at 547, citing H. Zolnierek, et al., Physician Communication and Patient Adherence to Treatment: A Meta-Analysis, Med. Care 47:826-834 (2009). 20
B O AT B U I L D E R S By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
THE ANGEL AND THE ARBITRATOR In September 1967, something new appeared in the skies over South Vietnam.1 It was 38 feet, 6 inches tall and 97 feet, 9 inches long and had a wingspan of 132 feet, 7 inches.2 Equipped with down facing, 20-millimeter Gatling guns along its side, two, 40-millimeter Bofors cannons, and 7.62-millimeter miniguns, the Lockheed AC-130 Gunship was aptly named the “Angel of Death.”3 It could loiter in the air for an extended period of time and then swoop in to provide close air support when it was needed the most.4 Over the past fifty-four years, the AC-130’s and their elevenmember crews have served in Vietnam, Laos, Grenada (Operation Urgent Fury), Panama (Operation Just Cause), the Persian Gulf (Operation Desert Storm), Somalia (Operation Restore Hope), Bosnia (Operation Deliberate Force), Afghanistan (Operation Enduring Freedom), and Iraq (Operation Iraqi Freedom).5 In each arena, the AC-130 has been there to support ground forces with an accuracy and reliability that was legendary. But, it was not without sacrifice. The evening of May 24, 1969, the AC-130 known as “The Arbitrator” left Ubon Royal Thai Air Force Base to perform armed reconnaissance [looking for and eliminating enemy supply trucks and troupe carriers] on the Ho Chi Minh Trail in Laos.6 Its pilot was Lieutenant Colonel W.H. Schwehm, and on board, was Staff Sergeant Jack Wayne “Jackie” Troglen.7 Troglen was a true Tennessee boy—born and raised in Sparta,8 the birthplace of Bluegrass (according to Sparta) and halfway between Knoxville and Nashville.9 He was only twenty-two when he arrived at Ubon AFB.10 Troglen was The Arbitrator’s illuminator operator.11 His job was to drop the flares that would light up the target area so the gunners could see their targets.12 Troglen’s job was to protect U.S. troops from becoming unintended casualties when the Angel of Death came calling. Not too far into the mission that night, the crew spotted an enemy convoy. It prepared to open fire when The Arbitrator was hit by 57 mm anti-aircraft artillery.13 The Arbitrator’s hydraulic system failed; the crew lost the use of the rudder control, the elevator trim, and the autopilot.14 Somehow, Lieutenant Colonel Schwehm managed to turn The Arbitrator back toward Ubon in the hopes of making an emergency landing.15 About twenty-miles from Ubon, Lieutenant Colonel Schwehm ordered his crew to bail out for their own safety.16 Most of the crew followed orders, but one refused to leave—Staff Sergeant Cecil Franklin Taylor.17 Taylor was from Oconee County, South Carolina.18 He was thirty-three years old, married, and had been deployed to Laos for over seven months.19 But, this was not his first time. A sixteen-year Air Force veteran, by May 24, 1969, he had seen more than his share of combat missions.20 What Taylor saw on that plane was that Troglen had been severely injured in the attack.21 So, Taylor stayed with The Arbitrator and with Troglen. Taylor stayed as The Arbitrator crash landed and hit the barrier cable housing. He watched as The Arbitrator’s wings were torn off, and he stayed as The Arbitrator skidded off the runway and burst into flames. Lieutenant Schwehn and his co-pilot were able to leap to safety, but both Cecil and Jackie were trapped in the burning airplane. That is where they lost their lives in the wreckage of The Arbitrator—the Angel of Death.22 September 2021
The Arbitrator was the first AC-130 casualty, but it was not the last. Less than a year later, the AC-130 known as “War Lord” was hit by 37 mm anti-aircraft artillery along the Ho Chi Minh trail in Laos.23 Ten of its crew were killed. Only Staff Sergeant E. Fields survived.24 All told, six AC-130s and fifty-two of their air crew members were lost during the Vietnam War.25 Still, the AC-130 and its crews have continued to serve. This year marks the thirtieth anniversary of the last AC-130 that was downed by enemy fire. On January 31, 1991, an AC-130H Spectre gunship under the callsign “Spirit 03” was shot down by an Iraqi surface-to-air missile during the battle of Khafji during Operation Desert Storm.26 Iraqi troops had attacked Khafji, a small Saudi Arabian town just across the border of Kuwait. They rolled in with forty tanks and five hundred troops. Only two U.S. Marine reconnaissance teams were left in the city. All night on January 30 and into the wee hours of the morning on January 31, the AC-130H gunships stayed with the Marines raining wave after deadly wave of gunfire upon the assaulting troops. But the Iraqi forces were not defenseless, and the anti-aircraft fire grew more and more intense as the night wore on.27 By 6:00 a.m., Spirit 03 was running low on fuel, but still the crew continued firing on targets identified by the Marines on the ground. The Marine air controller identified a Free Rocket Over Ground (FROG) system that threated the ground troops, so the Spirit 03 went hunting even though it only had enough fuel to get back to base.28 Suddenly, the AC-130H’s left-wing was struck by a surface-to-air missile, and the wing caught on fire. Its pilots, Captain Thomas Bland and Major Paul Weaver tried to maintain control of the gunship, but the fire spread, and two-thirds of the left wing broke off. The airplane began to spin making a bailout impossible. Then, it crashed into the Persian Gulf.29 It took over a month for recovery crews to locate the crash site. All fourteen crew members were lost. It was the largest single loss of life for the Air Force in Operation Desert Storm.30 But, as a result, the AC130 was upgraded to include modern chaff and flare dispensers, infrared missile-launch warning, and electronic countermeasures, and no AC-130 has been downed by enemy fire in thirty years.31 Boat builders build boats, and heroes never die in vain.
The United States of America Vietnam War Commemoration, Week of September 8, https://www.vietnamwar50th.com/education/week_of_september_8, last visited Aug. 9, 2021. Airman Magazine, Airframe: the AC-130 Gunship (Dec. 22, 2017), https://www. airmanmagazine.af.mil/Features/Display/Article/2594229/airframe-the-ac-130gunship/. The United States of America Vietnam War Commemoration, supra n. 1; Airman Magazine, supra n. 2. Airman Magazine, supra n. 2. U.S. Air Force, AC-130U (Jan. 20, 2016), https://www.af.mil/About-Us/Fact-Sheets/ Display/Article/104486/ac-130u, last visited Aug. 9, 2021; see also Airman Magazine, supra n. 2. Warbirds Resource Group, Lockheed AC-130 Spectre Operational History, http:// vietnam.warbirdsresourcegroup.org/ac130-operation.html, last visited Aug. 9, 2021; see also Final Mission of Ssgt. Cecil F. Taylor (Dec. 13, 2018), https://www. vvmf.org/Wall-of-Faces/51117/CECIL-F-TAYLOR/, last visited Aug. 9, 2021.
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OF LOCAL LORE AND LAWYERS By: Joe Jarret Attorney, University of Tennessee
ABOUT A BOOK It has been validated and vilified. Lauded and lambasted. Broadly distributed and banned. Adored by the fledgling ACLU and abhorred by the American Bible Society. Yet, over 100 years after its publication, it’s still being discussed and disabused by fans and foes alike. It is George William Hunter’s text, “A Civic Biology,” 1 a tome used by most public schools across the United States soon after its publication in 1914, and the stuff of the Scopes Money Trial, 2 still considered to be one of the most infamous courtroom dramas in Tennessee history. So, just what is it about this dated tome that still garners the interest of educators, legal scholars, and scientists 107 years after its publication?
rule, boys need more food than girls, and men than women.” Clearly, Hunter was a bit of an enigma. He was profoundly wrong and behind the times when it came to race: “The highest type of all the races, the Caucasians, are represented by the civilized white inhabitants of Europe and America.” Yet, he is credited to be ahead of his time when it came to substance abuse: “The American people are addicted to the use of drugs, and especially patent medicines” He is also considered a visionary when it comes to the topic of pandemics: “Pandemic or infectious diseases are chiefly spread through personal contact. It is the duty of a government to prevent a person having such a disease from spreading it broadcast among his neighbors. This can be done by quarantine or isolation of the person having the disease. So the board of health at once isolates any case of disease which may be communicated from one person to another.”
Historical background: As you hearken back to your high school civics or history class, you’ll recall that in March 1925, the Tennessee Legislature passed a bill that banned the teaching of evolution in all educational institutions throughout the state. The Butler Act 3 was the first of its kind in the United States, and was soon mimicked by other states. The ACLU 4 was only five years old, and in search of a case to gain support for its causes. As such, it responded to the Butler Act with an offer to defend any Tennessee teacher prosecuted under the law. John Scopes, a young popular Rhea County high school science teacher, agreed to stand as defendant in a test case to challenge the law. He was arrested on May 7, 1925, and charged with teaching the theory of evolution. His teachings were primarily drawn from Hunter’s text. A key excerpt from the text that inflamed the passions of members of the State Legislature follows: “Evolution of Man. - Undoubtedly there once lived upon the earth races of men who were much lower in their mental organization than the present inhabitants. If we follow the early history of man upon the earth, we find that at first he must have been little better than one of the lower animals. He was a nomad, wandering from place to place, feeding upon whatever living things he could kill with his hands. About this time the subjugation and domestication of animals began to take place. Man then began to cultivate the fields, and to have a fixed place of abode other than a cave. The beginnings of civilization were long ago, but even to-day the earth is not entirely civilized.” 5
It is interesting to note that Hunter’s book was 4 years old when the Spanish Flu epidemic ravaged the world. 6 His ideas about quarantine and isolation were widely put into use as the world confronted that global killer. Summary: Between 1907 and 1955, Hunter published nine editions of his high school biology textbook, revising and re-titling his text each time. To this day, educators continue to debate Hunter’s writings, and in so doing, have failed to come to a consensus as to whether his works were scientific, or suspect. In any event, his legacy and his works continue to inflame the passions of scientists and legal scholars around the world.
What is interesting about the above passage is that the Legislature’s passions were not at all inflamed by Hunter’s obvious sexism: “As a
Full title, A Civic Biology: Presented in Problems, 1914, American Book Company. The now defunct American Book Company (ABC) was an educational book publisher in the United States that specialized in elementary school, secondary school and collegiate-level textbooks. On Appeal: John Thomas Scopes v. State, 154 Tenn. 105, 126, 289 S.W. 363, 369 (1927). The Butler Act was a 1925 Tennessee law introduced by Tennessee House of Representatives member John Washington Butler prohibiting public school teachers from teaching the Theory of Evolution in public schools. The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 to, according to its official history, “Defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States” Excerpted from George William Hunter, A Civic Biology: Presented in Problems (New York, 1914): pp. 193-196, 253-254, 261-263. The Spanish flu, also known as the 1918 influenza pandemic, was an unusually deadly influenza pandemic caused by the H1N1 influenza virus. Lasting from February 1918 to April 1920, it infected 500 million people – about a third of the world’s population at the time – in four successive waves.
GRAMMAR GRINCH By: Sarah M. Booher Garza Law Firm
STRAIGHT FROM THE HORSE’S MOUTH: THE CHALLENGE AND MEANINGS OF IDIOMS Alongside onomatopoeias, idioms are my linguistic guilty pleasure. “What, pray tell, is an idiom,” you ask. “More importantly, what’s an onomatopoeia?” Tsk, Tsk. Unfortunately, the onomatopoeias will have to wait for another article, but I’ll let the cat out of the bag1 on idioms and why they are so interesting. Idioms are phrases or expressions that are common to a particular population or region. In fact, it is estimated that the English language alone has about 25,000 idiomatic expressions.2 Some idiomatic phrases once held a literal meaning, but eventually evolved into a strictly figurative concept that makes the literal composition of the words melt into a gooey pile of verbal nonsense. This is called folk etymology. In other instances, the idiom was always figurative. This mental gymnastics routinely makes idioms especially difficult for both exceedingly literal thinkers (like my sister) and people who haven’t grown up in the expressions (like non-native speakers). Personally, they’re exciting because they reveal a great deal about our respective backgrounds. It’s likewise incredibly endearing when someone misses the mark3 in boldly using them during conversation, so I turn a blind eye4 to their mistake. Essentially, idioms are hard. They defy the principle of compositionality. In other words, even if you understand the individual words that make up the whole idiom, you are still probably confused.5 Or the literal words make no sense within the larger context of the discussion. They also don’t translate well. Sure, “to get on one’s nerves” is estimated to have the same figurative meaning in more than fifty European languages. The phrase “to shed crocodile tears” is also pervasive not only in European languages, but in Asian languages, too.6 But by and large7, cultures create their own idioms, “collocat[ing] words that become affixed to each other until metamorphosing into a fossilized term.”8 This fossilized term is also what complicates idioms for people - the phrase is often so stiff that flip-flopping or substituting words in the phrase raises eyebrows for listeners or fails to convey the speaker’s proper meaning. Let’s go through some together. Butter Someone Up: Ancient custom in India required throwing butter at statues of gods to seek favor and good fortune. Now, we take less of a Paula Dean approach and use flattery to gain someone’s support or good graces. Feeling Under the Weather: This is another nautical idiom. If a sailor felt sick, he would go below the bow. There he was protected from the elements, or literally protected from the bad weather that was likely making him ill or exacerbating his sickness. As such, ailing sailors were described as “under the weather.” Giving the Cold Shoulder: Back in the day of the English having their best friends over for actual feasts, hosts would subtly signal to their guests that it was time to leave by serving a cold slice of beef or pork shoulder. Today the expression has expanded beyond unwanted guests to being intentionally unfriendly to anyone. Hands Down: In 19th century horseracing, a jockey who was so far ahead of his competition had the luxury of being able to remove his hands from the reins and still win, which evolved into a something being clear, decided, or obvious. September 2021
Proof is in the Pudding: The word proof was synonymous with test in 16th century England, and their version of pudding was something more akin to minced-meat pie. Therefore, the true test of the pie was not how it appeared, but how it tasted! We now use the expression to mean we can only assess the true value of something by putting it to its intended use and seeing if it works. Reading the Riot Act: In 1714, King George I and his government feared being overthrown by supporters of Stuart’s previous dynasty, so they passed the Riot Act. Authorities would read excerpts of the full act where crowds of 12 or more had assembled, at which time they must disburse or face imprisonment. Today, we “read [someone] the riot act” if we need to correct their improper behavior. Steal Someone’s Thunder: English dramatist John Dennis invented a device that mimicked the sound of thunder for his plays in the early 1700s. Not long after, his play flopped, and then he discovered another play in the same theater was utilizing his invention without his permission. “That is my thunder, by God; the villains will play my thunder, but not my play!” His declaration became an idiom that means using someone else’s idea or words for your own advantage or to preempt the attention from going to them. As a bonus, in reviewing the literal translations of some foreign idioms, here are a few of my favorites: Pay the Duck: This Portuguese idiom means you are taking the blame for something you didn’t do or wasn’t your fault. Slide in on a Shrimp Sandwich: A Swedish idiom implying someone didn’t have to work to get where they are. The Thief Has a Burning Hat: This Russian idiom implies someone has an uneasy conscience that betrays itself. You Have Tomatoes in Your Eyes: This German idiom means someone isn’t seeing a physical object that everyone else sees. What’s your favorite idiom?9 Chances are you use idioms so often that you have no idea you’re using them for their figurative, not literal, meaning.
5 6 7
Pre-1800, valuable piglets were often sold bagged. A common scheme was to fraudulently put less-valuable cats in the bag, wherein the buyer wouldn’t know they had been duped until they got home and opened it (assuming meows weren’t heard from the bag first?). Thus, the jig is up and the secret is told. Ray Jackendoff. They get close but no cigar, if you will. In the late 19th century, carnival games were geared toward adults, not children. Therefore, the prizes weren’t stuffed animals or trinkets, but cigars. So if they almost won the game, they were “close but no cigar.” Attributed to British Admiral Horatio Nelson who ignored his superior’s visual command to retreat in battle by placing the telescope up to his blind eye because he was sure he could win. Igor Mel’cuk. Elizabeth Piirainen. A nautical idiom, “by” is a shorting of “full and by,” an indication that the boat was entering the wind. “Large” refers to the wind being behind the boat. Therefore, the combination “by and large” indicates the wind is from any direction, and now means “in general.” John I. Saeed. My mother appreciates the irony that her favorite – Goodnight, sleep tight, don’t let the bedbugs bite - was literal, then idiomatic, and is now largely literal again. Ewww.
WELL READ By: Dacey Romberg UCOR, Associate General Counsel
HELL AND OTHER DESTINATIONS, BY MADELEINE ALBRIGHT I have always loved reading, but I have usually done so in a haphazard manner, reading whatever book I found at the library (Yes, I still get paper books from the library. I love the crinkle of the plastic bindings) with no theme or coherent category that would provide an answer to the oft-repeated question, “What do you like to read?” The chaos of last year changed that though. I heard a podcaster say that it felt like a decade’s worth of news occurred every day in 1968. This precisely echoed my feelings towards the present times. Every day in 2020 felt like a seismic shift, and you never knew what was coming next. So I decided that learning more about history, particularly turbulent times, might give me some perspective. One way to learn about history is by reading the stories of those who shaped it. Thus, I turned to Hell and Other Destinations: A 21st -Century Memoir by Madeleine Albright. Most famously, Albright was America’s first female Secretary of State from 1997 to 2001, but she also served on the National Security Council, taught at Georgetown University, served as ambassador to the United Nations, worked on Capitol Hill, and has written numerous books. Hell and Other Destinations details her life and work after leaving government, what she dubs her “afterlife.” I was surprised by how funny and self-deprecating Albright is. Early in the book she tells of being searched at an airport. She asked, “Do you know who I am?” and the unaware TSA agent, assuming she was your average older traveler, responded, “No, but we have doctors who can help you figure that out.” In addition to her humor, the book is rife with surprising facts. For instance, she interviewed John F. Kennedy for her college newspaper. In the early 2000s, she could leg-press 400 pounds or, as she describes it, “roughly twice the weight of a female giant panda.” She tells Dr. Seuss’s origin story and its connection to her family. She also discusses her role on television shows like Madam Secretary and Parks and Recreation. She shares the wisdom she has gained through her myriad public and private roles. For management-level attorneys, she shares her opinion that a good corporate environment requires ethics training, a zero-tolerance approach to harassment, participation in community service projects, and good tech people.
For new attorneys or attorneys looking to make a career change, she shares this insightful reflection on how careers progress: It is rare that we move from one step to the next in a logical progression. More often, like a small child crossing a wide stream, we launch ourselves from stone to stone, every leap bringing us closer to some destinations and father away from others—but without a clear view of where our ultimate landing spot might be. Instead, we prepare for the next jump, then the one after that, until after a lifetime of motion is past, we are startled, at least a little, by where we are and by what we have become. For female attorneys and those who mentor female attorneys, she describes her time as a professor encouraging women to be more confident in their opinions. She notes how a woman is “far likelier than a man to apologize for interrupting, worry that she is repeating arguments already made, or conclude her comments with the verbal equivalent of a question mark.” These are all practices that frequently go unquestioned but may be a setback for female attorneys. Albright’s life path and stories reveal her desire to be continuously learning. Many of us in the legal field share that same passion. If you count yourself a lifelong learner, I suggest you read this book. I guarantee you will learn something new and maybe even laugh a time or two.
B O A T B U I L D E R S , continued
16 17 18 14 15
Warbirds Resource Group, supra n. 6; see also Find a Grave, Sgt. Jack Wayne “Jackie” Troglen, https://www.findagrave.com/memorial/78866865/jack-waynetrogl, last visited Aug. 9, 2021. Warbirds Resource Group, supra n. 6. Sparta, Tennessee, History, http://bluegrasstn.com/history, last visited Aug. 9, 2021. Sgt. Jack Wayne “Jackie” Troglen, supra n. 7. Find a Grave, Sgt. Jack Wayne “Jackie” Troglen, https://www.findagrave.com/ memorial/78866865/jack-wayne-trogl, last visited Aug. 9, 2021. John Lowery, Evolution of the Air Force’s AC-130 Gunship, Aviation History (Sept. 2020), available at https://www.historynet.com/evolution-of-the-air-forces-ac-130gunship.htm. Warbirds Resource Group, supra n. 6; see also Final Mission of Ssgt. Cecil F. Taylor, supra n. 6. Final Mission of Ssgt. Cecil F. Taylor, supra n. 6. Id. Id. Id. Find a Grave, SSGT Cecil Franklin Taylor, https://www.findagrave.com/ memorial/128646809/cecil-franklin-taylor, last visited August 9, 2021.
Id. 20 Id. Sgt. Jack Wayne “Jackie” Troglen, supra n. 7. 22 Final Mission of Ssgt. Cecil F. Taylor, supra n. 6. 23 Warbirds Resource Group, supra n. 6. 24 Id. 25 Chris Hobson, Vietnam Air Losses: United States Air Force, Navy & Marine Corps Fixed-Wing Aircraft Losses in Southeast Asia 1961-1973, 268 (Midland, United Kingdom). 26 David Roza, No Enemy has Downed an Air Force AC-130 Gunship in 30 Years. Here’s Why, Task & Purpose (Feb. 5, 2021), www.taskandpurpose.com/history/airforce-ac-130-gunship-crash-desert-storm-spirit-03, last visited Aug. 9, 2021. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id. 19 20 21
Barristers Summer Party Fiesta on Central a Big Success!
The rain cleared and the temperature cooled off to provide the perfect setting for the Knoxville Barristers Summer Party on July 30. The event was held at The Central Collective and was coordinated by Barristers Membership Committee Co-Chairs Katie O’Neal and Matthew McClanahan. More than 60 KBA members and their guests enjoyed gathering together. A photo booth was provided by LeeHaw.
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
BACK TO THE OFFICE We knew the WFH phenomenon was just a phase that would certainly moderate somewhat as pandemic fears waned. We are now seeing that transition take place. But as many of us head back to our offices on a more regular basis, we should use this time to re-assess how our work office is set up in light of some lessons we learned while working from home. As we worked from home over many of the past 12-18 months, we discovered something very significant: we work much better when we are comfortable. Now, it is highly unlikely that our colleagues back at the office are going to approve of us coming to the office in our pajamas or gym shorts, but comfort is not just about slouching around the house in non-work clothes. On the other hand, is it really necessary to wear a suit (or other courtroom acceptable clothing) when you do not have a court appearance or an important client meeting? We think it is better to wear clothing that is comfortable, yet appropriate. Similarly, ergonomics is a big factor in workplace comfort. If your home office is more ergonomically friendly than your work office, why not update the workplace to a higher standard? Office chairs can be one of the biggest hindrances to productivity when they are uncomfortable and do not promote good sitting posture. A chair with lumbar support, among other ergonomically-friendly features, is a huge benefit for office workers. We also like the option of standing at times rather than sitting all day at our desk, so we love having an adjustable-height desk that can be positioned either way. Make your office a comfortable and hospitable place to work. A large monitor (or even multiple monitors) is essential for just about any office worker, but especially for those in the legal profession. Equally important to the size of the monitor is the placement of the monitor. For the most ergonomically friendly placement we recommend a monitor stand, such as the Kensington WellView Monitor Stand. This stand has an interchangeable fan, heater and air purifier that keeps our office environment just perfect. Now that we are working in the office, there are any number of desk accessories that we have become accustomed to at home that would work well in the office also. We work on our smart phones almost as frequently as we do on our laptop throughout the day, so a cell phone stand (and/or charger) for our smartphone is essential. Since we are gadget hoarders, we require so many charging ports that we quickly run out of electrical outlet space. We love the new smart power strips that have both regular
outlets as well as USB ports for our many charging cables. Keeping our coffee warm at the office is made easier with a USB-connected mug warmer. Finally, we love having a second screen devoted to such things as video conferences, playing music, showing upcoming appointments, etc. There are a number of options for this auxiliary screen, including an iPad, Amazon Echo Show, Facebook Portal, and Lenovo Thinksmart View. We have all of them. Having a clean, spacious workspace not only helps with office ergonomics, but also promotes positivity in our minds which translates to both increased productivity and greater personal satisfaction with our jobs. Bill has long been a fan of Marie Kondo and her advice for de-cluttering. Whether you subscribe to all of Ms. Kondo’s regimen or not, a thorough de-cluttering of your workspace can be a huge productivity booster. During our move back to the office, we are using this time to re-assess how much we need to keep out on our desk or even in our files. If it doesn’t “bring us joy” and it’s not essential for our clients or for us to do our job, we’re trashing it. Good-bye, Office 2010 User Manual. One facet of WFW that most certainly will carry over to the office is the use of Zoom, or some other video-conferencing app. We have been preaching video conferencing as a much more efficient and cheaper alternative to in-person meetings for some time. The legal world has now fully embraced video conferencing. So, it behooves us to optimize our office workspace to ensure we can have the best video conferencing experience possible from our work office. While most PCs and laptops now have built-in webcams as standard equipment, we highly recommend getting a high-quality external HD webcam to connect to your workstation to enhance both the audio and video quality of your video calls. Nothing says “low budget” more than a grainy video image while videoconferencing with a colleague or client. You might also consider investing in either headphones or earbuds, particularly in an office environment where others might be distracted by your video conference dialogue. Finally, depending on the brightness of the light source in your office, you might even consider investing in an inexpensive video conference light source (such as the Ring light or Lume Cube) to properly light yourself as you participate in a video call. It certainly is good to be back in the office on a regular basis again. We feel that we have learned to work smarter over the past year. We don’t want to slip back to a lower office standard as we now transition back to the work office.
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
COPS AND THE CONSTITUTION It was three o’clock on a frozen winter morning. I was warm in bed. I was awakened by a woman’s scream. Or was I? It was probably just a dream, nothing to call the cops about, so I rolled over and closed my eyes. Then came another scream. And another. From the apartment directly above mine. I dialed 911. The dispatcher asked for directions. I realized that it would be difficult to find my apartment in a neighborhood of cookiecutter townhouses. So I turned on the porch light and opened the front door. Did I mention that it was freezing outside? Like ten degrees below zero? My thick robe suddenly seemed remarkably thin. In minutes, a sheriff ’s cruiser appeared, moving fast. I flagged it down. There was only one deputy. He spoke briefly with me, confirming what I had heard. Then he told me to go inside. As I did so, he began to knock with his left hand on the door to the upstairs apartment. With his right hand, he undid the strap holding his gun in his holster and rested his palm on the weapon. I checked on my four-year-old son, wondering what was going on upstairs, waiting for the sound of gunshots. As I stood there, I was struck by the contrast between what I had done that night and what the cop had done. When I called 911, I had been, at best, a good citizen. That cop was a hero. I was warm and safe. The cop had walked through the arctic night directly into harm’s way. That incident was not my only positive interaction with law enforcement. More than thirty years ago, I watched my brother give a commencement speech at the FBI Academy. He had graduated first in his class of new Special Agents. He was one of only a handful of students in the history of the Academy to have garnered a perfect score on the Bureau’s physical fitness test. I must admit, I popped a few shirt buttons. During his decades-long career, my brother investigated everything from midwestern street crime to the Oklahoma City bombing. He repeatedly traveled to war zones to investigate terrorism, although he could say precious little about that. Typically, I would get a call letting me know that he was “going away” for a few months. Only when he returned, with a deep tan and long beard, would he tell me where he’d been. Perhaps it was inevitable that I would eventually teach cops about the Constitution, which I’ve done for several years now at the Center for the Constitution at James Madison’s historic home, Montpelier. One of Montpelier’s partners is—you guessed it—the FBI, which brings in police officers from around the country, and, indeed, the entire world. I’ve taught literally hundreds of law enforcement officials, from the guys who ride motorcycles to the top cops in several foreign countries. One of my students was the Chief of Police of Hong Kong.
One thing all these cops share is a treasure trove of great stories, which they tell with great relish and (ahem) colorful language. They also share a commitment to the Rule of Law. They have sworn to uphold it, to defend it, if necessary, with their lives. Consequently, they have a genuine thirst for constitutional knowledge. Several have told me, “I wish someone had explained this to me when I was starting out.” So do I. For while I believe the work I do with Montpelier and the FBI is valuable, it would be even more effective if it happened during a cop’s initial training, before she’s out in the community. Such early training might have prevented one particularly disturbing aspect of the January 6 Insurrection: Some members of the mob were police officers themselves. Recently, two cops from Seattle, Alexander and Caitlin Everett, who are married to one another, were fired for breaching the police barrier at the Capitol and lying about it afterward.1 Their dismissal was undoubtedly appropriate, but I have to wonder whether their participation in the Insurrection was based less upon evil intent than ignorance of their constitutional duties. Did they somehow think that what they were doing was patriotic? Many insurrections apparently did. United States District Judge Amy Berman Jackson recently told a convicted rioter, “You called yourself and everyone else patriots, but that’s not patriotism. Patriotism is loyalty to country, loyalty to the Constitution, not loyalty to a head of state. That is the tyranny we rejected on July 4.”2 Did the Everetts and other cops in the mob share this perverse definition of patriotism? I suspect so. But it didn’t have to be that way. Perhaps I’m biased, but, as an educator, I believe a solid grounding in the Constitution could discourage such misguided thinking in the future. If you work with cops, please give me a call, and we’ll talk about it. Oh, and that reminds me: I love cops. Most cops are good. Most cops are heroes, including that Sheriff ’s deputy who answered my 911 call on that cold winter’s night. In case you’re wondering, he was fine. And he was considerate enough to let me know, before he left, that the woman upstairs was fine, too. She was not screaming in fear or pain, but in the (ahem) throes of passion. So, a happy ending all around. And, no doubt, the deputy’s story has found its rightful place in the great repository of cop lore.
“2 Seattle cops who were at US Capitol in January are fired,” Associated Press, August 6, 2021, available at: https://apnews.com/article/seattle-police-reform-da9 8b06a9245d496204bf13e7b32ca90.
“Judge to Capitol riot defendant: ‘Patriotism is loyalty to country, loyalty to the Constitution,’” CNN, August 4, 2021, available at: https://www.cnn. com/2021/08/04/politics/amy-berman-jackson-capitol-riot-defendant-patriotism
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. September 2021
BENCH AND BAR IN THE NEWS 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 email@example.com. LMU ANNOUNCES R. GERALD MCMURTRY LECTURE You are cordially invited to attend the 2021 R. Gerald McMurtry Lecture, which is being held in LMU Law’s Courtroom (third floor-Room 340) on Friday, October 22, from 9:30 a.m.-1:30 p.m. Presented by the Duncan School of Law and LMU’s Lincoln Institute, the event will feature noted Lincoln scholar Ron Soodalter, who will talk about “Lincoln and the Power of the Pardon.” For information, please contact Catherine Kelly: catherine. firstname.lastname@example.org or 865-545-5339. IOLTA GRANT APPLICATION AVAILABLE Applications for grants to be paid during the calendar year 2022 from the Tennessee IOLTA (Interest On Lawyers’ Trust Accounts) program were made available Wednesday, August 11, 2021, on the Foundation’s website: www.tnbarfoundation.org. The format will be available online, but completed applications must be submitted in HARD COPY ONLY and returned by United States Postal Service postmarked no later than midnight, Thursday, September 9, 2021. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource. CAN YOU DONATE AN HOUR TO HELP A NONPROFIT? The KBA and its participating attorneys recognize that many small to mid-sized nonprofit organization have legal questions, but not the resources to retain legal counsel. Participating attorney agrees to provide up to one hour of pro bono legal assistance to 501(c)(3) tax-exempt organizations with a budget of $1,000,000 or less. Through this partnership, nonprofit staff and boards are assured timely and accurate answers while providing attorneys with a satisfying but not overwhelming way to perform pro bono service. If you are willing to help, contact Marsha Watson at the KBA Office at 522-6522. NETWORKING OPPORTUNITIES - PROFESSIONALS The mission of the KBA’s Interprofessional Relations Committee is to encourage mutually beneficial interaction among lawyers and other professionals in the community, such as physicians, accountants, financial planners, and the like. In addition, where existing relationships may be somewhat strained, the committee aims to find ways to promote a spirit of cooperation and better understanding. The committee welcomes member participation and ideas for networking and/or events or programs to be held in conjunction with other. Committee Chairs Sherri DeCosta Alley and Paul Wehmeier would like to know if you have any ideas for networking with other professionals. If you would be interested in serving on the committee or have contacts with other organizations, please contact KBA Executive Director Marsha Watson at email@example.com.
stones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www. knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: • Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area, receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 524-1873 for inquires. •
Office Space for Lease at the Northgate Professional Building, near Downtown Knoxville at 3806-3814 Powers Street, Knoxville, TN 37917. Up to 6 office units available for lease. Office space includes, shared lobby and reception area, library/conference room, restrooms and kitchenette. $400 per office. Free Parking. Email firstname.lastname@example.org for inquiries.
1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!)and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545.
Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email email@example.com for inquiries.
Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 8051911.
Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records:
LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing mile-
Luke P. Ihnen BPR #: 035190 Federal Defender Services 800 S. Gay Street, Suite 2400 Knoxville, TN 37929-9714 Ph: (865) 637-7979 Luke_Ihnen@fd.org
Kenneth C. Tucker BPR #: 017596 Covenant Health 244 Fort Sanders West Blvd. Knoxville, TN 37922-3355 Ph: (865) 531-5414 firstname.lastname@example.org
R. Seth Oakes BPR #: 032284 Oakes Law Firm, PLC 10413 Kingston Pike, Suite 201 Knoxville, TN 37922-3299 Ph: (865) 288-9900 email@example.com
Courtney D. Walker BPR #: 036974 Gentry, Tipton & McLemore, P.C. P.O. Box 1990 Knoxville, TN 37901-1990 Ph: (865) 525-5300 firstname.lastname@example.org
LONG WINDED By: Jason H. Long London Amburn
NEW AND IMPROVED SEC Let’s start with a little history lesson. The Southeastern Conference was established right here in Knoxville, Tennessee on December 8 and 9, 1932. The founding member institutions were Alabama, Auburn, Florida, Georgia, Georgia Tech (hard to believe, wait it gets better) Kentucky, LSU, Mississippi, Mississippi State, Tennessee, Tulane (I know, right? Tulane was in the SEC, but wait), the University of the South (Sewanee!!!! Sewanee was an SEC school – for the record, they used to be a powerhouse), and Vanderbilt (are you kidding me?? Someone let Vanderbilt in the SEC? Who would have imagined?). These schools broke away from the old Southern Conference and banded together to form what has arguably become the dominant force in collegiate sports today (at least with respect to football, I don’t believe there is any argument left). Over the years, some schools dropped out (Georgia Tech, Sewanee, and Tulane), while the conference has expanded to welcome new members: South Carolina and Arkansas (1990); Texas A & M and Missouri (2012). The last of these expansions truly tested the definition of “southeastern” but they brought in a lot of revenue and fans, so we said “what the heck, Missouri isn’t that far north!” Over the years, the SEC has been a driving force in college athletics across the board, claiming championships in sports as varied as basketball (men’s and women’s), baseball, track and field, golf and even boxing (LSU had a heck of a team in 1949). However, as we all know, it has been on the gridiron that the conference has won its reputation. As much as I hate to say it, Alabama is, historically, the best team in all of college football. It claims the most national championships (16), unless you count the 18 that Yale claims (from 1874-1894 the Bulldogs were dominant during a time when no one else knew how to play the game). Bama has racked up conference and national championships across multiple decades and claims two of the greatest coaches in history: Paul “Bear” Bryant and Nick Saban (ugh, did I really just write that last sentence?). But the dominance of the conference does not end there. Our beloved Vols once had a pretty good resume themselves, although it is fading over time. Florida, LSU, Georgia, and Auburn can all claim to be among the college football bluebloods. In any given year, a standard SEC schedule almost assures that you will play three or four top ten teams during the season. No other conference really comes close. The Big 10 looks to Michigan and Ohio State to carry their football banner. Sure, those are great teams, but is there anyone else in the conference who can claim to be in league with even the middle of the road SEC teams? The ACC has Clemson, but even Vanderbilt could finish in the upper half of that conference. Occasionally, Oregon and USC make national news for the PAC–12, but not on a consistent basis and not with the kind of dominance of an Alabama or a Georgia. And that brings us to the Big12. With a bevy of Midwest schools, one would think that the Big-12 September 2021
would be teeming with corn fed big boys who do nothing but strap on helmets and hit people. Sure, Nebraska had a great run in the 90s, but could not sustain the success. Kansas has always devoted itself to basketball, and schools like Baylor and West Virginia are just occasional blips on the college football radar. Really, the Big-12 can only point to Oklahoma and Texas in establishing their bona fides. Those are the two programs that really belong in college football elite (some would argue not so much for Texas, but just ask a Longhorns fan and then sit back for a two-hour lecture on Mack Brown’s genius. Hook ‘em Horns!). Whether you believe Texas belongs in that conversation or not, there is no doubt that from a money and influence standpoint, the Big-12 looks to Oklahoma and Texas to give the conference credibility and influence on the national landscape. Well, at least they used to. As most anyone with a passing relationship to college football knows by now, Oklahoma and Texas were recently offered membership in the SEC and they readily accepted. As the old saying goes, “the rich get richer.” The addition of these teams to the SEC appears to be a win-win for all parties involved. There will be more lucrative TV contracts, more influence at the bargaining table with the NCAA, more appeal to student athletes who want to play in college football’s premiere conference, and more rabid fans brought into the SEC fold. Some would call this move a “no brainer” for the conference and the schools involved. Of course, its not such a great deal for the rest of college football. The Big-12 has suddenly been rendered largely irrelevant on the national landscape. The remaining conferences are scrambling to come up with a strategy to compete with the new and improved SEC behemoth. What was once a super conference has now become a super-duper conference, and one wonders if the revenue and prestige flowing from this shift will result in a conference too powerful for the NCAA to govern. On a more micro level, teams like Tennessee, already fighting to stay relevant in the SEC and improve their standing, now have to contest with two more powerhouses in their way. There will undoubtedly be some growing pains as both schools (but more likely Texas) have to check their over-sized egos at the door and recognize they are no longer big fish in a small pond. We will have to figure out a way to get that stupid Oklahoma covered wagon into stadiums and god-forbid Texas brings Bevo (its longhorned steer mascot) into Neyland Stadium. Smokey will not be happy. There are still a lot of details to work out and the repercussions across the football landscape will be felt and analyzed for years. I don’t know if this is a good or bad development. I just know that things are going to be different. As a traditionalist, I am apprehensive, but as an optimist, I am hopeful. Anyway, I didn’t think I should let the moment pass without commenting on it. Go Vols!
Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney for Legal Aid of East Tennessee
NEW FACES AT LEGAL AID OF EAST TENNESSEE We are excited to announce three wonderful new staff attorneys and a new law clerk have recently joined Legal Aid of East Tennessee in Knoxville. Jackson Cain, Darrell Winfree, and Chelsea Hatcher have come to us from a variety of different backgrounds but all three share a dedication to providing civil justice for those who need it most. Jackson Cain joined us in the Spring as our TSLA (Tennessee Senior Law Alliance) Staff Attorney, Darrell Winfree will be our attorney out of LAET’s Maryville office, and Chelsea Hatcher is the new attorney at the Knoxville Family Justice Center. Jackson Cain joined Legal Aid of East Tennessee back in March to helm our TSLA program out of Knoxville. A 2020 graduate of Belmont University College of Law, Jackson has taken over a large part of the Elder Law practice for Knoxville and the surrounding counties helping seniors in East Tennessee with a wide range of legal concerns including consumer issues, estate planning, probate assistance, and family law. Recently Jackson became certified to help veterans with benefits issues and will be expanding his practice to include advocating for East Tennessee veterans. Darrell Winfree will be the new attorney out of our Maryville office serving Blount, Loudon, and Sevier Counties. A 2018 graduate from the University of Tennessee College of Law, Darrell worked for ETHRA (East Tennessee Human Resources Agency) prior to joining Legal Aid in July. Darrell’s background with ETHRA has provided him with a wealth of experience serving rural East Tennessee residents and we are excited for him to use those skills to help our clients confront a diverse range of legal issues. Chelsea Hatcher is taking over for Robert Downs at the Knoxville Family Justice Center where she will be primarily handling Orders of Protection and domestic violence-related divorces. Chelsea is a graduate of Wake Forest University School of Law in Winston-Salem, North Carolina and practiced with a small firm in Knoxville prior to joining Legal Aid in July. Robert Downs will be moving to the main Knoxville Office to serve as Deputy Director of Advocacy and Litigation and will continue to represent clients across a multitude of practice areas. Last, but certainly not least, I am excited to introduce Mac Hazlerig who is our new Pro Bono Law Clerk. Mac is a recent political science major graduate from Union University currently in his 2L year at University of Tennessee College of Law. He will take over for Clint Wren and you can look forward to getting emails about case placement and case status reviews from Mac in the coming year. If you have any questions or concerns about a case you are handling for the Pro Bono Project or are interested in taking a case in a particular legal area, please feel free to reach out to Mac directly at email@example.com Fall Pro Bono Opportunities: There are many clinics planned for the coming months and I hope you will decide to volunteer. In light of continued COVID concerns, we have endeavored to offer a wide array of volunteer options that include zoom and phone clinics. Although we still plan to conduct some in person clinics if conditions are amendable, we will endeavor to make safety a priority and institute mask and social distancing polices whenever possible. As always, I encourage you to check out a list of
available cases we are actively trying to place by visiting “Pro Bono Matters” on our website at: www.laet.org. Feel free to reach out to me directly with questions, concerns, or ideas at firstname.lastname@example.org or (865) 251-4951. Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available. • Wednesday September 8th (Noon – 2:00 PM) • Wednesday October 13th (Noon – 2:00 PM) • Wednesday November 10th (Noon -2:00 PM) To Sign up, please use the form on the KBA Website or email email@example.com. Debt Relief Clinics: We have two upcoming clinics to help area residents explore debt relief options and Chapter 7 Bankruptcy. Both clinics are held in conjunction with the KBA, TALS, the Federal Bar Association, and the TBA Young Lawyer’s Division. •
Saturday October 2nd (9:00am – Noon): This clinic will be entirely virtual and open to qualifying residents across the Eastern District of Tennessee. Clients and attorneys may log-in via zoom or call in by phone.
Saturday November 6th (9:00am – Noon): In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. To Sign up, please email firstname.lastname@example.org. Phone Advice Clinic for Domestic Violence Victims: October is Domestic Violence Victim Awareness Month as well as Pro Bono Month. Legal Aid of East Tennessee will be partnering with area victim’s service providers to hold a phone advice clinic for domestic violence survivors. Although we welcome volunteers from all legal practice areas, we are especially eager for family law attorneys to volunteer to provide advice on divorce, custody, and juvenile court issues. •
Thursday October 14th (Noon- 2:00pm): Phone clinic. Clients will be assigned 30 minute appointment times and matched with an attorney. Attorneys may sign up to make multiple calls across the 2-hour clinic or restrict their participation to fit their schedule. To Sign up, please email email@example.com. Fall Faith and Justice Clinic: Keep an eye out for a firm date for an inperson Faith and Justice Clinic to be held at the Lennon Seney United Methodist Church in Knoxville sometime in the early fall. The clinic will be held in person on a Saturday morning in September or October and COVID precautions will be observed.
TELL ME A STORY By: Beth Ford Community Defender Eastern District of Tennessee
THE PEOPLE I MET AND THE RELATIONSHIPS I DEVELOPED ALONG THE WAY Once upon a time in an age and place far away, a little girl grew up in a family that valued a good education and being a servant leader. The little girl grew up with the help of many people to be a criminal defense lawyer in the federal defender’s office. Although the words “I am retiring” have not yet come out of my mouth, I can feel them percolating somewhere in my subconscious. With the possibility of those words sometime being heard outside of my head, I notice that I have started reflecting on how I got to be here. How did someone from a rural, poverty stricken East Tennessee county end up as the federal defender for almost 30 years? I have come to the conclusion that there was a great deal of luck involved, but friendships and mentorships have been the most important components of the journey. My parents had a rule. “You go to school until you can support yourself.” Piece of luck Number One is that I was born to incredible parents. My mother taught in the Knoxville City schools before marrying my father who had lost his father at age 10. My father was one of 12 children. He and I, indirectly, benefited from the GI Bill which allowed him to become the first person in his family to attend college and then practice optometry. I took advantage of my parents’ educational largess and went to Vanderbilt in pursuit of a liberal arts education with a French major, not very useful in the job market. In my senior year, it dawned on me that I was not going to support myself speaking French. Piece of luck Number Two. In 1975 law schools were beginning to set minimum quotas for admission of women. Not knowing what lawyers did and having never been in a courtroom, I was accepted to the University of Tennessee College of Law. That was the only place I applied, because my future husband was a UT student. Piece of luck Number Three. I loved clinic and took every clinic class that I could, but once again, I did not think very far into the future. Suddenly, I was a newly graduated lawyer with no job. And for the record, I was not going to practice any kind of criminal law. For many years, I kept my stack of job rejection letters in order to maintain perspective. Even though the University of Tennessee thought that it was time to increase the number of women in the ranks of jurisprudence, that was not necessarily the attitude of those hiring. My father could not stand it and called his best friend from high school, Roy T. Campbell, Jr., a 1950 grad of UT and said “Beth can’t find a job. What can you do?” Roy hired me to help during tax season, and I stayed almost 2 years. Piece of luck Number Four. Roy was an outstanding mentor. He gave me clients and projects and then stepped back. He was there to answer questions, and he stood behind me when I made mistakes, which was often. He was sad when I left to work for the Department of Human Services, another intercession by my father who was tired of my September 2021
driving back and forth between Knoxville and Newport every day. Piece of luck Number Five. I decided that I would work at DHS for a couple of years, but I stayed for 13 years. I learned a great deal about people, poverty, compassion, and how to be able to try cases on the fly. I gained invaluable experience as a trial attorney, and I hope that I did some good protecting children. I learned how to practice before many judges with different personalities, some of whom were not even lawyers. I had two experienced, patient co-workers who made sure that I knew the substantive law and the quirks of the judges, the late Mike Hutchison and Mike Riley. I learned enough to become a supervisor and simultaneously carry a somewhat crushing case load. While waiting at Juvenile Court for cases to be called, I was fortunate to meet Leah Prewitt who often represented parents. Piece of luck Number Six. She told me about this new project that she had to see that a federal defender organization was approved by the federal court, and she told me that she wanted me to work for her. Could I learn something new? I was not sure, but I said yes. (I am sure that she did the required advertising for the position, but if not, the statute of limitations has surely run.) Here I am doing something that, in law school, I thought held no interest for me. There is no question that the younger self of me did not know what she was talking about. Leah and Kim Tollison became my mentors, and they showed the same patience and skill that Roy had. I have filed motions; I have tried cases; and I have told the stories of my clients, the most valuable honor that a lawyer can be given. Leah became ill and had to retire. I applied to be the Community Defender, and with the support of an outstanding board of directors, including Roy T. Campbell, Jr., I was blessed to be chosen. I told the hiring committee that in addition to having a client centered office, I wanted our organization to be known for the outstanding mentorship and seminars that it provided CJA Panel attorneys, those attorneys who take appointments when we have a conflict. As Federal Defender Services of Eastern Tennessee has grown, my job has changed, but getting to know clients has remained my favorite part of being a federal defender. Outside the Eastern District of Tennessee, it has been exciting to be involved in helping to make national policy that defines quality representation. It has been thrilling to be involved in a national Diversity Fellowship program which will begin in the fall of 2022 after seven years of development. (Ask me about it for details.) I have been lucky to travel to Japan, Thailand, and Australia to represent American citizens abroad. Maybe those “I am retiring” words will bubble to the outside world. Maybe they will just stay in my head. In the meantime, I am thankful for luck, mentorship, and friendship.
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