DICTA. April 2021

Management Counsel: Law Office 101: Not My Unionized Circus, Not My Monkeys . . . Page 11 Schooled in Ethics : Tennessee Supreme Court Says It’s Unethical to Advise a Facebook Friend How to Get Away with Murder . . . Page 13

A Monthly Publication of the Knoxville Bar Association | April 2021

MAJOR CHANGES COMING TO THE TENNESSEE BAR EXAM

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DICTA

April 2021

In This Issue

Officers of the Knoxville Bar Association

April 2021

COVER STORY 16

Major Changes Coming to the Tennessee Bar Exam

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

Be Kind to a Lawyer

Helpful Tips for Expunging Records

Not My Unionized Circus, Not My Monkeys

Tennessee Supreme Court Says It’s Unethical to Advise a Facebook Friend How to Get Away with Murder

Stop! In the Name of Bankruptcy: The Supremes Take on the Automatic Stay

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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

President’s Message

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Practice Tips

Management Counsel Schooled in Ethics

Legal Update

WISDOM 6

Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Elisabeth Martin Programs Administrator

Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator

Rebecca Eshbaugh LRIS Assistant

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

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

April 2021

A Review of Grammar for a Full Life: How the Ways We Shape a Sentence Can Limit or Enlarge Us

Belonging

The Art of Progress in the Age of COVID

Land: How the Hunger for Ownership Shaped the Modern World

Kidnapped: A Cautionary Tale

Lawyers Represent Clients

Of Courage and Sacrifice: The Valiant Acts of East Tennessee Women During the Civil War

Buying Doughnuts

Don’t Be a Victim of Ransomware There are Better Ways to Learn About Bitcoin

Preppers, Cows, And Springtime Suppers

Oscar Butler

Kneeling Beneath a Fixed Star

Hope Springs Eternal

My Unusual Journey to ERISA Attorney

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Volume 49, Issue 4

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Grammar Grinch

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25 26 27 29 31

What I Learned About Inclusion and Why It Matters

Stories of COVID-19 & Beyond Well Read

Legally Weird Boat Builders

Of Local Lore & Lawyers

Outside My Office Window

Bill & Phil Gadget of the Month

Barrister Bites

Hello My Name Is

Your Monthly Constitutional Long Winded

Tell Me A Story

COMMON GROUND 4 20 22 22 28 30

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

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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. 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. 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) and David Headrick (599-0148).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. 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) and 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 “EEOC Trends and Developments” on April 28. 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) and Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. . Join the Family Law Section for the upcoming CLE program “Supervised Visitation Options in Knox County” on May 11. 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. 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. 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 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 “Increasing Profitability Through Use of Technology in a Post-COVID World” on April 20.

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).

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event calendar April

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Judge’s Chat: Get to Know our Federal Court Judges Law Office Tech Committee Law Practice Today Expo Law Practice Today Expo Law Practice Today Expo Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Planning Meeting Solo & Small Firm Webinar CLE Publications Committee Board of Governors Retirement Planning CLE Social Hour at Union Place Bar & Grill LRIS Committee Law Day Webinar

May 4 7 11

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Law Office Tech Committee Circuit Court Bench Bar CLE Professionalism Committee Access to Justice Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee Memorial Service Board of Governors CLE Committee

Save the Date: Virtual Law Practice Today Expo April 7, 8 & 9

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

April 2021

PRESIDENT’S MESSAGE By: Cheryl G. Rice Egerton, McAfee, Armistead & Davis, P.C.

BE KIND TO A LAWYER Did you know that April 14 is International Be Kind to Lawyers

The bottom line: it is time for lawyers to take care of ourselves and

Day? I had no idea such a holiday existed until recently, but I’m happy

of one another. While we all hope that our clients (and possibly even

come about? According to the internet, a fellow named Steve Hughes

can foster positive change by being kind to one another. Professional-

to celebrate it and encourage others to do the same. How did this day

of St. Louis, Missouri, started the holiday in 2019 because he got tired of hearing negative jokes about lawyers. Mr.

complete strangers) will be kind to us on April 14th and every day, we

ism and courtesy, which never go out of style, are presently at a premium. We are blessed in this community with

an extremely collegial bar. Never could it be

Hughes is, reportedly, not even a lawyer. Can

needed more. Let’s keep up this tradition as it

you imagine that--a non-lawyer who got tired

makes what is often a challenging profession a

of hearing negative lawyer jokes and decided

little more tenable.

to start an international movement to express

We can also be kind to ourselves by

kindness to lawyers!? I, for one, am glad he did.

practicing self-care. That looks as different

for each of us as we each do from one another.

Despite the public’s low perception of

For some it is making time frequently for that

lawyers, attorneys are good people. Not only

run or bike ride. For others it is meditation,

are lawyers smart individuals blessed with

or a moment of daily mindfulness. Still others

many different talents, lawyers also serve

are revived by playing an instrument, cooking

others every day. We help our neighbors buy and sell their homes and businesses, prepare

a nice meal to enjoy with family, reading a

their wills, protect their interests, defend their rights, and provide them

good book or enjoying a hobby. I learned several years ago that one of

this noble profession. Unfortunately, as occurs in every profession, the

we can be fully present; where we are so engaged that we cannot--and

reasoned advice on a myriad of issues. I am proud to be a member of conduct of a few lawyers serves to tarnish the reputation of us all.

Being a lawyer is not easy. “We are in the business of handling our

client’s most pressing problems,” said Larry McDougal, the State Bar of Texas president. “That constant workload is stressful, and chronic stress

the best things we can do to relieve stress is to find an activity in which therefore do not--think about clients, opposing lawyers, judges, family

needs and personal problems, and the worries, demands and challenges they bring to our daily lives, even if just for a short while.

For me, this goal is most often reached by spending time out-

impacts our mental health and can result in serious anxiety disorders

of-doors and active. Recently, however, at the behest of my teenaged

one study, 21 to 36% of lawyers qualify as problem drinkers, 28% of our

when I am struggling to maintain my balance in a position where I

and depression.” The verdict is in on lawyer well-being. According to

colleagues report symptoms of depression, and the legal profession has a suicide rate 1.3 times the national average.

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Stress and anxiety in our line of work is understandably high. The

coronavirus pandemic has exacerbated these issues, particularly for solo practitioners and small firm lawyers, as well as women and minorities

in the profession. Across America over the past 12 months, stress and anxiety relating to the virus itself, compounded by its effects on the

business community and society in general, has been widely recognized.

Remote working brings isolation, as well as increased challenges in

separating our work lives from our personal lives. Lawyers with young

children and those caring for the elderly and extended family members have felt an extra burden during these unprecedented times as they

experienced additional challenges to successfully blending work and the added responsibilities brought on by the current unusual circumstances.

daughter, I have taken up yoga, with surprising results. I find that

must focus intently to prevent myself from falling in a heap on my yoga mat, my mind is cleared of everything except what I am doing in that

moment. The result is that both my brain and my body are refreshed by the effort. But I am still learning this lesson. Each day brings with it a

new challenge and a seemingly endless number of demands on my time.

Most of those demands are good things, which often makes choosing myself a hard decision. Often times I fail, but I am committed to the

goal. I may not succeed each day, but each time I do, I am encouraged to keep making the effort. And isn’t that all any of us can ask of one another—that we make our best efforts? We should not expect anything more from ourselves.

Be kind to a lawyer this month, starting with yourself and your

colleagues. If we lead, surely others will follow.

Clients are under unique pressures, too, and that transfers into even more burden on lawyers.

April 2021

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Krill et al., 2016; Mental Health Daily report of suicide by occupation.

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

A REVIEW OF GRAMMAR FOR A FULL LIFE: HOW THE WAYS WE SHAPE A SENTENCE CAN LIMIT OR ENLARGE US Sometime last year, my therapist texted me a screenshot of a book on Amazon called Grammar for a Full Life: How the Ways We Shape a Sentence Can Limit or Enlarge Us by Lawrence (Larry) Weinstein.1 I was immediately intrigued from a Grammar Grinch, a professional, and a mental health perspective.

Weinstein spent years informally studying his own use of language, and also the language choices of his students at the Harvard University Writing Center. It is not your mother and father’s Elements of Style.

Instead, what emerged from that study was 185 thrilling, readable, pages that cover the broad spectrum of human communication and emotion. It is seemingly a love letter to both humanity and the English language. I kid you not.

In fact, it could just as well be titled Planting a Seed, for the author’s thoughts on different subjects were so brief that they could hardly be considered more than musings. However, his brevity was what I found so endearing about the book. He elicits a wide variety of scandalous, controversial topics in this book: religion, gender, racial discrimination, and economic disparity, to name a few. By keeping the thoughts brief, he not only keeps the book accessible for those of us not occupying the ivory tower, but he also gives us thoughts to ponder as we go about our day - not a rule book that we can follow with strictest adherence so that we might call ourselves impeccable grammarians - but some small tweaks and suggestions for being kinder to ourselves, more empathetic to others, and achieve a greater understanding of the human condition as a whole.

To that end, Weinstein identified seven categories of grammar for discussion in his book. I will highlight what I found to be but a few of the many compelling thoughts from four of them.

Grammar to Take Life in Hand: An overarching theme of Weinstein’s book is the concept of personal agency and freedom. In the first of several mentions of him throughout the book, the author identifies Martin Luther King, Jr.’s use of the “remarkable colon of the spoken kind” in his “I Have a Dream” speech. “It was his way of requesting that an audience of millions tune out everything but him for a moment; his forthcoming words were that important.” Weinstein goes on, asking, “Would he have succeeded in winning others’ ears-and in being memorable-if he hadn’t first, by pausing, implicitly announced his right to full attention?...We must learn to insist that we have rights to airtime.” For those more timid folks in his audience, a later chapter focuses on The Imperative as a helpful practice for learning to take charge when necessary in life.

Grammar for Creative Passivity: Here, Weinstein offers up the passive voice as an opportunity to free our minds for inspiration, creativity, and gratitude. “Not only does it take a somewhat passive mindset to see the many gifts at work on one’s behalf in life besides one’s inborn gifts, but those inborn gifts themselves can’t be tapped into without learning to be largely passive in relation to them.” The passive voice, then, allowed Michelangelo and Rodin to claim that the works of art were already there in the marble slabs, they were just finding them and chopping off the unneeded material.

As for the auxiliary subjunctive verb may, we are moved past the mere wishes of hopes and desires and propelled into a sense of fiat or

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bestowal. In blessing someone through such a language choice (for example, “May your spirits lift”), several things are happening at once: it associates the speaker with a certain vision; it acknowledges the speaker doesn’t alone have the power to bring about that named outcome; and it invites the people or forces necessary to come into play and manifest the outcome.

Grammar for Belonging: “There is no linguistic basis for believing that dialects...are any less adequate for good communication than standard English....A language is a dialect with an army and a navy.” This idea alone is good food for thought, but their power is amplified as Weinstein launches into his next chapter on being a good grammar teacher/corrector. Most speakers, he asserts, are not stupid or lazy. Rather, they are incorrectly adhering to what they think the particular rule is. So as not to completely castigate and alienate the misinformed party, the author suggests “modeling” instead of fault-finding. That is, note to the other party that “something doesn’t look/sound quite right” or ask them to explain what led them to make a certain linguistic decision. This affirmation of their conscientious choices can lead to an improved and expanded understanding of the English language for both speakers.

Grammar for Morale: “We are faced throughout our days...with what to put before the conjunction but and what to put after it. Whatever goes last usually received emphasis (called...end-focus).” Weinstein calls this the “charmed fulcrum.” “Put an army to its left in your sentence, feather to its right, and magically the feather will outweigh the troops” because the main clause of a sentence is what we feature and dwell upon. Therefore, put your negative thoughts or outcomes in the army’s place on the left, and put the power of positive thinking in the feather’s spot on the right in order to revise demoralizing self-talk. Focus on the good and the good gets better.

To use the famous example from Chinese war, instead of “We fight, but the enemy defeats us,” say, “The enemy defeats us, but we fight on.”2 For more detailed examples or to read his discussions of Grammar for Freedom, Grammar for Mindfulness, and Grammar for the End, I highly recommend picking up a copy of this 2020 publication from Lexigraphic Publishing. It is currently available in both hardback and ebook, and can subtly, but truly, transform how you communicate with yourself and others.

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Yes, I have a therapist. No, I’m not crazy. Yes, she is amazing. No, she is not accepting new clients. Yes, she sends me appointment times, notable topics (such as this one), “homework”, and other pertinent information via text. Yes, we need to normalize public discourse of mental health and its treatment. Yes, I am absolutely more than willing to have a confidential conversation with you about all things mental health-related.

I would have given you examples from each of the sections but the Publications Committee has a word count limit that they like me to at least pretend I’m acknowledging.

April 2021

PRACTICE TIPS By: Zachary R. Walden Eldridge & Blakney, P.C.

HELPFUL TIPS FOR EXPUNGING RECORDS

Expunging a criminal record is a powerful tool within the legal system. For individuals with an arrest record, wiping their slate clean can make a difference in obtaining employment and applying for housing. Having a multitude of dismissed charges still on a criminal defendant’s jail intake sheet might even make a difference when actors within the criminal justice system consider bond and whether or not to exercise prosecutorial discretion in your client’s favor. However, even civil litigators can find benefits in having a client’s record expunged! If you’re defending a car accident case and your client has an eight-yearold dismissed reckless driving citation, you don’t want a public record of that offense easily found. If you’re working on a child custody case, you certainly don’t want opposing counsel to easily find a dismissed case with your client’s old marijuana possession charges on JIMS—especially since he was just “holding it for a friend.” Since the advantages of expungements apply to so many areas of someone’s life, this area of practice isn’t and shouldn’t be limited to criminal defense attorneys. Here are some helpful tips when preparing expungements: 1. Always collect information from a client at intake so you can be prepared to immediately file an expungement at any time.

When signing up a new client who may need an expungement, make sure you don’t forget to get basic biographical information such as a date of birth and Social Security Number. You’ll also want to confirm the date of any arrest and the arresting law enforcement agency.

2.

Make sure all court costs, fines, and applicable fees are paid.

Contact the clerk’s office to confirm that your client does not owe any outstanding fines or court costs on the case you are seeking to expunge. If your client is unable to pay the court costs, you may petition the court to waive or reduce court costs by having your client fill out an affidavit of indigency. Additionally, if you are expunging a diversion or conviction, a $100 fee must be paid to the appropriate court clerk before filing the expungement. Include your receipt with the expungement filing.

3.

Make sure you completely fill out the expungement form and file with the appropriate court clerk.

While it may seem obvious, it is a common and easy mistake to skip boxes on the expungement form, especially if you are expunging multiple charges. If filing an expungement in Knox County General Sessions Court, email the clerk and ask for the “Expungement Summary Information Screen.” Copy the

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charges on the screen exactly, and in order. Make sure that you note a disposition for each and every charge, even if the dispositions are the same for all charges. If expunging a diversion, also note the date the diversion was completed. If a case was bound over to the Grand Jury but dismissed before indictment, the Criminal Court has jurisdiction over the expungement.

Additionally, make sure you include a self-addressed envelope with your expungement application so the clerk can mail the expungement order back to you. If you or your firm have a folder in the clerk’s office, make sure your name and phone number are clear on the form as most of us have signatures that are far too illegible to be a reliable way for the clerk to identify which lawyer should receive the expungement order.

4.

Prepare your client for timing and what records will be expunged.

It may take up to 120 days from the time the judge signs the expungement order for all public records of prosecution and arrest to be removed. If your client has an urgent situation—such as an upcoming background check for employment—you can ask for the expungement to be expedited. Generally speaking, expungement removes the public record of prosecution in the custody and control of the courts and law enforcement agencies. It does not remove arrest histories, investigative reports, intelligence information of law enforcement agencies or files of the district attorney’s office that are maintained as confidential records for law enforcement purposes. Also remember that the internet is forever! Expungement orders do not remove mug shots from internet sites, unflattering news articles, or other publicity.

5.

Be careful expunging non-citizens’ records.

For most clients, there is no reason not to expunge a record. It can be helpful in many aspects of a client’s life and in virtually no circumstance be harmful to them. However, like everything else in the legal world, that statement comes with an exception.

Whether documented or undocumented, a non-U.S. citizen may have a circumstance in the future that may require them to show proof that a criminal charge was dismissed, and it could be detrimental to their ability to remain or re-enter this country if they are unable to easily provide documentation that shows a dismissal of a criminal charge. If you do not practice immigration law, you should advise your client to consult with their immigration attorney to evaluate whether it is appropriate and beneficial to file an expungement in their individual circumstance.

6.

Be mindful of changes in the law.

The law around expungements frequently undergoes changes.

As criminal justice reform continues to be a trend in legislative sessions, the expungement statutes are often amended. Be sure to check Title 40, Chapter 32 of the Tennessee Code Annotated in January and July to see what changes are made.

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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: Hammad R. Sheikh Law Office of Hammad R. Sheikh, LLC

BELONGING Diversity without inclusion is meaningless. Being an immigration attorney has afforded me a privilege to see firsthand what role inclusion plays on a personal level. Having faced discrimination as a child, you feel helpless in such situations. At first, I didn’t realize the extent what these incidents meant; but, they didn’t hurt any less. There was a sense of belonging that I struggled to find. Currently, I see my clients expressing the same sentiment.

When immigrants arrive in a host country, their ability to speak the host language makes a big difference whether they are able to integrate. However, the response from the host country plays an even more important role whether we should talk about inclusion and how we can reach that goal.

The past few years have brought to surface a lot of anti-immigrant sentiment that previously were not spoken this outwardly. The fabric of any community is built upon trust and safety.

Such violent response isolates and separates. It creates a world of us versus them. The haves and have nots. Unfortunately, such expressions lead to mind boggling terms such as legal and illegal.

You and I understand what is meant when such terms are thrown out, but imagine what it means to someone who doesn’t yet fully understand the host language. To be called illegal. Without context. Just illegal.

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I conduct free legal clinics regularly where people will reach out to ask about immigration matters. In talking with them, often I find myself repeating this question, “Why didn’t you call the cops?” Someone’s life was threatened, or they were robbed, or they were in an abusive relationship, but they didn’t reach out to the police for help because they were also scared of them. They are an organization whose entire purpose is to protect individuals in our community, and people are afraid to call them. To me, that is a failure on our part as a community. People should not be forced to suffer because they felt they didn’t belong, and no one was out there to help them.

My concern is not necessarily only about the immigrant community, but the community at large. Inclusion allows us to change conditions to allow everyone to feel at home. To feel safe. To feel like they can reach out for help.

The question of inclusion is really about how we figure out as a community to eliminate the barriers that hinder people from feeling safe and also reaching their full potential. It is extremely difficult to have a strong sense of community without also having a strong sense of belonging. A sense of hospitality. As we continue to grow as a community, we will see that our strength is in inclusivity and not divisiveness.

DICTA

April 2021

JUDICIAL NEWS By: Broderick L. Young Arnett, Draper & Hagood

JUDICIAL PROFILE: KATHERINE CRYTZER Judge Katherine A. Crytzer was sworn in as United States District Judge for the Eastern District of Tennessee on December 23, 2020. I recently had a chance to speak with Judge Crytzer, and very much enjoyed learning more about our newest District Judge.

Judge Crytzer was born in Texarkana, Texas, but due to her father’s work as an auditor, first for the United States Army then for the Department of Energy, her family periodically moved around the country and even internationally, when they spent nearly four years living on a military base in Germany.

It was after this stint of traveling, that a permanent position became available for her father in Oak Ridge, Tennessee. Judge Crytzer attended Farragut High School here in Knoxville. In addition to being an excellent student, she was also part of the Lady Admiral Softball Team.1 Following high school, she matriculated to the Honors College program at Middle Tennessee State University in Murfreesboro, TN, and graduated summa cum laude in 2006. From there she went on to attend law school at George Mason University, where she graduated magna cum laude in 2009.

Attending a law school in the Washington, DC area provided unique opportunities for summer clerkships and internships. The summer after her first year of law school she interned at the United States Attorney’s Office in Washington, DC, and after her second year, she clerked for the large international law firm of Kirkland & Ellis LLP. But perhaps the most impressionable internship of her academic career was spent working with Judge Gerald Bruce Lee of the Eastern District of Virginia. Judge Lee had been appointed by President Clinton, and was the first African American judge to have been appointed to his district. While she and Judge Lee often looked at the law differently, she nevertheless learned a tremendous amount from him about the importance being kind, fair, and just, and the diligence required to be a successful lawyer and judge.

After graduation, she clerked for Judge Raymond W. Gruender, on the United States Court of Appeals for the Eighth Circuit in St. Louis, MO. He was a valuable mentor to her then and has continued to be throughout her legal career as a lawyer, and now judge.

When her clerkship with Judge Gruender concluded in 2010, she returned to the Washington, DC office of Kirkland & Ellis LLP. Her work as an associate involved handling complex litigation in federal court.

While she enjoyed her work with the firm, she also longed to be closer to the Knoxville area, and when an opportunity to work in the United States Attorney’s Office in the Eastern District of Kentucky in Lexington arose in 2014, she took it.

The scope of the opioid epidemic was coming into focus at that time on a national level and addressing this issue was a point of emphasis in the Lexington office. Accordingly, the bulk of her practice dealt with April 2021

prosecuting pill mills, and actions of healthcare fraud, etc., working on both civil and criminal cases.

Despite her desire to be closer to home, when an unique opportunity arose to work as a political appointee in the Office of Legal Policy at the U.S. Department of Justice, she agreed to serve in Washington, DC. She worked at the Office of Legal Policy for nearly four years, and rose to the position of Principal Deputy Assistant Attorney General in 2020.

Her work was wide ranging, from a policy portfolio with principal focus on issues related to the opioid epidemic (including fentanyl), violent crime, contraband cellphones, religious liberty, and regulatory reform, among other issues, to assistance with judicial nominations, including the confirmation of Supreme Court Justices Brett M. Kavanaugh and Amy Coney Barrett.

However, once again, East Tennessee came calling in the form of the Inspector General position with TVA. Both her private and public work experience involving investigations of fraud made her a logical candidate; she was nominated for the position in 2020.

Of course, as all of us in our legal community will recall, 2020 delivered one of its harshest blows with the passing of Judge Pamela L. Reeves. This judicial vacancy resulted in the withdrawal of Judge Crytzer’s nomination to serve as TVA’s Inspector General, and her subsequent judicial nomination for the United States District Court for the Eastern District of Tennessee in Knoxville. Her nomination was successful, and on December 16, 2020, she was confirmed by the United States Senate.

With the recency of her appointment, and the restrictions of the pandemic, Judge Crytzer has not yet had the opportunity to try a case in her Court. The majority of proceedings she has presided over to this point have been virtual. Judge Crytzer believes there’s real value for an involved individual to be able to be present and interact with the judge, their lawyer, their probation officer, etc., during the course of a proceeding, and providing this value to litigants virtually has been challenging.

We discussed the fact that she is only the second female judge ever to be appointed to the Eastern District of Tennessee, and what it meant to be following Judge Reeves. “Throughout my legal career there have been many times that I was the only woman in the room. I am incredibly grateful for the trail Judge Reeves blazed. Judge Reeves, and women like her, made it possible for me to serve as a judge today.”

When I asked Judge Crytzer about judges who have influenced her judicial perspective, she referenced the judges she interned and clerked for, and mentioned a common advice she had been given: “As a Judge sitting on the bench, if you like the outcome—from a policy perspective—of every decision that you make, you are doing it wrong. There are going to be days where your job is to enforce the law as it is written, not as you would like it to be.

Those days may be tough days, but they are also days where you know that you have done justice and that you have done your job as a judge.”

Judge Crytzer is very grateful to be back home in East Tennessee, and has found the local bar to not only be welcoming, but also dedicated and effective in their representation of clients in her Court.

When she is not occupied with her judicial duties, Judge Crytzer enjoys spending time with her husband, who is also a lawyer, and her extended family, who also reside here in Knoxville.

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DICTA

FYI, Judge Crytzer reportedly still has a live arm.

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STORIES OF COVID-19 AND BEYOND By: Charme P. Allen District Attorney General 6th Judicial District

THE ART OF PROGRESS IN THE AGE OF COVID Alfred North Whitehead said, “the art of progress is to preserve order amid change and to preserve change amid order.” In assessing his philosophy, I would have to say we are “progressing” through the pandemic. Not only in my office, but also in the Knox County criminal justice system.

As District Attorney, my focus has always been serving the public by providing for the physical safety of our community. In March of 2020 my focus had to change to find the correct balance between providing for the physical safety of our community and the health safety of my staff. On March 13, 2020 the Supreme Court issued its first order suspending all in-person proceedings with a few exceptions. Those exceptions included proceedings necessary to protect the constitutional rights of criminal defendants, which meant my Assistant District Attorneys and victim/witness (V/W) personnel were still physically going to court.

I knew that we had an exceptional staff that wanted to continue to be successful in serving their community but also needed to feel a sense of safety as they went about their work. I wanted to find a way to maintain the confidence, enthusiasm and discipline of our staff while knowing that there were widely varying degrees of fear in relation to the pandemic being experienced among my 82 employees. With that in mind, we immediately began to work on drafting work-from-home protocols that would allow as many staff members as possible to work from home while still making sure that all the demands of our office were met. Each team leader turned in a plan that would work for their specific unit. Each plan was different but worked best for the functionality and productivity for their team.

By Friday, March 20, one week after the Supreme Court Order, we were able to adapt to not only efficiently continue our work and serve crime victims but also protect our staff by deploying nearly 40 computers for them to use while working from home. We had teams that alternated coming in every other week and around the clock. Our attorneys and victim/witness coordinators were still having to physically appear in sessions courtrooms, which were crowded with inmates and court personnel, so our office spearheaded the work of Knox County Government IT, Public Building Authority, the court system, and the detention facility to assemble the first of many “technology carts.” These carts evolved to include the equipment necessary to allow all parties required for court proceedings to appear virtually. The first cart allowed pleas to be taken from the jail by video, thereby decreasing the number of prisoners transported into the courtroom each day. We presented the cart

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to the Sessions Judges who adopted the concept and the first pleas were accepted in Knox County Sessions court by jail feed on March 23.

To highlight the willingness of the criminal justice system stakeholders to adapt and change, the first cart concept was accepted by the Criminal Court Judges who started with only one cart to share between the three Judges. The cart evolved into three carts - one for each Judge. The Clerk’s Office, County IT, the Knox County Sheriff ’s Office, and the criminal defense bar were all instrumental in making the carts work well. So well, in fact, that Criminal Court was held almost entirely using virtual technology. Everything we could do to decrease the number of people in the courtroom further increased the safety of our employees.

As new Supreme Court Orders continued to implement changes throughout the year, we continued to adjust our staffing plans. With each change, my goal was to serve the citizens and protect our employees. The ban on jury trials was lifted in July and lasted until November. During this time, we returned to a full but staggered staffing pattern with safety measures in place. We also successfully completed nine jury trials, including the trial against Joel Guy who was convicted for the heinous murder of both his mother and father. In this trial, V/Ws safely coordinated the logistics for more than 50 witnesses and numerous family members from around the country.

The same Order that allowed jury trial to start back up also caused our felony sessions courtroom to once again become overly crowded with court personnel, defendants and defense bar. I again became concerned for the safety of my employees. In response, we reached out to County IT, PBA, Don Fuller & Associates and sessions court to equip our felony sessions court room with technology to allow my staff to appear virtually over Microsoft Teams. This technology created the opportunity for all my staff to remain in the safety of their individual offices while still being able to appear for all cases on the felony docket. When the Supreme Court Order came down in December, once again suspending in-person hearings, technology was in place and was ready to be used in all jail cases set for a status other than a preliminary hearing.

In writing this article and describing only a few of the changes we have encountered over this last year, two things have come to mind. First, how thankful I am to have been successful in keeping our employees safe as they have diligently served the citizens of Knox County. Secondly, we have in fact mastered the art of progress by preserving order amid change thus far and, if we continue to utilize and improve upon the technology we have implemented, we will preserve change amid order.

DICTA

April 2021

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Dacey Romberg Associate General Counsel at UCOR

NOT MY UNIONIZED CIRCUS, NOT MY MONKEYS The National Labor Relations Act—your first thought may be, “Thank goodness I don’t have to worry about that; my employees aren’t in a union.” But not so fast. Even non-unionized employees have rights under the NLRA. Signed into law on July 5, 1935, the NLRA aims to correct the “inequality of bargaining power”1 between employees and their employers by, among other things, giving employees the following rights: (1) Freedom of association;

(2) Mutual aid or protection; (3) Self-organization;

(4) To form, join, or assist labor organizations;

(5) To bargain collectively for wages and working conditions through representatives of their own choosing; and

Further, the Board asserts that Google “threatened employees with unspecified reprisals by requiring employees to raise workplace concerns through official channels”12 and “selectively and disparately” enforced confidentiality policies by applying them only against employees who were engaged in protected concerted activities.13 Finally, the Board claims that employees who engaged in protected concerted activity were placed on administrative leave and ultimately terminated to discourage other employees from similar or other concerted activities.14 This case serves as a reminder that treatment of non-unionized employees can violate the National Labor Relations Act. Remember, the protections and rights in Section 7 of the NLRA apply to all employees.15 From this complaint, employers are reminded: • Refrain from monitoring the emails or calls of employees to see whether they are engaging in protected concerted activity; •

(6) To engage in other protected concerted activities with or without a union.2

The NLRA also defines “unfair labor practices” that employers must avoid:

•

(1) Interfering with, restraining, or coercing employees in their exercise of the rights listed above;

•

(2) Dominating or interfering with the formation or administration of a union or contributing financial or other support to a union;

•

(3) Discriminating in hiring, firing, or any term or condition of employment to encourage or discourage union membership; (4) Terminating or otherwise discriminating against employees who file charges or testify in board charges; and (5) Refusing to bargain with employees’ representative.3

The National Labor Relations Board enforces the NLRA4 through its 26 Regional Offices5. The Region 10 Atlanta office has jurisdiction over Tennessee.

Even employers of non-unionized employees can end up on the wrong side of the National Labor Relations Board, as Google and its parent company, Alphabet, learned last year. On December 2, 2020, the Board’s San Francisco office issued a complaint against Google.6 This complaint asserts that Google violated the NLRA by interfering with the employees’ rights.

Specifically, the Board alleges that Google surveilled employees’ protected concerted activities by repeatedly viewing an employee’s presentation about a union drive conducted by one of Google’s subcontractors.7 The complaint states that Google interrogated employees about why they accessed an internal communication forum and other employees’ email calendars,8 then created rules prohibiting accessing others’ calendar,9 creating calendar events for more than 100 people, or holding meetings that required more than 10 rooms without a business purpose.10 The Board claims these rules were designed to discourage employees from forming, joining, assisting a union, or engaging in other protected concerted activities.11

Avoid limiting the number of employees that can gather, or at least do not make such limitations turn on whether the meeting is for a business purpose; If employees are allowed to use communication tools or software for non-business purposes, they must also be allowed to use those programs for protected activity; Apply all disciplinary rules uniformly, not doling out harsher punishments to employees who have engaged in protected concerted activity; and

Treat workplace complaints that are initially raised in discussions between employees the same as workplace complaints raised through official channels.

Perhaps Google should have Googled “how to not violate the National Labor Relations Act.” 1 2 3 4 5

6 7 8 9 10 11 12 13 14 15

29 U.S.C. § 151 (1947).

29 U.S.C. § 157 (1947).

29 U.S.C. § 158(a)(1)-(5) (1947).

29 U.S.C. § 153 (1982).

The Regional Offices are numbered 1-32, but because of a 2012 reorganization, there are no Region 11, 17, 23, 24, 26, or 30 offices. See https://www.nlrb.gov/ about-nlrb/who-we-are/regional-offices and Edwin S. Hopson, NLRB Announces Implementation of the Final Field Office Restructuring Plan, Wyatt Firm (Dec. 11, 2012), https://wyattfirm.com/nlrb-announces-implementation-of-the-final-fieldoffice-restructuring-plan/.

Google, LLC and Alphabet, Inc., Case Nos. 20-CA-252802, et al (U.S. National Labor Relations Board, Region 20), https://cdn.arstechnica.net/wp-content/ uploads/2020/12/cpt20-ca-252802ccnohdocx-redacted.pdf.

Id. at ¶ 7.

Id. at ¶ 8-9.

Id. at ¶ 12(a).

Id. at ¶ 13(a).

Id. at ¶ 12(b) &13(b).

Id. at ¶ 10.

Id. at ¶ 11(a)-(b).

Id. at ¶ 14-15.

Like all things in the law, no statement can be too absolute. The NLRA’s definition of “employee” excludes agricultural laborers; domestic workers; people employed by their parent or spouse; independent contractors; supervisors; certain railway workers; and anyone employed by a local, state, or federal government. See 29 U.S.C. § 152(2)-(3) (1974).

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.

April 2021

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WELL READ By: Kelly Street Egerton, McAfee, Armistead & Davis

LAND: HOW THE HUNGER FOR OWNERSHIP SHAPED THE MODERN WORLD I enjoy reading anything by Simon Winchester. He writes nonfiction about interesting topics in a way that’s easy to understand and fun to read.

He’s a historian, but he’s also a journalist; and with a formal education in geology, Winchester writes about science, anthropology, economics, and travel. Over the last forty years or so, he’s done numerous non-fiction titles that open even the most obscure topics to just about anyone. There have been books about famous volcanoes (Krakatoa: The Day the World Exploded 2003), travels along the Yangtze River (The River at the Center of the World 1996), precision engineering (The Perfectionists 2018); and a wonderful account of the origins of the Oxford English Dictionary (The Meaning of Everything 2003). He’s done histories of both the Pacific and Atlantic Oceans, and his most recent work, Land: How the Hunger for Ownership Shaped the Modern World, was published in January.

Having grown up in England and immigrated to America in his middle age, Winchester was nearly sixty before he owned land. In the late 2000’s, he purchased a large wooded tract in Connecticut, and as few people in his native England own land, Winchester was confounded by the American land-buying process. In England, 84% of the land is still owned by less than 7% of the people; and of those who do own land, many come from a handful of wealthy families who own enormous tracts, some still bound by chains of title that originate in gifts from The Crown.

Land begins with this comparison (America vs. England), and from there, it takes us on an exploration of land ownership, what it means to possess it, to care for it - what it means to prohibit others from occupying it, to claim or take it. Land explains how the modern world has been influenced by humanity’s hunger for land, and eventually, it leads us to more questions than answers. Among them: What is humankind’s relationship to land and land ownership? What should that relationship be?

What is “progress?”

Land explains that throughout history, there have been multiple models of land ownership and use. In many cultures (for example, the Maori of New Zealand), there is no concept of land ownership at all.

These cultures have traditionally considered land as air or water - a communal resource belonging to all - or in the case of the Maori, a system of which humans are merely a part. These beliefs were still present in parts of Europe as recently as the Middle Ages, and their echoes are still buried in the statutes and laws of some European and New World democracies. In this way, Land explains that the very concept of individual land ownership is a relatively new one, dating back only a few centuries. It’s a concept that has been taken to its extreme in New World countries like the United States and Australia.

How did this happen?

For that, Land turns to European colonialism and its legacy of dispossession and displacement of native people.1 This is probably the most important idea in Winchester’s book, because (as other sources such as the New York Times’ 1619 Project have argued) it is difficult to gain a complete understanding of our present culture without viewing it through the historical frameworks of colonialism, race, economics, and power. Land illustrates these ideas with examples from around the

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world, spanning numerous historical periods, from the Age of Discovery to the present day. It recounts England’s involvement in India and the eventual cession of the land back to the people. It tells how, even after India was given back, England (in a supreme, final act of arrogance) created the Partition of India from Pakistan. I strongly encourage you to read the book just for this section: but essentially, the partition process was anything but multi-lateral or collaborative. It was planned by a single person in England: Sir Cyril Radcliffe, who had never traveled east of Paris. The Partition set a fairly arbitrary boundary line on a map, thus leaving the people of India, Pakistan, and other neighboring countries with decades of turmoil and militarized borders marred by armed conflict. Historians estimate that the Partition resulted in the displacement of at least 10 million people. Land catalogs similar episodes in the settlement of North America, Australia, and New Zealand.

Land also discusses our relationship with the land through natural resources, conservation, energy, and environmentalism. Winchester describes the modern conservation movement and draws on the writings of Aldo Leopold, John Muir, and Edward Abbey, setting these against the economics of Thomas Malthus, William Foster Lloyd, and Milton Freidman. In Winchester’s hands, all this comes alive, especially in his descriptions of the Sand Creek Superfund site in Denver, the Demilitarized Zone of the Korean Peninsula, and the ecology and economics of sheep farming in the Scottish Highlands. He describes the history of the Yosemite Valley. He discusses how the Netherlands claimed an enormous tract of land by draining away seawater. Only a writer like Winchester could weave these concepts together so that they hold our attention.

And as it turns out, when we discuss land, we’re really just talking about the future of the human race. Our relationship with land is an expression of our values, our culture, our concept of permanence, and time itself. It’s a relationship which requires a balancing of our immediate needs against costs and the preservation of resources for our future. Land contains echoes of other great non-fiction writers like Jared Diamond.

See Guns, Germs, and Steel (Norton 1997) and Collapse (Viking 2005). If you liked those, you’ll like this one too.

Land is a well-researched account of a consequential topic. It’s perfect for someone (me) who gets about an hour to read each night after the kids go to bed and likes to ponder questions of the day without falling asleep in the recliner. Happy reading!

1 As songwriter Robert Emmet Dunlap has written, “the sun never sets on the bloody dead / of those who have chosen an empire.”

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April 2021

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

TENNESSEE SUPREME COURT SAYS IT’S UNETHICAL TO ADVISE A FACEBOOK FRIEND HOW TO GET AWAY WITH MURDER “This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”

- In re Sitton, No. M2020-00401-SC-BAR-BP (Tenn. Jan. 22, 2021)1

Lawyer Winston Bradshaw Sitton was Facebook friends with Lauren Houston. Houston had complained on her Facebook page about her fears stemming from a break-up with the father of Houston’s children. Houston asked on her Facebook page whether it was legal to carry a gun in one’s car in Tennessee. Sitton, whose Facebook page identified him as a lawyer, responded by first suggesting that Houston get a taser or a canister of tear gas. Then, he added: If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.

Houston responded, “I wish he would try.” Sitton then replied:

As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread and keep quiet. Your defense is that you are afraid for your life _ revenge or premeditation of any sort will be used against you at trial.

The Tennessee Board of Professional Responsibility (BPR) investigated the matter and brought a disciplinary complaint against Sitton. So, a lawyer pretty clearly shouldn’t do what Sitton did here. But what rule of professional conduct, if any, did he violate?

The rules prohibit a lawyer from counseling a client to engage in conduct that the lawyer knows is criminal. See TRPC R. 1.2(d).

Advising a client to lure another person inside one’s home for the purpose of killing that person would seem to fall within the ambit of the rule. But the problem with charging Sitton under that rule was that Houston was not a client; she was merely a Facebook friend. So, the obvious disciplinary charge was not available to the BPR. Instead, the BPR charged Sitton with violating Rule 8.4(d), which prohibits a lawyer from engaging in conduct prejudicial to the administration of justice. The hearing panel in the case concluded that “[g]iving advice as a lawyer about planning in advance how to claim a defense to killing someone is conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d).” The Tennessee Supreme Court agreed, reasoning that Sitton’s posts publicly fostered the notion that lawyers “give advice on how to commit crimes and get away it” and “depict lawyers as fixers who manufacture fake defenses to

evade criminal conviction.” Such a perception “does grave damage to the administration of justice in our State.” Considering all of the evidence, the court suspended Sitton for four years, with one year served as active suspension and the remaining three on probation.

While it’s hard to find fault with the court’s conclusion and ultimate punishment, it’s worth noting that the decision arguably expands the scope of Rule 8.4(d) in a substantial way that may have future implications. Most courts have held that the rule applies only where the lawyer’s misconduct has some bearing on the judicial process “in connection with ‘an identifiable case or tribunal.’”2 So, for example, mishandling client funds might violate other rules, but because it ordinarily does not interfere with the operation of the judicial process in an ongoing matter, there is no violation of Rule 8.4(d) under the majority rule. Clear examples of conduct prejudicial to the administration of justice would include improperly filing a criminal complaint against a judge in order to force the judge’s disqualification from a matter or lying under oath in a proceeding.3 These are actions that interfere with the orderly operation of the justice system in an ongoing matter. Sitton’s misconduct, while egregious, did not occur in the course of a judicial proceeding or in a matter directly related to a proceeding. Therefore, under the interpretation of Rule 8.4(d) in most states, it did not amount to a violation of the rule.

The Tennessee Supreme Court’s decision arguably adopts a broader interpretation of the rule that focuses on the public perception of the justice system. As discussed in my January 2021 Dicta column, some decisions from other jurisdictions hold that a lawyer violates the rule when the conduct “reflects negatively on the legal profession and sets a bad example for the public at large.”4 This could include conduct occurring in a lawyer’s private life in a non-professional capacity. A clear example might include the prosecutor who is charged with driving under the influence.5 The court’s decision in Sitton arguably brings Tennessee in line with this more expansive view of “conduct prejudicial to the administration of justice.”

Lawyers hopefully do not need to be told that they shouldn’t advise people on how to get away with murder, let alone provide such advice on social media. But Tennessee lawyers should be mindful of the fact that the Tennessee Supreme Court has arguably expanded the reach of Rule 8.4(d) to the point that it addresses conduct unrelated to any ongoing judicial proceeding.

1

2

3

4 5

The decision is still unpublished but can be found on the Tennessee Supreme Court’s website.

In re Mason, 736 A.2d 1019, 1023 (D.C.1999) (quoting In re Keiler, 380 A.2d 119, 123 (D.C.1977) (per curiam)).

In re Aubuchon, 309 P.3d 886, 896 (Ariz. 2013); In re Mason, 736 A.2d at 1022-23.

Attorney Grievance Comm’n v. Brady, 422 Md. 441, 460, 30 A.3d 902 (2011).

Matter of Seat, 588 N.E.2d 1262, 1262-63 (Ind. 1992).

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

April 2021

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PUBLIC NOTICE FOR APPOINTMENT OF UNITED STATES MAGISTRATE JUDGE The Judicial Conference of the United States has authorized the appointment of a full-time United States Magistrate Judge for the Eastern District of Tennessee at Knoxville.

The current annual salary of the position is $201,112. The term of office is eight years.

A full public notice for the magistrate judge position is posted in the office of the U.S. District Court Clerk, 800 Market Street, Suite 130, Knoxville, TN 37902, and on the Court’s website at www.tned.uscourts.gov. Application forms are also available on the Court’s website or may be obtained from the Clerk’s Office.

More information on the magistrate judge position may be obtained from the Chairperson of the Merit Selection Panel, Wayne Ritchie, war@rddjlaw.com, Ritchie, Dillard, Davies, & Johnson, 606 W. Main Street, Suite 300, Knoxville, TN 37902.

Applicants must personally email the applications to Human_Resources@tned.uscourts.gov in PDF format.

For IT security purposes, other file types will not be accepted.

Completed applications must be received by 5:00 p.m. EST on March 15, 2021.

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April 2021

L E G A L U P DAT E By: Jason L. Rogers Hodges, Doughty & Carson, PLLC

STOP! IN THE NAME OF BANKRUPTCY: THE SUPREMES TAKE ON THE AUTOMATIC STAY Immediately upon the filing of a bankruptcy case, the automatic stay goes into effect.1 The automatic stay is a powerful tool provided by the Bankruptcy Code to provide “breathing room” to debtors – a respite from creditor pressures that debtors may have been experiencing in the days or months leading up to filing. It is an integral part of the debt relief process for the “honest, but unfortunate debtor.” The penalties for stay violations may include punitive damages that have at times dwarfed any actual damages awarded.2 Successfully navigating the waters of the automatic stay requires an understanding of the nuances and exceptions contained therein. Recent appellate opinions have, perhaps, clarified the duties of non-debtor litigants in a couple of different situations.

On January 14, 2021, the Supreme Court handed down its opinion in City of Chicago v. Fulton, et al.3 This unanimous opinion4 unequivocally held that mere retention of property of the estate5 did not give rise to a violation of the automatic stay. The debtors in Fulton, a consolidated appeal, held in common one complaint – that the city of Chicago violated the automatic stay by the refusal to return vehicles that the city had impounded due to unpaid motor vehicle fines. The bankruptcy judges that heard these cases all ruled in favor of the debtors, as did the Court of Appeals for the Seventh Circuit, following a certified direct appeal. These cases were presented to the Supreme Court solely for the interpretation of 11 U.S.C. § 362(a)(3), which provides a stay of “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” In reversing the Seventh Circuit, the Court sided with the majority of courts of appeal to have decided the issue and held that “act” (as used in this section) required an affirmative action from a creditor. Passive control (as in Chicago’s case) did not, without more, amount to a stay violation. The Court found support for its holding by turning to another section of the Bankruptcy Code, 11 U.S.C. § 542(a), which generally provides for turnover of estate property, the particular remedy sought by the debtors. In the final portion of the opinion, the Court observed that while passive retention did not, by itself, violate the stay, it may open the door for finding a stay violation on other grounds.6 The automatic stay not only prevents acts against property of the estate, it also prevents the enforcement of liens against property of the estate7 and pursuing collection of pre-petition claims.8 In Chicago’s case, requiring full payment of outstanding fines in order to secure release of a vehicle may prove that the supposed passive retention is merely a façade for collection on a claim.9 Certainly, the bankruptcy court in at least one of the consolidated appeals believed so.10 But, if creditors are not required to return property of a bankruptcy estate (unless they are compelled to do so), what might they be required to do? Shortly before Fulton, the Bankruptcy Appellate Panel (B.A.P.) for the Sixth Circuit11 held in In re Wohleber12 that the failure to act did constitute a violation of the automatic stay. The dispute began as a divorce case, resulting in a property settlement in favor of the plaintiff to the divorce suit. The defendant failed to pay the property settlement, April 2021

even after having been found in contempt. Between the deadline to purge his contempt and the sentencing hearing (on his failure to pay), the defendant filed a chapter 13 bankruptcy. The state court proceeded with the hearing and sentenced the defendant/debtor to thirty days in jail (he was ultimately incarcerated for ten days). The B.A.P., on appeal, unequivocally held that the sentencing hearing violated Section 362(a) (1), which stays “the commencement or continuation…of a judicial, administrative or other action or proceeding against the debtor”, and stated that the creditor and the creditor’s attorney had an affirmative duty to stop the hearing.13 At first glance, it may be hard to reconcile these two opinions: inaction is not a stay violation in one context, yet it is in another. But the difference in how the automatic stay arises in each case serves to impose different duties on creditors. In Fulton, passivity preserved the status quo between the parties, whereas inaction in Wohleber resulted in the debtor’s incarceration. Therein lies a key difference in the automatic stay as it applies under Sections 362(a)(3) and 362(a)(1) – the automatic stay is, at its core, the maintenance or restoration of the status quo as of the time of the filing of the bankruptcy petition.14 The Supreme Court solidified this viewpoint in Fulton – “The suggestion conveyed by the combination of these terms is that §362(a)(3) halts any affirmative act that would alter the status quo as of the time of the filing of a bankruptcy petition.”15 While it would be an oversimplification to state that maintenance of the status quo is always going to negate an allegation of a stay violation16, viewing the automatic stay from that perspective does at least provide a threshold analysis when considering a course of action involving a debtor.

1 2

3 4

5

8

9

6 7

10 11

12 13

14 15 16

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Except as provided in 11 U.S.C. § 362(c)(4).

See In re Kimbler, 2020 WL 4005781 (Bankr. E.D.N.C. July 15, 2020) (awarding $5,883.00 in non-attorney fee damages, but also awarding $7,096.50 in attorney fees and $28,000.00 in punitive damages).

141 S. Ct. 585 (2021).

Justice Sotomayor filed a concurring opinion in the case, and Judge Barrett did not participate in the decision.

Property of the estate includes all legal or equitable interests of a debtor in bankruptcy.

A question that was raised before, but not decided by, the Court of Appeals.

Section 362(a)(4).

Section 362(a)(6).

Claim is broadly defined in the Bankruptcy Code, with the typical description taken from 11 U.S.C. § 101(5) as merely a “right to payment.”

In re Shannon, 590 B.R. 467 (Bankr. N.D. Ill. 2018).

A Bankruptcy Appellate Panel (B.A.P.) is a group of bankruptcy judges who are appointed to hear appeals in bankruptcy cases. The Eastern District of Tennessee has not authorized appeals to the B.A.P. and retains jurisdiction over bankruptcy appeals. B.A.P. opinions are generally regarded as rather persuasive authority even if they are not binding on other courts in a circuit.

596 B.R. 554 (B.A.P. 6th Cir. 2019).

This decision was appealed, but dismissed by the Sixth Circuit for lack of jurisdiction as the B.A.P. order remanded the case to the bankruptcy court for further proceedings. In re Wohleber, 2020 WL 6781237 (6th Cir. Nov. 18, 2020).

In re Webb, 472 B.R. 665 (B.A.P. 6th Cir. 2012).

Fulton at 590.

There are quite a few exceptions to the automatic stay and sometimes facts are important too.

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MAJOR CHANGES COMING TO THE TENNESSEE BAR EXAM The Tennessee bar exam is getting a major overhaul in a few years— and it won’t resemble anything like the current format of the exam that hundreds of hopeful Tennessee lawyers take each February and July.

Earlier this year in January, the National Conference of Bar Examiners, the organization that develops licensing tests for bar admissions, adopted the recommendations of a testing task force that the NCBE had put together to re-examine the bar exam.1 The task force’s recommendations were based on an empirical study that was conducted in three different phases over a three-year period. The study looked at how to ensure that the bar exam continues to assess the minimum competencies required of newly licensed lawyers in an evolving legal profession and to determine how those competencies should be assessed. In all, the task force’s work included soliciting and examining statements from more than 400 stakeholders about their views on the bar exam (Phase 1), administering a survey of nearly 15,000 practicing attorneys (Phase 2), and holding focus groups made up of bar admissions representatives, legal educators, and practitioners to analyze the survey data (Phase 3).2 What Will Change The revised bar exam, which could debut in four to five years, will place greater emphasis on assessing lawyering skills that reflect real-world practice and the types of activities newly licensed lawyers perform rather than memorization of a broad universe of legal subjects.3 “I think revising the bar exam to focus on testing ‘real world’ lawyering skills is long overdue,” said Vikky Kirichenko, an attorney for Kenneth Miller & Associates, who passed the October 2020 remote admissions assessment when the July 2020 in-person bar exam was canceled because of the pandemic. “While studying for the exam, I couldn’t make sense of why we were being tested on memorization of law that is easily accessible in the ‘real world.’ A majority of what I memorized has already been forgotten, but I will always know how to find it. Minimal competency should be based on actual skills rather than regurgitation.”4 The updated exam will eliminate the three distinct components of the current bar exam—the 200 multiple-choice questions that make up the Multistate Bar Exam; the two closed-universe lawyering skills tests known as the Multistate Performance Tests; and the six essays that are part of the Multistate Essay Exam. In its place, the NCBE approved the development of a more integrated format that will incorporate a mix of question types and formats (including multiple-choice, short-answer, and essay-type questions) to test examinees’ content knowledge and lawyering skills together. The questions to which examinees will respond could be text-based or video-based.5 In terms of content, the new exam will eliminate conflict of laws, family law, secured transactions, and wills and trusts, all of which are currently tested in Tennessee. Subjects that are being retained are all the subjects currently tested on the multiple-choice portion of the bar exam (contracts and sales; civil procedure; constitutional law; criminal law and procedure; evidence; torts; and real property) as well as business associations.6 In addition, foundational lawyering skills like investigation and evaluation, client counseling and advising, negotiation and dispute resolution, and client relationship and management will be assessed as part of the new bar exam.7

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Finally, the NCBE recommends that the new bar exam be entirely computer-based.8 Currently, in Tennessee, examinees complete the multiple-choice portion of the bar exam on paper, and they are given the opportunity to use computers or handwrite their responses to the written portion of the bar exam.

What Won’t Change Many aspects of Tennessee’s current bar exam will remain the same.

What won’t change is the frequency of the exam. The new bar exam will still be offered twice a year—each February and July.9 The new bar exam will also continue to be a closed-book examination.10 The NCBE has also indicated that the new bar exam will be no longer than the current 12-hour, two-day exam. But it hinted that the length of the new exam could be reduced if the validity of the exam and the reliability of the scores could be maintained.11 And despite the need for remote administrations of the bar exam in Tennessee and many other jurisdictions on the last two administrations as well as the upcoming July 2021 exam, the NCBE recommends in-person administration of the bar exam either at test-centers managed by vendors or on examinees’ laptops at jurisdiction-managed sites.12 While many of the anticipated changes may represent a shift in what is being tested, Lisa Perlen, executive director of the Tennessee Board of Law Examiners, who participated in two of the three phases that the task force conducted before it made its recommendations to the NCBE, said that the changes do not represent a shift in what newly licensed attorneys need to know. “[Examinees] will need to know the same basic lawyering skills that they needed to know previously,” Perlen said. “We have to keep in mind that we’re not changing the requirement for lawyering skills. Rather, it’s how those lawyering skills are tested that will change” with the administration of the new bar exam.13 While a specific date has not yet been announced as to when aspiring lawyers will see the new bar exam, the NCBE anticipates that the new version of the bar exam will debut in about “four to five years,” which means that students beginning their legal studies in the Fall of 2022 could be the first group to take the new bar exam.

Law school administrators and bar review course providers are paying close attention to what the new bar exam means to what they offer to students.

“At LMU Law, we are closely monitoring the upcoming changes in the structure and content of the bar exam so that we can adapt our curriculum and exam practices accordingly,” said William Gill, Associate Dean for Academic Affairs and Associate Professor of Law at Lincoln Memorial University Duncan School of Law. “We view the evolution of the bar exam as an opportunity to emphasize the fundamental skills that law students need to pass the bar and to succeed in practice.”14 Helix Bar Review by AccessLex, which is currently developing a bar review course to compete with the likes of BARBRI, Kaplan, and other commercial bar review companies, still plans to launch its new Uniform Bar Exam review course in the Fall of 2021. “[The new bar exam] does create a limited shelf life for the UBE course,” said Christopher Chapman, president and chief executive officer of AccessLex Institute. “But I would feel differently if the NCBE announced that they would be completely reworking the bar exam in two years instead of five. Five years is a long time.”15

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April 2021

COVER STORY By: Tommy Sangchompuphen

Associate Dean for Student Learning Lincoln Memorial University Duncan School of Law

Much Still to be Determined Although the NCBE has approved the task force’s recommendations for the new bar exam, many of the specifics and details of the new bar exam is still unclear. While the NCBE anticipates being able to release prototypes of integrated exam questions by the end of the year, it has outlined several steps it will have to complete over the next four to five years before the new bar exam can be a reality.

Some of the major steps of implementation will include: developing and field-testing new types of questions; establishing scoring processes and psychometric methods for equating/scaling scores, and assisting jurisdictions to prepare and supporting them in activities such as setting passing score requirements and amending rules to align with changes to the exam.16 Change Is Not New in Tennessee The upcoming changes to the Tennessee bar exam will be the third time the exam in Tennessee has been modified since 2011.

Prior to 2011, the Tennessee bar exam consisted of the 200-question Multistate Bar Examination, drafted by the NCBE, along with a dozen 30-minute locally drafted essays. The essays, at that time, were graded on a pass-fail basis. The greater the number of essays that examinees passed, the lower the score examinees had to earn on the multiple-choice portion of the exam.

Beginning in 2011, however, Tennessee modified the exam by adopting the NCBE’s Multistate Performance Test and reducing the number of locally drafted essays appearing on the bar exam to nine. Tennessee also did away with the pass-fail grading of the essays and, instead, assigned scores to each essay and the MPT, setting the passing score at 270 scaled points out of 400 possible scaled points, and weighting the written and multiple-choice portions of the exam equally.

More recently, beginning with the February 2019 bar exam, Tennessee administered its first Uniform Bar Exam—which is still the format of the bar exam that exists today in Tennessee and which is used in more than 40 jurisdictions. The UBE consists of 200 multiplechoice questions; six 30-minute essay questions drafted by the NCBE; and two Multistate Performance Tests. The UBE provides examinees with a portable score that permits them to transfer that score to other UBE jurisdictions where the examinees meet the minimum scoring requirements. This allows examinees to be licensed in another jurisdiction without having to take the bar exam again, assuming all other admission requirements of the jurisdiction are met.

Perlen, who serves as a member on the NCBE Uniform Bar Examination Policy Committee, said the new bar exam will retain the score portability aspect of the current Uniform Bar Exam and likely won’t have an impact on the Tennessee Law Course, which was adopted along with the Uniform Bar Exam. The TLC is a mandatory online course on Tennessee-specific law and is one of several requirements that must be completed prior to approval for licensing and admission in Tennessee.

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“The purpose of the TLC is to provide insight and notice of distinctions in Tennessee law that you wouldn’t get when studying for a Uniform Bar Exam,” Perlen said. “That need won’t change with a new bar exam.”17

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Nat’l Conf. of Bar Examiners, NCBE Board of Trustees Votes to Approve Testing Task Force Recommendations, https://www.ncbex.org/news/ncbe-bot-vote-approvesttf-recommendations/ (last visited March 9, 2021).

Nat’l Conf. of Bar Examiners, Overview of Preliminary Recommendations for the Next Generation of the Bar Examination, https://testingtaskforce.org/research/ preliminary-recommendations-for-next-generation-bar-examination/ (last visited March 9, 2021).

Id. E-mail from Vikky Kirichenko, Attorney, Kenneth Miller & Associates, to author (March 9, 2021, 22:23 EST) (on file with author).

Id. Id. Id. Id. Id. Id. Id. Id. Telephone interview with Lisa Perlen, Executive Director, Tennessee Board of Law Examiners (March 8, 2021) (notes on file with author).

E-mail from William Gill, Associate Dean for Academic Affairs and Associate Professor of Law, Lincoln Memorial University Duncan School of Law, to author (March 8, 2021, 14:02 EST) (on file with author).

Telephone interview with Christopher Chapman, President and Chief Executive Officer, AccessLex Institute (March 5, 2021) (notes on file with author).

Nat’l Conf. of Bar Examiners, Overview of Preliminary Recommendations for the Next Generation of the Bar Examination, https://testingtaskforce.org/research/ preliminary-recommendations-for-next-generation-bar-examination/ (last visited March 9, 2021).

Telephone interview with Lisa Perlen, Executive Director, Tennessee Board of Law Examiners (March 8, 2021) (notes on file with author).

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L E G A L LY W E I R D By: Lisa J. Hall Hodges, Doughty & Carson

KIDNAPPED: A CAUTIONARY TALE We have all been there. There are days when you just do not feel like going to work, whether it is because you are sick (but not sick enough to miss work, at least not in pre-COVID-19 days), or because it is a beautiful day and you would rather be anywhere than at the office, or because you have just discovered Outlander and you really have no choice other than to binge watch your way through the rest of the series. Depending on your circumstances, you may or may not have the flexibility or autonomy to declare a mental health day or a day to play hooky.

In such a situation, you have a choice between soldiering on and reporting to work as scheduled, or fabricating a lie or half-truth and coming up with an adult version of “The dog ate my homework.” Common excuses include but are not limited to: illness (mention a fever or gastrointestinal difficulties and no questions will be asked), transportation difficulties, or road conditions (I mean, is anybody really going to drive by your neighborhood and fact check whether your street is, in actuality, a solid sheet of ice?). Drawbacks to each of these are the inevitable skepticism of your employer. You can imagine them rolling their eyes as you explain your symptoms or the fact that your car won’t start and nobody can work on it until at least tomorrow. They have heard it all before.

So what if you really want to take the day off but also want to remain in your employer’s good graces? What about coming up with a unique excuse as to which, if true, you truly have no control or choice over whether you can physically go to work? Even better, the excuse will garner sympathy and attention – the good kind of attention!

I know exactly what you are thinking – “What if I fake my own kidnapping? It might actually be more work than just going to work, but at least I don’t have to go to work!”

This flow of logic may be exactly what Brandon Soules, 19, of Coolidge, Arizona followed when he decided to arrange a fake kidnapping on February 10, 2021. The story was that two masked men kidnapped him in front of his house after 7:00 a.m., hit his head, rendering him unconscious, and stuffed him into their car. They then drove him around in a vehicle before leaving him where he was ultimately found. Soules told police that he was kidnapped because of a large amount of money his father had hid somewhere around the town.

He was found near a water tower with his hands bound behind his back with a belt and a bandana stuffed in his mouth. Even though his feet were not bound, he lay on the ground and scooted out on the side of the road so he would be visible to passersby. He was indeed seen, and somebody called the police. In their investigation, the police located video surveillance in front of Soules’ home and found no evidence of a kidnapping. When brought in for questioning a week later, Soules

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confessed to making the story up as an excuse to get out of work at The Tire Factory. I guess he was really tired1 of his work there, but after this stunt, he was fired.

So there you have it, kids. As Otto von Bismarck once said, “Only a fool learns from his own mistakes. The wise man learns from the mistakes of others.”

Learn from the mistakes of young Brandon Soules, and continue your quest for the perfect excuse for missing work.

Somewhere between a broken-down car and a half-baked kidnapping is the holy grail of a consequence-free day of hooky.

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Pun alert!

April 2021

B O AT B U I L D E R S By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

LAWYERS REPRESENT CLIENTS Jason was born on July 26, 1973.1 For a baby who was born two weeks after his due date, he was rather small—just six pounds, one ounce.

His heart and lungs were quite healthy, but something was not quite right with his right arm. He had only three fingers, and because he was missing a bone in his forearm, it angled up and back toward his tiny face.2 His twenty-six year old mother Joyce thought it was her fault, and she contemplated suicide. “If I could have given Jason my right arm, I would’ve done it in a heartbeat,” she said.3 But, she didn’t end her life, and she couldn’t give him her right arm. So, she set her mind to helping young Jason navigate the special challenges he would face the rest of his life. Ten years and dozens of tests and surgeries later, Joyce opened the newspaper to find the photograph of Mary Oxendine, a twelve-year-old girl whose right arm looked exactly like Jason’s—shortened at the forearm and missing fingers and parts of the hand.4 After a four-week jury trial, Mary had just won a $750,000.00 judgment against Merrell Dow, the makers of an anti-nausea medicine called Bendectin.5 At the time, over three hundred cases had been filed alleging that Bendectin caused birth defects, but only one other case had made it to trial—resulting in a $20,000.00 judgment, but with a finding of “no fault” on the part of the company.6 The company said the verdict was contrary to the “overwhelming weight of scientific evidence that show[ed] Bendectin [was] not associated with an increased risk of birth defects.”7 It filed a Motion for Judgment Notwithstanding the Verdict, or in the alternative, for a New Trial. The trial court granted both parts of the Motion, finding that Mary had failed to prove Bendectin was the proximate cause of her injury.8 It would be another thirteen years of appeals and four remands by the D.C. Court of Appeals (which affirmed the verdict twice) before the trial court granted Merrell Dow’s motion to set aside the verdict based largely on a series of studies that had been done after the 1983 judgment in Mary’s favor.9 By that time, Mary was twenty-five years old. She had graduated from high school, lettering in three sports.10 Seeing that photograph in 1983 made Joyce sit up and take notice.

She had taken Bendectin to help with nausea when she was pregnant with Jason. But, as she put it, “I had dinner to make. We had homework to do.”11 Ten-year-old Jason and his little sister did need attention, after all. Eventually, she called directory assistance and found the phone number for Mary’s dad (you could do things like that back then), and got the contact information for Mary’s attorney, Barry J. Nace.12 Joyce and Jason filed suit in 1984 along with co-plaintiffs Michael Schueller and Anita De Young whose son Eric was born without a left hand and with a short, left leg (his mother had taken Bendectin while she was pregnant).13 As it had done in Mary’s case, Merrell Dow attacked causation—moving for summary judgment on the grounds that Jason and Eric could not produce statistically significant epidemiological evidence that Bendectin caused their disabilities.14 The trial court granted Merrell Dow’s motion, finding that the most Jason and Eric’s eight (8) experts could show was that Bendectin “could possibly have caused [their] injuries,” which wasn’t sufficient to avoid summary judgment.15 Jason and Eric appealed.16 The Ninth Circuit affirmed finding that to be admissible, an expert opinion must be based on a methodology that did not “diverge significantly from the procedures accepted by recognized authorities in the field.”17 In other words, an April 2021

expert opinion was not admissible unless it was based on a scientific technic that was “generally accepted” as reliable in the relevant scientific community.18 So, Barry J. Nace took his clients’ case to the U.S. Supreme Court, and in Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S. Supreme Court dispensed with the seventy-year-old “generally accepted” standard articulated in Frye v. United States,19 and instead adopted the more flexible, and now familiar Daubert standard making trial judges the gatekeepers and providing a framework for analyzing whether an expert’s testimony will assist the trier of fact to understand or determine a fact in issue, as required by Federal Rule of Evidence 702.20 Incidentally, during oral argument Chief Justice Rehnquist introduced an issue that has plagued lawyers ever since—how to pronounce “Daubert.” According to the Daubert family’s attorney, it is pronounced exactly how it is spelled: “Daw-bert.”21 But the Chief Justice pronounced it “Dough-bear,” and their lawyer “was faced with the tricky tactical question of whether to spend my precious time (and all hope of kindly reception) correcting this judicial mispronunciation. [He] opted not to, and the rest of the Justices all then assumed, gallingly, that the Gallic was apropos.”22 But, I digress.

The win was short-lived for Jason and Eric. On remand, the Ninth Circuit re-affirmed the grant of summary judgment in favor of Merrell Dow under the new Daubert standard,23 and in 1995, the Supreme Court denied certiorari.24 Incidentally, this was one year before Mary’s litigation saga was ended by the D.C. trial court.

But that wasn’t the end of Jason Daubert’s story. He will be fortyeight years old this year, and works in technology in La Jolla, California.

He has a little girl who has all ten fingers and toes.25 He knows his case was significant, even though the outcome was not favorable for him, but he describes himself as “unconventional, but lucky as heck.”26 His attorney has a similar perspective. Mr. Nace said he took Mary’s case and then Jason’s case because he had a background in chemistry.

“That’s how I took the case, having no idea, no clue what it was going to blow up into. . . . Because in those days, the scientific evidence crap wasn’t like it is today. You tried your case. You put your evidence forward, which is what I did.”27 Boat builders build boats. Writers write. Engineers design. Pilots fly. Lawyers represent clients. You never know which client’s matter will be the one that changes everything.

Peter Andry Smith, Where Science Enters the Courtroom, the Daubert Name Looms Large, Undark (Feb. 17, 2020), available at https://undark.org/2020/02/17/daubertstandard-joyce-jason/.

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Id. 3

Id. 4

Id.; see also Peter Perl, $750,000 Judgment Found Against Maker of Bendectin, The Washington Post (May 28, 1983), available at https://www.washingtonpost. com/archive/politics/1983/05/28/750000-judgment-found-against-maker-ofbendectin/36992082-45a8-4a59-93f4-94c673428b21/.

5 Perl, supra n. 5.

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Id. 7

Id. (quoting a statement by Merrill Dow spokesman, William R. Donaldson).

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Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100 (D.C. 1986).

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Continued on page 20

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B O A T B U I L D E R S , continued from page 19

See Barton Gellman, M.D. Woman Upheld on Appeal Over Birth Defects Tied to Drug, The Washington Post (August 12, 1989), available at https://www. washingtonpost.com/archive/local/1989/08/12/md-woman-upheld-on-appealover-birth-defects-tied-to-drug/ca9eebe2-04d2-4dcf-b861-fbdf4a271ff1/; see also Merrell Dow Pharmaceuticals, Inc. v. Oxendine, 649 A.2d 825, 833 (D.C. Cir. 1994), Schwelb J. concurring; Oxendine v. Merrell Dow Pharmaceuticals, Inc., Civ. No. 821245, 1996 WL 680992 (D.C. Super. Oct. 24, 1996) 10 Gellman, supra n. 11.

11 Smith, supra n. 1.

12 Id. 13 Joan Biskupic, Deformity Case may Shift Scientific Evidence Rules, The Washington Post (Mar. 28, 1993), available at https://www.washingtonpost.com/ archive/politics/1993/03/28/deformity-case-may-shift-scientific-evidence-rules/ e321f0a8-03b0-42fe-b781-b8aad4a5848b/; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F.Supp. 570 (S.D. Cal. 1989).

14 Daubert, 727 F.Supp. at 571.

15 Id. at 576.

16 Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128 (9th Cir. 1991).

17 Id. at 1130, 1131.

18 Id. 19 Frye v. United States, 293 F. 1913, 1014 (D.C. Cir. 1923).

20 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993).

21 Bryan A. Garner, Daubert, Garner’s Dictionary of Legal Usage p. 246 (3rd Ed. 2011).

22 Michael Smith’s Law Blog, Pronouncing“Daubert”: An Important Lesson You may not Learn in Evidence Class (Aug. 25, 2014), https://smithblawg.blogspot. com/2014/08/pronouncing-daubert-important-lesson.html, last visited March 6, 2021.

23 Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).

24 Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869 (1995).

25 Smith, supra n. 1.

26 Id. 27 Id. 9

barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. 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 and a link will be sent to you on the day of the meeting.

MARCH MADNESS SOCIAL HOUR ON MARCH 18 Join the Barristers for a March Madness Social Hour on Thursday, March 18, 2021 from 5:30-7:30 p.m. at 35 North located at 11321 Kingston Pike.

Even though this event is sponsored by the Barristers, all KBA Members and Law Students are invited to attend. Come out and have a drink or grab a bite with friends and colleagues. This is a great opportunity to network, meet new faces, and get involved, so join us. 35 North is an outdoor food truck park and social distancing will be encouraged. Keep an eye out for future promotions for more information.

VOLUNTEER BREAKFAST COMMITTEE SEEKS 2021 SPONSORS The Volunteer Breakfast Committee will continue to prepare and deliver breakfast to the Volunteer Ministry Center on the fourth Thursday of the month. The Barristers Volunteer Breakfast Committee continues to accept sponsors for breakfasts in 2021. Sponsorship is $150 and it provides a hearty meal to the most vulnerable members of our community. We offer our heartfelt thanks to all our sponsors and volunteers. Please contact Matt Knable (knablelaw@gmail.com) or Mitchell Panter (mpanter@ lewisthomason.com) with questions or to sign up.

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VOLUNTEER FOR THE VIRTUAL VETERANS LEGAL ADVICE CLINIC The Veterans Legal Advice Clinic is a general advice and referral clinic which will serve between 20 and 30 veterans in the community each month with a wide variety of legal issues. Volunteers are needed between 12:00pm and 2:00pm on the 2nd Wednesday of every month. The next VIRTUAL clinic is expected to occur on March 10. Watch for updates as to the format of this clinic on the KBA website. Sign up to help at www.knoxbar.org/ volunteer, and contact Access to Justice Committee Co-Chairs Spencer Fair (sfair@londonamburn.com) or Luke Ihnen ( ihnen@londonamburn. com) with questions.

CLE COMMITTEE TAKING SUGGESTIONS The CLE Committee will be meeting in early 2021 to begin planning informative and entertaining CLEs for the upcoming year. Please feel free to submit any ideas you may have to Sam Louderback (slouderback@ emlaw.com) and Seth Oakes (soakes@tcflattorneys.com) BARRISTERS & KBA ACCESS TO JUSTICE COMMITTEES COLLABORATE ON NEW INITIATIVES The Barristers are teaming up with the KBA to expand the reach of the Access to Justice Committees to even more individuals in our community.

Keep an eye out for new Access to Justice initiatives on racial justice in the coming year. View information about the Barristers Access to Justice Committee on the KBA website.

DICTA

April 2021

OF LOCAL LORE & LAWYERS By: Joe Jarret Attorney, University of Tennessee

OF COURAGE AND SACRIFICE: THE VALIANT ACTS OF EAST TENNESSEE WOMEN DURING THE CIVIL WAR “They [women] ventured into dangers from which brave men recoiled.” 1 Pick up a book about the Civil War, and chances are, if the role of women is mentioned at all, it’s in terms of what good mothers and providers they were, and how they kept the home fires burning; now, such acts are by no means unimportant, however, they fail to tell the entire story about the bravery, in the face of incredible odds, displayed by so many women during that horrible war. It was a time when brave women took up arms to defend, among other things, the land the law forbade them to own and a free election system in which they could not participate.

A Study in Valor Respected historian William A. Strasser Jr., published an excellent piece on the valor of East Tennessee Women in the Civil War in 1999. 2 Almost 100 years earlier, Scott & Angel, while writing a chronology on the men who fought with Tennessee’s Thirteenth Volunteer Cavalry (a unit that served with the Union during the Civil War), took the time to explore some of the exploits of the brave, noble women who played significant roles in the defeat of the Confederacy during that bloody conflict. East Tennessee women of all classes experienced the war in some way, whether through deprivation, loss of loved ones, the disintegration of social norms, a renewed sense of patriotism, or, in at least a few hundred documented cases, actual battlefield experience. Although it’s been well documented that many East Tennessee women who opposed the policies of the Confederacy (especially when it came to slavery) were victimized, they were by no means defenseless victims.

Scott & Angel noted: “The name of these brave women should be written in letters of gold on imperishable parchment, or engraven [sic] on enduring metal that time cannot efface. They hear the roar of cannons and the rattle of musketry that told of battle and death. They witnessed bloody tragedies. They saw their loved ones imprisoned. They saw them brought home dead. The heard the groans of the dying and witness the cruelties of civil war in all its horrors and hideousness.” 3

Conclusion Regardless of the roles these women chose to play, they were the pioneers of their age. Abraham Lincoln, noting the sacrifices and contributions of American women during the Civil War, immortalized their valor with these words: “I am not accustomed to use the language of eulogy.

I have never studied the art of paying compliments to women. But I must say that, if all that has been said by orators and poets since the creation of the world in praise of women was applied to the women of America, it would not do them justice for their conduct during this war. I will close by saying, God bless the women of America.” 7 God bless them indeed!

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Valor On and Off the Battlefield Despite the deprivations suffered by these women, Scott & Angel also noted that “They ventured into dangers from which brave men recoiled, seemed to require no rest but were always on alert. They waited on the sick, and dressed the wounds of those who had been shot.” 4 These women also buried the dead and assisted Union soldiers to get to safety.

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Said one unknown author, “These women did not shirk from danger, even when confronted with great peril, and consistently displayed the greatest courage and heroism.” One admiring historian eloquently noted: “Midnight as well as midday, found these brave women at their post, ready at the approach of danger to rush to the rescue of a father, brother, or friend, whether in the darkness of night, the raging storm, or in the face of a relentless enemy. They never deserted the side of a father, brother, or friend, no matter how great the danger, but clung closer to him.” 5 Military historian Cheryl A. Heimerman noted that women were soldiers, whether they served as vivandieres (Vivandieres, sometimes known as cantinieres, were women who followed the army to provide medical support for the troops), spies, saboteurs, or disguised as men because they were often faced with the same dangers as male soldiers. She further asserts that these women came from every social status, joined for various personal reasons, and committed themselves for differing lengths of time just as the men, but have received far less recognition for their service. 6

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Scott, S. W., & Angel, S. P. (1987). History of the Thirteenth Regiment Tennessee Volunteer Cavalry USA. The Overmountain Press.

Strasser Jr, W. A. (1999). “ Our Women Played Well Their Parts”: East Tennessee Women in the Civil War Era, 1860-1870.

Scott, S. W., & Angel, S. P. (1987). History of the Thirteenth Regiment Tennessee Volunteer Cavalry USA. The Overmountain Press, pages 371, 372.

Id. Id. Heimerman, C. A. (1999). Women of Valor in the American Civil War (No. AU/ AWC/121/1999-04). AIR UNIV MAXWELL AFB AL..

Marilyn Mayer Culpepper, Trials and Triumphs: Women of the American Civil War. (East Lansing, Mich.: Michigan State University Press, 1991), 393.

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Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records:

WELCOME NEW MEMBERS

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Jeffrey E. Caudill Caudill Law Firm PLLC Donald T. Christmas Christmas Law Firm Robert B. DeBusk DeBusk Law Firm Taylor A. Drinnen Drinnen Law, PLLC Katherine L. Edwards TriAmericus Law, PLLC

Kristen D. Anderson BPR #: 038590 Student Defense Tennessee 4315 Kingston Pike, Suite 210 Knoxville, TN 37919-5288 Ph: (865) 315-8760 kanderson@studentdefensetn.com

Todd L. Fulks BPR #: 021479 Red Stag Fulfillment 5501 Island River Drive Knoxville, TN 37914-6631 Ph: (423) 361-9293 todd.fulks@redstagfulfillment.com

Jacob A. Feuer BPR #: 033715 Knox County Public Defender’s Community Law Office 1101 Liberty Street Knoxville, TN 37919-2328 Ph: (865) 594-6120 jfeuer@pdknox.org

Molly A. Simbeck BPR #: 036204 Stokes, Williams, Sharp, Cope & Mann P.C. P.O. Box 2644 Knoxville, TN 37901-2644 Ph: (865) 544-3833 molly@stokeswilliams.com

Jacob G. Horton BPR #: 025467 Blanchard & Associates P.O. Box 5657 Knoxville, TN 37831-5657 Ph: (865) 269-2673 jhorton@blanchard-patent.com

James C. Eggert Eggert Law Firm Lauren N. Gray Courtney S. Matyac G. Alan Rawls Lowe Yeager & Brown PLLC Laura Reagan Stern Family Law, PLLC Joseph Sandford Knox County Public Defender’s Community Law Office Garland T. Smith Elmore, Stone & Caffey, PLLC

NEW LAW STUDENT MEMBERS

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Erica K. Agnew

Telesha Felder

Alexandra N. Allen

Emily R. Ford

Clark N. Amundson

Sean D. Gilkey

Lindsay Anderson

Emily G. Harrell

Zachary L. Atchley

Mariah Holtz

Nadean H. Azzam

Austin M. Hord

Jennifer C. Barnes

Andrew E. Huff

Natalie M. Batiste

Chandler Jacobs

Malia G. Bennett

Grant B. Klinger

Peyton E. Burkett

Kayla L. Long

Grant A. Carringer

Geran E. Minor

Gabriel B. Cole

Gwyneth Navey

Bree N. Conner

Bradley Pearson

Deanna B. Cooper

Julia M. Sbircea

Peyton Cross

Brady D. Smith

Shelby L. Cross

Walter W. Tebbs

Tiffany Ellis

Jessica D. White

DICTA

April 2021

OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber

BUYING DOUGHNUTS Is there a place you can go? In this profession, we all need one.

You should have one, whether it is a graveyard, the street outside your childhood home, or your church. Somewhere to ground, to inspire, to remind you where you’ve been and what you’ve survived. My place sells doughnuts.

Like the Wednesday before, I was dressed in my best suit. My black shoes were polished. A man could be forgiven if he thought I was on my way to court. In fact, on the Wednesday before, I was in court. On the Wednesday before, I was a young lawyer with a life under construction and all coming up according to blueprint.

On this Wednesday, however, the car was off the rails. I was burying my wife.

I adjusted my tie as I stood next to her coffin. I would have done anything for the grind, the minutia of the daily existence of just a week earlier. Oh, for the drive to work, the return home, the loving bits of a young family growing. It had been arrested in the most startling and unexpected of ways - a ruptured arterial/venous malformation in her brain. She was 31. I stood in the hallway of the funeral home flanked by family and close friends, waiting for instruction on the procedure of the day, the procedure of burying a wife. Writing the words, even now, seems a bit ridiculous.

When the man from the funeral home asked if I wanted to walk along as he transported Cheryl to the hearse, I said yes. He merely turned and rolled her coffin down a long hall toward the door as I joined. I walked beside, the only sound the wobbling wheels clicking on the tiled floor, like those of a bum shopping cart.

I don’t know what I was expecting from the world outside. The sky was darkening. A great many people were waiting on a hill not two miles away, prepared to say goodbye, but as for others, the people of the world, I hadn’t given them a great deal of thought. Grief is a selfish devil. It promotes narcissism and martyrdom and cloaks us in a large heavy blanket.

As I stood next to her and they prepared to load her into the back of a vehicle designed for such nonsense, I looked across the street to Krispy Kreme Doughnuts. Cars flew up and down Kingston Pike. The “hot doughnuts” sign was illuminated in red neon, a zapper light luring moths to the flame. People were lined up in their cars for doughnuts and coffee.

April 2021

I was stunned. Did they… did the world not understand what was taking place? Today was a day for goodbyes. A mother of two, a daughter, a sister, a friend, the only girl I’d loved. We were on our way to the graveyard, and people were concerned with coffee and doughnuts. I guess I knew somewhere down deep that the world wouldn’t stop, couldn’t stop, but in the town where she grew up and across the street from where we’d been married (Central Baptist), couldn’t we get just a moment?

Krispy Kreme was selling doughnuts to people who were on their way to work for God’s sake, and I marveled at their naïveté or…was it mine?

Two years later I would walk out onto the steps of Central Baptist, playing the part of the groom.

Here I was, again, this time with Nancy and our four kids (my two and her two), all dressed up, having just been joined in marriage, casting us into the great unknown identified as a “blended family.” I beamed with excitement in anticipation of the adventure before us, a hopeful and positive person. Across the street, the doughnut business was booming, a developing constant in the equation that is my life.

That was nineteen year ago. Sophie (my Golden Retriever) and I needed several on the day this past October when we received her bad diagnosis. On our last trip together we sat in the parking lot and shared half a dozen. I split my last with her and told her that she was a good girl. I knew the score. I think she did, too. She passed on New Year’s Day, surrounded by all of us, the blended family intact and very much in love, with her and each other.

They all think I have a doughnut weakness.

Perhaps, but, sometimes a man needs more than a doughnut. He needs reminding…while he is eating that doughnut or doughnuts. What we think we have come to understand often needs visual affirmation, or perhaps it is the sense of taste. In equal measure we must remember that the rain of this life is always on the horizon and that happiness is never too far away.

The world won’t stop a minute when you’re gone, and doughnuts will be bought. Perhaps that is something we need reminding of more than the rest. Regardless, it is my place, and you are welcome to park next to me. I always leave feeling renewed, perspective in place and the troubles of the day scattered among the broken sugar and bits of doughnuts in the box.

DICTA

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

By: Phil Hampton Founder and CEO, LogicForce Consulting

DON’T BE A VICTIM OF RANSOMWARE: THERE ARE BETTER WAYS TO LEARN ABOUT BITCOIN We are often asked for our advice on technology gadgets and apps.

Some of our best advice, however, may be on how not to be victimized by technology. Such is the nature of this month’s column. In short: don’t be a victim of ransomware. It could ruin your whole year and maybe even your career.

What is ransomware, you ask? We are glad you are asking that question because that means you have not been victimized yet. It is an event you will never forget. Ransomware is a method used by criminal computer hackers to make money by demanding payment for files that have been locked by the hacker. Ransomware can encrypt files or file systems and/or lock a victim from accessing a device.

There are many varieties of ransomware.

Maze is one of the newest and most dangerous ones. But there are many others: Crysis, CryptoWall, CTB-Locker, CryptoLocker, Cerber, WannaCry (aptly named), Jigsaw, Bad Rabbit, Petya, NotPetya, Locky, Cryptor, Ryuk, and GandCrab -- just to name a few.

All are bad. Very bad.

For example, in 2017, DLA Piper, a very large and respected national law firm, was a victim of the NotPetya virus. The cybersecurity team of the firm discovered the “infection” within half an hour, but it still shut down most of the firm’s computer systems and all of its phone system. DLA Piper refused to pay the ransom demanded by the hackers because the firm felt it had sufficient backups to restore everything. However, it took them a week to get their email system back up and months to become fully operational again, at a cost of millions of dollars.

How Does Ransomware Work?

Many attacks are initiated by tricking a user into clicking on a link in an email or on a website. The user will either download a file or open an attachment that looks legitimate. Other attacks are initiated by hackers exploiting poorly secured Remote Desktop Protocol (RDP) access points to an organization’s network. However, some attacks, such as the WannaCry ransomware, exploit known vulnerabilities in computer programs and operating systems. These attacks do not infect by clicking on a link. They travel automatically among computers, but they can largely be prevented by diligently installing all updates recommended

by Microsoft and other software providers. Ransomware can infect cell phones, tablets, cameras, and almost any type of electronic device with an “operating system.”

Once the ransomware has infected, it will inform users of the infection. If it has encrypted files and directories, it will leave instructions on how to decrypt. Those instructions will inform you that your files have been encrypted and demand payment for the decryption key.

Bitcoin is usually the preferred method of payment. The “locking” form of ransomware locks the screen of the computer or device with a message that tells the user that he or she cannot use the system and gives the user

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instructions on how to pay the ransom to unlock the computer.

Another type of ransomware, which is even more dangerous for lawyers, is the Maze-type or so-called “leakware.” Rather than encrypting the data, the hacker threatens to expose or leak the information if a ransom is not paid. This type is more dangerous because, many times, you can restore backups to avoid paying for decryption.

Here the extortion ransom is to be paid to avoid the release of sensitive information (such as a client’s proprietary information or embarrassing information). The Maze hackers promise to delete the information in exchange for payment, but why would they?

They could just extort you again.

How To Protect From Ransomware By now, you should be very, very afraid.

Now you want to know how to prevent ransomware infection. And we are here to help. The first rule is to “Practice Safe Computing.”

Users of your systems are the first line of defense. They should be trained to avoid viruses, just as they are trained on how to use your software systems. They need to know what to look for. They need to avoid clicking on unknown or suspicious-looking links and to avoid downloading unknown/suspicious files. You need to conduct fake attacks that contain unknown links and files. Give them the antivirus vaccine in as many ways as you can.

Keep all software and operating systems up to date with the latest patches. Make sure you have a state-of-the-art firewall on your system.

Make sure your firewall has a spam and phishing blocker. Keep your antivirus software up to date. Don’t let users install unapproved software.

And keep complete, off-line backups of all your data. Test the integrity of your backups on a regular and frequent basis.

What To Do If You Are Infected

If, in spite of your best efforts, you become infected, here is what you should do. First, turn off your computer and unplug your systems from the internet. Then, make sure the administrator of your computer system is up to the task. If not, seek the advice of someone who knows what to do.

Then, do whatever is necessary to remove the ransomware after you have assured yourself you have adequate backups of your data. Then restore your data from the backups. And conduct an investigation to determine the source of the infection

If you do not have an adequate backup, you have three choices.

You can pay a ransom to the hackers. Second, you can try to use a commercially available decryptor for the type of infection you have. (This may or may not work.) Third, you can just choose to lose the data.

Finally, even though it may be embarrassing for your firm, you should report the attack to the FBI. See instructions at https://www.fbi. gov/scams-and-safety/common-scams-and-crimes/ransomware .

DICTA

April 2021

BARRISTER BITES By: Angelia Morie Nystrom The University of Tennessee

PREPPERS, COWS, AND SPRINGTIME SUPPERS If anyone asks how I am these days, I normally answer with “It’s been quite a year.” I don’t think any of us fully envisioned what the last nine months of 2020 and the first few months of 2021 would look like.

No one really knew what steps we would take to adapt.

As I think I have written before, I am married to a “prepper.”

Before the pandemic began in earnest (and certainly before shutdowns in the US), Hugh followed news in Europe about the need to prepare for quarantine and lockdown. Our garage soon became known as the “grocery store,” as Hugh made sure that we had enough non-perishable food to last at least 8 weeks. To say we were prepared for what was to come is an understatement.

Last Spring, reports were rampant about the coming “meat shortage.” I recall reports on the local news (and personal accounts from friends and family) that there was no meat in our grocery store coolers. As a “prepper,” Hugh quickly found a solution. We would buy a cow. Literally. We bought a cow.

If you wonder how much meat a single cow will provide, it is a lot. I’m not a beef eater; however, I quickly adapted. Last summer, we enjoyed lots of grilled and smoked beef, and I found 1,000 ways to prepare ground beef this winter. With Spring, though, I’m ready to grill again.

And, like the Chick-fil-a cows, I am ready to “Eat More Chicken.”

My favorite warm weather “go-to meal” was borne out of one of Hugh’s silent auction ideas. He has done lots of event-based fundraising and is always trying to come up with new and different auction items. I was rightfully skeptical one year when he told me that he and his buddies were creating an auction item for dinner for 20 that would be hosted and prepared by them. “We will do all the work,” he said. “You won’t have to do a thing.” I think we all know how that turned out. Angelia was cook and server.

My “go-to meal” is good for both larger gatherings and small groups.

It consists of a strawberry salad, grilled chicken with white barbecue sauce, grilled shrimp, tomato pie, grilled corn, and TennTucky cobbler. It is an easy meal, and most of the ingredients can be purchased in “ready to use” form.

The salad consists of mixed greens (pre-bagged), sliced strawberries (I buy those already washed and capped), red onion (sliced), crumbled bleu cheese, toasted almonds, and Brianna’s poppyseed dressing. It is a colorful salad, and it looks like you slaved away slicing and dicing. What your family and friends don’t know won’t hurt them.

For the chicken, use the thin-sliced boneless, skinless chicken breasts. They cook quickly on the grill and do not dry out. I make a white barbecue sauce (Hugh’s recipe) with mayonnaise, apple cider vinegar,

April 2021

lemon juice, coarsely-ground black pepper, cayenne pepper, horseradish and Splenda. We don’t have a specific recipe… just an ingredient list.

I will taste-test it until the combination is right. Then, put a little in a squirt bottle and the rest in a large Ziploc bag. Add the chicken to the bag and let it marinate until ready to cook. The mayonnaise-y mixture really helps keep the chicken moist during the grilling process.

For the corn, get fresh corn (husks still on), pull the husks up, and then tie them with twine like a pony-tail. After removing the silks, let the ears stand in a bucket of sea salt and ice water for about 10 minutes to keep them from burning on the grill. While the corn is “chilling,” mix a stick of butter, a couple of tubes of pureed cilantro, garlic powder, and fresh lime juice. Brush it on the corn and grill it until it is finished.

Bonus: I discovered that this mixture is really good on shrimp. I will often purchase the large, pre-cooked peel and eat shrimp, toss it in this mixture, and then toss them on the grill. They heat up in about 4 minutes and taste great. (You can also put them on a cooling rack in a cookie sheet and bake them in the oven at 450.)

My favorite part of the meal is the tomato pie. I’m from Jefferson County, but I had never heard of tomato pie until I met Hugh. I like to tell people that I married him for his tomato pie recipe. It really is that good. To make Hugh’s tomato pie, all you need is a deep dish pie crust, tomatoes, mayonnaise, onion and shredded cheese. Bake the pie crust in the oven until it slightly brown, fill it half-way with sliced tomatoes, and then add salt and pepper to taste.

Then, mix mayonnaise, a pureed white onion (to taste) and shredded cheese until it is a spreadable consistency. Top the tomatoes completely with the mayonnaise-cheese mixture and bake at 350 until it is brown on top. It is one of my very favorite things to eat.

The easiest part of this meal is dessert. It is a family favorite, and, although it is technically a cobbler, Trace calls it “pie.” To make the TennTucky cobbler, mix one cup of sugar, one cup of self-rising flour, one cup of milk, and one stick of melted butter. Add it to a greased casserole dish (I use a clear one so I can see the bottom as it cooks). Sprinkle in frozen blackberries (or mixed berries that do not contain strawberries).

Sprinkle the top with ¼ cup of sugar and bake at 350 until it is brown and bubbly (usually about an hour). It is great by itself or topped with vanilla ice cream.

As the weather warms, I am always looking for ways to do things faster and more efficiently without totally skimping on quality. This “go-to meal” reminds us of years past spent with friends and gives us something to look forward to as we contemplate gathering once again.

DICTA

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HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan

OSCAR BUTLER This month’s edition of “Hello, My Name Is…” features KBA member Oscar A. Butler, an Assistant District Attorney in the Sixth Judicial Circuit in Knox County. Oscar currently specializes in DUI prosecution, specifically for charges of DUIs, Vehicular Assaults, and Vehicular Homicides. He graduated from the Lincoln Memorial University Duncan School of Law in May of 2019, and he also holds a Bachelor’s of Arts degree in Political Science from Maryville College (’15).

Oscar provided fascinating responses about himself and his life, and I hope you enjoy getting to know him!

Where is your hometown?

I was born and raised in Murfreesboro, Tennessee, in the dead center of our great state, where I graduated from Siegel High School (home of the Stars), which is, in my opinion, the greatest high school in the nation!

Why did you decide to go to law school?

I knew I wanted to be an attorney from my sophomore year of high school. I had the opportunity to learn from my uncle, Tillman Payne II, who is a longtime attorney in Middle Tennessee, and I knew that my

What do you enjoy most about your job as an Assistant District Attorney?

Two-fold answer: First, I love being able to serve and support my community. Our office works with local law enforcement to help keep our community safe, and being able to help victims navigate the complicated legal system is my favorite part. A close second favorite is being inside the courtroom.

What was your first job, and what did you learn from it?

My first job was working with my father both on our family farm and with my father’s pallet company. I learned that anything worth having is worth working for. Also, it taught me the importance of hard work—and that patience is equally important. Even though we do the work today, we might not see the results for days, months, or even years to come.

What is your favorite restaurant in Knoxville?

I love seafood, so Chesapeake’s Downtown has been a “special event” staple for my family and friends for years.

Share one thing about you that most people don’t know.

I have eleven nieces and nephews. I’ve included a picture of some of my “little monsters” with me at my law school graduation.

very average basketball skills were certainly not leading me to the NBA. Ultimately, I wanted to help people, both in my community and beyond, and I felt that being a lawyer would give me the opportunity to do so.

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If you could not be a lawyer, what would you do instead?

I would likely be a middle or high school coach and teacher.

My mom was my teacher and coach growing up. She’s had such an impact on me and so many others, that I would want to be able to return the favor by positively influencing the next generation.

DICTA

April 2021

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

KNEELING BENEATH A FIXED STAR

Okay, I admit it: I get a little misty-eyed when I hear “The StarSpangled Banner.” I stand, put my hand over my heart, and sing along.

Ditto for the “America the Beautiful.” Oh, and let’s not forget the Pledge of Allegiance.

I’m saddened when I see the American Flag being abused—when, for example, people put it on clothing, or alter it, or use it for commercial purposes, all of which violate federal law.1

So I pay attention when people act in ways that, at least at first glance, seem disrespectful of our great nation. Consider, for example, former 49ers quarterback Colin Kaepernick kneeling during the National Anthem, or the UT women’s basketball team doing the same thing, or, most recently, ETSU’s men’s basketball squad following suit.

It turns out that none of those actions was intended to convey disrespect.2 They were done to draw attention to the longstanding problem of racial injustice. As Kaepernick has explained, he originally sat out the National Anthem, but, at the suggestion of former Green Beret Nate Boyer, Kaepernick started kneeling to make his point in a more respectful manner.3

Well, that certainly changes the cube, doesn’t it?

But, even if it doesn’t, even if Kaepernick and those who have followed his example did intend disrespect, well, that is their right.

The First Amendment of the United States Constitution prohibits the government from “abridging the freedom of speech.”4 That means, at a minimum, that the government—national, state, or local—cannot stop us from speaking our minds. But it also means something else: The government cannot force us to speak.

Think back to World War II. Many states enacted laws that required expressions of loyalty, such as mandatory recitation of the Pledge in public schools. And the Supreme Court initially backed them, most notably in Minersville School District v. Gobitis.5 But Gobitis inspired an intense political backlash. How could a nation fighting Nazis adopt Nazi-style laws mandating political orthodoxy?

The Supreme Court got the message. Only three years later, it issued its celebrated opinion in West Virginia Board of Education v. Barnette,6 perhaps the greatest in American history.7 Armed with Gobitis, the state of West Virginia had mandated that all public school children stand and recite the Pledge of Allegiance each day, complete with fascist-style salute. I’m not kidding. Check out some of the pictures online. American schoolchildren were forced to participate in what looked like daily NaziFests until someone noticed and changed the fascist salute to our current practice of placing the right hand over the heart.

Marie and Gathie Barnette attended public schools in West Virginia. Their father, a Jehovah’s Witness, believed strongly in the second commandment: “Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.”8 To the Barnettes, the Flag was a graven image, and they refused to bow down to it.

They were expelled. They and their parents were threatened with fines and jail time. In response, the Barnettes filed a federal claim that

made its way all the way to the Supreme Court, where Gobitis was explicitly overruled. Justice Robert Jackson, perhaps the greatest writer in Supreme Court history, penned the majority opinion, released on June 14, 1943, Flag Day: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.9 I get chills every time I read that passage. It epitomizes, in a single sentence, what it means to be an American. No one can force us to speak in a certain way, to think in a certain way. As Jefferson said, almost two centuries earlier, “Almighty God hath created the mind free.”10 Over the past eight decades, the Supreme Court has built upon the bedrock foundation of Barnette, affirming that, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”11 Which brings us back to ETSU’s basketball team.

These young men have not shed their constitutional rights by putting on their uniforms. They are Americans all, and no one can force them to stand during the National Anthem.

When I was a young boy, my father took me to several baseball games in the old Tiger Stadium in Detroit. We bought peanuts and Cracker Jack and rooted for the home team. We stood and sang during the National Anthem, hands over hearts. I once mentioned how inspiring it all was.

Dad said, “Yes, because it’s voluntary. No one is making us respect the Flag. We’re doing it because we genuinely love our country. In places like Russia, such devotion isn’t voluntary. That’s what makes America great.”

I doubt that my father, who died several years ago, ever read Justice Jackson’s opinion. But he understood it. He was an American. He felt it.

He appreciated it. As should we all.

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3

6

7

8

9

4 5

10

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4 U.S.C § 8. This statute almost certainly violates the First Amendment, but it nonetheless represents the sense of the American people as to what constitutes respectful and disrespectful behavior toward the Flag.

“ETSU coach Shay: Kneeling is a call to action, no disrespect meant,” February 17, 2021, WJHL-TV, available at: https://www.wjhl.com/sports/college-sports-2/etsubucs/etsu-coach-shay-kneeling-is-a-call-to-action-no-disrespect-meant/ “A timeline of Colin Kaepernick’s protests against police brutality, four years after they began,” The Washington Post, August 26, 2020, available at: https://www. washingtonpost.com/sports/2020/06/01/colin-kaepernick-kneeling-history/.

U.S. Const, amend. I. 310 U.S. 586 (1940).

319 U.S. 624 (1943).

It’s my favorite, anyway.

Exodus 20:4-5 (King James Version).

319 U.S. at 642 (1943).

Virginia Statute for Establishing Religious Freedom (1786), in Encyclopedia Virginia (2012), available at http://www.encyclopediavirginia.org/Virginia_Statute_for_ Establishing_Religious_Freedom_1786.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).

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

April 2021

DICTA

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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 mwatson@knoxbar.org.

KENNERLY, MONTGOMERY & FINLEY P.C. ANNOUNCES FIRM CHANGES Kennerly Montgomery & Finley is proud to announce selection of Kathy Aslinger as the Firm’s Managing Shareholder. Kathy, the first female to assume this role in the Firm’s 100+year history, succeeds fellow UT classmate Rob Quillin, who will continue to practice after ten years of service on the Management Committee. Kathy leads the Firm’s Employee Benefits, Pension, and ERISA Law practice and has served as deputy Managing Shareholder for three years. Joining Kathy on the Management Committee is Michael Kelley, former City of Knoxville Law Director, who practices Civil Litigation, Bankruptcy, and Municipal Law. CMC PEACE OUT VIRTUAL 5K/15K Kick off your spring with the Community Mediation Center’s inaugural Peace Out Virtual 5K Run/Walk or 15K Bike. This event will take place April 10th through April 24th, 2021. With each registration, Compassion Closet of East Tennessee will receive a pair of Bombas® socks to give to adoptive and foster families in East Tennessee. Register here: https://runsignup.com/Race/TN/EverywhereUSA/ThePeaceOutRun. KBA CLASSIFIEDS EXPANDED TO INCLUDE LAW STUDENT INTERNS Reliable help when you need it! Have you ever been short on time and in need of help to reach a deadline? Do you ever wish you could delegate tasks like research and writing so that you could better focus on practicing law? In short, do you need an intern? We want to help! The KBA has updated our Classifieds and added the option to post listings specifically seeking law student interns. We have been working closely with the law schools who have expressed that students are desperate for internships and opportunities to gain experience while in law school. Law students will benefit from this invaluable exposure to the local legal community.

Students may post their resumes and signify that they are seeking internships. Attorneys and law firms will have the ability to post intern listings

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and browse resumes of eager 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 at www.knoxbar.org.

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons.

It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE: • 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.

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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 jfanduzz@gmail.com for inquiries.

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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) 805-1911.

DICTA

April 2021

LONG WINDED By: Jason H. Long London Amburn

HOPE SPRINGS ETERNAL The NCAA basketball tournament is my favorite sporting event of the year (the British Open is a close second). There is nothing to compare with the first weekend of the tournament, when everyone’s hopes remain alive. Anyone can win, and even the lowliest teams, if they get invited to the Dance, have a chance for glory. The following weekend tests whether Cinderella stories will continue as dominant players and teams start to emerge to show who is in control. The Final Four presents college basketball played at its highest level, culminating in the cutting down of nets and the ever-cheesy “One Final Moment” montage. It is three weeks of drama and excitement unfolding like a best-selling novel.

For my money, it’s the nearly perfect sports tournament.

I say “nearly” because there is one obvious flaw. Did you know that, in its entire history, 91 different teams have reached the Final Four of the men’s NCAA Basketball tournament? Not a single one of them was named the Tennessee Volunteers.

North Carolina (a team I despise) has gotten there 20 times. Kentucky, a team I dislike even more than North Carolina, has made it 17 times. Drake has made a Final Four. Santa Clara has made a Final Four. Jacksonville, Duquesne, George Mason, Princeton, Rutgers, Seattle, and St. Bonaventure have all made the Final Four. San Francisco, Bradley, and Loyola-Chicago have all made it multiple times. So, can someone please explain to me why our beloved Volunteers can’t get there?

This is a school that has produced Bernard King, Ernie Grunfeld, Reggie Johnson, Dale Ellis, Allan Houston, Tony White, Chris Lofton, and Grant Williams, just to name a few. For God’s sake, we even had Tom Boerwinkle. How is it possible none of these guys could get to the Final Four? The closest we ever got was in 2010 when we reached the Elite Eight, for the only time in school history (Ernie and Bernie couldn’t even make the Elite Eight? Really?).

That year, we lost to Michigan State by a single point. I remember thinking, “That’s ok. Coach Pearl is building something really special here. We’ll be back and breakthrough soon.” Then Coach Pearl lied to the NCAA, and here we are eleven years later. In 2018, every single good team in our region lost in the first weekend of the tournament, clearing a path for a team led by Grant Williams and Admiral Schofield to march right into the Final Four. Then we blew it against LoyolaChicago and that “lucky nun” the media fell in love with. (For the record, I have the utmost respect for nuns and the work they do. I was educated by nuns and know them to be devout and godly people. Still, I could barely tolerate the barrage of stories about Sister Jean and how the team was inspired by her. “Forgive me, father, for I have sinned . . . I had evil thoughts about Sister Jean.”)

Every year with Tennessee, basketball is a roller coaster ride. Do we put a good product on the floor this year? What players are staying and which are going? Will the freshmen develop in time to contribute?

Can we win the SEC? Will we make the tournament? Could this be the year? Basketball teams, unlike football teams, are small and intimate.

April 2021

You can get to know the players. You can observe their development and see clearly how they contribute to the whole. My family has watched virtually every game John Fulkerson and Yves Pons have played while wearing orange jerseys. JR and I learned how to cook crepes from Yves’ cooking show. We have followed and commented upon Fulky’s changing hairstyle for the past four years. They are like members of the family, and we so desperately want them to succeed. It is painful when they come up short, we say goodbye to players we love, and then the process repeats itself.

All of this makes this year so much more painful than most. We have a team of really good guys. Guys who are easy to like and to pull for. They seem to like each other as well. The preseason hype for this team was through the roof.

We arguably had the best recruiting class in school history, with superstar prospects Keon Johnson and Jaden Springer coming in to play with the likes of established veterans Pons, Fulkerson, and James.

Victor Bailey transferred in, as did EJ Anosike, both promising to provide immediate impact. Santiago Vescovi would have another year of sharpshooting under his belt, and we even had a legitimate sevenfooter in Uros Plavsic, if needed. Through midJanuary, the college basketball world was praising this team and its suffocating defense. We were on the very short list of teams predicted to win it all.

And then, inexplicably, the wheels came off. We were losing games we shouldn’t lose. Unable to score points for long stretches of time. Tennessee was not just losing but was getting blown out, and we limped to the end of the year, barely winning half of our remaining games.

If that were the end of the story, I could probably accept it. The team just got into a funk and couldn’t get out of it. However, this team still shows flashes, albeit brief, of the magic that made them a preseason favorite to win the SEC and compete for a national championship. And so, another roller coaster ride will begin: watching a team potentially good enough to win it all, despite what the odds and their recent playing history says.

Please forgive the non-legal focus of this column (let’s be honest, no one reads my column to gain legal insight anyway). The COVID interruption of the tournaments last year was difficult to bear. I, like many fans, have been waiting a year for this tournament, and the anticipation is great. Once again, I find myself praying this is the year it happens. Maybe this is the year Tennessee makes the Final Four. As with every other difficult aspect of this past year, hope springs eternal.

Side note - In my last column, I posited a trivia question, asking readers to identify the three words in the English language that begin with the letters “dw” (dwell, dwarf, dwindle). Upon publication, I received multiple emails from readers pointing out that I had missed a fourth word: “dweeb.” By definition, the fact that you took the time to correct me probably makes you a dweeb. Nonetheless, you are correct, and I appreciate the education.

DICTA

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

PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney Legal Aid of East Tennessee

PRO BONO BASICS

Rule 6.1 of the Tennessee Rules of Professional Conduct encourages yearly “pro bono service.” Specifically, Rule 6.1 recommends a minimum of 50 hours spent serving our community each year. We are all familiar with this exhortation to provide these pro bono services, many do not know the rules governing pro bono representation and the benefits available to volunteers.

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While preparing for this piece, I read a fabulous article by my predecessor, Kathryn Ellis. Once inspired by Terry Woods’ “You Should Put that in a DICTA,” Kathryn graciously gave permission to revisit past articles and give a quick and easy pro bono service outline.

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You can earn one hour of ethics CLE credit for every five hours of pro bono service you report. You may earn up to three EP credits this way per year. [Tenn. S. Ct. R. 21 § 4.08(c)]

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To qualify for CLE credit, pro bono service must be provided through an “approved legal assistance organization.”

The Pro Bono Project at Legal Aid qualifies under these rules, and we are happy to record and report hours earned through our program to the Tennessee Commission on Continuing Legal Education.

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You can withdraw from a pro bono case!

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To refer a case to us, simply call me at (865) 251-4951 or email CTORNEY@LAET.ORG. We will reach out to your client and ensure they meet our eligibility guidelines and have them sign a few forms.

You are eligible for primary liability coverage for any case you take through the Pro Bono Project.

First and foremost, we try to reach out to attorneys to ask them to take specific cases on an individual basis. If you would like to be on our list to contact regarding a specific type of case, please let us know. We are always looking for attorneys interested in name changes, agreed adoptions, estate planning, conservatorships, and help with driver’s license reinstatement. You can email me at CTORNEY@ LAET.ORG You can also look online to browse cases based on service area or subject matter at www.laet.org/pro-bono-matters.

We update cases regularly so check back often to see the latest case opportunities.

You can also earn CLE credit by volunteering to give legal advice at one of our many clinics. Especially as covid restrictions are relaxed, we hope to resume the regular Saturday Bar clinics, Veteran’s Clinics, and Faith and Justice Clinics. But in the interim, we still offer many of these clinics as phone clinics. To learn more about upcoming clinics, please check out the KBA’s website, this column in DICTA, or reach out to me directly!

Upcoming Clinic Opportunities:

The same rules apply to withdrawing from a pro bono case that apply to withdrawing from a fee-generating case.

[RPC 1.16]

You do not have to do everything a pro bono client wants!

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Provided you only collect fees from the adverse party instead of your client, you are free to collect attorney’s fees in a pro bono case. Please be aware that if you do collect a fee, you will not be eligible for CLE credit.

10. You can dedicate time to provide legal advice at a clinic!

You can help the Pro Bono Project by referring cases to us! More cases reported in the area allows us to secure continued grants and funding to expand our program and serve area residents.

You are covered under Legal Aid’s Malpractice Insurance!

Security for costs is waived by TCA § 20-12-127, and Tennessee Supreme Court Rule 29 creates a presumption of indigency for litigants who meet “the Legal Service’s Corporation poverty guidelines,” which includes all clients referred for pro bono assistance through the Pro Bono Project.

There are many ways to take a case for the Pro Bono Project.

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Referring pro bono cases to us helps ensure that you can get CLE credit for your reported hours. You can also avoid being surety on a cost bond, and you are eligible for the other benefits of handling a case through the Pro Bono Project.

By agreeing to assist a client on a pro bono basis, you are agreeing to not seek payment from the client for your services. This does not mean you are required to spend money on a client’s filing fees, cost bonds, etc.

You may seek attorney’s fees in pro bono cases!

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Attorneys who complete between 25 to 49 hours of pro bono service in a year qualify for a free 1-hour Lunchand-Learn seminar provided by KBA. Attorneys with over 50 hours of pro bono service in a year qualify for a free 3-hour extended KBA-sponsored seminar.

You can refer a pro bono file to us!

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You can earn free CLE from the Knoxville Bar Association!

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You do not need to pay expenses for a pro bono client!

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You get CLE credit for pro bono work!

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have merit and what actions should be taken just because your client is indigent. [RPC 3.1]

Your ethical duty to perform pro bono services does not eclipse all other ethical obligations. You are not required to sacrifice your professional judgment about what claims

DICTA

Veteran’s Phone Clinic:

Wed. April, 14 (12:00 – 2:00) Wed. May 12 (12:00 – 2:00)

Faith and Justice Phone Clinic: Tues., Weds., Thurs. April 13 – 15

Email: ctorney@laet.org or sign-up through the KBA’s website

April 2021

TELL ME A STORY By: Kathy D. Aslinger Kennerly, Montgomery & Finley

MY UNUSUAL JOURNEY TO ERISA ATTORNEY When I graduated from law school, if anyone had asked if I could see myself as an ERISA attorney and/or the Managing Shareholder of a mid-sized law firm, I likely would have asked, “What’s ERISA?” before telling them they must be nuts. So how did I get here?

Like most new law grads, I was willing to keep my options open, but I had known after my second year of law school what I really wanted to do: be a prosecutor. I applied for jobs at DA’s offices all over Middle and East Tennessee, but nothing came my way. Thankfully, I received a job offer I couldn’t turn down as a judicial law clerk for Judge Herschel P. Franks on the Tennessee Court of Appeals. After a year, I had the opportunity to transition from civil law to criminal law, and I become a judicial clerk for Judge David Welles on the Tennessee Court of Criminal Appeals in Nashville.

I loved being a judicial clerk. The judges I worked for were amazing mentors, I got to work on important cases that helped develop law, and my writing skills grew by leaps and bounds—thanks in no small part to my fellow UT classmate and judicial clerk Amy Frogge, who is one of the best editors I know. I still think being a judicial clerk was one of the best jobs I’ve ever had, despite the well-meaning friends and family who, upon learning I worked as a “clerk,” assured me than one day I would get lucky and be hired as a “real” attorney.

When my clerkship was over, I accepted a position with the Criminal Justice Division of the Tennessee Attorney General’s Office.

Over the next four years, I handled criminal appeals before the Tennessee Court of Criminal Appeals and the Tennessee Supreme Court. Like clerking, this was a great experience, although I didn’t truly understand what a unique opportunity I had at the time. Years later, shortly after I joined Kennerly Montgomery, it dawned on me when one of the attorneys at my firm asked me how many appellate cases I had handled, and I saw the look of surprise on his face when I replied, “I don’t know, probably a couple hundred.” (LEXIS later told me it was 224.)

Apparently, that is somewhat unusual.

As much as I enjoyed my appellate work, I never lost the desire to be a trial-level prosecutor, so when an Assistant DA position became available in Nashville, I jumped. I still remember how scared I was on my first day navigating General Sessions Court, and how silly I felt being nervous when appearing before the appellate courts didn’t faze me.

Thankfully General Sessions Court, like the appellate courts, became easier with time and experience.

After just a year at the Nashville DA’s office, my personal life led me back to East Tennessee, where I spent three more years fulfilling my law school dream as an Assistant DA. During that time, I learned how to try cases, think on my feet, and jump straight into a hearing while knowing very little about the facts of a case. As with all things, there were April 2021

parts that I enjoyed and parts I didn’t, but I am happy to have had the opportunity to learn and grow as an attorney. I will always cherish the relationships I built in those years.

Eventually, however, I reached the point where I knew that my career needed to take a new direction. After eleven years as a government attorney, I didn’t know where to start. George Waters, an Assistant Public Defender I worked with frequently, handed me a business card for Michael Kelley, a shareholder at Kennerly Montgomery, and told me to give him a call. When I protested that I didn’t know how to practice civil law, George reminded me that much of the practice of law is research and writing, and I already knew how to do that.

Taking George’s advice, I called Michael, met with the shareholders at Kennerly, and ultimately took a giant leap of faith. Kennerly did the same, as it had never hired an elevenyear attorney with virtually no civil law experience before.

That first year was hard. Very hard.

I knew how to pick a jury, but not how to prepare interrogatories or schedule a court reporter. I asked questions like a first-year associate, and I’m sure I frustrated the attorneys with all the things I didn’t know. One day, I was tasked by another shareholder, Bill Mason, with researching an issue related to ERISA. By this time, I think I had at least heard of ERISA, but I certainly didn’t know much about it. Bill, on the other hand, had spent 40-plus years developing his employee benefits practice, and (lucky for me) had knowledge and an amazing amount of patience to spare.

With one assignment, my transformation from prosecutor to ERISA attorney began. Little by little, things started to click. The more I explored this odd, often overlooked area of the law, the more I discovered it fit my personality. Much of an ERISA practice involves identifying issues, finding solutions, and correcting errors, and I’ve always liked puzzles and problem solving. I recognize that it’s quirky, but I also enjoy the tedious, technical deep dives into research that ERISA requires, which can sometimes result in hours of scouring the Internal Revenue Code and Treasury Regulations for answers. A local attorney once told me that he would rather “eat glass” than be an ERISA attorney (you know who you are!), but I find it fascinating and am not ashamed to admit it!

Kennerly must have been pleased with my transition into the world of ERISA and employee benefits, because after a few years, I was invited to become one of the shareholders of the firm. A few years after that, I joined the Management Committee, and just last month, I assumed the role of Managing Shareholder.

Life doesn’t always turn out like you expect, and for that I am grateful. Thank you to all who have helped me end up where I am today. I can’t wait to see what happens next.

DICTA

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