DICTA. December 2020 by Knoxville Bar Association

Management Counsel: Law Office 101: Those Wonderful Little Blisters . . . Page 11 Schooled in Ethics: New ABA Ethics Opinion on Conflicts of Interest Arising from Personal Relationships . . . Page 13

A Monthly Publication of the Knoxville Bar Association | December 2020

FIRST STEPS OF THE FIRST STEP ACT

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

Gail ASHWORTH (615) 254-1877

Bob ARRINGTON (423) 723-0402

Hon. Daryl FANSLER

(865) 546-8030

Paul HOGAN Jr. (865) 546-2200

Dana HOLLOWAY (865) 643-8720

James LONDON (865) 637-0203

Richard MARCUS (423) 756-0414

David NOBLIT (423) 265-0214

Sarah SHEPPEARD (865) 546-4646

Mark TRAVIS (931) 252-9123

William VINES (865) 637-3531

Howard VOGEL (865) 546-7190

Check preferred available dates or schedule appointments online directly with the stateâ&#x20AC;&#x2122;s top neutrals TennesseeMediators.org is free, funded by members

DICTA

December 2020

In This Issue

Officers of the Knoxville Bar Association

December 2020

COVER STORY 16

First Steps of the First Step Act

CRITICAL FOCUS 5 President Hanson R. Tipton

President Elect Cheryl G. Rice

Treasurer Jason H. Long

Secretary Loretta G. Cravens

KBA Board of Governors Sherri DeCosta Alley Jamie Ballinger Mark A. Castleberry Hon. Kristi Davis

Elizabeth B. Ford Rachel P. Hurt Allison Jackson Elizabeth (Betsy) Meadows Robert E. Pryor, Jr.

Immediate Past President Wynne du Mariau Caffey-Knight

Michael J. Stanuszek Amanda Tonkin Elizabeth M. Towe Mikel Towe

A Time of Thanks

Judgment Collection Basics

Those Wonderful Little Blisters

7 11 13

Practice Tips

Management Counsel Schooled in Ethics

New ABA Ethics Opinion on Conflicts of Interest Arising from Personal Relationships

The Knoxville Bar Association Staff

President’s Message

Legal Update

Constitutionality of the Caps–Part 2

WISDOM 6

For There to be a Way, There Must be a Will

Avery Lovingfoss

Cheryl Rice – Ready To Serve

Racial Equality: A Knoxville View

Zero Bucks Given for Zero Hucks Given: A Tale of the Doobie Brothers and the Murray Brothers

Evelyn Hazen Courts Courtship

The Past, Present, and Future

As Heard in the Courthouse Café: A Reminisce

Cooking with Yves Pons

iPhone 12 – Back to the Future Phone?

John Lewis and The Power of Hope

The Perils of Politic

One Last Run

Odds & Ends

8 9 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 Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe

Managing Editor Marsha Watson KBA Executive Director

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. December 2020

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18 19 21 23

Volume 48, Issue 10

DICTA

Around the Bar

24 25 26 27 29

Hello My Name Is Attorney Profile

What I Learned About Inclusion and Why It Matters Legally Weird

Urban Legends

The Noblest Profession

Of Local Lore and Lawyers Barrister Bites

Bill & Phil Gadget of the Month Well Read

Your Monthly Constitutional Outside My Office Window Long Winded

COMMON GROUND 4 20 22 22 28 30 31

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

SECTION NOTICES & EVENT CALENDAR

Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Mediation Practice & Ethics Update 2020” on December 1 featuring Chad Hatmaker. 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. Join the Bankruptcy Law Section for the CLE program “Bankruptcy Case Law Update” on December 17 featuring Tom Dickenson & Greg Logue. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (2922307) 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 in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law section for the CLE program “TN Family Law Update” on December 8 featuring K.O. Herston. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service 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 2018 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Courtney Walker (292-2307) or Chuck Sharrett (637-0203). Senior Section The KBA Senior Section generally meets quarterly for lunch. 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. 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).

DICTA

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December

1 Law Office Tech Committee 1 ADR Webinar CLE 4 Ethics Bowl CLE 8 Tennessee Family Law Update CLE 8 Professionalism Committee 9 Diversity in the Profession Committee 9 Barristers Holiday Party & Elections 10 Succession Planning CLE 10 Judicial Committee 11 Annual Meeting & Elections 15 Evidence CLE Webinar 17 Bankruptcy Law Update CLE

January

5 Law Office Tech Committee 12 Professionalism Committee 12 Access to Justice Committee 13 Diversity in the Profession Committee 13 Barristers Planning Meeting 14 Judicial Committee 20 Board of Governors 26 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.

December 2020

PRESIDENT’S MESSAGE By: Hanson R. Tipton Watson, Roach, Batson & Lauderback, P.L.C.

A TIME OF THANKS It is difficult to believe that I am writing my final President’s Column for DICTA. Just like everyone else’s, my perception of time has been distorted in this strange year. In some ways, life before COVID-19 seems like it was five years ago. But it also feels like this year has ZOOMed by. (Sorry, I think I have done a pretty good job of keeping my terrible dad humor out of this column, but I had to get that one in.) When you are reading this, we will have just celebrated Thanksgiving, which is my favorite holiday. So in the spirit of expressing gratitude, please indulge me one more time. As I was telling friends and family about my daughter’s most recent college visit trip over Fall Break, I mentioned that this is a weird year to be visiting colleges, but I caught myself and added, “This is a weird year to be doing ANYTHING.” The COVID-19 pandemic continues to disrupt all of our lives in nearly every way, professionally and personally. Thanks to the tireless work of our local judiciary we are finally starting to try cases in front of juries again, but it has been a year of major adjustment for all of us. And serving as bar president has certainly been no exception. As I wrote in these pages a few months ago, I was amazed by how quickly and how well the KBA was able to transition to a mostly virtual existence this year. I cannot thank Tracy, Rebecca, Jonathan, Elisabeth, Tammy, and Marsha enough for their hard work in making the virtual move not only possible but successful. From the earliest days of the pandemic when we added the COVID-19 resources page to the website, our staff has kept the KBA operating and kept our members informed and connected. Conducting our meetings and special events remotely has taken a lot of work and technical savvy. I know that the KBA staff always works hard, but this year presented new challenges and our staff met them head on. I also need to thank all of YOU for making it work. I have been delighted by the commitment and participation of our committees and sections this year under difficult circumstances. While I have missed the in-person interaction that is so important to our bar, it has been wonderful to see everyone’s smiling faces on my computer screen. The first time I addressed our membership as president at last year’s Annual Meeting, I said “This is YOUR bar” and asked you to invest in it. You have responded. Earlier this year Marsha was lamenting that I had been “robbed” of my bar president year, and I told her I didn’t see it that way. Sure, I have missed out on some of the events that make it so rewarding to serve as president, but I have also had a truly unique opportunity to do some things that no KBA president has ever gotten to do. Presiding over Board of Governors meetings on Zoom seemed strange at first, but it has become almost “normal”-seeming now. I thank our excellent and hardworking Board for rising to the challenge of being the first Board in the KBA’s history to meet virtually for most of the year. The Association’s work continued to get done because of the Board’s dedication and flexibility. It has been an honor to serve with all of you. I especially need to thank this year’s Executive Committee, President-Elect Cheryl Rice, Treasurer, Jason Long, Secretary Loretta Cravens, and Immediate Past President Wynne Caffey-Knight for their December 2020

outstanding service and wise counsel this year. In a year that was filled with tough decisions, they answered the call every time. Wynne has continued to be a tremendous resource for me and is an excellent example of continued commitment to the bar after serving as president. I hope to live up to your example, Wynne, and I look forward to continuing to serve on this fine Executive Committee. And Cheryl, I apologize in advance for the mess I have left you. Building the KBA’s 9th Habitat for Humanity house has become an even more special occasion this year, as it was basically the only KBA activity I’ve been able to attend in person. It has been so good to see attorneys and law students face-to-face, in an outdoors and sociallydistanced setting. Thanks to all of you who have given hours and/or days of your time to this noble effort. I know the late Bob Stivers would be proud of what we have done in his honor. Every year I am blown away by what the Knoxville Barristers are able to accomplish and seeing it from this position in 2020 has made it even more impressive to me. Allison Jackson has done a great job as Barristers president and the KBA’s future is brighter than ever. Thanks to all of you who have attended Barristers functions this year. Maybe the most enjoyable moment this year for me personally was the opportunity to celebrate Marsha Watson’s 30th anniversary with the KBA. I am sure there were times in 2020 when it felt to Marsha like it had been even longer, but we are so lucky to have a treasure like our fearless executive director running the show for the KBA. If I did anything this year that you thought was a good idea, it most likely came from Marsha’s brain. Here’s to 30 more years, Marsha! With all this discussion of the “Virtual KBA” I would like to invite you to attend our 2020 Annual Meeting and Elections on December 11 at 8:30 a.m., which – due to local gathering restrictions and recent alarming COVID-19 statistics in Knox County – we will be conducting through Zoom. The KBA Staff and the Board of Governors has worked hard to make a virtual meeting possible, and I am excited to put our plan into action. I have been pleased by the attendance at our committee meetings this year, and I know that some of it has been because it is so easy to attend meetings from the comfort of your own office or home. And this will similarly be the easiest Annual Meeting to attend. The 2020 Nominating Committee has put together a strong slate of candidates as usual, so please be sure to attend the meeting and vote electronically in the elections. If you are unable to attend, the normal absentee voting rules will apply. Look for more information about how to attend and vote in your e-mail inbox or on our website at www.knoxbar.org/events. I will miss seeing you all in person, and I hope it is the last Annual Meeting we have to conduct virtually! Finally, please accept my sincere thanks for the opportunity you gave me to serve as president this year. It has been an honor to serve this organization that I love, and I hope that the membership was pleased with my efforts. I think that the challenges we faced this year and our response to those challenges made us a stronger bar association, and I look forward to continuing to serve in new capacities. I am excited to see what Cheryl has in store for us next year, and I wish her the best of luck.

DICTA

AROUND THE BAR By: O.E. “Sonny” Schow Woolf, McClane, Bright, Allen & Carpenter, PLLC

FOR THERE TO BE A WAY, THERE MUST BE A WILL In probate, as in life, it is often the simple things that cause the most trouble. A critical, preliminary step in any probate is the location and submission to the Court of the decedent’s original last will and testament. Although a copy of a will can be admitted to probate, doing so adds additional hassle and expense. This raises the question of who should serve as custodian of that document, and where it should be kept. More specifically, should the client keep it, or should it be retained by the attorney (or some other advisor) in their files? It should be noted that the decision is entirely up to the client. Nonetheless, there are advantages and disadvantages to each option. Attorney Keeps the Will - Advantages • Attorneys are usually very good at keeping track of paper. Attorneys have the staff, systems and infrastructure to hold and safeguard important documents like wills. Most firms have either a lockable, fireproof safe in their office, or a safe deposit box or vault at their bank. Additionally, firms have the policies and procedures in place to track the location of documents and confirm their deposit and removal. Safeguarding the will is simply an additional service counsel can provide their clients. • Attorneys offer some degree of continuity. It is unlikely that the document will be lost or misplaced in a move or housecleaning, as could happen when the client keeps the will. Additionally, retaining the will ensures that the attorney who prepared it (or at least their firm) will be contacted about the death, and will have the possibility of advising the family regarding the probate. All things being equal, the attorney who prepared the document is usually in the best position to handle the probate. • Perhaps the best argument for the attorney keeping the will is that it can be convenient for the client. They do not have to worry about buying a safe, or putting the will in their safe deposit box. They may be perfectly happy to let their attorney deal with these hassles. There is also a possible confidentiality advantage: keeping the will out of the client’s home eliminates the possibility of a nosy relative or heir discovering it and its terms. Attorney Keeps the Will - Disadvantages • Keeping original client documents is not free, in either time or expense, for the attorney. This investment grows as the number of documents grows. Keeping a few wills for a short time as a convenience for a few clients is one thing; having a system to track and store wills for all of your estate planning clients is another. The attorney will have to keep the documents in a fireproof safe, if not a safe deposit box or vault at the bank. All of this adds up. • Attorneys may leave their firm or retire. Figuring out what to do with a sizeable collection of original client documents will be difficult and costly. At the very least, the firm will need to communicate with each client and give them the opportunity to choose to retrieve their documents or leave them with the firm. Client Keeps the Will - Advantages • Many people want to keep control of their important documents. Relying on another party for such matters, even if that person is their attorney, can be a cause of discomfort. Additionally, clients may have some concern (probably incorrectly) about being charged just to get access to their documents from their counsel. Keeping the will themself can be the simplest and easiest course of action. • From the attorney’s perspective, having the client keep the docu-

ment eliminates much of the effort and expense associated with keeping it. Although counsel should certainly keep copies of signed documents, those do not need to be kept in fireproof storage. In fact, many firms are moving to eliminate paper files, and are scanning and keeping copies of client documents electronically. • In our mobile society, people can expect to move at least once in their life. If they already have their documents, there is no need to go through the hassle of retrieving them from their counsel prior to the move. Client Keeps the Will - Disadvantages • People lose things. Frequently, important original documents will go missing as part of the “purge” when people move into assisted living or a nursing home. This is perhaps one of the best arguments for having the attorney keep the original will – it will survive until it is needed. • Occasionally people will, intentionally or unintentionally, make handwritten changes and revisions to their original will. Previously, this might have invalidated the will in its entirety. Courts have recently shown some willingness to accept wills with handwritten notations on them, but it is still risky. Counsel can ensure the original will is kept safe and intact. If the Client Keeps the Will, Where Should They Keep It? • A popular choice is a safe deposit box, which is probably the safest choice from a physical security perspective. The obvious disadvantages are cost and hassle. The bank will charge a fee for the box. The client will also have to keep up with the key to the box, and will have the inconvenience of needing to visit the bank to review or retrieve the will. An additional consideration is who can access the box after the client’s death. Tennessee Code Annotated Section 452-905 requires a bank to permit an unauthorized person to access the box for the sole purpose of retrieving an original will. Nonetheless, it is preferable for a family member to be specifically authorized to access the box so that they will be able to quickly retrieve the will after the client’s death. • A fireproof safe or document box is a good choice as well. The primary concern is fire protection, so a large, heavy safe integrated into the structure of the home is not necessary. The client should be sure that someone else has (or knows how to find) the combination to the safe. • At the very least, the original document should be kept in a safe and secluded space in the client’s home or office. A desk drawer is a perfectly acceptable solution. Many people will keep their wills in the same place as other important papers, such as insurance policies or investment records, so that everything will be in one place for their executor. Although it sounds unusual, some people keep their important documents in the freezer (hopefully in a plastic bag) under the theory that it will be the last place to burn in the event of a fire. The point is that the location needs to be accessible, but not so accessible that the document will be accidentally moved or destroyed. Regardless of who keeps the document and where it is kept, it is essential that the client let their family or advisors know where the original will is located. This will hopefully avoid a panicked search for the document after their death, and ensure that their probate can get off to a good start.

DICTA

December 2020

PRACTICE TIPS By: Charles D. Waller Lipsey, Morrison, Waller & Lipsey, P.C.

JUDGMENT COLLECTION BASICS You have obtained a money judgment for your client, but the defendant has not paid it yet. How can you turn your money judgment to actual money? This article provides an introduction to the three most commonly used executions for attorneys who don’t often use collection procedures to satisfy their judgments. Be aware that other areas of the law could be applicable to your case, including the Fair Debt Collections Practices Act or the Bankruptcy Code. Before you begin your collection campaign, ensure that your judgment is final. Assuming active litigation has concluded, the most direct way to satisfy your judgment is a bank levy. A bank levy is an order for a bank1 to seize money in the defendant’s account and pay it to the court.2 You can obtain a levy form from the court clerk. On the form you will include basic information about the parties and the amount due from the defendant. The form also includes important notices for the defendant and the bank. You will need to pay two fees when you file the levy, a clerk’s fee and a sheriff ’s fee. The clerk will issue the levy and send it to the sheriff of the county where the defendant’s bank is located.3 A levy is served upon a bank the same way you would serve a summons on a company. Once served, the bank should seize all of money in the defendant’s account at the close of business on the date of service, not to exceed the amount due on the judgment.4 The bank has ten days to file its answer to the levy, but up to thirty days to send the money to the court.5 The clerk is required to hold the money for at least twenty days before it can be released.6 In my experience, it will take approximately two months to see the levied funds. Not all money in a defendant’s bank account can be seized to pay your judgment. Some money is exempt from levy. Retirement pensions, social security benefits, veteran’s benefits, unemployment benefits, and other government benefits are considered exempt from collection, which means they cannot be seized, even if with a valid judgment.7 Most banks won’t seize their customer’s money if it is clearly exempt, but if they do, the defendant can get the money back by filing a motion to quash.8 In addition to the forms of income that are automatically exempt, defendants can designate up to $10,000.00 in other money as exempt by filing a notice of exemptions before the levy is issued.9 You have probably seen the exemption notice before; it’s that block of uninterrupted text that gets added to any summons.10 The trouble with bank levies is that your defendant may not have any money in the bank or no bank account at all. But if they are working, you can seize a portion of their wages. The procedure for filing a wage garnishment is the same as filing a bank levy. If your defendant is working and making more than $217.50 per week, the garnishment will take 25% of their wages.11 The garnishment will last for six months, or until the judgment is paid. After the six month period is over, you have to start again. Judgment debtors can stop the wage garnishment by filing a motion to set installment payments.12 In such a motion, the defendant asks the court to pay a set amount of money each month in lieu of being garnished. The defendant will have to justify their proposal with December 2020

information about their assets and debts. If you think their suggested amount is too low, you can argue for a higher payment. The court will make its ruling based on the debtor’s income and expenses. The court is required to set the hearing within fourteen days.13 The size of your judgment is not the primary focus, but it is relevant.14 If you cannot locate a suitable bank or employer, consider a personal property levy. If the defendant owns valuable personal property, you can have it sold and the proceeds applied to your judgment.15 You will have to know what property the debtor has and where it is located.16 The same form you used for the bank levy or wage garnishment will work for your personal property levy. Once seized, the sheriff will sell the property at a sheriff ’s sale. Wage garnishments and bank levies are the simplest executions because they seize money directly. Liquidating the defendant’s property involves other hurdles. First, the property might not be owned solely by your defendant; the property could be owned jointly with a third-party. Second, the property could already be subject to a lien by another creditor. The most easily sold personal property is a vehicle, but those often have a purchase money security interest lien noted on the title from a finance company or bank, which could exceed the value of the vehicle. The sheriff may require a title report showing no liens noted.17 Last, the property could be exempted by the defendant. The $10,000 exemption mentioned above can be used for personal property also. If you are able to locate non-exempt personal property owned solely by your defendant free of liens, you still have to get someone to buy it. If attendance at the sheriff ’s sale is low, the property you levied may not be sold at all. These are the three most common executions, but others exist.18 There is no limit to the number of executions you can file but there is a time limit. If you don’t finish collecting your judgment within ten years, file a Rule 69.04 motion to extend the judgment, or your campaign will be at an end. Or other financial institution.

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DICTA

Tenn. R. Civ. P. 69.05. Tenn. R. Civ. P. 69.05(2). It is unclear if private process servers can serve executions. See Tennessee Attorney General Opinion 02-079. Tenn. R. Civ. P. 69.05(3). Tenn. R. Civ. P. 69.05(3). Tenn. Code Ann. § 26-2-404. Tenn. Code Ann. § 26-2-404. Tenn. Code Ann. § 26-2-407. Tenn. Code Ann. § 26-2-103. Tenn. Code Ann. § 26-2-114(c). Tenn. Code Ann. § 26-2-106. Tenn. Code Ann. § 26-2-216. Tenn. Code Ann. § 26-2-216(b)(2). Harrington v. Harrington, 759 S.W.2d 664 (Tenn. 1988). Tenn. R. Civ. P. 69.06. You can conduct post-judgment discovery under Rule 69.03 for courts of record or Tenn. Code Ann. Section 16-15-712 for general sessions courts. You can obtain this report from the Tennessee Department of Revenue. For example, execution against real property. See Rule 69.07 and Tenn. Code Ann. § 26-2-301.

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

AVERY LOVINGFOSS This month, we are introducing KBA and Barristers Member, Avery Lovingfoss, an Associate Attorney at Brock Shipe Klenk, PLC. Avery is a 2019 graduate of the University of Tennessee College of Law, and she received her undergraduate education at East Tennessee State University, majoring in Philosophy (Honors) and minoring in Legal Studies. Although she currently practices civil litigation, Avery also has a background in criminal defense law and is a member of the National Association of Criminal Defense Lawyers. What do you enjoy most about your work? I really love the environment my firm has cultivated. Coming into a firm everyday where people are genuinely happy to be there and are invested in teaching each other has been phenomenal. I feel extremely lucky to work with a team of not just outstanding lawyers, but outstanding people. What is the best thing that happened to you this year? My husband, Eli Lovingfoss, and I got married! COVID-19 prevented us from having the wedding we planned (I didn’t even have my dress because everything was locked down). But it was still the best thing to happen all year because at the end of the day, we did the “important part” and got married. We had the wedding in our apartment with all our friends and family attending remotely by Zoom, ate takeout food afterwards, and my grandmother brought us a gorgeous homemade wedding cake. Come next April, on our one-year anniversary, we plan to have a “real” wedding, which should just be a giant party… I think everyone is going to need an open bar after this is over. Tell me about your spouse. I took the phrase “if you can’t beat ‘em, join ‘em” to heart and married the only man who could best me on a law school exam. We graduated law school together and now work for the same firm. He does transactional work, and I do

litigation. He is by the far the smartest person I have met and frustratingly humble about it. People often tell us they would not want to work with their spouse, but I really love having my best friend beside me every day. Also, I have a ready date for any firm event, so it’s a win-win. Do you have pets? Yes, I have two cats and a dog. My cats are Tesla (named for the inventor, not the car), a sassy and large tuxedo cat, and Irene (named for Irene Adler, the only woman to ever outsmart Sherlock Holmes), a short and loud tabby cat. Charlie is our “pandemic puppy,” a 9-month-old Labrador mix. I told my husband we were just going to Young Williams “to look,” and we adopted him that day. Adopting Charlie is the best impulsive decision I have ever made. Describe your hero. Hands-down my mom: She had me at 18 years old as a single mother. She attended college and took me along. I even got to sit in class with her sometimes! She received her master’s degree in education, all while being a very devoted mom. I would not have made it anywhere close to where I am today if she had laid such a strong foundation for me. Now she spends her free time rescuing animals, goats, ducks, pigs, possums, and anything else that needs help. She also fosters neonatal kittens and recently adopted a blind kitten named Pancake. She is the coolest person I know, and I still hope I grow up to be just like her. One last question: what’s your favorite book, and what TV show are you currently watching? My favorite books are the Game of Thrones series, but I am hoping that the books end better than the show! I am currently watching The Great British Bake Off.

DICTA

December 2020

AT TO R N E Y P R O F I L E By: Reuben Pelot Egerton, McAfee, Armistead & Davis, P.C.

CHERYL RICE – READY TO SERVE Since you are perusing KBA’s DICTA, chances are you already know KBA’s PresidentElect, Cheryl Rice. Cheryl has graciously given so much of her time and talents to the Knoxville Bar Association over the years, that I expect most KBA members have already had the pleasure of getting to know her on some level. I have been fortunate to work with Cheryl at Egerton, McAfee, Armistead & Davis for twenty years now. I know with certainty that the KBA membership is very fortunate to have her taking the helm of KBA this December. I have also enjoyed getting to know Cheryl’s husband, Bill Rice, and their two beautiful and gifted daughters, Madison and Natalie. Both our families spent a lot of time at Blue Grass Elementary, West Valley Middle School, and Bearden High school watching our kids grow up. While I had some fun coaching Natalie in T-Ball, both Madison and Natalie went on to become excellent basketball players at Bearden High School. Natalie is about to begin her Senior season at Bearden. Madison went on to play four years at Centre College in Kentucky. Those two apples didn’t fall far from the tree. Cheryl’s daughters came by their athleticism and love for competition naturally - it’s in their genes. Cheryl was a Captain and four-year letterman on George Mason University’s women’s tennis team. She continued to play competitively after moving to Knoxville as part of a local team that represented Tennessee in the USTA Southern Sectionals. Cheryl has continued her love for tennis by serving on the Steering Committee for the Knoxville Challenger Tennis Tournament that brings exciting professional tennis to Knoxville every year (every year not COVID, that is). So where did Cheryl grow up? Well, she ain’t from these parts. Cheryl and Bill both are actually from A LOT of parts. They both moved around often as kids. While Cheryl lived in various places across Virginia and in West Virginia, she finished high school in Northern Virginia and stayed there to attend George Mason, where she met Bill. After graduation, she went straight to law school at George Mason as the youngest member of her law school class and the first in her family to pursue the legal profession. In 1991, Cheryl started her legal career in a medmal plaintiff ’s firm in Fairfax County, Virginia. As a young attorney, she had the opportunity to represent clients from all walks of life, gaining an appreciation for the role lawyers play not only in the justice system, but in people’s everyday lives. In the meantime, Cheryl and Bill were blessed with the arrival of Madison. In 2000, Bill and Cheryl decided to move to Knoxville. They fondly recall their first visit here, and how wonderful they thought life in Tennessee’s beautiful river valley could be for their young family. Twenty years later, they are still here and not going anywhere, she says. She and Bill have now lived in Knoxville longer than either has lived any place else. They both say moving to Knoxville was one of the best decisions made in their almost 30 years of marriage. Egerton McAfee concurs, as I December 2020

expect many others in Knoxville do as well. When Cheryl came to Egerton McAfee, she shifted her practice to predominantly business and estate litigation. Bill joined TVA where he works as a Program Manager. Natalie was born in 2002, and Bill and Cheryl continued raising their family while gracefully balancing their demanding and successful careers with their family life. They spent many hours watching church league, middle school, AAU and high school basketball practices and games, as well as other sports the girls tried from time to time. They also watched as their daughters excelled academically. This October, they celebrated by adding a new member to the family when Madison married her Centre College sweetheart, Sam Shelley. The newlyweds are now launching their careers in the DC area. Somehow, Cheryl managed to balance her busy family life with her commitment to serving the needs of her clients and also generously giving her time to professional, government, and civic organizations. Her service and leadership ranges from the boards of parent-teacher organizations and booster clubs to twice chairing the Governor’s Council for Judicial Appointments. She is a graduate of Leadership Knoxville’s Class of 2017 and has served on the Tennessee Bar Foundation’s IOLTA Grant Review Committee, as President for the Tennessee Lawyers’ Association for Women and the executive committee of the Hamilton Burnett American Inn of Court. And, of course, she has been an active member of several KBA committees over the years, sitting on the Board of Governors since 2016, and now, as President-Elect. A busy KBA bee. A worker bee. Always ready, willing, and able to serve. Cheryl and Bill relax by working in their yard together (although the parts of it they each enjoy are very different – Cheryl loves flowers and gardening– while Bill likes splitting firewood and most anything involving power tools). I know what you are thinking. That sounds more like work than play, but Cheryl also enjoys cooking, reading, and spending time with family and friends. The Rice family enjoys boating, and hiking has become one of Cheryl’s favorite escapes. More recently, during the pandemic, the whole family was at their house. In late March, Madison and Sam began working remotely and wanted to get out of the DC area. They asked if they could spend a week or two in Knoxville. Two weeks turned into almost six months, testing the limits of the home broadband but only strengthening the bonds of family with weekend bicycling trips and daily games of table tennis. (I can only imagine the competitive juices flowing around that ping pong table.) Humble, hard-working, competitive, and giving. Those are the qualities Cheryl will bring to her leadership of the KBA this coming year. A true servant leader. She has consistently shown that in our firm, in our community, and in our profession. That’s just who she is and how she rolls. The KBA is poised to have a great 2021 with Cheryl leading the way. Advantage KBA!

DICTA

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: R. Culver Schmid Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

RACIAL EQUALITY: A KNOXVILLE VIEW I am happy to respond to this request from the KBA as it made me examine my life and where I stand on these important issues. Too often as lawyers we are absorbed in and focused on the circumstances of our practice. The problems of our country will never be resolved unless we are made to look outside the bubbles in which we live. I have lived in Knoxville all my life except when I attended the University of Virginia as an undergraduate student. I graduated from The Webb School of Knoxville, a private college preparatory school which had few African American students. Although the school was founded in 1955, it was not created by Robert Webb as a response to the Brown v. Board of Education ruling. Mr. Webb came from a family of private school educators and recognized the need for a college preparatory school in Knoxville. During the 1960’s Mr. Webb was a private education leader encouraging integration of private schools within the Mid-South Association of Independent Schools. Those of us attending Webb School during Mr. Webb’s tenure know firsthand his commitment to equal rights for all. But as a result of my very privileged upbringing, and the deep roots my family has in this community, I have never been sufficiently challenged by the experience of a truly diverse community. This issue dramatically confronted me during the past few months as I heard Black

parents describe how they had to instruct their children how to respond if they were ever stopped by the police. I witnessed in 2020 examples of a relative few of our law enforcement officers (and I do not intend to group all officers in this category) who challenged the civil rights, and at times took the lives, of young Black men. I’ve reflected with horror on how I would feel if my son had been treated in the same way as some of these young Black men. I never had a conversation with my son about how to prepare for a meeting with the police since I never considered that an issue. I thought of my close friend who is Black, a leader in the Knoxville community, and whose son played on sports teams with my son. I reached out to my friend via email to let him know I was thinking about him and his son in these difficult times. I told him knowing that if I was concerned as a White person, I could not imagine the concern he had, and must have held for many years, about what might happen to his son. I let him know I recognized that fact and, while I could not offer immediate solutions, I acknowledged the problem which is the first step towards progress. My friend, true to his character, was most appreciative and told me he felt blessed to have people in his life like me. For a brief moment we experienced solidarity via email. Now the task is to translate that feeling into real action.

DICTA

December 2020

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

THOSE WONDERFUL LITTLE BLISTERS “It’s a funny thing about Mothers and Fathers. Even when their own child is the most disgusting little blister you could ever imagine, they still think that he or she is wonderful.” –Roald Dahl, Matilda

There is a very good chance that Roald Dahl was a very important part of your childhood. His books were fixtures of my early reading years: Charlie and the Chocolate Factory, James and the Giant Peach, Chitty Chitty Bang Bang, The BFG, Fantastic Mr. Fox to name a few. But, in my humble opinion, Matilda is the best, and the part quoted above is the best of the best, because it describes one of the greatest, unexplainably unique characteristics of the human race: the absolute blindness of parenthood. Whether a person becomes a parent by genetics, by adoption, by marriage, or through foster care those blinders are obvious to everyone except the parents themselves. But, hey, we all started out as disgusting little blisters. Some might argue that we still are, but that is not the point of this column. The point is that lawyers and law firm staff are contributing to the continuation of the human race—whether through reproduction or through rearing—and therefore the legal profession must recognize the importance of parental leave to the practice of law. Here are a few thoughts.

The Minimum: “If you do the bare minimum, expect bare minimum results.” –J.J. Watt Since 1993, the Family and Medical Leave Act (FMLA) has required private employers with 50 or more employees within a 75-mile radius to provide eligible employees1 up to 12 workweeks of unpaid leave for (1) childbirth; (2) to care for a newborn during the 1st year; (3) to help a child adjust to adoption or foster care during the 1st year after placement; or (4) to care for a child who has a “serious health condition.”2 If the employer and employee agree, the unpaid leave can be taken intermittently—meaning that it can be taken a day at a time, or even a few hours at a time, which may be helpful for parents who need a more flexible schedule during that first year of parenthood.3 However, the FMLA may not matter to most Knoxville firms. According to the KBA’s 2019 Economics & Law Practice Management Survey, only 16% of the 278 attorneys who responded to the survey indicated they worked in a firm of 25 attorneys or more.4 Therefore, it would seem that the majority of Knoxville’s law firms do not have the fifty employees required to be subject to the FMLA. That may mean your firm is off the hook, legally, but that is not the end of the analysis. The Next Level: “Well done is better than well said.” –Benjamin Franklin

A Final Word: “Equality consists in the same treatment of similar persons.” –Aristotle Don’t forget: the FMLA is gender neutral. FMLA leave is available to any parent facing one of the four situations listed above, not just mothers. Similarly, your firm’s parental leave policy should also be gender neutral. If you don’t believe me, just ask JPMorgan Chase, who paid $5,000,000 to settle a class action lawsuit because they denied male employees parental leave because they were not “primary caregivers.”8 Parental leave should be exactly that: leave for any parent who is responsible for that wonderful, little blister.

Whether or not your firm is covered by the FMLA, most people—both attorneys and staff—cannot afford to go without a paycheck for 3 months. Even if your firm is legally required to provide only unpaid leave—or no leave at all—it is worth asking whether that is the message your firm wants to send to its attorneys and staff. If we say that parenthood is important, it may be time to put your money where your mouth is. It may be your best recruiting tool. According to a pre-COVID Ernst & Young Global Generational Survey, 83% of millennials, which is the largest group of new parents, said they would be more likely to join a company offering parental leave benefits.5 One has to think that a post-COVID survey (yes there will be a postCOVID) will see an increase in that percentage. Here are a few options.

just build the salary into the annual budget. Ramp Up, Ramp Down. Some have adopted an innovative approach for their attorneys, allowing them both paid leave (usually between 8 and 12 weeks), plus the ability to work reduced hours during a period before and after the leave. For example, Duane Morris, LLP attorneys may reduce their hours by 30% during the 4 weeks leading up to a child’s birth or adoption and then have 3 months to reintegrate after paid family leave with a 30% reduction in the first month, then 20%, then 10% in the next 2 months.7 This provides both paid leave and much needed flexibility during that first year. The Hybrid. Smaller firms may be able to utilize a short-term disability policy to reduce costs, at least for maternity leave. Most short-term disability policies will cover maternity leave (probably not paternity leave) and will pay a percentage of the salary for up to 6 weeks. The law firm can make up the difference and then pay the salary for the remainder of the paid leave. Beware Benevolent Paternalism. Roberta D. Lienbarger, senior partner at Fine Kaplan & Black RPC warns firms to be careful of being paternalistic. It may seem kind to not ask an attorney to take on a big case right after they return from parental leave because it will require longer hours or overnight travel. But, if that hampers their career, well it isn’t that kind. Attorneys deserve to make the choice of what is good for them and their families—not the firm.

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Paid Leave. Many of the largest firms have adopted paid family leave policies that give employees between 12 and 18 weeks of paid leave for childbirth, adoption, and bonding during that first year.6 They

To be eligible for FMLA leave, an employee must have worked 1,250 hours for the employer in the preceding 12 months. 29 U.S.C. § 2611(2)(A). 29 U.S.C. § 2601, et seq. The FMLA also provides up to twenty-six weeks of unpaid leave for parents to care for a son or daughter who has been injured or has developed a serious health condition while serving in the military. See 29 U.S.C. §1612(a)(1)(E); (a)(3). 29 U.S.C. § 2612(b). Knoxville Bar Association, Results of KBA Economics & Law Practice Management Survey (Oct. 20, 2019), available at https://www.knoxbar. org/?pg=KBANews&blAction=showEntry&blogEntry=8791. Ronald Alsop, Millennials see Parental Leave as a Priority (N.Y. Times, Nov. 28, 2017), available at https://www.nytimes.com/2017/11/28/well/family/millennialssee-paternity-leave-as-a-priority.html#:~:text=Millennials%20value%20 parental%20leave%20more,a%20company%20offering%20such%20benefits Danielle Nichole Smith, Law Firms ‘Leading the Way’ on Parental Benefits (Jan. 1, 2020) https://www.law360.com/articles/1228293/law-firms-leading-the-way-onparental-benefits-in-2019. Id. Stephen Miller, JPMorgan Chase Settles Paternity Leave Suit Over ‘Primary Caregiver’ for $5 Million (June 3, 2019), https://www.shrm.org/resourcesandtools/ hr-topics/benefits/pages/jpmorgan-chase-settles-paternity-suit-over-primarycaregiver-leave.aspx#:~:text=Benefits-,JPMorgan%20Chase%20Settles%20 Paternity%20Leave%20Suit,Primary%20Caregiver’%20for%20%245%20 Million&text=On%20May%2030%2C%20JPMorgan%20Chase,mothers%20 between%202011%20and%202017.

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. December 2020

DICTA

December 2020

SCHOOLED IN ETHICS By: Judy M. Cornett U.T. College of Law

NEW ABA ETHICS OPINION ON CONFLICTS OF INTEREST ARISING FROM PERSONAL REALATIONSHIPS In the Knox County bar, many lawyers are related to one another or enjoy close personal or professional friendships. When lawyers who have a close personal relationship are on opposing sides of a matter, do they have a disqualifying conflict of interest? A recent ABA Formal Ethics Opinion1 addresses conflicts of interest arising from personal relationships with opposing counsel that may “materially limit” the lawyer’s representation under Model Rule 7.1(a)(2). Comment [11] to Rule 7.1 addresses some relationships: “[A] lawyer related to another lawyer, e.g., as parent, child, sibling, or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.” The new ABA ethics opinion supplements comment [11] by addressing “intimate relationships,” “friendships,” and “acquaintances.”2 Because Tennessee’s Rule 1.7(a)(2) is identical to the Model Rule, the ABA opinion is likely to be persuasive in interpreting Tennessee’s rule.3 Intimate relationships include spouses, those cohabiting in an intimate relationship,4 those who are engaged to be married, and those who are in “exclusive intimate relationships.” When opposing counsel are in an intimate relationship, the conflict is disqualifying unless (1) the lawyers “reasonably believe that they will be able to provide competent and diligent representation to each client,” (2) the relationship is disclosed to each client; and (3) each client gives informed consent, confirmed in writing. The opinion suggests the following test for whether a lawyer reasonably believes he or she can provide competent and diligent representation: Would the lawyer “refrain from filing a well-founded motion for sanctions against opposing counsel?” If so, the conflict is nonconsentable. The opinion also warns that if a lawyer does not wish to disclose an intimate relationship with opposing counsel, such as an extramarital affair, the conflict is nonconsentable.5 Friendships exist on a continuum from friends with whom the lawyer “regularly socializes,” to those with whom the lawyer has only “occasional, brief, or superficial” contact. Lawyers must exercise judgment to determine whether they “reasonably believe they will be able to provide competent and diligent representation to each client.” If the lawyers believe that their friendship poses a “significant risk” that their representation will be “materially limited,” then they must withdraw. A close friendship requiring disclosure and informed consent by the clients exists when the lawyers “exchange gifts at holidays,” “regularly socialize together, regularly communicate and coordinate activities because their children are close friends,” and “routinely spend time at each other’s homes, vacation together with their families,” and “share confidences and intimate details of their lives.” A mentor-protégé relationship is also a close friendship requiring disclosure and informed consent, confirmed in writing. Friendships that may require disclosure but not necessarily informed consent include former law school classmates, former firm colleagues, and those who “periodically meet for a meal when their busy schedules permit

or, if they live in different cities, try to meet when one is in the other’s hometown.” Finally, opposing lawyers may be acquaintances, who do not seek contact with each other, but “greet each other amicably and are cordial when their lives intersect.” Examples of acquaintances are those who see one another at “bar association or other professional meetings” or who “belong to the same country club or gym . . . [or] attend the same religious services.” Those who are merely good neighbors are acquaintances. When opposing lawyers are acquaintances, they are not required to disclose their relationship to their clients, but may choose to do so “to maintain good client relations.” In fact, the ABA opinion suggests, the lawyers could explain that their personal relationship might actually benefit the client by allowing them to “work collegially.” In assessing their compliance with Rule 7.1(a)(2), lawyers who have a relationship with opposing counsel should assess their role in the matter: “A lawyer who is sole or lead counsel in a matter is more likely to have a disqualifying conflict than a lawyer who has a subordinate or tangential role.” Lawyers also must be vigilant to ensure that information relating to the representation is protected against inadvertent disclosure because of their personal relationship, such as by leaving client files open to view or holding telephone conversations within earshot of the opposing lawyer. As comment [11] notes, “disqualification arising from a close family relationship is personal and ordinarily is not imputed” to the lawyers’ firms. However, imputation may occur if other members of the lawyers’ firms also have personal relationships with opposing counsel or “where the personal relationships involve managing partners.” Although the ABA ethics opinion is not binding authority, it offers valuable guidance on assessing conflicts of interest arising from personal relationships. Given the close-knit relationships common in the Knox County bar, lawyers should be alert to personal conflicts and heed the advice of the ABA opinion.

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ABA Formal Ethics Opinion 494 (July 29, 2020). These categories correspond to those established in ABA Formal Ethics Opinion 488 (2019) addressing personal relationships that may require recusal by a judge. Professor Paula Schaefer addressed this ethics opinion in her “Schooled in Ethics” column in the October 2019 DICTA. The Tennessee Supreme Court has not addressed personal relationship conflicts, although Formal Ethics Opinion 82-F-31, decided under the Code of Professional Responsibility, adopted ABA Formal Opinion 340 in holding that spouses who represent opposing parties in litigation are not per se disqualified. The opinion was vacated on September 11, 2015 “due to changes in the law or rules.” According to the U.S. Census Bureau, “’[a]mong young adults 18 to 24, cohabitation is now more prevalent than living with a spouse.’” ABA Formal Ethics Opinion 494 at 2 n.4. The opinion does not address relationships with former intimate partners, nor does it address conflicts that may arise when an intimate relationship ends during the course of the representation.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. December 2020

DICTA

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

ZERO BUCKS GIVEN FOR ZERO HUCKS GIVEN: A TALE OF THE DOOBIE BROTHERS AND THE MURRAY BROTHERS Bill Murray has always made me laugh. I loved him in everything from Saturday Night Live to Ghostbusters to Scrooged to What About Bob and Groundhog Day. I have not kept up with Bill lately, so I did not know that he and his brothers had gone into the business of golf apparel. William Murray Golf was created on the “notion that life and golf don’t have to be so serious.” While “golf can be stuffy and somewhat boring,” William Murray Golf intends to infuse the game with “energy and a little irreverence, while still respecting the game.” So far, so good. I like the concept. I’m envisioning characters like Nick Winters the Lounge Singer singing “Star Wars” (Saturday Night Live), Bob Wiley with Dr. Leo Marvin (“Is this some radical new therapy?”) (What About Bob), or Peter Venkman (Ghostbusters). Sadly, while the line aims to be quirky, there is not much that is obviously Bill Murray, except for a couple of designs (“Caddyshack” and “Where the Buffalo Roam”). William Murray Golf based one of its designs on Mark Twain’s character Huckleberry Finn – the polo shirt is named “Zero Hucks Given.” The ad for this particular shirt plays the Doobie Brothers’ song “Listen to the Music,”1 which you have to admit embodies the company’s philosophy. The song is so carefree, stating “there ain’t nothin’ we can’t do or say.” In fact, there is one thing we cannot do, and that is play the music in marketing our widgets to the masses. The Doobie Brothers want us to listen to the music, but we must not play the music without proper permission and payment and such. Their lawyer, Peter T. Paterno, delivered the following message to William Murray Golf: “It’s a fine song. I know you agree because you keep using it ads for your Zero Hucks Given golf shirts. However, given that you haven’t paid to use it, maybe you should change the company name to ‘Zero Bucks Given.’” He continued: This is the part where I’m supposed to cite the United States Copyright Act, excoriate you for not complying with some subparagraph that I’m too lazy to look up and threaten you with eternal damnation for doing so. But you already earned that with those Garfield movies. And you already know you can’t use music in ads without paying for it. We’d almost be OK with it if the shirts weren’t so damn ugly. But it is what it is. Wow! I apologize in advance to all opposing counsel from this point forward, because this is what all of my letters are going to look like: clever, witty, sarcastic, and honest. I am not sure the Garfield movies jab was necessary, nor was the “damn ugly” characterization of the shirts, but I won’t second guess a lawyer whose job before he went to law school was

writing software for NASA. In his response, Bill Murray’s lawyer, Alexander Yoffe, took the approach of flattery and incorporation of song lyrics into his letter, which is always, and I mean always, the right call: “As your client so aptly stated in this classic song in question, ‘What the people need is a way to make them smile’ – which both Bill and the Doobies have been doing for decades, as world-class entertainers.” He also addressed the substance of the claim by suggesting that the Doobie Brothers were not damaged by the company’s actions: “I am sure that Howard King of your firm, who argued that the song ‘Blurred Lines’ (Robin Thicke, Pharrell Williams and T.I.) did not infringe on Marvin Gaye’s composition ‘Got to Give It Up’, would agree that your client was not harmed under these circumstances.” He closes with an offer the Doobie Brothers could not possibly refuse, which is a wardrobe upgrade: Please provide us with the shirt size for yourself, Tom Johnston, Patrick Simmons, Michael McDonald, and John McFee, along with which of our client’s shirts you find the least offensive, and we will happily upgrade your wardrobes and hopefully win each of you over as new fans of the brand. At least that’s “what this fool believes.” Like everything else that was planned for 2020, the Doobie Brothers have rescheduled their 50th Anniversary Tour with Michael McDonald to 2021. I would like to propose that William Murray Golf design a couple of polo shirts inspired by the Doobie Brothers’ music as a tribute. The shirts can be sold at the concerts, and the profits can be split between the two groups of brothers. What better way to resolve this “damn ugly” dispute?

DICTA

I know what you are wondering, and I get it. How in the world do you design a shirt based on Huck Finn and use “Listen to the Music” instead of “Black Water?” Well, I built me a raft and she’s ready for floatin’; Ol’ Mississippi, she’s callin’ my name; Catfish are jumpin’, that paddle wheel thumpin’; Black water keep rollin’ on past just the same.”

December 2020

L E G A L U P DAT E By: Campbell D. Cox Trammell, Adkins & Ward, P.C.

CONSTITUTIONALITY OF THE CAPS–PART 2

The Tennessee Court Of Appeals holds that T.C.A § 29-39-102(A)(2) applies separately “per plaintiff ” even those making only derivative loss of consortium claims in Yebuah v. Center for Urological Treatment, PLC, 2020 Wl 2781586 (Tenn. Ct. App. May 28, 2020). Background The appellants in this case, Cynthia E. Yebuah and husband Eric N. Yebuah (“the Yebuahs”), filed a healthcare liability action after discovering, many years following gallbladder surgery to address abdominal pain and suspicions of gallbladder disease, that a 14 centimeter ring of a “gelport” device had been left inside Mrs. Yebuah’s abdomen.1 The gelport ring was left from a 2005 surgery to remove a cancerous kidney; it had been noted in a 2006 radiology report but not disclosed.2 In 2018, the Yebuahs dismissed both the doctor who performed the kidney surgery and the radiologist who had noted the “tubular structure” in her abdomen, electing to solely pursue vicarious liability claims against the Center for Urological Treatment (“the Center”), and Radiology Alliance.3 At trial, the trial court directed a verdict for Radiology Alliance, but the claims against the Center went to the jury.4 The jury awarded $4 million in non-economic damages to Mrs. Yebuah for pain and suffering and loss of enjoyment of life, and awarded $500,000.00 in non-economic damages to Mr. Yebuah for loss of consortium.5 The Yebuahs submitted a proposed order entering a total judgment of $4.5 million; the Center submitted a conflicting order which applied the statutory cap and reduced the total damage award to $750,000.00.6 The Yebuahs notified the Tennessee Attorney General that the jury’s verdict had exceeded the statutory cap and asked the trial court for a hearing on the language of the final judgment.7 The trial court elected not to grant a hearing and entered judgment in favor of the Yebuahs in the amount of $750,000.00 without comment.8 The Yebuahs then moved to alter or amend the judgment, arguing that the statutory cap was unconstitutional, and, even if it passed constitutional muster, that the court had applied the caps incorrectly, while the Center moved for a new trial or remittitur, citing multiple errors during trial and that the damages awarded were excessive.9 The trial court declined to order a new trial or suggest remittitur but granted the Yebuahs’ motion to amend in part and entered a judgment in favor of Mrs. Yebuah in the amount of $750,000.00 and Mr. Yebuah in the amount of $500,000.00.10 Additionally, the trial court found that the Yebuahs had waived their constitutional challenge and therefore declined to consider the constitutionality of the statutory cap.11 Both the Yebuahs and the Center raised issues on appeal. The Court’s Ruling Preliminarily, the Court found that the Yebuahs had not waived their constitutional challenge.12 The Court noted that the Yebuahs did not raise the challenge for the first time in their motion to alter or amend, but had raised it before trial in a proposed amended complaint, which they had also served on the Tennessee Attorney General.13 The Yebuahs had agreed to not amend the complaint with their challenge per the Center’s request that the jury not be informed of the existence of the cap.14 The court also disposed of the Center’s raised issues regarding the conduct of trial relating to evidentiary disputes, closing arguments, and excessive damages.15 The Court addressed two main issues relating to the caps: (1) constitutionality, (2) application of the caps “per plaintiff.” a. Constitutionality Rather than remand the case back to the trial court, the Court decided to take up the constitutional challenge on the spot.16 The Court found that the Yebuahs had waived their due process and right to petition claims, citing that they had only developed the “mere skeleton of an argument.”17 Furthermore, while this case was pending on appeal, the Supreme Court decided McClay18, which disposed of the Yebuahs’ arguments that the statutory caps violated the right to trial by jury, the doctrine of separation of powers, and the equal protection provisions of the Tennessee Constitution.19 Therefore, the only constitutional challenge left for the Court was whether the caps violate the takings clause.20 The Court held that the caps did not violate the takings clause, as they did not violate any vested property rights.21 The Court elaborated that a property interest in a cause of action cannot vest until the cause of action has accrued, and the statutory cap only applies to causes of action that accrued on or after the effective date of the statute and therefore December 2020

does not diminish any vested property rights of the Yebuahs.22 b. Application of the Caps “Per Plaintiff ” The Court then addressed the Center’s argument that the statutory caps are meant to be applied to the total award rather than separately to each plaintiff.23 The Court focused on the specific language of the statute, which refers to “each injured plaintiff” to hold that the legislature meant to impose a “per plaintiff ” limit on non-economic damages.24 The Court concluded that the caps were meant to be applied separately per injured plaintiff, rather than to the total award, and upheld the trial court’s application of the caps separately to each plaintiff ’s claims.25 The Court went further to address the Center’s implicit argument that a plaintiff making only a loss of consortium claim should be assigned a “pseudoplaintiff ” status as their claim is derivative from their spouse’s personal injury claim. The Court disagreed with the Center, holding that loss of consortium plaintiffs are entitled to be treated as party plaintiffs and the right to recover for loss of consortium damages is independent of their spouse’s claims for injuries.26 The Court again noted the use of the phrase “each injured plaintiff ” in subsection (e) of T.C.A. 29-39-102 and stated that the section is not meant to preclude a loss of consortium plaintiff from making their own separate claim subject to a separate cap.27 Conclusion Under the Court of Appeals holding in Yebuah, the statutory caps on non-economic damages are to be applied “per plaintiff,” rather than to the total award, and a plaintiff making only a claim for loss of consortium has their own separate claim subject to their own separate cap. Therefore, although a loss of consortium claim is derivative, the award is not calculated into the cap of the non-economic damages of the injured spouse. The Tennessee Supreme Court granted cert in Yebuah on October 8, 2020 and briefing is underway, thus the Supreme Court will soon speak on this issue, and yet another part of the 2011 tort reform legislation will have been addressed by the Court.

Yebuah v. Center for Urological Treatment, PLC, 2020 WL 2781586 at *1 (Tenn. Ct. App. May 28, 2020). 2 Id. 3 Id. at *2. 4 Id. 5 Id. 6 Id. 7 Id. 8 Id. 9 Id. 10 Id. at *3. 11 Id. 12 Id. at 4. 13 Id. 14 Id. at n.3. 15 Id. at *7-10. 16 Id. at *4. 17 Id. at *5 (citing Sneed v. Bd. Of Profl Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010)). 18 See McClay v. Airport Management Services, LLC, 596 S.W.3d 686, 696 (Tenn. 2020) (notably, both the Yebuahs and the Center filed amicus briefs in McClay while their case was pending before the Tennessee Court of Appeals) 19 Yebuah at *5 (citing McClay at 696). 20 Id. 21 Id. at *6. 22 Id. (citing Millis v. Wong, 155 S.W.3d 916, 921 (Tenn. 2005); Morris v. Gross, 572 S.W.2d 902, 905 (Tenn. 1978)). 23 Id. 24 Id. (citing T.C.A. § 29-39-102(a), (c)). 25 Id. 26 Id. at *7. 27 Id. at *7 (citing Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. Ct. App. 1987)). 1

DICTA

FIRST STEPS OF THE FIRST STEP ACT

Since December 2018, the First Step Act1 has been somewhat successful in contributing to the United States’ efforts to halt the prison revolving door and to decrease recidivism rates. It has been exactly as its name describes the legislation, a first step. The initial place to look is the prison population numbers. On March 21, 2019, there were 180,193 people in the custody of the Bureau of Prisons. By October 29, 2020, that number had been reduced to 154,859.2 Despite that decrease, there is remaining work for Congress truly to effect criminal justice reform.3 The First Step Act, which was signed into law in December of 2018, is a 118-page document that sought to improve criminal justice results and to reduce the federal prisons’ populations while maintaining public safety.4 As the DICTA article, A Thank You Note to Charles and Jared Kushner, published in May 2019 summarized, the statute is divided into six titles, covering topics such as compassionate release, recidivism reduction, and sentencing reform. Following up on that article, there have been mixed outcomes as the First Step Act has been implemented. 1. Mandatory Minimums The First Step Act made changes in what prior offenses would trigger the repeat offender penalties under 21 U.S.C. §§ 841 and 960 by redefining what prior convictions would make a person subject to an enhancement.5 Before December 21, 2018, the scheme of mandatory minimums in 21 U.S.C. §841(b)(1)(A), the garden variety possession with the intent to distribute and distribution of controlled substances statute provided for a 10 year mandatory minimum when an offense involved a threshold amount of drugs. The mandatory minimum for that same quantity of drugs rose to 20 years if the person had one prior final conviction for a serious drug felony. (The prior convictions can be federal or state priors.) If the person had two prior final convictions for serious drug felonies, the mandatory minimum was life. The new statute lowers the mandatory minimum for having one prior to 15 years, and those with two priors will now face a mandatory minimum of 25 years. Just having a prior on one’s record does not automatically lead to these enhanced sentences. The United States must file an information giving notice of the prior serious drug felony or serious violent convictions that will be relied upon for the enhanced sentences. The new statute narrows the definition of a prior drug conviction, and the statute clarifies that the offense must have a maximum term of 10 years or more prescribed by law. Additionally, the defendant must have served a term of imprisonment of more than 12 months, and release from that term has to be within 15 years of commencement of the instant offense.

The statute gave to defendants but it also took away. Previously, only drug priors could lead to those enhanced mandatory minimums. Now, “serious violent felonies” may be a basis for a notice of enhancement. The offender must have served a term of more than 12 months on the prior serious violent felony, but, unlike the drug priors, there is no staleness limit. The change in qualifying offenses appears to have made a difference in the number of people receiving these enhanced sentences. In comparison to 2018, from 2019-2020, there were 15% fewer drug-related offense defendants with 21 U.S.C. §851 enhancements applied to their sentences.6 This, in large part, was due to the government’s withdrawing the 851 information in 610 cases from 2019-2020. Only 256 informations were withdrawn in 2018.7 However, the courts also played a role. The courts found that the 851 enhancement did not apply in 134 cases in 2019-2020. In 2018, the courts only found that the 851 enhancements did not apply in seven cases.8 That is a difference of facing a 10-year mandatory minimum, versus a five-year mandatory minimum.9 2. Safety Valve Defendants with a limited criminal history who meet other criteria may escape being sentenced to a mandatory minimum. Under the First Step, there was an expansion of the existing statutory safety valve eligibility criteria in 18 U.S.C. § 3553(f ). As a result, a greater number of drug offense defendants have received relief from mandatory minimum penalties and lower sentences.10 Specifically, 35.7% of drug trafficking offense defendants in 2018 received safety valve relief from the mandatory minimum penalties. From 2019-2020, 41.8% of the defendants charged with those same offenses received safety valve relief. The First Step Act does exclude violent offenders from those eligible and operates on a point system to guide courts when they evaluate a defendant’s prior offenses and role in the offense.11 The change in the number of people receiving safety valve relief is small but very important to those who received the relief. 3. Compassionate Release In 2019 after passage of the First Step Act but before COVID-19, the courts granted a total of 145 compassionate release motions nationwide.12 Before the Act only the Bureau of Prisons was authorized to seek release of defendants based on extraordinary and compelling reasons. In 2018, the courts had only granted 24 motions.13 Section 603 authorizes defendants to file motions for compassionate release pursuant

DICTA

December 2020

COVER STORY By: Alan Aguirre-Rivera FDSET Extern

Beth Ford

Community Defender

The District Court in Eastern North Carolina is responsible for granting 7% (234 motions) of all the motions filed in district courts since the First Step Act passed in 2018. However, district courts in heavily populated places like California and New York do not come close to that number, combining to a sum of 129 granted motions, or 3.9 percent of the motions filed.20 The District Court for Arizona has, also, granted a low number of motions. Another example is the Eastern District of Oklahoma where sentences have been decreased by an average of 8.1%, and the District of Southern California with decreased by 31.3% on average.21 The data does not provide a clear explanation for the disparities in the grants of Section 404 motions. However, the data clearly shows that inconsistencies exist. One possible explanation is that the Department of Justice (DOJ) has made the application of the First Step Act a very inefficient and time-consuming process in some districts. In those districts, the DOJ consistently attempts to block defendants from gaining relief by objecting to all requests or by refusing to enter into agreed orders for defendants who clearly qualify for the relief.22 The same has been true with compassionate release motions, particularly since the pandemic started.

to U.S.C. § 3582(c)(1)(A).14 If the defendants can show that their age, medical condition, family circumstances, or other extraordinary or compelling reasons warrant a reduction in sentence or release to home confinement, the courts can grant a motion for compassionate release.15 Courts have granted motions for compassionate release, most of the time to home confinement, based on the COVID-19 outbreak in federal prisons. In those cases, if defendants have been able to show that their medical conditions put them at serious risk of death or great illness were they to contract the novel Coronavirus, some courts have granted relief. Since March 26, 2020, the Bureau of Prisons has placed 7,729 inmates on home confinement.16 However, it should be noted that over 15,000 federal inmates have become ill due to COVID-19, and 128 have died while in the custody of the Bureau of Prisons.17 Data gathered by the United States Sentencing Commission, the Sentencing Project (www.sententencingproject.org), and the Bureau of Prisons sheds light on sections of the Act that may deserve further attention going forward. Among the issues that remain are differences in retroactive application of the 2010 Fair Sentencing Act, disparities in sentencing, and inconsistent reductions in sentencing. If one were only to examine the size of reductions in sentences, the First Step Act’s retroactive application of the Fair Sentencing Act of 2010 would look as though it had yielded successful results. There has been a 26% reduction in the average sentence reduced pursuant to the Fair Sentencing Act, from 258 months to 187 months in cases brought before the courts under this section of the Act.18 The Fair Sentencing Act of 2010 reduced sentences for those convicted of crack cocaine offenses, but it was not retroactive until the passage of the First Step Act. However, there are significant differences apparent when comparing grants and denials of motions for reduced sentences in crack cocaine cases in the 94 district courts under Section 404.19 December 2020

It is difficult to assess in a short article the successes or failings of a statute which covered as much ground as the First Step Act. The Act also made major changes in how to reduce recidivism by changing programming and implementing the use of risk assessments by the Bureau of Prisons. It will take longer than two years to determine whether there have been positive outcomes. Perhaps, there will be sufficient information for another follow up article in the future. In the meantime, even baby steps in criminal justice reform are welcomed steps.

1 2 3

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DICTA

P.L. 115-391. www.bop.gov. U.S. Sentencing Commission, The FIRST STEP Act of 2018: One Year of Implementation 9-15 (2020), FIRST STEP Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (“FIRST STEP Act”). Bureau of Prisons, The First Step Act of 2018: An Overview, Congressional Research Service, 1 (2019). U.S. Sentencing Commission, The FIRST STEP Act of 2018: One Year of Implementation 7 (2020). U.S. Sentencing Commission, The FIRST STEP Act of 2018: One Year of Implementation 9-15 (2020). Id. at 10. Id. Id. at 8. Id. at 17. Id. at 17. Id. at 46, 49. Id. at 48. Id. at 46. Id. Bureau of Prisons, COVID-19 Cases, (2020). Id. The FIRST STEP ACT of 2018- Summary, ussc.gov, (March 4, 2019), https://www. ussc.gov/sites/default/files/pdf/research-and-publications/backgrounders/RG_Firststep.pdf. U.S. Sentencing Commission First Step Act of 2018 Resentencing Provisions RetroActivity Report, ussc.gov, (Oct. 2020), https://www.ussc.gov/sites/default/files/ pdf/research-and-publications/retroActivity-analyses/First-step-Act/20201019First-Step-Act-Retro.pdf?utm_medium=email&utm_source=govdelivery. Id. Id. Kara Gotsch, One year After the First Step Act: Mixed Outcomes, sentencingproject. org (Dec. 2019), https://www.sentencingproject.org/publications/one-year-afterthe-First-step-Act/.

URBAN LEGENDS By: Sarah M. Booher OEB Law, PLLC

EVELYN HAZEN COURTS COURTSHIP Love is simple. Love is kind. But sometimes, love gets mad and gets even. Evelyn Hazen, the youngest daughter of Knoxville grocer Rush Hazen, sued her ex-fiancé, Knoxville manufacturer and banker, Ralph Scharringhaus, for $100,000 in May 1933 ($50,000 for breach of promise and $50,000 for betrayal into intimate relations).1 The two met at the University of Tennessee in 1913, where she was “prettiest girl on campus” and he pledged his love and engagement to her with his fraternity pin. As it turned out, dating for 15 years and sending her 300 love letters were not enough to get him to seal the deal, so Evelyn took him to court in Covington, Kentucky (reasons for this venue were not entirely made clear), where she introduced over 100 of the letters into evidence in her case.2 Evelyn was represented by Stephen L. Blakely, a local Covington attorney. She asserted throughout the trial that a ceremony was all she ever wanted, that it was all she’d ever asked, and proclaimed even through the trial that she still wanted to marry him. Needless to say, the trial was full of scandal. Ms. Hazen shed many a tear at her trial, so much so that a lengthy recess was taken in the middle of the trial so she could regain her composure. To make matters worse, there was extensive discussion regarding their physical relationship, which was evidently very lively (and far too colorful for a respectable publication such as DICTA), but was also the source of Ms. Hazen’s termination from her teaching job at Knoxville High School earlier in 1932 or 1933. Ms. Hazen endured more than 4 days on the witness stand, fending off defense counsel Sawyer Smith’s vehement assertions that she had affairs with many men and insisting she only wanted the security and peace of mind that would come with marrying Ralph. Ralph, however, was more of a wild child who called his girlfriend a “wet blanket” because she “didn’t like to drink, smoke, [gamble], or tell stories in mixed company.” In June 1932, in the last letter he ever wrote to her, he told her the only remaining solution was for the two to part ways. Ralph testified that Evelyn hated his name and insisted he change it, further seeking to besmirch her reputation by insisting that he was fearful for his life because she had bought herself a pistol. What’s more, she allegedly insisted that she didn’t know how to cook, had no intention of taking it up, and that she certainly didn’t want any children. Likewise, Evelyn called his friends “saps” and “nitwits” and was inclined to violent, profanity-filled fits of rage when she didn’t get her way. The church deacon claimed he only once ever got Evelyn to agree to marry him, only to find she changed her mind when she decided she’d rather have a new trousseau instead. Ralph insisted at trial that he was flat broke with no job, no income,

and no assets. Evelyn seemed unsurprised by such a proclamation, claiming he’d told her he would place his money where she couldn’t get to it. Adding insult to injury, Ralph told the jury under cross-examination that the terms “dearest” and “with all my love” were “largely impersonal” phrases to which he attached no significance or meaning. However, evidence suggests neither member of the couple put much stock in their relationship or exclusivity. Evelyn was rumored to have several boyfriends who lived out of town, and Ralph allegedly had his own string of affairs, eventually fathering a love child with a married woman in their social circle. Final arguments in the case lasted an entire day, for a grand total of fifteen days for the entire trial. The jury adjourned the courtroom around 4:15 pm on February 23rd, returning the next day to give Ms. Hazen an $80,000 verdict against her former fiancé. According to newspaper accounts, the all-male jury had sided with Evelyn early on in the case, and that all that was left to do during deliberations was to average the amounts the 12 jurors felt she was owed. The jury awarded $65,000 on the breach of promise claim and $15,000 on the betrayal into intimate relations. Ms. Hazen returned to the family home on Dandridge Pike3 after the trial and, on a 21-month appeal, the higher court held the jury award was appropriate. It is believed Ms. Hazen never collected her judgment. An avid UT football fan, Evelyn died at home in 1987 when she fell down the stairs, “an eccentric old woman with a gun in her pocket.” She had survived Ralph and all of her family; her will declared that the house was either to be razed or made into a museum. The Mabry-Hazen House is open six days a week every year from March to December, with this year’s special Christmas programing to be held December 12, 2:00-5:00 pm.

DICTA

Sources Consulted: Jane Van Ryan, Mabry-hazen house blog (last visited November 10, 2020), http://www. mabryhazen.com/search?q=blog. Miss Hazen’s Courtship in Court (Feb. 8-June 25, 1934), https://www.knoxlib.org/ sites/default/files/hkn-miss-hazen-transcrip_1.rtf Mabry-Hazen House, https://en.wikipedia.org/wiki/Mabry%E2%80%93Hazen_House (last visited November 10, 2020).

December 2020

THE NOBLEST PROFESSION By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

THE PAST, PRESENT AND FUTURE His first experience with the legal system was at the age of twelve. It wasn’t the best experience, being locked up for a crime he didn’t commit, but that was the way things were during that period in history. Nobody thought twice about it. Poverty itself was a crime. If you lived in that part of town, if you could not pay your debts, or in this case, if your parents could not pay their debts, prison was in your future.1 Eventually, he was released, and at the age of fifteen, he found a job. Education was a luxury, but a hungry mind will find a way to learn, and this young mind was starving. He managed to get a job as a law clerk at the local law firm of Ellis and Blackmore, doing what clerks do—running errands, delivering documents, and reading . . . lots and lots of reading. No one seemed to mind that he had a record. He was quick, and he was smart—maybe a little bit too smart.2 “One always begins to forgive a place as soon as it’s left behind.”3 He thought he would be a lawyer, but he found work at the law firm boring. After about a year, he moved to a different law firm, but it still was too boring for him. Thus, he made the next logical career move: he bought himself a copy of Gurney’s Brachgraphy, taught himself shorthand in three months, and became a court reporter. Within a few years, he found himself working as one of twelve shorthand reporters tasked with writing down every word of every speech, debate, or mindless drivel spoken when Parliament was in session.4 “Night after night, I record predictions that never come to pass, professions that are never fulfilled, explanations that are only meant to mystify. I wallow in words.”5 Those words or perhaps the sheer volume of them must have been exhausting. He knew he wasn’t born to simply record the words of others. He had his own stories to tell. And so, this young man took the pseudonym “Boz” and began to write. And write he did—about the people and places of his childhood. He told the story of Amy Dorrit, a child born and raised in the Marshalsea prison for debtors whose tender heart softened those around her.6 He told the story of Philip Pirrip, a young orphan who rose from poverty to riches, and then lost it all.7 He told the story of a former prisoner trying to rebuild his life and find his daughter in the middle of chaos.8 “The one, great principle of the English law is, to make business for itself.”9 By the time he was 31 years old, he was a well-known author. He was also facing his worst nightmare: returning to debtor’s prison where he had spent part of his childhood. His wife was expecting their fifth child. He was supporting his younger brother, his sister-in-law, and his father. He had borrowed money and accepted an advance to fund a promotional tour that didn’t quite pan out financially. Now, his publishers informed him that they were planning to invoke a clause in his contract that allowed them to take back a percentage of the advance for his last work.10 So, he did what he knew best. He went back to telling stories. But, this time, the story was different. As the ghosts from his impoverished December 2020

past threatened to take everything from him, he wrote of three ghostly visitors. As he reflected upon his early days at the law firm, he wrote of a young father spending day after day in a miserable job to provide for his family and small, chronically ill son. As he wrote of feasts and family gatherings, he also wrote of two, impoverished children, Ignorance and Want, ever present, but easily ignored in the middle of riches.11

“No space of regret can make amends for one life’s opportunity misused.”12

When he finished, he made the boldest gamble of his life. He decided to self-publish the story. If the story was a hit, he would get to keep the profits. If not, well, there as no Plan B. On Christmas morning, 1843, young Charles Dickens leaned out of his window to greet the postman. In his mailbag was the news that would change everything. All 6,000 copies of A Christmas Carol sold out on its first day of publication, and the second and third editions were being printed. Old Mr. Fezziwig could not have been more joyful.13 It would be nice if the story ended there, but it doesn’t. Within a year, installments of a story titled Christmas Ghost Story, purportedly authored by someone named “Hewitt,” started being published in a twopenny weekly paper. The editors called it a “reoriginated story.” Today, it would be copyright infringement. Dickens sued, and eventually won. Some say Dickens’ experience with the legal system inspired him to write Bleak House—a tale of the longest running will contest in legal history (or historical fiction, but sometimes it is hard to tell).14 And so, it all comes full circle. The young man whose life began in poverty was saved from poverty by a story that forced people to take a hard look at society’s response to poverty. The young man who almost became a lawyer found refuge in the legal system to protect that story, and we are all the better for it. As we reach the end of 2020, more than ever, Dickens’ words ring true: “Reflect upon your present blessings—of which every man has many, not on your past misfortunes, of which all men have some.”15 To reflect more upon one’s blessings than one’s misfortune is truly noble.

Robert Coles, Charles Dickens & the Law, VQR Nat’l J. of Lit. & Dis. (Autumn 1983), available at https://www.vqronline.org/essay/charles-dickens-and-law. 2 Id. 3 Charles Dickens, Little Dorrit, Penguin Classics (2003). 4 Coles, supra n.1. 5 Charles Dickens, The Personal History of David Copperfield, Bradbury & Evans (1850). 6 Charles Dickens, Little Dorrit. 7 Charles Dickens, Great Expectations, London: Penguin Books 6th Ed. (2003). 8 Charles Dickens, A Tale of Two Cities, New York: Cosmopolitan Book Corporation (1921). 9 Charles Dickens, The Bleak House, Toronto: Bantam Books 6th Ed. (1983). 10 Hugh Mulligan, The Story Behind Charles Dickens’ A Christmas Carol, Read it Forward, https://www.readitforward.com/excerpt/story-behind-charles-dickenschristmas-carol/ (last visited Nov. 10, 2020). 11 Charles Dickens, A Christmas Carol, New York: Hodder and Stoughton (1911). 12 Id. 13 Mulligan, supra n.10. 14 Id.; Coles, supra n.1. 15 Dickens, A Christmas Carol, supra n.11. 1

DICTA

barrister bullets BARRISTERS HOLIDAY PARTY AND ELECTIONS TO BE HELD ON DECEMBER 9, 2020 The Barristers will be hosting an outdoor holiday party and election event on Wednesday, December 9 from 5:00 p.m. – 6:30 p.m. at The Firefly, the patio at the Hilton Knoxville. A short program recognizing this year’s executive committee, committee chairs, past presidents, and 2021 Barristers President Amanda Tonkin will begin at 5:45 p.m. and the social will follow thereafter. Complimentary hot and cold beverages and snacks will be provided. Even if you can’t stay for the whole party, make sure to stop by. Register online by clicking December 9 on the event calendar at www.knoxbar.org. Nominees for the Executive Committee include: Vice-president: Meagan Collver, London Amburn, P.C. Secretary/Treasurer Zack Walden, Elridge & Blakney, P.C. Members-at-Large Matt Knable, Law Office of Matthew R. Knable; Chuck Sharrett, London Amburn, P.C. HUNGER AND POVERTY RELIEF COMMITTEE HOST TOY DRIVE FOR SPARK The Barristers will host their annual toy drive for SPARK this winter. More information about how to donate will follow. Please contact the committee co-chairs, Meagan Collver (MDavisCollver@ londonamburn.com) or Chuck Sharrett (Csharrett@londonamburn. com), with questions or to learn more about how you can help with future events.

DIVERSITY SMALL GROUP DISCUSSIONS ONGOING The Diversity Committee have been meeting with law students for small group discussions regarding pertinent topics in today’s everchanging landscape. Please watch for updates from the Diversity Committee via email and on the KBA online Calendar or contact committee co-chairs, Soojin Kim (Skim@emlaw.com) or Jessica Jernigan-Johnson ( JJerniganJohnson@londonamburn.com), to learn how you can become involved in upcoming Diversity meetings and gatherings. VOLUNTEER BREAKFAST The Volunteer Breakfast Committee will continue to deliver breakfast to the Volunteer Ministry Center on the fourth Thursday of the month, however, the Center has suspended in-person volunteer opportunities until further notice. The Barristers Volunteer Committee continues to accept sponsors, but regrettably is unable to accept volunteers at this time. We offer our heartfelt thanks to all our sponsors and volunteers. Please contact Matt Knable (knablelaw@gmail.com) or Mitchell Panter (mpanter@lewisthomason.com) for questions or concerns.

VOLUNTEER FOR THE 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. 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.

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DICTA

December 2020

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

AS HEARD IN THE COURTHOUSE CAFÉ: A REMINISCE Recently, I was part of a Zoom meeting with a group of fellow barristers, who like me, had spent over a quarter of a century practicing the lawyer’s craft, with much of that time in the courtroom trying cases by jury. If there was one point upon which we agreed, it was the fact that young lawyers today are infinitely less likely to try a case before a jury then when we started to practice. According to the American Bar Association, 95% of cases today, civil and criminal, plead out long before they make it to a jury. 1 As lamentable as that fact is, I’d like to explore another bygone institution that once proved invaluable to fledging lawyers: the courthouse café. When I was a young prosecutor for Florida’s 10th Judicial Circuit, my designated mentor, a seasoned trial lawyer, took me under his wing and spent a lot of time introducing me to the challenges our office faced, as well as to my new colleagues, clients, and courthouse personnel. He then took me to the café, located on the first floor of the courthouse. There, in the corner, was a large table, populated, I soon learned, by lawyers, judges, bailiffs and courthouse administrators. “This is our table,” my mentor announced, no civilians allowed!” What he meant was that only people directly and officially associated with the courthouse were welcome. “Forget most of what you learned in law school my young friend,” he went on, “here is where your real legal education begins.” And so, when I wasn’t in the office or in the courtroom, it was the courthouse café where I found myself, sitting at that special table, and doing more listening than talking. The first thing I noticed about this special place was the stories! Oh, what stories emanated from lawyers and judges who, it seems, had seen and done it all. There was the story of a belligerent defendant who took an angry swing at a judge, only to have the judge swing back with more force and accuracy, sending the defendant to his knees. One elder statesman related an exchange during a criminal jury trial where the defendant, a young woman, claimed that the detective investigating her case was the man with whom she just ended a “romantic relationship.” When the investigator took the stand, he was asked, “Did you at anytime have a romantic relationship with the defendant?” The detective thought for a moment and responded, “Oh, yea. We’ve had sex, but it wasn’t very romantic!” Clearly, some of the stories were verifiable, some apocryphal, but all fascinating to baby lawyers December 2020

like me. One story I know to be true, involved a wardrobe mishap. I was sitting second chair with a more senior attorney who was getting ready to pick a jury on a DUI manslaughter case, when in walks the defendant wearing a t-shirt that read, “Powered by Budweiser!” My colleague nodded to the judge who called both attorneys to the bench. “Do you see what your client is wearing?” the judge asked incredulously. Not catching on, the defense attorney responded, “Well judge, not everybody can afford a fancy suit.” You can imagine the rest of the story. Beyond the stories was the trial advice that flowed freely from the more seasoned, members of the table. When I was getting ready for my first jury trial, one regular (a seasoned, well-respected assistant public defender), fresh from her own jury trial, looked at me and said, “bumper stickers!” “Excuse me?” I said. “Bumper stickers,” she repeated. “During voir dire, always ask the jurors what kind of bumper stickers they put on their cars. You can learn a lot about jurors that way.” Just make sure you ask them what kind of bumper sticker they ‘PUT’ on their cars, not what they ‘HAVE’ on their cars. Some of our colleagues who like that question forget that people buy used cars already adorned with various decals and stickers.” Indeed. During my time in the courthouse café, I learned invaluable lessons on what to do, and what not to do in court. I was instructed on the culture of each courtroom, as well as the temperament, likes, and dislikes of the judges presiding over them. The courthouse café was a place to make new friends, and colleagues, and a chance to connect with people infinitely more experienced than I. It was author George Miller who once quipped, “Cities need places where “people can gather and engage in energetic discourse.” 2 Expanding on Miller’s theme, I would like to suggest that courthouses need places where judges and lawyers can gather together and engage in energetic discourse to the benefit of the next generation of advocates. Such places can play a critical role in the strength, resilience, and interconnectedness of our profession.

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American Bar Association, “Lack of Trials Lawyers Troubling.” 2020 report. Miller, George. “A City that Works.” Sydney Papers Spring (2001): 77–79.

Address Changes WELCOME NEW MEMBERS

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

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Charles F. Aiken Provision Health Care, LLC Ursula Bailey Law Office of Ursula Bailey Clifford L. Beach Jr. Tennessee Valley Authority Jana S. Dovgan Team Health Landon M. Hickey Banks & Jones Becky L. Jacobs U.T. College of Law

Kathaleen Ann Barker BPR #: 014066 Barker Law & Mediation 5217 Yosemite Trail Knoxville, TN 37909-1844 Ph: (865) 850-1412 ann.barker100@gmail.com

Amber Spelman BPR #: 037348 Spelman Law, PC 800 S. Gay St., Suite 700 Knoxville, TN 37929-9703 Ph: (865) 724-0744 aspelman.law@gmail.com

Ben D. Cunningham BPR #: 030122 US Attorney’s Office 800 Market Street, Suite 211 Knoxville, TN 37902-2342 Ph: (865) 545-4167 ben.d.cunningham@gmail.com

Katie E. Wise BPR #: 033633 3505 Garden Dr. Knoxville, TN 37918-3326 Ph: (423) 650-3520 kewise212@gmail.com

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December 2020

BARRISTER BITES By: Angelia Morie Nystrom The UT Foundation Institute of Agriculture

COOKING WITH YVES PONS Aside from my family, my dog and my job, there are two things in this world about which I am passionate: Tennessee basketball and food. I haven’t missed many basketball games over the past decade and have even been to a number of away games. On multiple occasions, I have attended alone. I’ve attended dressed for a cocktail reception several times, and I even went to one game in a ball gown. Suffice it to say, Volunteer basketball is one of my favorite things. As much as I love Tennessee basketball, I also love food. To me, food is like art. I love preparing new foods to see how flavors meld. It’s fun to find menu items that complement each other to make a satisfying meal. Last Spring, Hugh and I had planned to travel through Belgium and France while Trace attended a two-week exchange program in Paris. While there, we had scheduled a chocolate-making class in Belgium and a cooking class in Normandy. COVID-19 had other plans, and our trip was cancelled. I found solace during quarantine in cooking. I learned to make delicious meals with limited ingredients, and we made lots of my childhood favorites from the backs of boxes, bottles and cans. I’ve tried my hand at some “fancy” things which have turned out well and others which have not. Although recipes from magazines and watching cooking shows were great, they were a poor substitute for the experiential learning of a class. It’s an amazing thing when your passions collide, and it is even more amazing when your spouse makes the opportunity happen. For my birthday, Hugh signed me up for “Cooking with Yves Pons,” a class Yves was hosting to benefit Make-a-Wish East Tennessee. I had seen Yves live-stream a demonstration of how to make perfect French crepes, so I knew this would be an unforgettable experience. The class was going to be hosted via Zoom, and we were given the instructions as to when to expect details. When I got the ingredient list about a week before the class, I was beyond excited. For the dish, we were told to get a 5lb bag of potatoes (I used petite reds, which I peeled, cut into 1/3 inch rounds and boiled preclass), 4 onions (chopped), 2 cloves of garlic, 1 package of smoked beef or turkey bacon (I used Benton’s hickory smoked bacon), a pint of heavy whipping cream, Herbs de Provence, and 2 large wheels of brie. Hugh and I guessed that we were making some sort of potato soup but were excited to see what we would learn in the class. On the evening of the class, Yves told us that we would be making tartiflette, a traditional dish from the Savoy region in the French Alps. He said that the dish is French comfort food and is often served in the colder months because of its heaviness. He said that it is often used to serve large groups because a little is all that you need. As we started the

December 2020

class, he talked to us about his background, about foods he loved (and loved to prepare), and what American foods he likes and dislikes (he loves lobster mac-and-cheese from Ruth’s Chris and does not understand the appeal of oatmeal). We also met his wife, Laetitia, who is also French and who is lovely. You could tell that she was just as excited to share a part of France with us as he was. To make the tartiflette, we sautéed the onions and garlic in olive oil until the onions were golden. We then cut the bacon into small pieces and added it to the onions and garlic and sautéed until the bacon was fully cooked. (Note: because I used Benton’s hickory smoked bacon – which tends to be fattier—I actually drained the mixture at the end of this step. Yves used turkey bacon, and he did not drain his). After the bacon was cooked, we added the pint of heavy whipping cream, continuing to stir until it thickened. Toward the end of the process, we added 3 tbs of Herbs de Provence. Once everything was mixed, we set it aside. Next, we layered half of the potatoes in a baking dish, covering the bottom. We topped the potatoes with one-half of the onion/garlic/bacon mixture. Then, we repeated the process. Afterwards, we cut the wheels of brie so that they were like hamburger buns and then placed them cut-side down on top of the potato mixture in the casserole dish. To complete, we baked at 450 for about 15 minutes (until the brie was melted and started to brown). Yves said that the French generally use reblochon cheese instead of brie; however, it is difficult to find in the U.S. Brie is a nice substitute. When the dish was finished, it looked and smelled amazing. Hugh and I served it with a salad of mixed greens, chopped apples, and pecans, finished with Stonewall Kitchen’s Maple Balsamic dressing (from Fresh Market). The lightness of the salad was a perfect complement to the heaviness of the tartiflette, and the apples were especially good with the melted brie. We were actually able to get 24 servings out of the tartiflette over 3 days. It was every bit as good warmed up as it was the night we prepared it. If you see that Yves is cooking for Make-a-Wish again, please do yourself a favor and sign up for his class. If you try this recipe and enjoy it, donate to Make-a-Wish East Tennessee in Yves’ honor. He is a great teacher, but he is also warm and engaging. He answered a ton of questions about a myriad of topics from the participants, and he does a great Rick Barnes impression. When he found out that it was my birthday, he sang “Happy Birthday” to me in French. This might go down as the greatest birthday gift in the history of birthday gifts for me.

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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

IPHONE 12– BACK TO THE FUTURE PHONE? If you have been obsessing over the election or COVID or if you have been living under a rock, you might not know that Apple just released the 12 Series for the iPhones – the iPhone 12 mini, the iPhone 12, the iPhone 12 Pro, and the iPhone 12 ProMax. (The Mini and the Max were released a bit later, but all were announced on October 13, 2020.) Of course, Bill could not wait. He bought the iPhone 12 as soon as possible. Phil kept his money in his pocket and held on to his Samsung Galaxy Note20. While there are many new features and options in the iPhone 12 line -- such as magnetic charging, 5G, more camera improvements, a faster processor, a brighter display, a glass screen that is supposedly harder to break -- there are some throwbacks to older days. The throwbacks include: a return to flat sides, making the Mini and the 12 look and feel like an iPhone 4 or 5 in your hand; the “notch” at the top of the screen (that other smartphone makers have abandoned); the old lightning port (while other makers have switched to USB-C); and of course, a high price (as costly as a nice laptop computer). Don’t let the pricing fool you, the 12 starts at $799, but it only has 64 gb of storage, and no charger, no headphone, and no case. All will cost you extra, and you will soon be at the $1,000 mark. Nevertheless, spendthrift Bill bought the 12, with 256 gb, the new Magsafe charger ($39), and the compatible case ($49), putting him well over the $1,000 mark. The Mini will cost you $100 less. The Pro will cost you $200 more, and the ProMax will cost you $300 more. If you go whole hog with the ProMax, you will be near the $1,500 mark. We are surprised that Bill showed some restraint. But, according to Bill, all you really get with the Pro models is a better camera and Lidar (which allows the camera to work better and can measure distances and height of objects up to 5 meters away). Bill loves the look and feel of his new iPhone 12. He bought one in the blue color, which he thinks makes him hip, cool, and savvy. (Phil says, “Whatever!”) He thinks the square edges with the stainless steel edges make it easier for his old hands to hang on to his prize, and he is reminded of when he bought the iPhone 4 in 2010 (when he was 10 years younger). Even Phil admits the 12 is a good-looking phone – the finishes don’t capture as many fingerprints and the blue color looks nice to him as well (though he would never tell that to Bill). Apple’s new A14 processor makes the phone very fast, noticeably faster than previous models. The display is also brighter, so with the improved speed and delay, Bill is able to watch his favorite Road Runner cartoons without any skipping or screen “hiccups.” Speaking of speed, we must note that Bill is

disappointed in the 5G behavior of his AT&T iPhone 12. He could see no improvement over 4G in areas where AT&T says it has 5G. Hopefully, that will change before Bill buys his next iPhone. Bill loves the iPhone 12 camera. He can take beautiful, clear and sharp pictures of his garden and pet cattle, even at night. His pictures of his cattle at night are especially sharp with the new “Night Mode” and “Night Portrait Mode.” Now to the charging and battery issues. Bill has noticed that the iPhone 12 battery lasts much longer than the batteries on his previous iPhones. (Benchmarking by technogeeks has confirmed his observation. The extra life is fueled primarily by more efficient screens and the new A14 chip which uses less power.) Of course, in all likelihood, the performance of the battery will degrade over time. All batteries do this. Time will tell. Finally, contrary to the mixed reviews given the new MagSafe charger, Bill loves his charger and compatible MagSafe case. Some reviewers have suggested that the MagSafe charging is slower than plugging it in via a Lightning cable. MagSafe uses a magnetic disc that is on the back of the iPhone 12’s case. It then magnetically and securely attaches to the MagSafe charger. Bill likes any kind of new, funky gadget, and MagSafe is no exception. But, Phil and Bill agree the setup is pretty handy and foolproof. The bottom line is that Phil thinks Bill has, yet again, wasted his money, but, predicably, Bill is happy as a lark clinging to his “Back to the Future” iPhone 12.

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December 2020

WELL READ By: Dillon E. Zinser Law Office of Joshua S. Reed

JOHN LEWIS AND THE POWER OF HOPE No matter one’s background or experience, everyone can agree that 2020 has been a challenging year. Our nation suffered a tragic loss on July 17, 2020. On that date, longtime U.S. Congressman and Civil Rights activist John Lewis passed away at the age of eighty years old. While John Lewis has always been known to me as a monumental figure of the Civil Rights movement and American politics as a whole, upon news of his death, I wanted to learn more about his life. As a citizen and as a young lawyer, I was eager to learn more about John Lewis and trace the steps of his ascent to leadership. Pulitzer Prize-winning author and renowned historian Jon Meacham published a personal and revealing portrait of John Lewis shortly after his death this year, entitled His Truth is Marching On: John Lewis and the Power of Hope. John Lewis is perhaps most famously recognized for leading the first of three marches across the Edmund Pettus Bridge from Selma to Montgomery, Alabama, in 1965. Famously, Lewis’ march across the Edmund Pettus Bridge would culminate in the event known as Bloody Sunday, in which Lewis and fellow marchers were attacked and beaten by police and state troopers. Meacham’s work commences with Lewis revisiting the Edmund Pettus Bridge in the present day of March 2020: forty-five years after the original march. Remarkably, towards the end of his life in March of 2020, Lewis is neither wistful nor content to rest on his laurels. In the final chapter of Lewis’ life, walking across the same bridge in which he had experienced brutality and ferocity of police and white attackers decades earlier, Meacham describes Lewis’ continued determination to change the way in which America viewed itself. Even towards the end of his life, Lewis ardently believed in expanding the definition of who is included when the country speaks of “We the People.” Despite everything that Lewis had accomplished in his life, and despite the political and societal progress of the United States from 1965 to 2020, Lewis recognized that America’s founding of a more perfect union was far from realized. In short, Lewis understood that the nation’s literal and figurative march for racial unity was far from over. One of the greatest strengths of Meacham’s work is the way that Lewis is humanized through the chronological storytelling of his life. The story of His Truth is Marching On is told in seven chapters. The early chapters examine Lewis’ early years as the son of a sharecropper in Troy, Alabama. Lewis was the third of ten children, and the great grandson of a slave. Lewis was always ambitious, and at the age of four years old, he sought to become a minister. Lewis was moved by the teachings of the Bible, and the dignity and equality scripture promised to all people. Meacham’s work recounts how a young Lewis would practice his sermon on the chickens that his family would work to raise before eventually preaching to a congregation. Through scripture, Lewis became determined that love and nonviolence were the penultimate powers to overcome the hatred and brutality of the Jim Crow South. The reader learns about Lewis in his late teen years, moving from rural Alabama to December 2020

study seminary at American Baptist College in Nashville. During his time in Nashville, Meacham recounts Lewis first hearing Dr. Martin Luther King Jr. over the radio for the first time, and his eventual meeting of Dr. King in person. As Meacham’s work progresses, the reader sees the transition of how a young Lewis grows from a seminary student into his adulthood as Civil Rights champion. From participating in lunch counter sit-ins to riding interstate buses throughout the segregated southern states, and eventually marching with Dr. King in Selma, Alabama, Lewis’ growth is achieved through an unshakable commitment to the betterment of his country and an understanding of the power of hope. Lewis celebrated the legal rulings of Warren Court intended to provide equal justice to Black Americans but observed a society around him that failed to implement these legal mandates. Despite the turmoil of the United States during the 1960s and the challenge of teaching love to those who harbored hate, Lewis helped an uncertain nation find its identity. Towards the end of the work, the reader follows Lewis as he is confronted with the assassination of Dr. King and his search for meaning in the wake of Dr. King’s death. In the face of immeasurable loss, Lewis never strayed from his commitment that love and compassion for one’s fellow person would overcome all adversity. The law provides a pivotal backdrop in Meacham’s work. Lewis himself was arrested forty-four times throughout his life. Meacham demonstrates the importance of Lewis’ leadership in guiding the Civil Rights movement in the path of nonviolence. When faced with the systemic bigotry codified in criminal codes, Lewis never faltered in his battle against injustice through nonviolence. As lawyers, we can all learn from Lewis’ example and dedicate ourselves to serving the needs of justice. In the uncertainty of 2020 and beyond, Lewis’ life story and teachings demonstrate that hope can be all that is needed to accomplish extraordinary things.

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

THE PERILS OF POLITIC Okay, we’ve all been there: in a conference room with a client who is pushing us—hard—to do something unethical. Nothing we say persuades him otherwise. He threatens to take his business elsewhere. And then we wonder whether what he wants is, you know, really so unethical, after all. When we represent politicians, such pressures can be a daily affair, especially if we’re not doing it just for the money, but because we truly believe in the politician’s cause. To paraphrase a partner at a big DC firm, it’s dangerous to believe your own BS. There’s a great overlap between politics and law. Constitutional law, which I’ve taught for close to two decades, is just politics written down. That’s what I tell my students, anyway, and it’s what I reluctantly believe. Because it’s true. As much as we might like to consider our Constitution to be holy writ—note the capital “C”—it is, in fact, the flawed product of political compromise between flawed human beings. Much the same can be said of all statutory law and, arguably, most common law—it is the rare judicial opinion that is entirely free of political and personal bias, although we tend to call such things by other names: “policy considerations” or perhaps “judicial philosophy.” Our current Chief Justice, John Roberts, promised to act only as an umpire, calling balls and strikes, but he has undeniably led the Supreme Court to the right, while occasionally trimming the sails (individual mandate, anyone?) to preserve the Court’s aura of apolitical legitimacy. Understandably, many lawyers are fascinated by politics, and often participate, personally or professionally, in elections. When they do so, especially when they represent partisan interests, they risk committing ethical violations. Just ask Bill Clinton. As a sitting president, Clinton was forced to defend against a sexual harassment claim by Paula Jones, despite claiming presidential immunity.1 During videotaped deposition testimony, Clinton lied about his involvement with another woman, Monica Lewinsky, leading to his impeachment and, perhaps, the election of his successor, Republican George W. Bush. Often overlooked, however, is that his lies also led to his being fined $90,000 for civil contempt, as well as the suspension of his law license.2 Similarly, Richard Nixon’s Attorney General, John Mitchell, was disbarred3 after being convicted of (among other crimes) committing perjury during his testimony before the United States Senate Select Committee on Presidential Campaign Activities. And then there’s John Dean, former White House Counsel, and advisor to Nixon, allegedly the mastermind of the Watergate coverup, who flipped on his boss and ended up in the slammer. He lost his law licenses, too. It’s said that history doesn’t repeat itself, but it rhymes. These days, the rhyme seems strongest in the person of our current president’s most prominent lawyer, Rudy Giuliani, who recently announced with great fanfare at the Four Seasons Total Landscaping company that election fraud was occurring in Philadelphia. He offered no evidence, unless you count the unsubstantiated allegations of his first witness, convicted New Jersey sex offender Darryl Brooks.4 Rudy will not likely be sanctioned for his press conference—there is that First Amendment thing, after all. But if he goes into court with such a witness, and nothing more, well then there’s that whole Rule 11 thing. Trump’s other lawyers are clearly aware of this danger, as well as the harm they do by alleging widespread voter fraud in court filings

without any factual basis: Some senior lawyers at Jones Day, one of the country’s largest law firms, are worried that it is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections, according to interviews with nine partners and associates, who spoke on the condition of anonymity to protect their jobs.5 Indeed, with regard to one Pennsylvania case, several “Jones Day lawyers said that given the small number of late-arriving ballots involved in the litigation, and the fact that they already had been segregated, the main goal of the litigation seemed to be to erode public confidence in the election results.”6 Improper purpose, anyone? Beyond ethical considerations, the involvement of Jones Day in Trump’s election litigation has garnered the unwelcome attention of the Lincoln Project, famous for its attack videos, which will soon launch television ads critical of the firm.7 Let’s be clear: If, in fact, there has been widespread election fraud, well then, all Americans should be concerned. We should root it out, punish those responsible, and prevent such transgressions going forward. But . . . evidence? Georgia’s Secretary of State, Brad Raffensberger, a Trump-endorsed Republican, has insisted that the election in that state has been fair and transparent. Nonetheless, Georgia’s two Republican Senators, both in close runoff elections, have called for his resignation.8 Meanwhile, Gabriel Sterling, one of Georgia’s key election officials, sought to debunk the various allegations that have circulated and said, “[t]he facts are the facts, regardless of outcomes.”9 Shades of John Adams: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”10 Facts. Truth. Wise words. Thanks, John.

1 2

6 7

Clinton v. Jones, 520 U.S. 681 (1997). In Re: William Jefferson Clinton, Arkansas Bar ID #73019, Arkansas Supreme Court, Committee on Professional Conduct, Notice of Suspension of Attorney’s License to Practice Law, February 21, 2001. Mitchell v. Association of the Bar, 40 N.Y.2d 153, 351 N.E.2d 743, 386 N.Y.S.2d 95 (1976). Man featured at Giuliani press conference is a convicted sex offender, Politico, Nov. 9, 2020, available at: https://www.politico.com/states/new-jersey/ story/2020/11/09/man-featured-at-giuliani-press-conference-is-a-sexoffender-1335241. Growing Discomfort at Law Firms Representing Trump in Election Lawsuits, New York Times, Nov. 10, 2020, available at: https://www.nytimes.com/2020/11/09/ business/jones-day-trump-election-lawsuits.html. Id. Inside the Lincoln Project’s new campaign targeting Trump’s law firm, The Washington Post, Nov. 10 2020, available at: https://www.washingtonpost.com/ opinions/2020/11/10/inside-lincoln-projects-new-campaign-targeting-trumps-lawfirm/. Georgia Senators Ask Election Official to Resign in G.O.P. Squabble, New York Times, Nov. 10, 2020, available at: https://www.nytimes.com/2020/11/09/us/kellyloeffler-david-perdue-raffensperger.html. Id. Adams’ Argument for the Defense: 3–4 December 1770, available at: https:// founders.archives.gov/documents/Adams/05-03-02-0001-0004-0016.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26

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December 2020

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

ONE LAST RUN I flipped the phone screen to turn toward me and hit record. I was sitting in the parking lot of Prestige Cleaners. In the passenger seat sat my Golden Retriever, Sophie. We had just left the Vet. Sophie is 12 years old. With the phone in my left hand and a hot Krispy Kreme donut in the right, I explained to my family that there would be no more rules for Sophie. Bad diagnosis at the Vet equals Krispy Kreme. I filmed us sharing the donuts and sent the video. In 2005, I bought a farm in Lenoir City. It had been a stretch, but Nancy stood in the backyard on our first visit, without even going inside, and said, “This is it.” What’s a man to do? Five mostly wooded acres, a barn and a 30-yearold house is where we set up shop. We brought the four kids and an aging Golden, named Hope, and we added two horses, a couple of barn cats and, just two years later, a very white puppy. The dogs became best of friends, the older Hope teaching the younger Sophie by example. The rules for them were simple - no dogs on furniture, no dogs on beds, and no human food. Sophie was born to break the rules Hope so faithfully followed, and she broke them. I’ve never been a disciplinarian. When Sophie arrived we were hitting our stride as a blended family. At an age somewhere between pigtails and the one father’s hate the most, our girls shared a room. Although braces, boys, separate rooms, and cell phones were on the horizon, they still let me tuck them in, openly said “I love you,” and played tag in the yard. When November came, the kids would run with the dogs beneath the falling leaves while I watched from the porch, taking in the symphony of children laughing, dogs barking and the wind separating colors from the hundreds of trees. At bedtime, the girls would gather with the dogs for a ritual known as the “Hope and Sophie” prayer. I would enter the girl’s room with my guitar. Hope, liberated by Sophie’s rule breaking, would pick a bed and settle in. Sophie, ever the puppy, was constant motion, jumping from bed to bed while Shelby and Cori tried to settle her for the songs I’d made up. I’m a self-taught four chord phenom on an acoustic, and the songs I wrote were about the dogs and the kids and had titles like “I have a wet nose” and “I love Cinnamon Rolls.” The girls would belly laugh, the dogs would calm, and the world would slow to a still. These are the moments that endure. In so many respects those days were the best in my life. Kids grow up, dogs get old, and the seasons of life change. The farm is six years in the rearview and Nancy, Sophie and I now live downtown. Hope went on to her glory several years ago, almost killing all of us in the process, and the kids…well, they are no longer kids. They are grown and living a life of their own. Though they have flown from the nest, everyday I take pictures and video of an aging Sophie and send them on our family group text. The kids comment and laugh and discussion is created December 2020

that doesn’t include me weeping in the fetal position because they are so far away. Photos of Sophie asleep, Sophie at play, Sophie at the dog park clearly feeling out of place because she fancies herself a human, all taken on my phone are cast out into the ether to the people who make my life my life. It has taken me time to realize Sophie’s importance in our life. For Nancy and me, it multiplied with the departure of each child until it became obvious that Sophie is now at life’s very center. Though I understand time is not a friend, I have had little worry that the “Sophie Years” were nearing an end. She is the healthiest Golden you’ve ever seen. Nancy’s attention multiplied in the form of long walks everyday, and on almost any day of the week you may see them walking down Gay Street. I take part by getting in the floor and playing with Sophie as the kids once did until we are exhausted and fall over wondering when they might come home again. But, no one can cast out the rules set by time, and I was reminded of this, again, when the Vet called the other day. The news shouldn’t have come as a shock, but it did. Melanoma - metastasized. The vet talked of all the things that could be done to give her a little more time, all of them horrible and expensive. Two to four months was the best estimate. So, I said thank you and we got in the car and went to Krispy Kreme. I ordered half a dozen hot ones and a coffee. At the window, the attendant asked, “would your dog like a treat?” I smiled, the tears drying on my cheek beneath the sunglasses and replied, “the donuts are for her.” Then I had an epiphany. I hadn’t been back since I sold the place. On the way to Lenoir City, I wondered if I might have lost my mind. Probably. Everything looked the same and it felt as though we’d never left. I half expected one of the kids to answer when I rang the door bell. No one came, and I soon realized we were alone on the farm. She followed me to the back yard where she and I ran and began to play. The puppy, which has always been in her, came out and she ran like she had in her formative years beneath trees with November leaves, the echoes of the kids voices surrounding us. We went to the fence where the horses would greet us, and to the porch where she and Hope would sleep beneath my feet. She went up on the deck where the hot tub sits, and I laughed remembering the three spa covers she destroyed, each one costing me $875, and then, for fear of the owner’s return, which might get weird, we got into the car, both of us trying to catch our breath. She is symptom free, but I feel the weight of it coming. Have you ever had a dog you loved so much that you use her name to describe a season of your life? She is asleep beneath my feet as I write and try to brace myself for a new and unwelcome time, attempting to let go of the last vestiges one of my life’s greatest seasons.

DICTA

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. LEGAL AID OFFERS CONTRACT ATTORNEY PROGRAM Legal Aid of East Tennessee is recruiting local private attorneys practicing in Knox, Blount, Loudon, and Sevier counties to participate in the Contract Attorney Program (CAP). Attorneys will be paid at the rate of $75.00 per hour for services rendered plus reasonable out of pocket expenses incurred incident to representation. Total billings per case cannot exceed $1000 unless written approval is granted in advance. All cases will be related to the recent Covid-19 pandemic, assigned by Legal Aid, and will be across a wide range of subjects from landlord/ tenant cases to Orders of Protection. Legal Aid will be willing to help answer questions and provide guidance. Attorneys representing clients through the CAP program will be covered by LAET’s Professional Liability insurance policy and entitled to receive Continuing Legal Education credits. Interested parties should email Deb House, Director of Development and Compliance at dhouse@laet.org DEBT RELIEF VIRTUAL LEGAL ADVICE CLINIC The Tennessee Bar Association Young Lawyers Division and the Knoxville Bar Association, in partnership with the Tennessee Alliance for Legal Services, the University of Tennessee College of Law (UT Law), and the Lincoln Memorial University Duncan School of Law (LMU Law), will host a virtual Debt Relief Legal Advice Clinic for pre-screened individuals on Saturday, November 7, from 9:00 – 11:30 a.m. The clinic is open to residents of Anderson, Blount, Campbell, Claiborne, Grainger, Jefferson, Knox, Loudon, Monroe, Morgan, Roane, Scott, Sevier, and Union Counties. Students from UT Law and LMU Law will follow up with potential clinic clients to determine eligibility for the clinic, which is available to individuals whose income and expenses place them at less than 250% of the federal poverty level based on household size. United States Bankruptcy Judge Suzanne H. Bauknight will begin the clinic with an overview about debt issues, the bankruptcy system, and reasons for and against seeking bankruptcy protection. After the overview, clients will be paired with volunteer attorneys in virtual break-out rooms to confidentially discuss debt relief options. Sign up at https://www.knoxbar.org/index.cfm?pg=Upcoming-Legal-Clinics. LMU LAW REVIEW The Knox County General Sessions Court will operate on an abbreviated sched-

ule February 22-26, 2021, to allow the judges to attend the annual mid-winter General Sessions Judges’ Conference. The Sessions Courts will be closed on Tuesday and Wednesday. The 1st, 2nd, 3rd, 4th, and 5th Sessions Court will operate with their regular docket on Monday, Thursday and Friday. 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 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: • 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 • 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

December 2020

LONG WINDED By: Jason H. Long London Amburn

ODDS & ENDS The year 2020 is coming to an end (thank God!). Not much is going on worth talking about (unless you count the constitutional crises we are embroiled in, where it is not at all clear who will be running the executive branch of government come next January), so I thought I would take this opportunity to tie up some loose odds and ends. These are ideas that have crossed my mind over the past few months which don’t warrant a full column. Nonetheless, I find them interesting. Consider it the Jason Long version of Deep Thoughts by Jack Handy (People under 40 are unlikely to get that reference, which is why we have Wikipedia). Corrections and a happy marriage. At the outset, I need to apologize for a couple of errors in last month’s column. I incorrectly stated that only twice before in our nation’s history has a woman appeared on a national ticket for one of the two major parties. As astutely pointed out by my wife, it has happened three previous times: Ferraro in ’84; Palin in ’08; and Clinton in ’16. Surprisingly, I did not forget Ferraro. I whiffed on Sarah Palin. My apologies to the former Alaska Governor. Second, as my wife again pointed out, I stated that Donald Trump had never run for, or held, elective office prior to 2016, which was incorrect. Trump did, in fact, run on the Reform Party ticket in 2000 and received 15,000 votes in the California primary. He ultimately withdrew, claiming that the party was a total mess (can’t you just see him saying it?), and Pat Buchanan won the nomination. Could you imagine what the 2000 election fight would have been like if, in addition to the 537-vote margin in Florida, we would have thrown Donald Trump into the mix? I hate making these errors for a couple of reasons. First, I don’t want to be relegated, in some readers’ minds, to the dust bin of “fake news.” Putting aside for a moment that I would be seriously concerned about anyone who relied upon this column for their news, I don’t want to put any information out as fact which is incorrect. Second, I pride myself on being somewhat of an amateur presidential election historian. I find the process fascinating (everyone else has been pulling their hair out over the chaos of this election but I have been truly entertained). My credibility takes a major hit when I can’t even remember that Sarah Palin ran for Vice-President 12 years ago. Finally, my wife is the one who corrected me. Many years ago, after Carol Anne and I got engaged, but before we actually said “I do,” a lawyer and good friend and her husband shared with me their theory that the goal of marriage is to accumulate more points than your spouse. If you did a nice thing (like buy flowers unprompted or cook dinner at the end of a long day) you earned points, while if you did something like forget an anniversary, you would lose points. Who ever has the most points is “winning” the marriage. When your spouse corrects errors in your column after it goes to print, she gets points. I am way behind in this race and can’t afford to give up easy December 2020

points like that. It was an unforced error. Post Hoc Ergo Propter Hoc. Stay with me here for a second. We elected Hanson Tipton as president of the Knoxville Bar Association. Then, we nearly got involved in a war in the middle east, our government got embroiled in lengthy impeachment proceedings, a plague hit, professional sports’ leagues cancelled their seasons, the economy collapsed, murder hornets invaded, the Tiger King became a thing, protestors took to the streets to decry police brutality, in some areas riots and looting occurred, protesters were tear gassed for an awkward Bible photo op, the state of California burned to the ground, Oregon quickly followed suit, hurricanes are on the rise, our democratic institutions have begun to break down, many Americans have lost confidence in the independence of our judiciary, and we still don’t know who will sit in the oval office next year. I’m not saying all of that is Hanson’s fault, but I do think he is responsible for the murder hornets. Ready for some basketball. By the time this column goes to print, the college basketball season should be upon us (fingers crossed). By all accounts, the Volunteers (men’s team) have as much raw talent as any in the history of the University. We have a proven head coach who has shown he knows how to motivate and how to develop players. We have veterans who have known both the thrill of victory and the agony of defeat. This should be a great year. Of course, it would be our luck if potentially the best season in the history of UT basketball is cut short by a plague. Speaking of UT sports. What is the verdict on Jeremy Pruitt and our beleaguered football team? I have to be honest, as UT has wandered in the wilderness for the past twenty years, it has been difficult to maintain the levels of enthusiasm that I had for the Big Orange back in the 90’s. As we jumped from one failed coaching experiment to another, my day-to-day interest in the team has waned. That changed after two early victories this year (particularly the impressive win over Missouri). I had confidence in this coach and our team. Our lines looked good up front, we had a stable of solid running backs, a quarterback who had proved himself resilient, and some real speed at wide receiver. After one half at Georgia, I was ready to pronounce that the Vols were back and could play with the big boys. Then reality punched me in the gut. If I could blame this season on Hanson, I would. However, I fear it is simply a continuation of what we have seen for the past twenty years. I will stay faithful and pull for them to turn it around, but it continues to be a struggle. Those are my random thoughts for today. Have a good Thanksgiving, and I look forward to seeing everyone at the annual meeting.

DICTA

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

2020 FORGING JUSTICE PRO BONO CELEBRATION AWARD WINNERS PRO BONO STUDENT OF THE YEAR: CLINT WREN University of Tennessee College of Law class of 2020 student Clint Wren has worked as a clerk at Legal Aid since 2018. Mr. Wren was hired on as the Pro Bono Law Clerk in the fall of 2018 and has served in that position for almost two years, working hard to match cases with local attorneys and support the Pro Bono Project. In the 2020 interim between Pro Bono Attorneys, Mr. Wren kept the Pro Bono Project afloat by matching cases and responding to client and attorney inquiries. Mr. Wren is always a positive and resourceful addition to any project at Legal Aid and we are delighted to name Clint Wren Pro Bono Student of the Year for 2020. “Being nominated for this award was an unexpected bright spot this year. While I have only been a part of the Knoxville community for little under 4 years, I have fallen in love with this city and its people. I believe that each person is given unique gifts to better the lives of those around them, and I am happy to begin using mine. Thank you to all of the students, attorneys, paralegals, clerks, and friends that help push us towards our goal of making Knoxville a wonderful place to live for every person that finds themselves here.” – Clint Wren

PRO BONO ATTORNEY OF THE YEAR: KATLYN (KATIE) JONES Katlyn Jones is a Sevier County attorney and Secretary of the Sevier County Bar Association who coordinates the volunteer attorney program every other Friday in Sevier county Order of Protection court. Personally volunteering almost every session, Ms. Jones will sometimes spend the entire day representing clients pro bono in OP court and takes the lead in recruiting local attorneys to join her efforts. “I was really honored to receive the Pro Bono Attorney of the Year Award. I have always been very passionate about volunteering and giving back to my community. When the opportunity arose for me to give back in the courtroom once I was sworn in, I didn’t hesitate to volunteer in a legal capacity. The courtroom can be intimidating for anyone, but even more so for someone who is trying to get protection from someone that could harm them. Order of Protections seek to give citizens that protection, and I feel privileged to help my community navigate that process. I look forward to continuing to volunteer and helping my community in any way I can. “ – Katlyn M. Jones.

PRO BONO COMMUNITY PARTNER OF THE YEAR: MCNABB CENTER McNabb Center is a premier behavioral health center that partnered with Legal Aid of East Tennessee to form the Mental Health Law Partnership (MHLP), a first of its kind health law partnership in Tennessee focusing on mental health issues, the social determinants of health and the legal solutions that can impact the health outcomes for the patient. Over the last year, McNabb Center graciously allowed LAET to embed on their treatment floor and work with their staff and clients to assist in offering wrap around services for people in need. Because mental health issues very often lead to a manifestation of problems throughout a person’s life, the opportunity to solve a legal issue can relieve a stressor and allow someone to be able to worry less and focus more on their health. MC’s deep commitment to our communities and their staff ’s tireless efforts to help improve people’s lives have made them a dynamic partner for LAET for whom we could not be more grateful.

DONALD F. PAINE MEMORIAL PRO BONO HALL OF FAME: DAVE YODER Dave Yoder demonstrates his commitment to Pro Bono work as a consistent and reliable volunteer attorney for myriad in person clinics since his retirement. Mr. Yoder is also a cofounder of Tennesseans for Historical Justice, a nonprofit dedicated to investigating unsolved civil rights crimes in Tennessee. Dave was born in Elkhart, Indiana. He graduated from Purdue University and was awarded a Juris Doctorate from Valparaiso University School of Law in 1974. Dave began his career as a legal aid staff attorney in Michigan. In 1982, he was selected as Executive Director of Legal Services of Northwest Indiana. In 1993, he was hired as Executive Director of the Knoxville Legal Aid Society, which later became Legal Aid of East Tennessee. He retired from LAET in 2015. Dave and his wife have a son who is a lawyer and a daughter who is an urban planner. He thanks them for their support as he has pursued his career. For recreation Dave enjoys Autocross, a form of sports car competition. “I am very honored to be selected for the Don Paine Pro Bono Hall of Fame by Legal Aid of East Tennessee. It was a career highlight to work with Prof. Paine while he volunteered for the KLAS/LAET Pro Bono Project. Don helped make the Project nationally recognized. I always have believed that as a Legal Aid lawyer and especially as an Exec. Dir., I’ve had a special responsibility to try to lead by example and do more for the public good than my employment commitment. While I’ve retired from LAET, my commitment to try to do good continues. I encourage every lawyer to enjoy the incredible rewards of Pro Bono.” – Dave Yoder

PRO BONO LAW FIRM OF THE YEAR: LONDON AMBURN London Amburn is a staunch supporter of the Pro Bono Project as a firm and London Amburn employees are very active in the pro bono efforts in our area. Attorney Spencer Fair started the monthly Veteran’s clinic and Attorney Ian Hennessy has been heavily involved in the Faith and Justice Clinic. London Amburn attorneys also consistently give at the highest levels to the Forging Justice annual fundraiser. We are proud to honor London Amburn as 2020’s Pro Bono Law Firm of the Year.

DICTA

December 2020

THE LAST WORD By: Jack H. (Nick) McCall

Q: A:

Judge Stevens, 2020 has been like no other year in recent memory. In the midst of such a vexing and divisive year, gratitude can seem perhaps a harder thing to find and cherish, even during the holiday season. Or, is it?

THE HON. DEBORAH C. STEVENS Knox County Circuit Court, Division III

It has been a troubling year. Politics have been divisive. A pandemic has turned our world upside down. Murder hornets have arrived on our shores. Can we really find things to be grateful for in 2020? Psychology Today reports that gratitude can result in better physical health and less stress and depression. Research has also shown that lawyers are more resistant to gratitude than any other group, except maybe teenagers. (Have you noticed that lawyers are always at the bottom of every list!) I thought this would be a good time to reflect on some of the things for which I am grateful and hope that you might be encouraged to do the same. There are many things for which I am grateful but my family and my profession rank at the top. I am blessed to have an amazing family. I have a great husband and a daughter of whom I am very proud. My parents were married for 63 years. I have four brothers and sisters and we actually enjoy spending time together and we are there for each other in good times and bad. Although grateful for the way I was raised, life wasn’t always blissful for the Carey/ Gallagher clan. Two years ago, my daughter, Katie and I had the chance to visit Ireland and went to the little village in County Mayo where my great grandfather, John Gallagher, was born. The Great Famine caused many to leave Ireland. In 1850, when he was fourteen, his parents told him to walk 200 miles to the coastal town of Cork. They gave him enough money to buy a ferry ticket to England where he could work in the coal mines until he earned enough money to sail to the United States. As I walked through the village of Charlestown, I could not imagine the fear of leaving your family and your country – knowing you would never see either again. I am grateful that he survived the trip and that he chose to begin his new family in the United States of America where I have been afforded more opportunities than he could have ever dreamed possible. As a side note, Great-grandfather John actually earned most of his money for passage to the United States by winning a bet among patrons in a London pub that he could remain upright against a large Russian wrestler. John also spent much of the trip to the United States in the ship’s brig because he threw a bully overboard after politely asking him on several occasions to stop his rude behavior toward other passengers. The bully survived and the other passengers insisted that John be released from the brig. After working in the mines in Pennsylvania, he eventually became a constable. As a town constable, he was the only member of the local police force to never carry a gun but was known to be able to peacefully resolve even the most dangerous of situations with his wit and charm. On occasion, his right hook was known to be of assistance. I am grateful to have such a colorful character in my family tree who had a big heart and a strong sense of social justice.

My father and his five brothers and sisters were raised by a single mother during the depression. Her father opened his home to the struggling family. My father would tell us that he was grateful when his grandfather gave he and his siblings an orange to share, but that he was particularly grateful when each child got their own orange, once a year in their Christmas stocking. I am grateful that in a world of people who sometimes either see the glass as half empty or half full, my parents taught us to be grateful that we had a glass. I am also blessed and grateful to be a part of a wonderful legal family. I have lifelong friends with whom I went to law school or with whom I have had the privilege of practicing law. I also have many good friends in legal communities across the country. I cherish those friendships. I remember a particular group of lawyer friends -one from Phoenix, one from Dallas, one was my partner in Knoxville and the other was from Salt Lake City. They shared a common client and often enjoyed dinners together around the country. The Salt Lake City lawyer was in the last months of his battle with cancer. The other lawyers decided they needed to go visit their friend. They spent hours talking of old times and shared a bit of Scotch. Afterwards, the lawyer from Phoenix told me it was one of the best days of his life because nothing can ever be more important than being there for a friend. I am grateful that he shared the story and have tried to “be there” whenever I may be needed. I am also grateful and proud of the many lawyers in this community who have taken time to visit with colleagues who are going through difficult times. Our bar association leadership has always had a finger on the pulse of our legal community and they provide meaningful opportunities to discuss the challenges we face. I am grateful for the support they provide. Finally, I am grateful for friends like Nick McCall who always makes time to reach out and take a chance on a last-minute opportunity for lunch. For many years he has been responsible for the “Last Word” in DICTA. I am grateful for the many stories and insights he has shared about lawyers in this community. It has been a valuable forum to bring us all closer together. I hope everyone will take a moment during these crazy times to reflect on the things for which you are grateful. Certainly, we should all be grateful for being part of a profession “in pursuit of a common calling to promote justice and public good”. I hope each and everyone of you can be grateful for family and friends who are there for you when they are needed. Most of all, I wish you a blessed and happy holidays---and a quick end to 2020!!

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com December 2020

DICTA

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Barristers Annual Charity Golf Tournament – October 26

Thanks to the generous support of participants and sponsors, close to $7,000 has been raised for the Barristers’ charitable activities of the Hunger & Poverty Relief Committee. The Barristers Athletics Committee would like to thank all of the golfers and our sponsors for their support. Platinum Sponsors Cornerstone of Recovery LexisNexis Putting Green Sponsor Brown Professional Insurers Liquid Gold Sponsor Sierra Nevada Brewing Company Silver Sponsors Image Matters Novatech Hole Sponsors Attorneys Insurance Mutual of the South Brandon’s Awards & Engraving C Spire Eldridge & Blakney FirstBank Gary Cobble Construction Gibson Court Reporting Hodges Doughty & Carson Kramer Rayson LLP PrintEdge Pugh CPAs Regions Private Wealth Management Swafford Insurance LLC Tarpy, Cox, Fleishman & Leveille, PLLC TCV Trust & Wealth Management Woolf, McClane, Bright, Allen & Carpenter, PLLC

KNOXVILLE, TN PERMIT NO. 3 0 9

DICTA. December 2020

Articles inside

Last Word

Pro Bono Project

Your Monthly Constitutional

Bench & Bar in the News

Avery Lovingfoss

Around the Bar

Cheryl Rice – Ready To Serve

President’s Message

Barrister Bites

Bill & Phil Gadget of the Month

Section Notices/Event Calendar

Barrister Bullets