DICTA - February 2023

Practice Tips: Navigating Workplace Mental Health Issues . . . Page 7 Management Counsel: Law Office 101: Firm Management: Drawing on the Past to Foster the Future . . . Page 13

A Monthly Publication of the Knoxville Bar Association | February 2023

TENNESSEE SUPREME COURT HOLDS MANDATORY LIFE SENTENCES FOR JUVENILE OFFENDERS ARE UNCONSTITUTIONAL

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DICTA

February 2023

In This Issue

Officers of the Knoxville Bar Association

February 2023

COVER STORY 16

Tennessee Supreme Court Holds Mandatory Life Sentences for Juvenile Offenders Are Unconstitutional

CRITICAL FOCUS President Loretta G. Cravens

President Elect Carlos A. Yunsan

Treasurer Jonathan Cooper

Secretary Rachel Park Hurt

Immediate Past President Jason H. Long

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KBA Board of Governors Ursula Bailey Meagan Collver Daniel Ellis Luke Ihnen

Hon. E. Jerome Melson William A. Mynatt, Jr. T. Mitchell Panter Samantha Parris

Courtney Epps Read Vanessa Samano Charles S.J. Sharrett Hon. Zachary Walden

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The Knoxville Bar Association Staff

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President’s Message

Why?

Practice Tips

Navigating Workplace Mental Health Issues

Management Counsel

Firm Management: Drawing on the Past to Foster the Future

Legal Update

A Problem for the General Assembly to Solve— Tennessee Supreme Court Rules That Netflix and Hulu Are Not “Video Service Providers” Subject to Franchise Fees Under the Competitive Cable and Video Services Act

Schooled in Ethics

Clarifying the Scope of the Attorney-Client Privilege

WISDOM 6 Marsha S. Watson Executive Director

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Bridgette Fly Database Administrator Programs & Communications Coordinator

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

Jason Galvas LRIS Assistant

Dicta

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).

February 2023

9 10 11 18 21 22

Volume 51, Issue 2

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.

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Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Brandon Allen Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho Matthew R. Lyon

Managing Editor

Cathy Shuck Sarah Booher Melissa B. Carrasco Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson

Marsha Watson KBA Executive Director

DICTA

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27 29 31

What I Learned About Inclusion and Why It Matters

KBA, DEI includes “The Bench”

Hello My Name Is

Clint Coleman

Privileged To Be a Lawyer

Personal Connection and Professional Fulfillment

Around the Bar

Chair Chat

Attorney Profile

Zachary R. Walden – Barristers President

In Limine

Profiling Future JDs

Simple Things

1.8 Million Hearts and Counting

Legally Weird

Return(s) of the Mac (and Cheese)

Bill & Phil Gadgets

The Coolest Things We Saw at CES 2023

Of Local Lore & Lawyers

Black’s Law Dictionary: The Lawyer’s Perennial Companion

Well Read

Black Snow: Curtis LeMay, The Firebombing of Tokyo, and the Road to the Atomic Bomb

Barrister Bites

Chicken Cobbler: Comfort in a Bowl

Mitchell’s Malarkey

Life’s About Choices

Tell Me A Story

Ramblings of an Old Lawyer

COMMON GROUND 4 20 28 28 30

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

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SECTION NOTICES & EVENT CALENDAR

Section Notices

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

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (540-8777).

Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on February 11, and volunteer registration is available at www.knoxbar.org. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (931-260-5866).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition, to in-house and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (6912777).

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 have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Please mark your calendar and plan to attend the KBA Family Law Section Valentine’s Day Social. The social will be held on February 10 from 4-6 p.m. at the Herston Law Group. If you are interested in getting involved or have suggestions for CLE topics, 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. Join the Government & Public Service Lawyers Section for the upcoming CLE program “May it Please the Council: Effective Advocacy Before Local Government Bodies” on February 1.

If you are interested in getting involved or have suggestions for CLE topics, 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 have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2021 will automatically be opted-in to the section. The Welcome Reception for the KBA’s New Lawyers Section will be held on Tuesday, February 7, from 5:306:30 p.m. at Xul Beer Company (213 E 5th Ave). Please plan to arrive by 5:30 p.m. You will have an opportunity to connect with other attorneys who are new to the legal field and facing similar experiences in their first three years of practice. Barristers President Judge Zack Walden has generously agreed to speak at the start of the evening. The event is sponsored by Knoxville lawyer Jennifer Noell, who is a realtor with Berkshire Hathaway HomeServices, Dean-Smith Realty. If you would like to get involved in planning Section activities, please contact Section Chairs Kathryn Haaquist (525-0880) or Nicole Turbinton (221-7542).

Senior Section The KBA Senior Section plans to start meeting again in 2023 for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833).

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 Tim Grandchamp (392-5936) or Brittany Dykes (214-7869).

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Febuary 1 3 4 7 7 8 8 9 10 11 14 15 16 21 22 24 24 24 25 26

Government Section CLE Diversity in the Profession Committee Faith & Justice Legal Advice Clinic Law Office Tech Committee New Lawyers Section Welcome Reception Barristers Meeting Veterans Legal Advice Clinic Judicial Committee Family Law Section Social Debt Relief Clinic Professionalism Committee Functions Committee Social at Yee-Haw Brewing Black Owned Business Legal Advice Clinic Diversity CLE Board of Governors Meeting Wellness Committee Trial Skills CLE High School Mock Trial Competition High School Mock Trial Competition High School Mock Trial Competition

March 3 7 8 8 9 14 21 22 24 30 31

Diversity in the Profession Committee Law Office Tech Committee Barristers Planning Meeting Veterans Legal Advice Clinic Judicial Committee Professionalism Committee CLE Committee Board of Governors Meeting Wellness Committee Law Practice Today Expo Law Practice Today Expo

SAVE THE DATES: Law Practice Today Expo March 30-31 Annual Law Day Luncheon & CLE April 28

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

February 2023

PRESIDENT’S MESSAGE By: Loretta G. Cravens Cravens Legal

WHY? Happy February! I hope 2023 is off to a great start and that, if you made any resolutions, you have managed to stick to those that matter most to you. I myself refused to engage in any delusional thinking and made no resolutions this year, knowing I am not likely to keep them.

Why should this year be any different that all those that preceded it? That was my reasoning…and it made me think about change.

Why am I so resistant to change? Why does it make me uncomfortable? Why am I always looking back to some motion or form I created or obtained in the past when I am addressing a similar issue?

Or analyzing an issue based on how it has been analyzed in the past?

Much of this was trained into me by law school – always look at the precedent. Much of it was trained into me by the practice of law – do not recreate the wheel if you do not have to. Much of it is because I am personally risk averse. Most of it is probably just habit. None of these things are necessarily negatives, but are they positives?

I have been blessed with the opportunity to serve as an adjunct professor for a number of years and to work with many lawyers who are early in their careers, the challenges they face, the barriers to entry they encounter, the new ideas they have and the change they want to make.

Once upon a time, I was that lawyer. Bright eyed and excited, ready to take on the world one courtroom at a time! Ready to be the change! I still try to be, but the reality is sometimes, even most of the time, I am not. I have become used to the norm, the customary, the comfortable, the things I know how to do.

Most of us operate in that space. We march through the practice of law doing things too the way they have always, in our experience, been done, and do not look deeper into the why or exercise creativity in approaching issues and seeking solutions in our work.

If we are not forced to seek change we don’t.

The legal profession is often, in my experience, resistant to change.

Lawyers like the known, the comfortable, the efficient (at least we think) means to achieve a desired outcome. Let us consider whether the known, the comfortable, the usual course actually best serves our clients or our profession.

I was recently listening to a podcast where the subject of the interview said something to the effect of the most dangerous phrase in language is “We’ve always done it this way.” I cannot recall which podcast or the identify of the interviewee, but it stuck with me. It troubled me.

Partially, because I have both received and given a similar answer. “That’s just how its done.”

I ruminated on it and ultimately succumbed to the temptation to give in to my lawyer brain and do some research. I typed “We’ve always done it this way” into Google, and I was surprised at the number of results. This concept, I learned, has been addressed in business, education, social media, by business coaches, and therapists. I even found an article in Forbes. Maybe the next time you are looking for a distraction you will repeat my Google search and do some light reading. I won’t regurgitate all I learned here, but I do want to share a little something that can help us all evaluate whether we are operating in default mode and identify when change is needed.

Be conscious in your work. By conscious, I mean present. Really present. Not mentally ticking off the task list of things that need to be done in X, Y, Z legal matter, but taking a moment to consider the why February 2023

of each task. The why in each case. The why for each client. Maybe even the why in each conversation or email. If there is a strong why behind it, great! But if you find yourself thinking something to the effect of because that is the way its done or it is always that way, change is probably warranted.

If someone brings an issue, question, or task to you, and your immediate reaction is “that will never work” or “that’s impossible,” stop. That very thought, alone, justifies a pause. Evaluate why. Given a moment to really evaluate it, you might reach a different conclusion. You might identify a change that can be made and the courage to make it.

The Knoxville Bar Association has always been forward-looking to the needs of its members. Always looking for change and preparing for it, so that when one of us reaches out, the KBA has resources to assist. If you find yourself needing resources to create change, I encourage you to lean in to the KBA. Chances are the resources are there waiting to be found, and if they aren’t we all know the KBA will try to find them.

We can do more, and we should. We should all challenge ourselves to be considered and creative the next time we are facing a familiar issue or task. Creative and considered change is a good thing: good for the lawyers, good for our clients, good for our system of laws, and good for business. I feel the winds of change, and our profession should embrace them.

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W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: George Underwood

Executive Director, Office of Equity & Compliance Pellissippi State Community College

KBA, DEI INCLUDES “THE BENCH” Happy Black History month! Since February is Black History month, I thought this would be a great time to celebrate all the black1 judges we have had in Knoxville and Knox County. Okay, celebration over. It didn’t take long because there have been none. Adding irony is the fact that the first federal court judge in America who was African American (William H. Hastie2) was from Knoxville but became a judge elsewhere. Others have taken that same path (leaving Knoxville and becoming a judge elsewhere).

Here is our Black History story. The Knoxville Bar Association (KBA) (aka Bar herein) was founded in 1972. There were no African American judges and had never been any at the time. After our founding, we in effect began purposeful Diversity, Equity, and Inclusion (DEI) efforts to include blacks and other lawyers of color by creating a committee with the designed purpose of improving the inclusion of marginalized groups on all levels of our profession locally. The committee has changed names over the years. However, its DEI mission has remained the same.

In 1992, the “Women & Minorities in the Law Committee” was created by our Board of Governors. There were no black judges. The first leaders of that committee were: Bridget Bailey, Hugh Bright, Debbie Stevens, Natasha Metcalf and Clarence Risen. In 1997, the Board of Governors voted to split that committee into two separate committees.

The DEI section became the “Minorities Opportunities Committee.”

There were no black judges. In 2015, the name of the committee was changed to “Diversity in the Profession.” (DPC) That remains the name of the committee in 2023. There are no black judges. Throughout this same time period there have been black judges in Memphis, Nashville, and Chattanooga,3 which is smaller in population than Knoxville.

Since the formation of that first KBA inclusion committee, numerous qualified lawyers who are black applied to become judges in Knox County: through election and through appointment; state court judgeships and federal court judgeships; at the trial court level and at the appellate court level; in the criminal court and in the civil court.

Fifty years since our founding, we have failed in this area, thus far.

There are still no black judges and have never been any in Knoxville or Knox County.

KBA, DEI includes ‘The Bench.’

Is it time for our Board of Governors to strengthen our efforts with a more accountable long-term strategic plan4 to make the Bench more inclusive just as members from our Bar have slowly (emphasis added) done in other areas? Important progress has been made in Knox County over the past 50 years increasing opportunities for minorities in the areas of law reviews, clerkships, lawyers of color in firms5, and local magistrates (i.e., Juvenile Court and General Sessions Court6).

Imagine an amended and updated strategic plan led by the Judicial, Access To Justice, and Diversity in the Profession Committees (including the Barristers) in collaboration with the KBA Executive Director’s Office along with the Board of Governors, which would coordinate the efforts of KBA’s 26 aggregate Official Committees with strategies, target goals, benchmarks, data point trajectories, and metrics like having an aspiring percentage of the “The Bench” in Knox County having qualified lawyers of color (black & brown) serving as judges within five to ten year timetable benchmark goals. These percentage goals could mirror the most current census7 data which document the steadily increasing demographics of Knoxville & Knox County black & brown populations.

It could be an intentional strategic plan with built in accountability

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requiring Bar sanctioned ongoing available incentivized trainings, programming & seminars, quarterly progress reporting and mandatory annual reporting to the entire bar, which would be posted on the KBA website. An example of an easy and meaningful target goal that could be included in the current KBA Strategic Inclusion Plan would be to build on Sixth Circuit Justice Bernice B. Donald’s 2021 presentation8 to the Bar about Implicit Bias. There are many meaningful implicit bias training modules available–some as convenient as only 15 minutes. A strategic plan goal could be to require all (emphasis) KBA and Barristers officers, committee chairs and co-chairs to complete9 an implicit bias module chosen by the Board of Governors with guidance from the DPC before10 they can commence meeting with the committees they have been appointed to chair or co-chair. This would be an annual training requirement. The implicit bias module could also be made available to all members of all committees and to the Bar as a whole. They would not be required to complete the implicit bias training in order to serve. However, they would be strongly encouraged11 to do so in support of DEI being a core value of the KBA Strategic Inclusion Plan.

Other members probably have different ideas regarding new approaches and that’s fine too. Those need to be heard and considered as well. The objective of this article is to start the difficult conversations on this precise topic. We need to do some things differently in this area because what we have done for the past 50 years hasn’t worked. If we continue to do the same things in this judge area and expect a different result, that’s not going to work out well for us over the next 50 years.

There are too many people of good will in this bar association to allow this injustice to continue.

Black lawyers shouldn’t have to resign themselves to the notion that DEI in Knoxville and Knox County excludes them from becoming judges (the plural12 use is intentional) here and that they better leave and go elsewhere if they have those aspirations. We (KBA) have done a great job talking the DEI talk. However, we are also required to walk the DEI walk if we are authentic when saying we want and will not accept anything less than full inclusion, including on the judge level. The KBA Strategic Inclusion Plan was a good start.

In closing, to expand a powerful message one of our colleagues previously made in this medium,13 “We are not okay.”

KBA, DEI includes “The Bench.”

We’ve got to become better allies and more intentional in correcting this injustice. That’s what I learned about inclusion. That’s another reason why it matters.

Happy Black History month!

George Underwood14 1 2

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aka African American, herein (11/17/1904 – 4/14/1976) The BECK CULTURAL EXCHANGE CENTER, 1927 Dandridge Ave, Knoxville, TN 37915; beckcenter.net; Tel. (865) 524-8461, houses a permanent display of Judge Hastie’s memorabilia, his robe, photographs, his papers, books from his personal reading library and other information and history about him in its William H. Hastie Exhibition & Conference Room. The BECK Center has made the Hastie Conference room available for meetings on occasion. The BECK is the place where “African American history and culture are preserved, nurtured, taught, & continued.” Laudably, every month is Black History month at BECK. The United States District Court Eastern District of Tennessee is fortunate to have the Honorable Curtis L. Collier an exceptional Senior Federal Court Judge who is African American. Judge Collier is based in the Southern Division (Chattanooga) but periodically presides over cases in the Northern Division (Knoxville). Additionally,

continued on page 23 February 2023

PRACTICE TIPS By: Janet Strevel Hayes

Lewis Thomason

NAVIGATING WORKPLACE MENTAL HEALTH ISSUES For more than 25 years, I have been watching workplace trends, always trying to predict the next “hot” legal issue. While monitoring data from government agencies and reading journals has been helpful, experience suggests that the best way to truly anticipate tomorrow’s legal issues is simply sit back and listen to today’s conversations. After all, most of the people talking are someone’s employees, and their personal issues are a reliable predictor of future employment law issues. Each day when employees walk into the office or on to the factory floor, they carry with them individual hopes, fears, worries and biases. Whatever issues employees are dealing with outside of work invariably become issues employers will be forced to deal with inside the organization – making the workplace the ultimate microcosm of society.

So, what should employers be prepared for in 2023? I’m betting on a host of issues associated with mental health. It was, after all, the dominant cultural conversation 2022. We all know someone battling depression, anxiety, or some other mental health problem, and mental health awareness is now a focal point of our culture. Wise employers should gear up to navigate the complicated arena of legal issues associated with employee mental health.

The legal data is consistent with the cultural conversation.

According to statistics from the U.S. Equal Employment Opportunity Commission, accusations of mental health discrimination accounted for about 30% of Americans with Disabilities Act related charges in fiscal year 2021.1 More specifically, anxiety, depression, and post-traumatic stress disorder accounted for nearly 60% of all mental health charges in 2021 – up from 35% in 2010.2 Mental health issues are tricky for employers. Unlike an employee who has a physical impairment, which is often visible and verifiable, an employee with anxiety or depression has a disability that is not always as obvious and often difficult to understand. While there are a multitude of statutes and regulations that may be implicated when an employee suffers with a mental health issue, there are three federal laws that every employer should immediately contemplate: the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Occupational Safety and Health Act (OSHA). Below are some of the most pertinent considerations relating to each statute: The Americans with Disabilities Act (ADA) •

Does the employee have a protected “disability?”

An employee’s mental health problem is a disability entitled to protection under the ADA if it substantially limits one or more major life activities. Anxiety disorders and depression are usually protected disabilities if they have been properly diagnosed. (The employer can require a professional diagnosis in this arena where self-diagnosed “depression” is common.) Additionally, the ADA protects individuals who have a “record” (history) of a psychiatric disability or are “regarded as” having a psychiatric disability.3 •

What obligation does an employer have regarding employee privacy?

Employers often overlook an employee’s right to privacy under February 2023

the ADA. Except when asking for an accommodation, an employee (or applicant) can choose whether to tell the employer about the disability.

Absent an employee request for accommodation, the employer cannot mandate disclosure and should not ask employees or applicants questions that could be construed as unlawful inquiries into mental health history.4 If, however, an employee’s behavior creates a concern for the health and safety of that individual or other employees, the employer can require a fitness-for-duty examination.

Accommodation The obligation to provide reasonable accommodation is a principle of the ADA that is more widely known but more difficult to apply.

When an employee discloses a mental health disability, the employer is obligated to engage in an interactive process to determine if a reasonable accommodation can be made without causing the employer an undue hardship. Reasonable accommodations are not one size fits all. Altered work schedules to allow time for therapy are a frequently requested accommodation. Requests for quiet spaces or quiet work environments are also a common request. More recently, permission to work from home has become the most requested accommodation. While the EEOC has suggested that remote work is not automatically required as an accommodation, employers should evaluate such requests on a case-bycase basis, considering the specific requirements of the job at issue and being mindful that work from home may be required if the employer cannot show an undue hardship.5 Family and Medical Leave Act (FMLA) •

Does the employee have a “serious health condition” for which leave may be required?

Most mental health conditions, such as diagnosed anxiety disorders and depression, will be deemed a “serious health condition” for purposes of the FMLA.6 •

How much leave should be allowed?

Covered employers need to be mindful that the FMLA has made mental health a priority by allowing employees to take up to 12 weeks of unpaid leave for diagnosis and treatment of mental health issues. Leave may be taken all at once or on an intermittent basis. While leave may be required as an accommodation under the ADA, it may also be required as a mandate under the FMLA. •

What is the employer’s obligation following an employee’s leave?

The FMLA protects employees from facing retaliation or discrimination based on the employee’s medical leave. An employee who needs time off to deal with a mental health issue should be restored to the same or substantially similar position without fear of negative career consequences.7 continued on page 24

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HELLO MY NAME IS By: Jennifer Franklyn Realty Trust Group, LLC

CLINT COLEMAN This month, DICTA’s “Hello, My Name Is…” column features Clint Coleman. Clint is an Associate Attorney at Nelson Law Group, where he practices employment law, in which he represents mostly employees as to wage and hour law, Title VII discrimination, and disability discrimination. He also advises his clients on issues such as non-competition and non-solicitation agreements.

Clint is a 2020 graduate of the Lincoln Memorial University Duncan School of Law, and for his undergraduate education, he attended Young Harris College in Georgia, where he received a bachelor’s degree in History. In addition to being a KBA member, he is a member of the Employment Law section of the KBA and the Barristers, as well as the TBA and the ABA. Why did you decide to go to law school?

I went to law school because I wanted a career that would challenge me and not allow me to become content. I also believed that the skill set and personality I possess would allow me to find success as an attorney.

Beyond that, I wanted to join a profession in which I felt that I could make a positive impact within my community, and I believe the law provides me that opportunity.

On a typical Saturday afternoon, where are you and what are you doing?

On a typical Saturday afternoon, I am usually with my wife, Ashley, doing something outdoors, whether it be hiking in the Smokies, playing golf, or just out for a walk. In the fall, we can also be found watching UT football (obligatory since moving to Knoxville five years ago) and UNC football and early-season basketball (my first love as a North Carolina native and diehard fan). After many lean years as a fan of both schools, the past year has been especially fun to watch.

school, and now I am returning the favor and am proud to say that she will soon graduate with her Master’s Degree in Teaching. We also have a dog, Ted, who is an American Fox Hound mix, and a cat, Vern.

Ted and Vern have a love-hate relationship, but they keep us entertained.

Where was your most recent vacation, and where do you plan to go on your next vacation?

Our most recent vacation was a national parks trip, in which we visited Grand Tetons National Park, Yellowstone National Park, Bryce Canyon National Park, Zion National Park, Grand Canyon National Park, and Great Basin National Park. Needless to say, our rental car needed an oil change when we got done. For our next vacation, we are planning to go to the Pacific Northwest to visit all three of Washington’s National Parks, as well as Seattle, and maybe Vancouver if we feel like venturing into Canada for a day or two.

What are you currently reading and watching?

I am currently watching Yellowstone, and not at all relatedly, am a newly aspiring cowboy. Sticking with the wild-west theme, I am currently rereading Cormac McCarthy’s Blood Meridian.

What is one fact about you that most people do not know?

Many people do not know that I have an identical twin brother.

Tell me about your family.

I met my wife while we were both in high school, and we have been married since 2017. She worked to put me through law

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February 2023

PRIVILEGED TO BE A LAWYER By: Dillon Eduardo Zinser

PERSONAL CONNECTION AND PROFESSIONAL FULFILLMENT Being an attorney has been the most challenging, yet simultaneously rewarding and fulfilling undertaking of my life. From a young age, I always dreamed of being an attorney. As cliché as it may sound, I wanted to be an attorney to help people in need. When I was fifteen years old, my family sought an order of protection against a neighbor who threatened our safety. During that process, my family sought the assistance of an attorney. My family was ultimately successful in obtaining the order of protection, due in no small part to the assistance we received from the attorney advocating for us. Before that time, the practice of law was completely abstract to me. It was not until my family had to go through the harrowing experience of seeking an order of protection that I really had the slightest idea of how a courtroom operated, or what attorneys actually did in practice. I still had much to learn about the realities of practicing law, of course. Even in law school, I cannot say that I really understood what the practical experience of lawyering looked like (until perhaps I became a student attorney in the UT Legal Clinic). All the same, the constant in my life, through all those years, was wanting to be a lawyer to help people and make the world a better place.

While I was in law school, I worked multiple jobs in order to support myself and reduce my student loan debt. One particular job that I had during law school was working as a maintenance worker at the Pilot/Flying J Travel Center on Watt Road. Much of my workdays consisted of cleaning showers, cleaning bathrooms, changing trash cans, filling propane tanks, and picking up loose garbage. The monotony of those shifts had a great impact on me. Day in and day out, so many of my shifts felt exactly the same as the ones that came before. I never planned on being a maintenance worker long-term, but the monotony of those shifts made me yearn even more for a career that would offer excitement and fulfillment.

In the present of 2023, I feel privileged to be a lawyer because I am able to help people accused of crimes through the most difficult moments of their lives. I am entering my fourth year of practice as a criminal defense attorney. While a sizable portion of my clients are retained cases, most of my cases are indigent clients that I am appointed to represent by the court. Even on my most stressful day of work, I am never confronted with losing my own liberty, unlike my clients who may face days, years, decades, or life in prison if they are convicted. In being a lawyer, I have learned that the best way to advocate for your client is to build a personal connection with them. Sometimes, as we all know, your client may not be interested in forming any sort of connection. But at the very least, having a strong sense of empathy for your client’s situation can help you be a successful advocate.

I feel privileged to be a lawyer because each day of work is exciting, different, and intellectually stimulating. Being a criminal defense attorney is never a monotonous job. Every case, every client, every work day is different in some way from the one that came before. Every client’s case has unique facts; every client has their own personal story; and every investigation yields different results. I feel fortunate in getting to know February 2023

my clients, and be a part of their lives. In my time as an attorney, I have also visited many courthouses and jails across the various counties of East Tennessee. There are many regions and smaller towns that I (most likely) never would have seen if it weren’t for being an attorney. All this to say, I experience a level of contentment and fulfillment in being a lawyer that I never felt with the other jobs I held in life.

Lastly, I feel privileged to be a lawyer because of the friendships I’ve made with other lawyers, court staff, and members of the legal community. When work is stressful, or I’m handling a difficult case, I always receive encouragement and support from the other lawyers I talk to. The sense of camaraderie that I experience with my fellow attorneys always inspires me to the best advocate possible. If I were not a lawyer, I would never have had the opportunity to meet and work with such an amazing group of legal minds. We truly are blessed to have such a congenial local bar, and I would encourage everyone to participate in the KBA’s many events. If you aren’t feeling that ambitious, I would encourage you to simply strike up a conversation with another attorney in the courtroom. We all have much to gain by communicating and learning from one another.

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AROUND THE BAR By: Cathy Shuck

East Tennessee Children’s Hospital

CHAIR CHAT Looking for a new way to get involved this year? The groups featured in this month’s “Chair Chat” may be right for you.1 Wellness Committee Beth Ford and Hannah Lowe have co-Chaired this committee since its founding in 2022 and shared the following information with DICTA: Who should join the Wellness Committee?

Anyone who breathes. If you have a body with a heart and a mind, our committee is for you.

What is something that people might not know about your committee, but should?

We are not bound by any strict directives. Creativity and flexibility are the only requirements, along with a desire to be healthy in every way possible. We are committed to finding ways for KBA members to connect and support each other to become a community where lawyers can thrive in all aspects of life and law practice.

If the committee were a household appliance, what would it be and why?

The refrigerator, because you really cannot have a kitchen without one.

Like a refrigerator, wellness takes care of the things that we absolutely need and things that are just fun to have.

What events or other projects are in the works?

The KBA recently added a wellness resources page on the KBA website. We plan to add a weekly wellness tip to the weekly KBA emails. In 2023, we will continue our weekly walks at Lakeshore Park (Wednesdays at 6 pm, meet at the top parking lot). The Tennis/Pickleball tournament will return again in summer 2023. The September Wellness Conference will be an annual event, including opportunities to connect with local health vendors at the health fair, to explore the city with local historian Jack Neely, and to hear from speakers on a broad range of wellness topics. We hope to create more opportunities for our members to get together outside and out in the community for hiking, yoga, and other physical fitness activities. We hope to plan other events to address other aspects of wellbeing. If anyone has any ideas, please join us and share!

If the committee could do anything at all, what would it be?

We seek to help and support our members to find whatever tools work for them to allow them to thrive in their life and law practice.

Whether it is committing to meditate for 5 minutes every day, to sleep for at least 8 hours every night, to leave the desk and take a walk, to take time to disconnect from email notifications or other electronic distractions, to spend time with family and friends or exploring new hobbies, to schedule the annual doctor visit that often gets sidelined when we do not prioritize our own physical and mental wellbeing, to make a plan for tackling debts and building wealth, to find the courage to make career choices and changes, even small changes can help us to connect with our “why” and find meaning and purpose to allow us to thrive in our life and law practice.

Anything else to add?

The KBA already has a collegial community of lawyers. We are stronger when we join together and connect with each other. We hope you will join us in our commitment to making the KBA a healthy, happy, and thriving Bar. Professionalism Commmittee Chancellor John Weaver has helmed the Professionalism Committee since December 2008. James Stovall joined him as co-Chair in 2021.

Who should join the Professionalism Committee?

Attorneys who are interested in careful review and discussion of proposed changes to state and local rules of ethics and procedure.

What is something people might not know about your Committee, but should?

The Professionalism Committee is responsible for making nominations for two awards given by the KBA Board of Governors, the Courage in the Face of Adversity Award and the Don Paine Lawyer Legacy Award.

The former recognizes an attorney with “exceptional courage, charity, grace,

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unselfishness and professionalism in the face of adversity.” The latter recognizes exceptional lawyers who have distinguished themselves in living up to the legacy of Don Paine, by demonstrating, among other things, service to the community, legal scholarship/writing/teaching, and commitment to access to justice.

If the Committee were a household appliance, what would it be and why?

An oven: our discussion of proposed changes can get hot, but the end result is usually nutritious if not tasty.

What events and/or projects are in the works?

The Committee sponsors an annual fall hike. And we are interested in receiving any nominations attorneys may have for the awards.

If the Committee could do anything at all, what would it be?

It’s a tie between unraveling misconceptions about the merger of law and equity, or rehearing Jarndyce v. Jarndyce.

Anything else to add?

We hope our committee models discussion of sometimes difficult or controversial questions with civility and, dare we say it, professionalism.

We wouldn’t live up to our name otherwise.

New Lawyers Secton 2022 co-Chairs Sanjay Ramen and Courteney Barnes-Anderson shared the following information2: Who should join the New Lawyers Section?

Attorneys in their first three years of practice should join the New Lawyers Section. The group fosters community amongst new lawyers who are facing similar experiences at the start of their careers.

How does the New Lawyers Section differ from the Barristers?

The Barristers is open to members of the Knoxville Bar Association under the age of 36 or who have been practicing for fewer than 5 years. The New Lawyers Section is limited to attorneys who are in their first three years of practice. The Barristers is a much larger group and a great resource for new attorneys in addition to the New Lawyers Section.

What is something people might not know about your Section but should?

Our primary focus when planning events is to provide new attorneys with knowledge, tips, and tools that will help them address the complexities that come with being a new attorney. The attorneys who regularly attend our programs are eager to get to know other members of the bar and to gain insight that could help them set the upward trajectory of their legal careers.

If the Section were a household appliance, what would it be and why?

If the Section were a household appliance, it would be the coffee maker. Although somewhat small and seemingly insignificant when compared to other appliances, without the coffee it brews, some people would not and could not make it through the day. It’s the same with our Section. New lawyers may seem insignificant in not providing as much value as their more senior counterparts, but without the work new attorneys do, some offices would move much more slowly and quickly lose their edge.

What type of events and/or projects do you sponsor?

We had an event in November 2022 at Schulz Brau Brewing Co entitled, “Business Coaching for Young Attorneys – Get an Early Leg Up on Your Career.” Attorney and business coach Leigh Cowden has also shared advice on how to achieve career goals and self-advocate in navigating the legal world as young attorneys.

If the Section could do anything at all, what would it be?

The NLS would love to have an event to infuse the members’ excitement into the full bar in a new way. We look forward to finding new ways to have fun in connecting the bar’s newest members to some of the more senior members.

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DICTA

Responses from Committee and Section chairs have been edited for length and clarity.

The 2023 co-Chairs are Kathryn Haaquist and Nicole Turbinton

February 2023

AT TO R N E Y P R O F I L E By: David M. Eldridge

Eldridge & Blakney, P.C.

Tasha C. Blakney

Eldridge & Blakney, P.C.

ZACHARY R. WALDEN – BARRISTERS PRESIDENT It is with great pride that we introduce the Honorable Zachary R. Walden, formerly known to us as Zack, now known to us as “Your Honor,” as the incoming President of the KBA Barristers. The fact that we have the opportunity to write this introduction is a testament to the kind of person Judge Walden is. Having successfully run for the seat of retiring Judge Shayne Sexton as the Criminal Court Judge for the Eighth Judicial District (comprised of Fentress, Scott, Campbell, Union, and Claiborne counties), the easy way out would have been to cite the pressing responsibilities of his new position and politely bowing out of serving as the Barristers President this year. Such a step is just not in Judge Walden’s DNA – he made his commitment to serve and is going to do just that.

Judge Walden was born, raised, and still lives in Campbell County.

He is the son of Pamela and Bob Walden who are both long-term and respected educators in the Campbell County School system. He is a member of a very large family of Walden’s in the area, so much so that we joked that he would win the election in Campbell County if only his family voted for him.

He graduated from Campbell County High School, ETSU, and then ventured down to Tuscaloosa to attend the University of Alabama Law School, lured by generous scholarship opportunities like a 5-star football recruit. While at Alabama, he drank the Bama Kool-Aid and became a die-hard Bama football fan.

When now-Judge Walden came to work with us six years ago, he was very open with us that if and when Judge Sexton retired, he planned to pursue a position on the bench. Unfortunately for us, but fortunately for the bar and citizens of the Eighth Judicial District, that opportunity presented itself to him this past year. Leadership has always been a part of Judge Walden’s nature. While at ETSU, he was very active in leadership roles, serving as Vice President of the student body, Senator in the Student Government Association, Director of the Tennessee Association of Residence Halls, and on the Tennessee Higher Education Commission, among other positions. After the grind of law school and while practicing with us, he remained active and interested in local government and politics. Campaigning came quite naturally to Zack, and he was obviously good at it although it was an exhausting summer for him as he worked with us and ran his campaign at the same time. It all paid off for him in August with his election as the youngest judge in the state of Tennessee.

While with us, Zack had the opportunity to develop experience beyond his years. On David’s side of our practice, he played a very meaningful role in trying two long and complicated out of town trials – the kind where it was necessary to set up housekeeping in an Airbnb.

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Zack actually lived with David, sometimes his wife Desiree, and their dog Kate during these trials and David and Desiree call him their “fake son.”

On Tasha’s side of the house, Zack participated in an extraordinarily wide range of cases, including trials, hearings, mediations, and arbitrations. In just one instance of note, Zack did extraordinary legal work with one of our clients, securing a position for him in Veterans’ Recovery Court, at a time when it appeared that nearly everyone else thought there were no other options available. To this day, the client continues to recover and had experienced an extraordinary reformation, in large part thanks to Zack’s efforts. Now Judge Walden developed the respect of the presiding judges and the lawyers in each of these cases and many others.

Zack brings a great deal of bar leadership experience to his Barristers Presidency as well. He has been active in the TBA Young Lawyers Division serving, for example, as one of the statewide Mock Trial co-chairs for several years, including putting on the competition entirely virtually during the COVID pandemic. He has, of course, been active locally as well and has helped organize the Barristers Constitution Day presentations over the years.

Zack will serve the Barristers with a healthy sense of humor as well.

He was a very enjoyable member of our firm family with hearty laughs and unique wit. During the lockdown, we would all look forward to what Zoom background Zack would appear with on our regular calls with one of the most entertaining being Batman in the Batcave!

Judge Walden has packed a lot of experience into his life so far and has justifiably garnered the respect of those who have had the opportunity to work with him, including his predecessor on the bench. Judge Sexton offered this description of the job and Zack: “Presiding over a five-county criminal docket while maintaining a drug recovery court is a daunting task. Prior to taking the bench, Zack was able to observe many courts and the processes that keep them running. Now Judge Walden has laid the groundwork for an efficient and justice-driven court. He is and will be an excellent member of the judiciary.”

It is with almost parental pride that we present Zack Walden to you as the next Barristers President. We know him to be hard-working, well-prepared, talented, professional, and personable. He will be a great Barristers President and a great judge.

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February 2023

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Brandon L. Morrow Kramer Rayson LLP

FIRM MANAGEMENT: DRAWING ON THE PAST TO FOSTER THE FUTURE In this column, we often pen advisory notes to our fellow members of the bar on the latest trends in law office management. We search for timely updates on firm management to pass along to our colleagues.

Those articles are effective, timely, and I’ve dog-eared my fair share of DICTA articles, only to pull them out later when a tricky issue arises.

This article is a bit different. It’s the culmination of my sit-down with Kramer Rayson LLP’s managing partner, Jackson G. ( Jay) Kramer. Jay, a hands-on manager, maintains an active practice (managing the firm is not his only job), focusing on wills, trusts, estates, real estate, and general business matters.

He brings a unique perspective to firm management. As we discussed managing a 30-attorney firm in 2023, Jay often drew on the advice of his late father, Jackson C. ( Jack) Kramer, who managed the firm in the 1970s and 1980s. Managing a firm has changed a lot in the decades since the late Mr. Kramer oversaw the organization. But, as I quickly learned, there remain many lessons from leaders of the past that have plenty of application today.

People. When asked about the firm’s most valuable resource, Jay was quick to answer: our people. This peoplecentric approach has been a hallmark of the firm’s existence. From the senior partner to the newest intern, it’s important for them to know the organization cares about them, he said.

But individual attention must be balanced with a duty to the organization as a whole. Jay recalled some advice from his father: “Always remember the organization. Not everyone is going to agree with every decision you make, but they have to know that every decision is made for the greater good.” This advice—focusing on sound motives supporting decisions rather than just their outcomes—can be applied to firms big and small.

Challenges. When asked about the greatest challenges facing law firms, Jay immediately identified two. First, how do we find the time and resources to train young lawyers? With more pressure on the bottom line than ever, Jay pointed out that many clients are reluctant to staff a matter with more than one attorney. “When I first started practicing, it was a foregone conclusion for clients that younger attorneys would be staffed on matters alongside more senior attorneys.” While there were some costs associated with that, the benefits were two-fold: the younger attorneys gained valuable experience and the clients got to know those younger attorneys who would later take over the work, providing invaluable

continuity of representation. Firms owe a duty to those younger lawyers, Jay pointed out, to ensure they get the experience they deserve, even if it means absorbing the costs somewhere along the way.

Second, how do we manage the expectation for instantaneous actions and responses? The culprit is easy to identify: technology. And Jay was quick to point out that this expectation for immediate action isn’t limited to clients, nor is it limited to our profession. Nevertheless, with the light-speed pace at which technology has developed—a “blessing and a curse” according to Jay—everyone expects an immediate response.

“But sometimes,” he reflected, “an instant response is not the best response. Sometimes, in order to be thoughtful, we have to take some time to reflect before responding, whether that be to the court, a client, or opposing counsel.” Nevertheless, technology plays a necessary and crucial role in managing law firms. But recognizing the role technology plays, does not necessarily mean you have to be an expert in it. While a tech guru he is not (he still reads a physical newspaper), Jay does what any good leader does: he surrounds himself with those who possess the necessary skills, whether it be IT professionals or young, tech-savvy associates.

Culture. This is a term that permeates the recruiting landscape and is all-too frequently used in LinkedIn posts. But Jay opined that his job is not necessarily to create a culture, but to foster the culture, a collegial atmosphere, that has permeated the firm for the last 75 years. How does a firm develop or maintain that type of collegial culture? “Hiring good people, who just happen to be very skilled lawyers and counselors, is the most effective way,” Jay stated, again drawing on advice from his father.

But he went on to add that it’s crucial to remember that while the work we do is very serious, we can’t take ourselves too seriously, either. That last piece of advice came on the heels of a comment from Jay, who’s been at the reins for a little over a year, where he stated with a dry smile that he was thankful there had been no “palace coup” attempts during his tenure.

The dichotomy between past and future dominated our conversation.

It also shapes the way Jay serves as managing partner of the firm that bears his family’s name. “It is rewarding,” Jay remarked, “to shepherd this organization into the future.” But he was quick to point out that looking to the future, also means that we must be “caretakers of the legacy” upon which the firm was built.

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.

February 2023

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February 2023

L E G A L U P DAT E By: Regina Koho

Attorney, Tennessee Valley Authority Office of the General Counsel

A PROBLEM FOR THE GENERAL ASSEMBLY TO SOLVE—

TENNESSEE SUPREME COURT RULES THAT NETFLIX AND HULU ARE NOT “VIDEO SERVICE PROVIDERS” SUBJECT TO FRANCHISE FEES UNDER THE COMPETITIVE CABLE AND VIDEO SERVICES ACT Background It’s difficult to have a conversation these days without being asked whether you’ve seen the latest series, documentary, or film that has been released on Netflix, Hulu, or a similar streaming service. Yet given their recent vintage, streaming services don’t fit comfortably within existing regulatory schemes for content providers, which often generate fees for the localities they serve. In contrast, traditional cable and internet providers must often obtain authorization to operate in a particular locality and then pay relevant fees to do so. For example, cable and internet companies serving the Knoxville area must obtain a franchise pursuant to the Tennessee Competitive Cable and Services Act (“the Act”),1 which was enacted in 2008. They must then pay a franchise fee based largely on gross revenues,2 which is “intended as a form of compensation for the provider’s occupancy of the public rights-of-way.”3 As more and more subscribers switch from traditional cable to streaming services, local governments have naturally looked for ways to obtain revenue from these emerging content providers.

The City of Knoxville (“the City”) made such an attempt by filing suit in the U.S. District Court for the Eastern District of Tennessee “on behalf of a putative class of all Tennessee municipalities and counties in which Netflix or Hulu has subscribers,” arguing that these streaming services should be classified as “video service providers” under the Act and thus be subject to local franchise fees.4 Netflix and Hulu moved to dismiss, arguing, in pertinent part, that they did not provide “video services” under the Act.5 Because the outcome of these motions turned on an unanswered question of state law, the district court certified the question to the Tennessee Supreme Court,6 which accepted it.7 Despite their ubiquity, modern streaming services are not “video service providers” covered by the Act Under the Act, an entity provides “video service” if it engages in the “provision of video programming through wireline facilities located, at least in part, in the public rights-of-way.”8 Although the parties did not dispute that the content provided by Netflix and Hulu “travels over wireline facilities located in the public rights-of-way,” they did dispute whether these streaming services’ “use of wireline facilities owned and operated by third-party [internet service providers] counts as the ‘provision of video programming through wireline facilities’” under the Act.9 Finding that this definition did not answer the question in isolation, the Court looked to the broader statutory scheme for guidance. It found that several of the Act’s provisions “link[ed] franchise holding with construction or operation of facilities in the public rights-of-way.”10 For example, the Act defined “franchise” as “‘authorization to construct and operate a cable or video service provider’s facility within the public rights-of-way used to provide cable or video service.’”11 Additionally, the February 2023

certificate obtained under a franchise authorized a provider “to construct, maintain and operate facilities through . . . any public rights-of-way.”12 And the franchise fee paid by a video service provider was meant to be “compensation for its facilities’ presence in a particular locality’s public rights-of-way.”13 Thus, given the Act’s focus “on granting video service providers permission to physically occupy the public rights-of-way and ensuring that those providers adequately compensate localities for that privilege,” the Court concluded that it made “little sense to interpret it to apply to entities like Netflix and Hulu that do not construct or operate the wireline facilities that are used to transmit their content.”14 The City persuasively countered that, as a matter of policy, Netflix and Hulu should be subject to the Act’s franchise requirements—due to these streaming services’ popularity, third-party internet service providers had been forced “to build additional capacity in public rightsof-way,” and the City contended that these entities “ought to compensate municipalities for benefitting from these improvements.”15 But the Court also rejected this argument, concluding that it was “not well situated to weigh competing policy arguments involving rapidly changing technologies in a complex economic sector subject to substantial federal and state regulation.”16 Because Netflix and Hulu did “not construct or operate the facilities through which their content passes,” instead relying on third-party internet service providers “to transmit it to the end-user,” they were not providing “video service” as contemplated by the text of the Act.17 As a result of this ruling, the ball is in the Tennessee General Assembly’s court. And until it intervenes, streaming services, like Netflix and Hulu, will continue to benefit from the regulatory gap that has resulted from technology outgrowing arguably applicable legislation.

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Tenn. Code Ann. § 7-59-306(a).

Id. Tenn. Code Ann. § 7-59-306(i).

City of Knoxville v. Netflix, Inc., No. M202101107SCR23CV, 2022 WL 17099921, at *2 (Tenn. Nov. 22, 2022) [hereinafter City of Knoxville v. Netflix].

Id. Tennessee Supreme Court Rule 23, § 1, allows the Court, “at its discretion, [to] answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a District Court of the United States in Tennessee, or a United States Bankruptcy Court in Tennessee.” Certification turns on whether there are questions of state law that “will be determinative of the cause and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of Tennessee.” Id. City of Knoxville v. Netflix, 2022 WL 17099921, at *2.

Tenn. Code Ann. § 7-59-303(19).

City of Knoxville v. Netflix, 2022 WL 17099921, at *3.

Id. at *4.

Id. (quoting Tenn. Code Ann. § 7-59-303(8)).

Tenn. Code Ann. § 7-59-305(e)(1)–(2).

City of Knoxville v. Netflix, 2022 WL 17099921, at *5.

Id. Id. at *7.

Id. Id.

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TENNESSEE SUPREME COURT HOLDS MANDATORY LIFE SENTENCES FOR JUVENILE OFFENDERS ARE UNCONSTITUTIONAL “In fulfilling our duty to decide constitutional issues, we hold that an automatic life sentence when imposed on a juvenile homicide offender with no consideration of the juvenile’s age or other circumstances violates the prohibition against cruel and unusual punishment under the Eighth Amendment to the United States Constitution.”

Justice Sharon G. Lee State v. Tyshon Booker, (Tenn., November 18, 2022) ***************************************************************************** Tyshon Booker, who lived in Knoxville, was 16-years old when he shot and killed G’Metrik Caldwell. After juvenile court transferred his case to Knox County Criminal Court, prosecutors charged him with first-degree felony murder and especially aggravated robbery (involving Mr. Caldwell’s cell phone). The year Tyshon turned 18-years old, a jury convicted him as charged. As Tennessee law required, on the felonymurder conviction, the trial court sentenced Tyshon, without a hearing, to life in prison. In Tennessee, life in prison carries a 60-year term of imprisonment, to be served day for day, less only sentence credits earned and retained that cannot exceed nine years. On November 18, 2022, the year Tyshon turned 23 years old, the Tennessee Supreme Court held that his automatic life sentence violated the Eighth Amendment. As a result, Tyshon is now eligible for (but not guaranteed) supervised release on parole after serving between 25 and 36 years. His earliest parole date will occur in 2040, the year he turns 41-years old. The same time frame of parole eligibility after serving 25 to 36 years will also apply to over 100 other juvenile homicide offenders serving automatic life sentences. At these parole hearings, the defendants will be entitled to individualized consideration in which age, rehabilitation, and other circumstances will be taken into account.

Many articles analyzing the landmark Booker opinion are available.

Owing to the word limitation for feature KBA articles and recognizing that the Tennessee Supreme Court’s decision was not unanimous, this article will focus on the competing legal viewpoints expressed by the Justices. East Tennessee Justice Sharon Lee authored the plurality opinion. Special Justice William C. Koch, Jr, who was enlisted after the death of Justice Connie Clark, joined Justice Lee’s opinion. Justice Holly Kirby filed an opinion concurring in the judgment, and Justice Jeffrey S. Bivins, filed a dissenting opinion in which Chief Justice Roger A. Page joined.

Prior to Booker, Tennessee was not aligned with either a majority

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or with a minority of states that had addressed the constitutionality of automatic or mandatory sentencing of juvenile offenders convicted of homicide offenses. Rather, Tennessee was a one-off. “In the entirety of the nation, Tennessee [stood] alone.”1 Justice Lee punctuated the point: Tennessee’s life sentence when automatically imposed on a juvenile is the harshest of any sentence in the country. No one, including the dissent, disputes that a juvenile offender serving a life sentence in Tennessee is incarcerated longer than juvenile offenders serving life sentences in other states. For example, had Mr. Booker committed felony murder in nearby Alabama, he would have been eligible for release in fifteen years; twenty years in Virginia; twenty-five years in North Carolina, Kentucky, and Missouri; thirty years in Georgia; and twenty-five to thirty years in Arkansas.2 The disparity between Tennessee and other states is essential to understanding the nature of the Eighth Amendment violation.

Justice Lee anchored the plurality opinion in existing United States Supreme Court’s precedents. Central to the Supreme Court’s Eighth Amendment jurisprudence is its firm conviction that “children are constitutionally different from adults for purposes of sentencing.”3 Three key differences between juveniles and adults are at play: (1) juveniles lack maturity and have an underdeveloped sense of responsibility; (2) juveniles are more susceptible to negative influences and outside pressures; and (3) the character of a juvenile is not as well formed as that of an adult. Juveniles have lesser culpability and greater amenability to rehabilitation than adult offenders. Tennessee’s scheme, however, makes no allowances for these constitutional differences, thereby violating the Eighth Amendment.

Justice Lee acknowledged that the Court was not free to write “personal opinions on public policy into law.”4 Even so, the Court has the sole authority and responsibility to determine the constitutionality of actions taken by the other two branches of government. The Court must not shirk its duty to “say what the law is.”5 That a party may disagree with the Court’s determination about the constitutionality of a statute does not signify that the judiciary has “usurped the legislative prerogative.”6 Justice Kirby’s concurrence and contribution to the Booker plurality opinion deserve separate recognition. She firmly planted her flag on the existence of “unequivocal objective data” demonstrating “that a national

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February 2023

COVER STORY By: Ann Short

The Bosch Law Firm, P.C.

for that of the General Assembly.12

consensus had formed against juvenile sentencing statutes like Tennessee’s.”7 [T]the Supreme Court’s body of Eighth Amendment cases, taken as a whole, requires that we consult objective data. The proportionality assessment under the Eighth Amendment “does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.”8 To that end, Justice Kirby examined the number of states that have overtly rejected Tennessee’s challenged practice, either legislatively or judicially; the frequency with which Tennessee’s challenged sentencing practice is actually used; and indicia of trends among states, including the direction and pace of change regarding Tennessee’s challenged sentencing practice. Such an examination, she emphasized, “ensures principled constitutional analysis that is not premised on the subjective sensibilities of individual judges.”9 Justice Kirby’s examination revealed that “there is now a national consensus against the type of statute Tennessee has.”10 Justice Kirby called out the dissent for ignoring the irrefutable objective indicia of a national consensus against a sentencing statute like the one in Tennessee. “The dissent’s only response to it is to shrug – in a footnote – that there is no way to ‘predict with confidence what the Supreme Court may say’ if it were faced with the data Mr. Booker presents.” She added, “This is weak tea.”11 The remedy that the plurality and concurring opinions in Booker crafted and applied does not disturb Tyshon Booker’s 60-year sentence; instead, reasoning from a previously enacted and never repealed statute, the plurality Court held that Tyshon Booker will be eligible for, although not guaranteed, supervised release on parole after serving between 25 and 36 years. This remedy had been agreed upon by the parties in the event Tyshon Booker’s mandatory sentence was ruled unconstitutional. Justice Lee further explained the benefits thusly: We exercise judicial restraint when remedying the unconstitutionality of the current statutory schemed for sentencing juvenile homicide offenders. Rather than creating a new sentencing scheme or resentencing Mr. Booker, we apply the sentencing policy adopted by the General Assembly in its previous enactment of section 40-35-501. In doing so, we make no policy decisions. Nor do we substitute our judgment February 2023

Turning to Justice Bivins’s dissent in which Justice Page joined, the primary message is that the plurality “impermissibly moves the Court into an area reserved to the legislative branch.”13 This is particularly true, according to the dissent, because the United States Supreme Court has not specifically addressed whether a mandatory life sentence, such as legislatively designed for Tennessee, as applied to juveniles violates the Eighth Amendment. Even so, the dissent regarded the result of the plurality to be “sound,” albeit a misguided policy decision that cannot be reconciled with judicial restraint.14 So, how does Booker bear on future cases? One view is that no other juveniles convicted as adults of firstdegree murder or felony murder will automatically receive life sentences because judges will have discretion to impose lesser sentences. This writer disagrees. The legislature could, if it was so inclined, give the trial courts discretion under a modified sentencing scheme, but the Booker decision itself doesn’t establish a new scheme. Absent legislative intervention, a mandatory life sentence will still be required, but it will be life with release to supervised parole eligibility after serving between 25 and 36 years.

On a concluding personal note, I am proud that East Tennessee is home to some of the finest legal minds anywhere and to the highest standards of professionalism, as exhibited in this case by Tyshon’s lead trial and appellate advocates, Jonathan Harwell and Chloe Akers.

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Slip op. at 1 (Kirby, J., concurring) Slip op. at 13 (Lee, J., plurality opinion).

Miller v. Alabama, 567 U.S. 460, 471 (2012).

Slip op. at 4 (Lee, J., plurality opinion).

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Slip op. at 19 (Lee, J., plurality opinion).

Slip op. at 1 (Kirby, J., concurring).

Slip op. at 4 (Kirby, J., concurring) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976).

Slip op. at 5 (Kirby, J., concurring).

Slip op. at 8 (Kirby, J., concurring).

Slip op. at 11 (Kirby, J., concurring).

Slip op. at 18-19 (Lee, J., plurality opinion).

Slip op. at 1 (Bivins, J., dissenting).

Drawing upon Supreme Court Justice Kavanaugh’s words in Jones v. Mississippi, 141 S. Ct. 1307, 1322 (2021), that the Court’s ruling on the legal issue “should not be construed as agreement or disagreement with the sentence imposed against Jones,” Justice Bivins stressed that he did not arrive at his conclusion “without serious concerns and reservations,” Slip op. at 18 (Bivins, J., dissenting).

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IN LIMINE By: Allison Starnes-Anglea

LMU Duncan School of Law Director of Career Services

Carol Anne Long

UT Law Interim Director of the Career Center

PROFILING FUTURE JDS Welcome to DICTA’s newest article, In Limine: Profiling Future J.D.s. This article will be a collaborative effort between the bar association and both of Knoxville’s law schools. The goal of the piece is to demystify the experience of the modern law student and to offer insights into how our bench and bar can foster an inclusive, authentic workplace culture. Each month, the authors will highlight a law student from either the University of Tennessee College of Law or the Lincoln Memorial University Duncan School of Law. We hope you enjoy this introduction to the future of the profession, all from the comfort of your office. The students featured will be from diverse backgrounds and identities, and you will learn about this generation’s motivations and goals. For those who encounter a law clerk and find themselves saying, “I just do not understand this generation of law students,” this column is your new best friend. Selecting and profiling the law students of today may sound intimidating, but a fearless duo has stepped up. It may surprise you to learn the authors of the article are not professors of law, not clinic supervisors or attorneys moonlighting as adjunct professors, but come from the service side of the J.D. program. In a unique posture to explain who our next generation will be, our authors are two leaders from law school career services departments. Let’s meet them!

I am Allison Starnes-Anglea, Director of Career Services at the Lincoln Memorial University Duncan School of Law in Knoxville.

My job responsibilities include direct one-on-one career advising with law students and alumni, composing and executing an inclusive career development programming schedule, and serving as a resource to employers both active and potential. After five years in career development and spending individual time with hundreds of law students and new lawyers, I can confidently declare that the law students of today care about more than their own personal careers. This generation of almost-lawyers is one with an eye on social justice, inclusion, and selfrespect. Along with their personal career goals, law students want to make a larger impact on their communities, the justice system, and speak out against injustice.

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I am Carol Anne Long. In March 2022, I returned to my alma mater to begin serving as Associate Director of the Bettye B. Lewis Career Center at the University of Tennessee College of Law, and on January 3 of this year, I became Interim Director of the Career Center.

Similar to Allison’s position, my job involves career counseling, student programming, and employer outreach and engagement. Because of my background as a career judicial clerk, I also serve as the judicial clerkship advisor, assisting and advising students as they navigate the application process. In my short tenure with the UT Law Career Center, I, too, have seen first-hand how deeply today’s law students care about making an impact, not just on the legal community but on their communities at large.

With this column, we hope to amplify the interests, passions, and goals of Knoxville’s law student population. Each month, we will profile a law student in Knoxville. We will explore their background, motivations, and career goals. Most importantly, we will get to the why.

Learning who our Knoxville law students are and why they chose this path will not only educate you about trending initiatives important to the youth of our profession, but also enhance your engagement skills as the students featured apply for internships, clerkships, and J.D. positions in your offices. Taking time to learn about the why will improve your ability to authentically engage with this motivated, thoughtful generation. We also plan to include a Hiring Footnotes section each month, in which we will offer a quick tip that we hope will assist you in your search for interns, law clerks, and attorneys. With the ever-changing legal landscape, application materials and interviews continue to evolve, and we want to provide some insight into trends that we’re seeing.

DICTA

We hope you enjoy meeting our students.

February 2023

SCHOOLED IN ETHICS By: Alex B. Long

Williford Gragg Distinguished Professor of Law University of Tennessee College of Law

CLARIFYING THE SCOPE OF THE ATTORNEY-CLIENT PRIVILEGE Tennessee courts have explained that the purpose of the attorneyclient privilege “is to shelter the confidences a client shares with his or her attorney when seeking legal advice, in the interest of protecting a relationship that is a mainstay of our system of justice.” Bryan v. State, 848 S.W.2d 72, 79 (Tenn. Crim. App. 1992). In January, the United States Supreme Court heard oral arguments concerning a circuit split over the scope of the attorney-client privilege. In addition to addressing a potentially important issue concerning the privilege, the case illustrates an important distinction between the application of the privilege and a lawyer’s ethical obligations under the rules of professional conduct.

Under the standard formulation of the attorney-client privilege, communications made in confidence between privileged parties for the purpose of providing or seeking legal advice are protected from disclosure. In Re Grand Jury, No. 21-1397, involves the question of how the attorney-client privilege should apply when a client’s communication involves intertwined legal and nonlegal purposes. The attorney in question prepares tax forms for clients and provides tax advice. A federal grand jury subpoenaed the lawyer for the production of documents related to a criminal investigation of one of the lawyer’s clients. The lawyer resisted on the grounds of attorney-client privilege.

The communications at issue involved client questions about tax return preparation (which would not ordinarily be covered by the privilege because such questions do not involve legal advice) and communications seeking legal advice about what to claim on tax returns (which would be covered by the privilege). So, the client had a dual purpose in making the communications.

There are several possible tests that courts have applied in these dual-purpose situations. The trial court and Ninth Circuit Court of Appeals applied a “primary purpose” test, which examines whether the client’s primary purpose was to obtain legal advice. The Sixth Circuit has arguably adopted this approach. See Alomari v. v. Ohio Dept. of Pub. Safety, 626 Fed. Appx. 558, 570 (6th Cir. 2015). In contrast, the D.C. Circuit Court of Appeals has adopted something more along the lines of a “significant purpose” test, which examines whether obtaining legal advice was a significant purpose of the client’s communication. The Restatement of the Law Governing Lawyers articulates a similar rule. See Restatement § 72 cmt. c (stating that “the privilege applies if one of the significant purposes of a client in communicating with a lawyer is that of obtaining legal assistance”).

The Court’s resolution of this issue may impact Tennessee courts’ views on the scope of the privilege. The Tennessee Supreme Court has repeatedly looked to Supreme Court precedent when addressing the privilege. The court has also held that when a client speaks to lawyer, there is a presumption that the communication is for the purpose of legal advice. See Dialysis Clinic, Inc. v. Medley, 567 S.W.3d 314, 325 (Tenn.

2019).

Regardless of how the Supreme Court ultimately rules, In re Grand

Jury raises several important issues . First, and most obviously, is the impact the Court’s holding will have on client-lawyer communications.

But the case raises some other ethical issues worth noting.

For example, the case illustrates the point that the scope of a lawyer’s obligations under the attorney-client privilege and TRPC Rule 1.6, the rule regarding confidential information, are not co-extensive. The attorney-client privilege would not protect a communication relating to the lawyer’s representation of a client but not made for the purpose of obtaining legal advice. An attorney’s ethical obligation under Rule 1.6 is broader. Rule 1.6 requires an attorney to keep confidential any information regarding the lawyer’s representation of the client, even if the information is not privileged. Obviously, a lawyer could be compelled by force of law to disclose such information, but the lawyer may not voluntarily do so. To use the facts of In re Grand Jury as an example, the client’s communications regarding tax form preparation may not be privileged because they do not involve legal advice; but any information conveyed to the attorney is still information relating to the representation and would be protected by Rule 1.6. Similarly, a communication from a third person to a lawyer relating to the lawyer’s representation of a client would not be privileged because it was not made between privileged persons; but a lawyer would still owe a duty of confidentiality regarding the information under Rule 1.6.

Another ethical issue illustrated by the case concerns a lawyer’s duty to provide advice. TRPC Rule 2.1 requires that a lawyer provide candid “advice,” not simply “legal advice.” The rule actually explicitly states that “[i]n rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.” So, the line that courts seek to draw in the attorney-client privilege context between privileged legal advice and non-privileged non-legal advice may not always be so clear as a matter of legal ethics.

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

February 2023

DICTA

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MONTHLY MEETING Plan now to attend the Barristers monthly meeting on Wednesday, February 8, starting at 5:15 pm at the outdoor patio at The Firefly at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. Register by clicking February 8 on the event calendar at www. knoxbar.org.

VETERANS LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on February 8, 2023. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast.

We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at (865) 3605044 or Darrius Dixon at (865) 546-4646 with any questions and/or about volunteering.

HIGH SCHOOL MOCK TRIAL SEEKS VOLUNTEERS The Regional High School Mock Trial Competition will occur this month, in the City County Building on February 24 and 25, and the final two teams will advance to the championship round held in LMU’s Business Courtroom on Sunday, February 26. This program is supported entirely by volunteer efforts. Traditionally, East Tennessee law school students, attorneys, and judges have donated their time to serve in the roles of bailiffs, scoring judges, and presiding judges during the competition. Each volunteer shift is a roughly 2.5-hour time commitment (the length of one trial). Please contact either Bridget Pyman at (865) 546-7000 or Isaac Westling at (865) 673-8516 with any questions, and if you are interested in volunteering, you can sign up at: https://memcentral. wufoo.com/forms/mdbyy3q1labt0z/

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:

DIVERSITY COMMITTEE COLLECTS DONATIONS FOR SCHOLARSHIP FUND The KBA is committed to becoming a more diverse and inclusive organization. To help further this important goal, the Barristers Diversity Committee Chairs, Mariel Bough and Grant Williamson, spoke with student leaders of several student organizations at the law schools in Knoxville to gain a better understanding of what barriers diverse students were facing in attending law school in Knoxville. In an effort to target this issue, the Barristers Diversity Committee has created a scholarship fund to help with travel and lodging costs for diverse students who are invited to attend preview days hosted by the law schools. Members are asked to donate to help ensure that one student, who may not otherwise be able to afford to visit a law school in Knoxville prior to their enrollment, is able to attend a preview day. A more diverse and inclusive KBA is only possible with a more diverse student population at local law schools.

Your donation would help alleviate one of the barriers preventing diverse students from being able to visit campuses in Knoxville and see all that its law schools and the Knoxville Bar have to offer. Learn more and donate at https://www.knoxbar.org/?pg=BarristersDiversityCommittee. If you have questions, please reach out to Mariel Bough (mariel.bough@verasafe.com) or Grant Williamson (gwilliamson@bradley.com) for more information on how your donation will be used, or for more ways to get involved with the Barristers Diversity Committee’s efforts to make the KBA a more inclusive and diverse organization.

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WELCOME NEW MEMBERS

DICTA

NEW ATTORNEYS Stephen M. Boyette, Jr. Breeding Olinzock Carter Crippen, PC Kelby Christopher Cowan Christopher C. Cowart Knoxville Leadership Foundation Bill E. Dials Gregory Chance Harrison Valliant, Harrison & Schwartz, P.A. Preston D. Pierce Knox County Public Defender’s Community Law Office Caleb A. Smothers Alaina Michelle Tolbert Spicer Rudstrom, PLLC

NEW LAW STUDENT MEMBERS Caleb T. Atkins Joni Christine Dalton L. Gossett Addison Gross

Jackson S. Ritt Whitley Smith Brylee Whitsitt William M. Wing

February 2023

SIMPLE THINGS By: Melissa B. Carrasco

Egerton, McAfee, Armistead & Davis, P.C.

1.8 MILLION HEARTS AND COUNTING If you stop for coffee at the Davy Crockett Travel Center at I-81, Exit 36, you will see a couple of signs reserving a couple of parking spaces in front of the main entrance. Not everyone can park in those spaces.

You have to have a specific calling card.

Originally, it was cut from a swatch of dark, purple cloth, with the word “MERIT” and a wreath of flowers carefully embroidered in a lighter purple thread. Only three people ever wore it.1 Sergeant Elijah Churchill was the first. He led the successful attack on Fort St. George on Long Island, and then, eleven months later, was wounded while leading a successful raid against Fort Slongo.2 Sergeant Daniel Bissell successfully infiltrated New York City when it was under occupation and providing invaluable intelligence on troop size and movements to the Continental Army.3 Sergeant William Brown served with Alexander Hamilton at the Battle of Yorktown—leading a division of twelve in a surprise attack against hundreds.4 In 1782, General George Washington announced the creation of the Badge of Military Merit, “that whenever any singularly meritorious action is performed, the author of it shall be permitted to wear . . . over his left breast, the figure of a heart in purple cloth . . . Not only instances of unusual gallantry but also of extraordinary fidelity and essential service . . . shall be met with due award.”5 It was to be awarded only to enlisted soldiers, and once awarded, it permitted the recipients to pass all guards and sentinels, the same as commissioned officers. Recipients’ names were to be recorded in a “Book of Merit.”6 In 1783, these three Sergeants pinned the embroidered purple heart over their left breasts. Then, the Badge was forgotten.

For 149 years, the Badge remained dormant. It wasn’t that soldiers stopped engaging in unusual gallantry, extraordinary fidelity, or essential service. There just wasn’t a medal or badge for it. For the most part, the only badge of honor a combat-wounded soldier received was a missing limb or a lifelong limp.

With World War I came the Distinguished Service Cross (Army) and the Distinguished Service Medal (Navy & Marine Corps).7 But, these awards were reserved for what was considered “exceptionally meritorious service in a duty of great responsibility.”8 Pfc Leo F. McGuire was the first recipient of the Distinguished Service Cross. While serving with the 647 Ambulance Service, A.E.F., he spent April 19 and 20, 1918, driving an ambulance up and down an exposed road, in broad daylight, under heavy fire, transporting the wounded from the front lines. On his last trip, the ambulance was blown off the road. He extracted himself and returned to base on foot where he begged his commanding officer to allow him to return to duty despite his injuries.9 Brigadier General Charles A. Doyen (USMC) was the first to earn the Distinguished Service Medal. His leadership and strength of will enabled his Marines to resist relentless German forces in Belleau Woods and the Chateau-Thierry sector for nearly a year. It severely impacted his health, and he had to be returned to the United States.10 The stories are legendary, and so many more could be told. But, these Medals, while appropriate, missed something very important.

When General Douglas McArthur was appointed as Army Chief of Staff, he was determined to address that missing piece.

And so, on February 22, 1932 (Washington’s birthday), General McArthur issued General Orders No. 3: “By Order of the President of the United States, the Purple Heart established by General George Washington at Newburgh, August 7, 1782, during the War of the February 2023

Revolution is hereby revived out of respect to his memory and military achievements.”11 It was to be “awarded to persons who, while serving in the Army of the United States, perform any singularly act of extraordinary fidelity or essential service.”12 Then, the following parenthetical was added: “a wound which necessitates treatment by a medical officer, and which is received in action with an enemy of the United States or as a result of an act of such enemy may . . . be construed as resulting from a singularly meritorious act of essential service.”13 Just like that, the Purple Heart returned as the oldest military decoration in American history. It was also unique because, unlike other combat decorations, a person did not have to be recommended for it. A soldier was entitled to receive the Purple Heart if he or she was wounded in combat or as a result of an enemy act and required medical attention.

The Purple Heart recognized that sustaining an injury by putting oneself in harms’ way in the service of the United States was, in and of itself, worthy of recognition.

The criteria to receive the Purple Heart have evolved over the years to address the changing realities of military service. Initially, it could not be awarded posthumously. General McArthur thought the Purple Heart should inspire the living, not commemorate the dead.14 That was changed

by Executive Order in 1942 after the attack on Pearl Harbor. The same Executive Order, also made the Purple Heart available to all branches of the military, not just the Army.15 In 1962, the criteria were revised to include injuries sustained “while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.”16 This revision ensured that those serving in Vietnam were eligible. Similarly in 1992, the criteria were expanded to include POW’s who were wounded during capture or captivity.17 The final revision was in 2015—to extend the Purple Heart to those injured or killed in terrorist attacks.18 Since 1782, more than 1.8 million Purple Heart Medals have been awarded to the men and women of the U.S. military.19 Their names are recorded in the modern version of Washington’s “Book of Merit” – the National Purple Heart Honor Roll.20 Your name has to be on that Honor Roll if you want to park in the reserved parking spaces in front of the Davy Crockett Travel Center, and if your name is on that Honor Roll, you deserve it. Of all of the hearts we see on Valentine’s Day, don’t forget the one we don’t see—the Purple Heart—the one that signifies simple sacrifice.

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DICTA

Fred L. Borch, The Purple Heart—The Story of America’s Oldest Military Decoration and Some Soldier Recipients (The Army Historical Foundation), available at https://armyhistory.org/the-purple-heart-the-story-of-americas-oldest-militarydecoration-and-some-soldier-recipients/#:~:text=First%2C%20it%20is%20 the%20oldest,Army%20during%20the%20American%20Revolution.

Military.com, The Story Behind the First Solder who Received What Became the Purple Heart, https://www.military.com/history/elijah-churchill.html, last visited Jan. 9, 2023.

Todd W. Braisted, A Spy Wins a Purple Heart: The Amazing Tale of Daniel Bissell and the Military Order of Merit, Journal of the American Revolution (June 2, 205) available at https://allthingsliberty.com/2015/06/a-spy-wins-a-purple-heart-theamazing-tale-of-sergeant-daniel-bissell-and-the-military-order-of-merit.

Bill Rinehart, Revolutionary War Hero Who Lies in City’s East End to Be Honored Saturday, WVXU, available at https://www.wvxu.org/local-news/2019-04-26/ revolutionary-war-hero-who-lies-in-citys-east-end-to-be-honored-saturday.

General George Washington, Orders of the Day Aug. 7, 1782 (The Army

continued on page 27

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

RETURN(S) OF THE MAC (AND CHEESE) Velveeta, you lied to me.

When perusing the shelves of macaroni and cheese (hereinafter “mac and cheese”) options, I had a very specific goal of preparing and eating lunch within 5 minutes, flat. This allows 90 seconds for eating and 210 seconds for preparation. Simply mentally divide each cup of pasta into nine bites and eat one bite every ten seconds. Then, return to your day!

Imagine my absolute delight upon seeing that Velveeta, a superior processed cheese brand, makes a mac and cheese that fits within my rigid criteria. Ready in 3 ½ minutes? Sign me up!

involved in removing the lid and cheese sauce pouch, filling the cup with the appropriate amount of water, stirring the pasta and water, stirring in the cheese sauce, and allowing the finished product to stand before consuming would take more than zero seconds. 3 ½ minutes is just the length of time it takes to complete one of many tasks.

For some time, I thought the only person who could possibly understand this dark and angry place I am in was Mark Morrison, who recorded “Return of the Mack” in 1996. You may have heard this song if you ever turned on the radio in 1996 and the years immediately following. You may recall the haunting refrain, “You lied to me.” Yes, you can feel his pain in this song, but do not forget it is a comeback song: ‘Cause what you did, you know was wrong And all the nasty things you’ve done So baby, listen carefully While I sing my comeback song

So, I signed up. I purchased the mac and cheese. I dutifully followed each of four (4) steps. By the time I had followed all of the directions and perused the notes, I was overcome with heartbreak, anger, and pain that is difficult to classify and explain. “Ready in 3 ½ minutes” was false and misleading. Simply stated, a lie. Velveeta lied to me.

In order to prepare the mac and cheese, you must first remove the lid and cheese sauce pouch.

Next, you have to transport the cup to the sink (or other safe water source) and add water to the fill line in the cup. Then, stir. Only then do you place the prepared cup into the microwave, at which point it cooks for 3 ½ minutes. Finally, once it has cooked for 3 ½ minutes, you stir in the contents of the cheese sauce pouch. To add insult to injury, apparently some “standing” is required in order for the cheese sauce to thicken. (Yes, you could eat mac and cheese with thin sauce, but I am a reasonable person, and that is my standard.)

Not only is there not enough time to eat lunch within the firm 5-minute time limit, there is not even enough time to fully prepare the mac and cheese within that time frame, which of course exceeds the 3 ½ minute promise. Velveeta knew, or should have known, that the time

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I have drawn strength from this song. Perhaps Amanda Ramirez did, as well, as may every other similarly situated person who has or will join in a class action suit against Kraft Heinz Foods Company1, presently pending in the United States District Court, Southern District of Florida. (If you are already feeling FOMO2, never fear – Ms. Ramirez seeks certification for people in several states, including Tennessee!)

Ms. Ramirez’ lawsuit3 nails it. She purchased the mac and cheese at the Publix in Hialeah, Florida in October or November of 2022, “among other times.” (Which begs the question, how many times did she endure the laborious and lengthy process of preparing this mac and cheese before she realized that it actually took well in excess of 3 ½ minutes?).

By November 18, 2022, she was ready to sing her own comeback song, by and through counsel. She retained Spencer Sheehan of Great Neck, New York so that nobody else must suffer in this way again. It is about the principle! What is Kraft guilty of ? Let me count the counts: unfair methods of competition, unconscionable acts and practices, unfair and deceptive acts and practices in the conduct of its business, misrepresentations of material fact, breach of warranty, breach of implied warranty of merchantability, breach of fitness for a particular purpose, negligent misrepresentation, unjust enrichment, and, needless to say, FRAUD. The extent of damages? $5 million. I am sure this was a really difficult amount to determine, because how can you put a price on lost seconds in lunch preparation or consumption?

I hope to join this class of plaintiffs and obtain my share of the $5 million, but we all know that a fraction of $5 million will not fill the macaroni-shaped hole in my heart. Stay tuned for the (remastered) comeback song.

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DICTA

Velveeta is owned by Kraft Heinz Foods Company FOMO: fear of missing out Ramirez v. Kraft Heinz Foods Co., United States District Court, Southern Dist. of Florida, Miami Div., No. 1:22-cv-23782-BB

February 2023

W H A T I L E A R N E D , continued from page 6

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Tennessee Court of Appeals – Eastern Division Justice John W. McClarty also from Chattanooga is an outstanding jurist whose panel sits in Knoxville. He too is African American.

On September 28, 2022, the KBA adopted its “Strategic Inclusion Plan.” However, despite stating on page 5 of the Plan, “It is the Board of Governor’s intention that the Diversity in the Profession Committee (“DPC”) will review and update this Strategic Inclusion Plan in regular intervals,” no required quarterly and annual review and reporting dates are specified in the “Strategic Inclusion Plan,” which would add accountability. Additionally, no annual Implicit Bias training is made mandatory for everyone serving in KBA leadership roles. PROJECT IMPLICIT, https://implicit.harvard.edu/implicit/takeatest.html is referenced on page 5 of the plan as an available optional resource for information about implicit bias.

There are still no black managing partners in Knoxville.

It has been over a decade since an African American has been appointed as a Knox County General Sessions Court Magistrate.

Census.gov On June 23, 2021, the Honorable Bernice B. Donald presented an hour-long CLE titled, “Hiding in Plain Sight: How Implicit Bias Affects the Legal Profession.”

All KBA officers and Committee Chairs & Co-Chairs would have to have a current Certificate of Completion of the Implicit Bias training on file in the KBA Office on or before December 31st of the year preceding the calendar year they assume office as a condition precedent of leadership in the KBA. The Strategic Plan goal would be 100% of KBA Leadership would complete Implicit Bias training on or before December 31st of each year. There could be other data points to track the trajectory of the voluntary completion rate of other members of the Bar during the scope of the Strategic Plan period. Everyone who completes the training could be recognized on the KBA website link to the January 1st list acknowledging completions for that calendar year.

Thereafter, the KBA Board of Governors could consider leading, advocating and lobbying for one-hour Implicit Bias training becoming one of the required annual 15 hours of CLE, which would reach all lawyers licensed in Tennessee and have a greater impact profession-wide.

It is not acceptable to be satisfied with there just being one judge who is black or who has a disability or whose religion is Jewish or Muslim or who is LGBTQ+ or who is a member of another protected class that is not currently included in the local, state and federal judiciaries.

KBA Board of Governors member Ursula Bailey authored an article in the August

February 2023

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DICTA

2021, DICTA titled, “I AM NOT OK.” George Underwood was born and raised in Knoxville. He completed his first year (1L) of law school at the Howard University School of Law in Washington, D.C. After transferring for 2L and 3L, he earned his law degree from the University of Tennessee College of Law-Knoxville. He has been a member of the KBA over 30 years. He is the Executive Director of the Office of Equity & Compliance at Pellissippi State Community College. The Equity & Compliance Office is also responsible for collaborating with Senior Staff to lead efforts to implement the DEI core value included in the five-year Strategic Plan of the College. Pellissippi State is the largest Community College in Tennessee.

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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

THE COOLEST THINGS WE SAW AT CES 2023 The long drought is over. For over a decade now we have consistently made our way over to Las Vegas the first week of January each year to attend the world’s largest consumer electronics expo, CES. Due to the COVID pandemic, however, for the past three years, we have not been able to attend the show in person. Finally, as the calendar flipped to 2023, we packed our bags and headed out to Vegas for the first time in three years to witness what we like to call the “Super Bowl for Techies/ Nerds.” We can report that CES is back in all of its glory. The crowds were back this year and so were the exhibitors (for the most part). We saw inspiring tech, mind-blowing tech, useful tech, and (what shall we call it?) tech that we don’t know how they thought it up. So, fresh from our quick trip to Vegas, here are some of the coolest tech trends and gadgets we saw at CES 2023.

VR and AR headsets: We spent all year in 2022 talking about “Are You Ready for the Metaverse.” Apparently, the answer is “yes” from a whole host of companies racing to produce the best hardware to optimize our metaverse experience. Each year at CES, there seems to be some product that is just ubiquitous as you traverse the expansive exhibit halls.

This year was the year of the VR/AR (Virtual Reality / Augmented Reality) headset. They were everywhere. HTC probably stole the most headlines with its new competitor to Meta’s Meta Quest Pro headset.

HTC revealed the VIVE XR Elite which is a stand-alone headset (not tethered to a device) that can function as a complete VR headset or can be minimized to a more eyeglass-like form factor, which would make it a potential solution for AR applications. This dual functionality is indeed interesting since it is widely rumored that Apple is working on an AR glasses concept. It looks like the MetaWars are beginning; and that usually bodes well for consumers.

Not to be outdone, TCL revealed their RayNeo X2 AR glasses that, at first glance, could fool you into thinking they are just regular eyeglasses.

TCL touts these lightweight AR glasses as being able to project a wide array of information right in front of your eyes from language translation to travel directions overlaying the landscape directly in front of you.

The fact that hardware developers are seeking to minimize the bulk and obtrusiveness of VR/AR headsets is a positive development for a business-friendly metaverse.

Sustainability and Electric Transportation: A clear overarching theme of most big technology companies at this year’s CES was “sustainability”.

From electric cars, motorcycles, and boats to technology that actually seeks to clean the environment; companies worldwide are jumping on the sustainability bandwagon in a big way. One of our favorite examples is ICOMA’s Tatamel e-bike. A CES 2023 Innovation Award winner, the Tatamel is a curious looking electric “bike,” that is sort of a cross between a moped and a scooter. It has a top speed of 25 mph and about a 20-mile range on a full charge; so the use application is for intra-city or neighborhood transport only. But its function as an e-bike is only the starting point. The Tatamel folds down to the size of a briefcase; and its custom panels can be reconfigured to turn this “bike” into a desk or a TV panel. Riding a Tatamel is like riding your own personal transformer.

Very cool indeed.

Health and Wellness: The health and wellness tech sector has just exploded. There are gadgets to monitor just about everything from your biorhythms and sleep cycles to how well you brush your teeth. Filed away in our “bizarre but intriguing” category this year was a new gadget from well-known French electronics company, Withings. We saw this device on the show floor; and we had to do a doubletake. Was this for real or a joke? It’s for real. The device is called “U-Scan” which sounds like a perfectly normal name for a health-related gadget until you learn that the ”U” in “U-Scan” does not stand for “You”; it stands for “Urine.” The U-Scan device looks like a flattened egg; and it is to be installed in your toilet bowl. When you do what you do in the toilet, the U-Scan device analyzes the urine and sends a full urinalysis report to your smartphone.

Withings touts the U-Scan as a “hands-free connected home urine lab.”

While its use might be hands-free; someone has to install the device in its designated spot. Bill and Phil will not be offering installation services to any of our colleagues or clients.

There were so many other gadgets, both useful and outrageous, that we saw during our 48 hours in Vegas. Over the course of this year, we hope to get our hands on a fair number of these tech innovations; and we will share our experience with these new products.

P R A C T I C E T I P S , continued from page 7 Occupational Safety and Health Act (OSHA)

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For most employers, OSHA does not immediately come to mind when thinking about employee mental health. In many cases, however, employees claim that mental health issues are related to the job. OSHA has significant record keeping requirements and employers are generally required to record and report an employee’s mental illness if the mental illness is deemed work related.8 1

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J. Edward Moreno, “Anxiety, PTSD Drive Rise in Mental Health Employment Bias Claims,” Daily Labor Report, April 11, 2022.

J. Edward Moreno, “Anxiety, PTSD Drive Rise in Mental Health Employment Bias

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Claims,” Daily Labor Report, April 11, 2022.

EEOC, Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights (2016), http://www.eeoc.gov/laws/guidance/depression-ptsd-othermental-health-conditions-workplace-your-legal-rights Id. Id. U.S. Dep’t of Labor, Fact Sheet #280: Mental Health Conditions and the FMLA, https:// www.dol.gov/agencies/whd/fact-sheets/28o-mental-health Id. See 29 C.F.R. 1904.5(b)(2)(ix) (noting that “Mental illness will not be considered work-related unless the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related.).

February 2023

OF LOCAL LORE & LAWYERS By: Joe Jarret, J.D., Ph.D. Attorney, University of Tennessee

BLACK’S LAW DICTIONARY: THE LAWYER’S PERENNIAL COMPANION Introduction: I received my first copy of Black’s Law Dictionary © (5th edition), back in 1983, when I was transitioning from the United States Army to law school. It was gifted to me by an old high school friend with whom I flipped hamburgers during our teenage years. He had just graduated from law school and, upon presenting me with this incredible tome said, “When in doubt, look it up in Black’s!” Needless to say, rare is the jurist or attorney who has not relied upon this stalwart of the law.

A Legal Dictionary is Born: It is not unusual to hear even learned legal scholars opine that Black’s was the first law dictionary published in the United States for the use and benefit of members of the Bench and Bar. This assumption is incorrect.

Prior to the advent of Black’s, the legal community relied heavily upon John Bouvier’s 1 A Law Dictionary: Adapted to the Constitution and Laws of the United States and the Serveral [sic] States of the American Union, which was published in 1839. In the preface to his work, he wrote, “To the difficulties which the author experienced on his admission to the bar, the present publication is to be attributed.” 2 Several legal scholars have suggested that Bouvier chose his words carefully, as his intent was to publish a dictionary for the use and benefit of law students, while Black’s audience was “the working lawyer and judge.” 3 Unfortunately, verifiable information on Black’s aims and methodology for compiling the law dictionary are sketchy at best.

In the preface to the first edition of his dictionary, published in 1891, Black wrote the following: “Henry Campbell Black, M.A.: author of treatises on judgments, tax titles, intoxicating liquors, bankruptcy, mortgages, constitutional law, interpretation of laws, etc.” Needless to say, his modesty falls far short of his legacy. Black was born in 1860 in Ossining, New York. He received an A.B. in 1880, an A.M. in 1887, and an LL.D. (Legum Doctor)4 in 1916, all from Trinity College in Hartford, Connecticut. He was admitted to the bar in 1883 and practiced law in Williamsport, Pennsylvania, and Saint Paul, Minnesota, before devoting himself full-time to legal writing and editing. Black was the author of more than a dozen books on constitutional law, tax law, bankruptcy law, and other legal topics; additionally, he served as editor of The Constitutional Review from its first issue in 1917 until his death in 1927.5 I came across a copy of his first edition (Published by West Publishing Company), and read with great interest his definition of “Lawyer,” which is as follows:

“Lawyer. A person learned in the law: as an attorney, counsel or solicitor. Any person who, for fee or required, prosecutes or defends causes in courts or record or other jurisdictional tribunals of the United States or any of the states, or whose business it is to give legal advice in relation to any causes or matter whatever.”

Interestingly, he provides as reference the following citation: Act of July 13, 1866, §9 14 Statutes at Large, 121. This long repealed federal statute read in pertinent part: “No person shall be admitted as an attorney and counselor to the bar of the Supreme Court, to the bar of any Circuit or District Court of the United States, or Court of Claims, unless he shall have first taken and subscribed to the oath which requires the affiant to swear or affirm that he has never voluntarily borne arms against the United States since he has been a citizen.”

Of his venerable dictionary he said: “The dictionary now offered to the profession is the result of the author’s endeavor to prepare a concise and yet comprehensive book of definitions of the terms, phrases, and maxims used in American and English law and necessary to be understood by the working lawyer and judge, as well as those important to the student of legal history or comparative jurisprudence.” 6 Summary: Some may disagree that Henry Campbell Black accomplished what he set out to do. I am among those who feel he contributed more to our profession then he could have ever imagined. Regardless, I suspect that law students throughout the land will continue to rely upon this venerable tome, now in its 11th edition, even if it is on a smart phone and not in a backpack.

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John Bouvier (1787–1851) was born in Codognan, France, but came to the United States at an early age, became a U.S. citizen in 1812, was admitted to the bar in 1818, and began practicing law in Philadelphia.

Bouvier’s Law Dictionary and Concise Encyclopedia, at vii (Francis Rawle ed., 8th ed. 1914) See Henry Campbell Black, A Dictionary of Law, at vii (1891).

Legum Doctor, Latin “Teacher of the laws” predecessor to the J.D. David Jayne Hill, In Memoriam: Doctor Henry Campbell Black, October 17, 1860– March 19, 1927, 11 Const. Rev. 67, 73.

Black, supra note 14, at iii.

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WELL READ By: Nick McCall

BLACK SNOW: CURTIS LEMAY, THE FIREBOMBING OF TOKYO, AND THE ROAD TO THE ATOMIC BOMB “If we lose, we’ll be tried as war criminals.”

“You’ve got to kill people and when you kill enough of them, they stop fighting.”

The first of these pungent quotations was not from a Nazi or Imperial Japanese general; the second was not from the Civil War’s General Sherman. Both came from one of America’s leading airmen, as he contemplated a radical revision in his forces’ combat tactics--one that, he knew too well, would be on the razor’s edge of legality and morality.

He also knew too well that the same tactical changes could result in the deaths or capture of hundreds of his own flight crews. This transition of U.S. strategic bombing in the Pacific during 1944-45 and, equally, the mental transition of its leadership--and the grim consequences of these transitions--form the core of James M. Scott’s remarkable new book, Black Snow.

Black Snow’s protagonist is General Curtis LeMay. Beetle-browed, cigar-smoking, a tough and driven combat leader, LeMay could be enigmatic: tender to his wife and child, yet seemingly as dogged towards to his own airmen as he was to his nation’s foes. Scott susses out his childhood fight for survival in a harsh Depression-era family, which went far to mold LeMay’s legendary toughness and flinty outlook on life and death. While his Army Air Force crews might fear LeMay, they respected him as a technologically-savvy airman; as a leader who did not believe in taking unnecessary risks; and as an aviator who flew exactly the same missions and risked his life just as they did.

After European air combat, LeMay transferred in late 1944 to the Pacific to take command of America’s technological marvel, the B-29 super-bombers. LeMay’s ultimate boss, Army Air Forces chief General Hap Arnold, staked all on the war-winning potential of his nation’s newest aircraft, one produced in record time but costing billions and filled with mechanical flaws.

LeMay’s predecessor over the B-29s, Haywood “Possum” Hansell, was LeMay’s antithesis. Courtly, poetic, sensitive, Hansell was of the airpower school that thought that wars could be won by precisely targeted daytime bombing of the enemy. The only legitimate targets for bombing, this so-called “Bomber Mafia” said, were military and industrial ones. Unlike Britain’s Royal Air Force, American bombers would not undertake “area bombardments”: massive, non-precise obliteration of enemy cities, intended to destroy morale and break civilian populations.

Until February 1945, the U.S. air forces in Europe largely abided by the doctrine of daytime precision bombing, despite losing thousands of aircraft and tens of thousands of U.S. airmen.

Japanese skies and climatology, however, were far different from Europe’s. With changeable weather conditions and incredibly fast highaltitude jet streams over Japan, Hansell’s force was not getting results, and Hap Arnold was no man to wait patiently. Exit Possum Hansell; enter Curtis “The Cigar” LeMay. After continuing in the Air Corps’ precision-bombing doctrine

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for a time, LeMay envisioned a radical break with that policy: ultra-low-altitude, nighttime fire-bombing of Japan’s capital, Tokyo. This would be made by B-29s stripped of defensive guns and all nonessentials except the fuel needed for return to their central Pacific bases and the napalm bombs needed to set Tokyo ablaze.

A Pulitzer Prize finalist and a skilled writer on World War II in the Pacific (and whose father was a former Knoxvillian), unlike other recent accounts of Tokyo’s bombing that obsess over technology and America’s bomber leadership, Scott masterfully weaves a holistic story from all angles. This ranges from LeMay, his commanders and staff; to the airmen who had to live with LeMay’s calculated risks; to those Japanese civilians under the gun—literally—of LeMay’s force on a savage winter night in Tokyo in early 1945.

Those easily upset by wartime horrors should be alerted to the grisly nature of the incineration of Tokyo and its largely civilian population.

Interviewing survivors and spending time on the ground in Japan, Scott has done his homework in fleshing out the brutality of what it meant to be on the receiving end of a B-29 bombing raid, even if one survived it.

This is a compelling saga: vividly told, well written and impeccably researched. It is not a pretty story, but as LeMay himself said, war is brutal. Having written in his last book, Rampage, about vast Japanese brutality during the liberation of Manila—occurring at the same time that LeMay’s staff was planning his air offensives—Scott chronicles the bloody skies over Japan during the last months of World War II and how LeMay’s raids helped pave the way for the A-bombings in August 1945.

For lawyers, as much as for other American citizens, this book can pose challenges to faith in the legality of American armed forces’ actions and to the simplistic legend of the Allies’ waging the “Good War,” as some have termed the Second World War. While that war may have been a “necessary war” (to use Professor Samuel Hynes’ phrase), it was not always a “good” war. Even for the Allies, one can validly question whether the war was always fought as a just war. The moral quandaries presented to LeMay and his bomber crews facing the skies of Tokyo in 1945 summon fundamental questions of just-war theory and the laws of armed conflict and international treaties such as the Hague and Geneva conventions.

In Black Snow, James Scott examines the nature of the moral and legal compromises called forth in wartime by soldiers and their leaders across all nations—even the United States—and presents starkly the very real consequences of those decisions and actions.

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February 2023

BARRISTER BITES By: Angelia Morie Nystrom, JD, LLM UT Foundation – Institute of Agriculture

CHICKEN COBBLER: COMFORT IN A BOWL When the weather gets cold, I love “comfort foods”… those foods that make us warm inside, that make us close our eyes and feel better about life. I know that I am not alone. Studies have been done about why we gravitate toward certain foods in certain situations… and whether they can be emotionally beneficial. Dr. Shira Gabriel, Associate Professor of Psychology at SUNY University of Buffalo, conducted a study about comfort food. She concluded that food and family go hand in hand and that we naturally associate the idea of comfort food with meals that were prepared and served to us in childhood. She stated, “It’s all about food that was made for us by people who love us. There is a strong relationship to what you were served as a kid and the food that we later on associate with comfort food as adults. It brings back feelings of being loved and well cared for.”

With actual research that proves it, it only stands to reason that I love a good chicken pot pie when the weather gets cold. When I was a child, my mom often served us chicken pot pie when there was snow on the ground or when it was particularly cold outside. There was something special about the flakiness of the crust and the warmth of the gooey inside on a cold day.

My mom’s version of chicken pot pie was the individual ones that came in the boxes from Banquet. My sister and I loved those… and I loved the fact that, if I was quick enough, I could eat the crust from the edges of hers without anyone seeing me… and then claim that hers must have been broken when it came out of the box. It was the perfect meal on a cold day.

Things apparently were similar in the Nystrom house when Hugh was a child. When the recent cold weather hit, Hugh told me that he wanted us to make chicken pot pie. He said that his mom did that for them when it was cold and he thought that it would be a real treat for us to do.

Unless you count opening the Banquet box and baking a pre-made pie in the oven, I had no experience with chicken pot pie… and neither did Hugh. We do have access to a bunch of cookbooks and to the internet and more recipes than we could ever make. As luck would have it, Hugh’s sister had given us a basket of goodies for Christmas (she’s a great cook… so it was a real treat) that included a box of Red Lobster Cheddar Bay Biscuit Mix. Hugh scoured the internet and found a recipe for chicken cobbler that used a box of that very mix.

Although not technically a pot pie, Hugh was convinced that this

“chicken cobbler” would taste just like the chicken pot pies that we remembered as kids. We decided to give it a try.

This recipe requires 4 cups chicken (cooked and shredded), 1 stick of butter, 12 oz frozen peas and carrots, 1 small onion (diced), 2 cups milk, 1 box Red Lobster cheddar bay biscuit mix, a 10 oz can of cream of mushroom soup, and 1 ½ cups chicken broth. For the chicken, I purchased two rotisserie chickens at The Fresh Market, removed the skin, and pulled enough chicken off to fill the bottom of the casserole dish. I only used the breast meat and saved the legs for Trace to eat later.

To prepare the cobbler, preheat the oven to 350 degrees. Then, melt one stick of butter (1/2 cup) and pour into the bottom of a 9x13 casserole pan. Sprinkle the shredded chicken evenly over the butter. Then, sprinkle the diced onions over the chicken, to taste. Hugh is not a huge onion fan, so I only used about half of the diced onions. Layer frozen carrots and peas over the chicken. (I used an entire bag and worried that I had too many vegetables. When it baked, I did not. It was the perfect amount.)

In a separate bowl, stir together the Red Lobster biscuit mix and milk. I added the seasoning packet to it and used whole milk. Pour the milk/biscuit mix over chicken. Although you will be tempted, do NOT stir.

Then, mix together a can of cream of mushroom soup and the chicken broth. Pour over the top of the casserole. Again, do NOT stir.

It will look very liquid-y, but this is normal. I wondered if I needed to pour off some of the soup/ chicken broth mixture… but I did not. Just be sure that your pan is not so full that it will bubble out into the oven.

Bake uncovered for 45 minutes. Continue to bake for additional 10 minute intervals until the biscuit mix across the top is baked and golden brown around the edges. It took mine about an hour to bake in a convection oven.

This recipe takes a total of about 10 minutes to prepare and about an hour to bake. It is one of the easiest dinners I have ever made.

When the chicken cobbler came out of the oven, it smelled just like the chicken pot pies that I remembered as a child. When we tasted it, it was nearly the same as I remember….only a little better. After dinner, Trace said, “This is a keeper.” We ate it for three days… until it was gone.

The leftovers were just as good as it was the day it came out of the oven.

Chicken cobbler was pure comfort in a bowl… and it will likely make a reappearance as soon as we get another round of cold weather.

S I M P L E T H I I N G S , continued from page 21

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10 11 12

Historical Foundation), available at https://armyhistory.org/the-purpleheart-the-story-of-americas-oldest-military-decoration-and-some-soldierrecipients/#:~:text=First%2C%20it%20is%20the%20oldest,Army%20during%20 the%20American%20Revolution.

National Purple Heart Hall of Honor, History, https://www.thepurpleheart.com/ history/, last visited Jan. 10, 2023.

Borsch, supra n. 1.

Id.; Army Distinguished Service Medal, https://www.rollofhonor.org/public/ htmldetails.aspx?Cat=award&EntID=3868; Charles Augustus Doyen, Navy Distinguished Service Medal, https://valor.militarytimes.com/hero/16482, last visited Jan. 10, 2023.

The Hall of Valor Project, Pfc. Leo F. McGuire, https://valor.militarytimes.com/ hero/13511, last visited Jan. 10, 2023.

Charles Augustus Doyen, supra n. 8.

National Purple Heart Hall of Honor, supra n. 6.

Borsch, supra n. 1.

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Id. Borsch, supra n. 1.

National Purple Heart Honor Roll, Timeline, supra n. 6.

Army Regulation 600-8-22, Personnel-General Military Awards, p. 24 (Mar. 5, 2019), available at https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ ARN18147_R600_8_22_admin2_FINAL.pdf.

Id. Id. USO, 9 Things You Need to Know About the Purple Heart Medal (Aug. 1, 2022), https://www.uso.org/stories/2276-8-purple-heart-facts#:~:text=According%20 to%20the%20National%20Purple,award%20was%20created%20in%201782., last visited Jan. 10, 2023.

National Purple Heart Honor Roll, supra n. 6.

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

KBA MEMBER SHOUT OUTS As part of this year’s focus on celebrating our bar association’s diverse membership and exploring creative ways for members to connect, network, and experience fulfillment in the practice of law, we would like to highlight the accomplishments and contributions of KBA members who are making a difference in the legal arena and beyond. Send links to news to posts or articles, pictures, or just a blurb about what’s going on to membership@ knoxbar.org.

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

OFFICE SPACE AVAILABLE: •

Downtown Office Space for Rent - Large corner office with a view of downtown. Located in the First Horizon Building. $1,100 monthly.

Includes Westlaw subscription. Inquiries can be sent to jfanduzz@ gmail.com.

•

Great opportunity for fledgling lawyer to share office space with experienced attorney. Available for use is conference room, Internet, reception area, phone system and parking area. Office location within 5 minutes of the Sevier County Courthouse. Call (865) 566-1886 or email ccostnerlaw@gmail.com.

•

Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area, receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 522-4964 for inquires.

•

1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!) and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545.

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. Interviews of Howard Vogel, Judge Curtis Collier, David Black and Hon. Mary Beth Leibowitz have been recently added. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records: Charles F. Aiken BPR #: 019272 Industrial Device Investments, LLC 11519 Kingston Pike Knoxville, TN 37934-3918 Ph: (865) 323-7711 Charles.f.aiken@gmail.com

James W. Friauf BPR #: 027238 Law Office of James W. Friauf, PLLC 9111 Cross Park Dr., Suite D200 Knoxville, TN 37923-4521 Ph: (865) 236-0347 friauflaw@gmail.com

Daniel Taejoo Chung BPR #: 040351 Illinois Municipal Electric Agency 3400 Conifer Dr. Springfield, IL 62711-8301 Ph: (217) 789-4632 daniel.chung24@gmail.com

Joshua W. Leach BPR #: 039258 2233 Sutherland Ave. Knoxville, TN 37919-2351 Ph: (770) 866-0070 joshuawleach.esq@gmail.com

Leigh K. Cowden BPR #: 037968 Law Offices of Leigh Cowden PLLC 206 S. Washington St. Maryville, TN 37804-5727 Ph: (865) 233-3353 LC@LeighCowdenPLLC.com

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Richard M. Mayer BPR #: 005534 Law Offices of Mayer & Newton 8531 E. Walker Springs Lane, Suite 100 Knoxville, TN 37923 Ph: (865) 588-5111 mayerandnewton@mayerandnewton.com

Chelsea C. Moore BPR #: 035259 Law Office of Chelsea Moore 625 Market Street, Suite 900 Knoxville, TN 37902-2219 Ph: (865) 248-2468 ccmoorelaw@gmail.com

Kevin S. Newton BPR #: 032713 Law Offices of Mayer & Newton 8531 E. Walker Springs Lane, Suite 100 Knoxville, TN 37923 Ph: (865) 588-5111 kevin@mayerandnewton.com

Matthew Morris BPR #: 038761 Wimberly Lawson Wright Daves & Jones, PLLC P.O. Box 2231 Knoxville, TN 37901-2231 Ph: (865) 546-1000 mmorris@wimberlylawson.com

Wesley D. Stone BPR #: 021043 Stone Law Firm, PLLC 1518 N. Broadway Street Knoxville, TN 37917-5703 Ph: (865) 722-1471 wstone@stonelawfirmpllc.com

John P. Newton BPR #: 010817 Law Offices of Mayer & Newton 8531 E. Walker Springs Lane, Suite 100 Knoxville, TN 37923 Ph: (865) 588-5111 johnnewton@mayerandnewton.com

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Forrest L. Wallace BPR #: 021043 Law Office of Forrest Wallace 1518 N. Broadway Street Knoxville, TN 37917-5703 Ph: (865) 850-2302 fwallace@forrestwallace.com

February 2023

M I T C H E L L’ S M A L A R K E Y By: T. Mitchell Panter

Lewis Thomason, P.C.

LIFE’S ABOUT CHOICES Well, it finally happened. I sat down to write this month’s installation of A Column No One Reads, and I’m completely and totally uninspired. This is to be expected. My predecessor, Jason Long, warned me it would happen, and I rest easy knowing that I’m in good company.

In his 20 plus years of writing Long Winded, Jason wrote frequently of writer’s block and the fact he had nothing to say. Unlike me, he usually followed those introductions with a history lesson or a satirical version of some KBA meeting. Sweet and brilliant Jason.

As I’ve said many times, I am no Jason Long. There won’t be a comical rendition of last year’s annual KBA meeting or a colorful summary of “this day in history.”1 Instead, I’m channeling my inner Charles Dickens, and to meet my word requirements, I’m writing this month’s column as though it’s a church newsletter or a gossip column. With that in mind, here’s what you should know: First, Bravo recently announced the cast for Season 4 of the Real Housewives Ultimate Girls Trip (“RHUGT”), which you can stream on Peacock sometime this spring. With a couple of exceptions, Bravo nailed the casting.

The bad: Vicki Gunvalson from Real Housewives of Orange County will be returning for a second season of RHUGT, and Alex McCord from the early seasons of Real Housewives of New York will also be on the cast. Vicki was an OG on the Orange County franchise until Bravo “put her on pause” in 2021 due to her increasing salary demands. She’s insufferable, overbearing, and boring.

Alex McCord is also grating. During her stint on RHONY, Alex was a graphic designer and wannabe actress who bragged of wealth but lived with her husband and small children in an unfinished warehouse near the Brooklyn Bridge. Her storylines were mostly about her weird marriage with her seemingly much older, Australian husband, Simon van Kempen, whose wardrobe consisted primarily of bedazzled jeans, Ed Hardy shirts, and Speedos. Simon and Alex were far too comfortable displaying their affection on camera, and Simon easily surpasses Real Housewives of Potomac’s Michael Darby as the creepiest house husband in all of the Real Housewives franchises. I would rather watch paint dry than sit through an Alex-centric episode of anything. Bad decision, Bravo.

The good: Bravo recast former Real Housewives of Atlanta star, Phaedra Parks, and Real Housewives of Beverly Hill alum, Brandi Glanville. Ms. Parks, who starred in Season 3 of RHUGT, is a selfprofessed “lawyer to the stars”2 and introduced us to several life-changing products during her long tenure on RHOA, including a line of stun guns called “Phaedra Sparks,” a series of home workout videos, including my personal favorite: Phine Body: Donkey Booty Extreme, and an entire clothing line with her signature expression: “Fix it, Jesus!”

Better known to some as “Frick” from “Frick and Frack,” Phaedra often describes herself as “no stranger to the courtroom,” referencing what she perceives to be a long and illustrious career as a litigator in Atlanta.

Based on my own, independent research, I have been unable to verify the length or luster of her legal career. Aside from briefly representing her fellow cast member, Sheree Whitfield, in a child support matter in February 2023

which she lost to her pro se adversary, former NFL offensive tackle, Bob Whitfield, Phaedra’s legal resume is sparse. Phaedra did, however, briefly represent Whitney Houston’s ex-husband and New Edition front man, Bobby Brown, during a series of dustups he had with law enforcement in the early 2000s. When asked later about Phaedra’s representation, Mr. Brown famously responded: “I usually wound up going to jail.”3 The quality of her legal skills notwithstanding, Phaedra makes for excellent T.V. She’s a series of hilarious one liners and shady expressions.

One of her more popular Phaedra-isms: “A wig does not count as a hat, honey.” She brought her A-game on the last season of RHUGT, and I’m sure Season 4 will be no different.

Similarly, Brandi Glanville, a train wreck of a human being, is also coming back. Brandi truly epitomizes “reality T.V. star.” She’s erratic, self-centered, unreasonable, loud, and obnoxious. She drinks too much, she swears too much, and her history with plastic surgery makes Dolly Parton look like a novice. Good work, Bravo, in bringing Brandi back for another season.

In other, less important news: my struggles with parentamorphosis—i.e., the natural process of becoming your parents—remain ongoing. After a brief remission in which no cargo pants could be found in our home and I no longer watched reruns of the Lawrence Welk show, I fell into (and remain in) a fairly deep regression, which was caused in large part by our need for a new garage door.

Our old garage door was contractor grade. It was installed when the house was built 22 years ago and was long past its useful life. Rather than approach the buying process like a normal person—which I’m clearly not—I’ve wasted precious days of my life researching things like steel backed vs. vinyl backed, R-values, operator ratings, etc. Needless to say, if this lawyering thing doesn’t work out (and it feels as though that’s the trend), I now have a comfortable future in garage door sales. [My personal favorite is a steel backed door because of its added durability, and I wouldn’t settle for an R-value of less than 9. My current operator recommendation is the LiftMaster 8155-w. It comes standard with WiFi and the belt system is whisper quiet, which (in my experience) keeps you from waking everyone in the house up when you leave at 6:00 a.m. for water aerobics.]

In my third and final bit of news, I rescheduled my dental cleaning to March.

Thank you for your attention, and I apologize for the lost brain mass.

1

I had considered going this path, but according to the History Channel’s website, the only significant historical event on January 10 occurred in 1901 at Spindletop Hill near Beaumont, Texas, where a drilling derrick hit a “gusher” of crude oil which flowed at approximately 100,000 barrels a day and took nine days to cap.

See https://www.history.com/this-day-in-history (last accessed Jan. 10, 2023).

Exhilarating, right?

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DICTA

See Ny MaGee, Bobby Brown on Phaedra Parks as His Attorney (available at https:// eurweb.com/2017/bobby-brown-reveals-bobby-brown-on-phaedra-parks-as-hisattorney-i-usually-wound-up-going-to-jailhis-history-with-phaedra-parks-going-tojail/) (last accessed Jan. 10, 2023).

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

PRO BONO SPOTLIGHT By: Mary Frances DeVoe

Pro Bono Attorney Legal Aid of East Tennessee, Chattanooga

PRO BONO SPOTLIGHT Well, here we are again, one month into another new year and I’m back to try and convince you that it’s not too late to commit to taking more pro bono cases as part of your New Year’s resolutions.

“New year, new you” is the motto of every well-intentioned person as the clock strikes midnight on December 31. The New Year inspires new beginnings, new goals, new challenges, maybe even a new outlook.

Thus, the new year is the perfect excuse to start something: go to the gym more, lose weight, read more books, learn a new skill, spend less money, get organized, the list goes on and on.

We all know that the first few days are easy. Energized by the New Year and the opportunities it brings, we happily shuffle ourselves to the gym, buy the tools for a new hobby, make a budget, etc. But, by the end of January, getting to the gym has become a chore, we’ve lost one of those tools we need for our new hobby, or we spent too much money on a new pair of shoes we didn’t need. Just remember, you’re in good company!

According to a 2015 study conducted by the University of Scranton, by the second week of February, 80% of resolutions have failed.1 As I write this, we are headed into the second Saturday of January.

Given this article is appearing in the February issue of DICTA and will probably arrive in your mailbox right around the second week of the month, it is safe to say my audience has also failed to keep their New Year’s resolution. Maybe time was your excuse, or exhaustion, a bad mood, perhaps even circumstances outside of your control. The point is, at one moment or another over the last month and a half we fell off the New Year’s resolution bandwagon.

If you are an avid reader of this column, you may recall that my 2022 resolution was to read 30 minutes every day. You may also recall that I failed one week into the NewYear. Resolutions are hard! This year, I’ve gone in a different direction. Rather than create a New Year’s resolution, I’ve done something very millennial which is create a “vision board.”

Mostly it’s a lot of pictures, places I want to travel to in 2023, concerts I want to go to, aesthetically pleasing shots of time well spent. However, there are a few “words of wisdom” in this vision board of mine. The few I think are relevant to this piece are a note on how to schedule your month & a poem by the late Mary Oliver.

I won’t make you endure the entirety of how some random internet person thinks you should schedule your month or “Three Things to Remember” by Mary Oliver2 (although I do highly recommend her work). So, I’ll just skip to the good parts. According to this random internet person, you should spend one day a month serving others. And, in “Three Things to Remember,” Mary would like to remind you that “sometimes there are no rules.”

Last year I argued that the reason the New Year’s resolution you made for yourself on January 1st, 2022, failed was because it was self-serving. I still think that’s true. The fact of the matter is that it is

easy to make an excuse not to follow through on our resolutions for self-improvement because they are, for lack of a better word, selfish.

Moreover, often the excuses we make signal that we are prioritizing things outside ourselves like our job, children, spouse, friends, church, etc. These excuses work because they favor community connection over solitary self-improvement.

I’m not pointing this out to shame you, in fact, I have a proposition for you: let’s try again, New Year’s resolution 2.0! Sure, it’s February, but remember “sometimes there are no rules.” Afterall, a resolution is just “a firm decision to do or not do something.” This time, however, I think our “firm decision” should be to spend one day serving others.

Notice I didn’t say one day a month serving others, I’m just asking for one day out of your year. It could be a full 24 hours, it could just be a workday, it could be 12 hours- but one day, serving others. I know you will be shocked to discover that I have a recommendation on how you should spend that one day. Ready? Take more pro bono cases and volunteer at more clinics.

On average, it takes about 5 hours to handle a conservatorship caseintake to hearing. In 12 hours, you could do two of them and still spend 2 hours at a clinic. Our clinics require anywhere from 1-4 hours from you.

In 24 hours, you could participate in 12 and serve two dozen members of our community.

East Tennesseans need your help, they need your skill, they need your time, they need you to help them navigate a court/legal system that isn’t designed for those without representation. Pro bono work, volunteers, and attorneys are essential to providing legal assistance to the 13.6 percent of Tennesseans who live in poverty3.

In 2021, our office helped 11,653 individuals and created $73.7 million in economic impact for East Tennessee.4 That is a direct and provable affect on your community. I don’t know about you, but I am way more likely to maintain my New Year’s resolution if I see a $73.7 million result.

It might be too late for a “new year, new you” but it isn’t too late for a 2023 New Year’s Resolution 2.0. You have 8,760 hours in a year, why not give 24 of those to someone who needs you and those skills you worked so hard in law school to develop.

If you are interested in taking a case or volunteering for a clinic, email CTorney@laet.org or check out Pro Bono Matters on our website: www.laet.org.

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https://health.usnews.com/health-news/blogs/eat-run/articles/2015-12-29/why80-percent-of-new-years-resolutions-fail https://www.goodreads.com/quotes/10079072-three-things-to-remember-aslong-as-you-re-dancing-you https://www.census.gov/quickfacts/fact/table/TN/IPE120220#IPE120220 https://www.laet.org/laet-annual-report-2021/

Upcoming Clinic Opportunities

Faith and Justice Clinic: In person at City Church, 522 Sevier Ave in Knoxville, Saturday February 4th from 9am- noon.

Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available.

• Wednesday, February 8th Noon – 2pm • Wednesday, March 8th Noon – 2pm • To sign up, please use the form on the KBA Website or email ctorney@laet.org.

Debt Relief Clinic: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville.

• Saturday February 11th 9:00am - Noon Black-Owned Business Legal Advice Clinic: In person at the Knoxville Area Urban League, 1514 E. 5th Ave. • Thursday, February 16th from 4pm-7pm.

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DICTA

February 2023

TELL ME A STORY By: Randall E. Nichols

Special Counsel, Knox County Sheriff

RAMBLINGS OF AN OLD LAWYER My dad always said I should be a lawyer. Because - his theory - he taught me how to argue a point in a reasonable and civil way. We had some powerful discussions at the dinner table and after. At age 16 I had become a communist and a champion for the poor and working class.

(Also listened to the Beatles!) My father worked at a papermill so he claimed to be the working class and because of his labors, I had so many privileges he never enjoyed growing up. I don’t remember who won the arguments – I guess he did because I am no longer a communist – I’m a Democrat.

To scorn him I was going to be anything but a lawyer. A psychiatrist or maybe a professor of economics. It did not take long to determine that pre-med was not my cup of tea, so I stayed in the business college at UTK with an eye on graduate school. My friend and roommate announced he was going to take the LSAT in a few weeks and suggested I sit for it. My memory recalls a $12.50 fee in 1969 to take the exam.

Although very poor, I thought it would be interesting and fun – we had always competed on grades and how well read we were. He beat me, but I did okay and the next thing I know I am walking across Cumberland Avenue with a B.S. in hand to enter UT Law School. That was in September, 1970, and with six months military duty, a divorce, and limited resources, I muddled through until graduation in August 1973, and admitted to the bar in September of that year.

With a fellow 1972 graduate, we opened a two person shop with an eye to becoming rich. We struggled - some good months - some bad months like so many lawyers then and now. I learned quickly that criminal law was where I needed to be. A car wreck, divorce or writing wills did not create great interest. On the other hand, a criminal case, shoplifting, DUI, etc. became all consuming. I loved the work, mostly appointed, and the privilege to practice before Judges Richard Ray Ford, Joe D. Duncan, Joe Nigro, George Balitsaris, and Ray Jenkins taught me more than I can express. Be prepared. You did not need to be in court if you were not ready. Criminal defense was the love of my life until prosecution called with an opportunity to try as many cases as I wished.

These years allowed me to try cases against and later with some of the best lawyers I ever knew. Ralph Harwell, B. Rex McGee, Bob Ritchie, Tom Dillard, Zane Daniel, Herb Moncier, Bill Crabtree and others who stood out because of their skills. Judge Ford always told prospective jurors – “Ladies and Gentlemen you will see some of the finest lawyers in America during your service” and he was right. To watch B. Rex McGee cross-examine an expert witness, Ralph Harwell cross-examine a defendant, Zane and Tom argue to a jury served as a daily lesson on how to be a lawyer and more importantly, what not to do. Don’t lie and prepare like Bob Ritchie would. I stole some traits from all of them and I cherish our relationships.

It is now the 1980’s, and time to get rich – no more Assistant District Attorney pay. The next 8 years with Ralph Harwell were a blur of activity – great cases to defend and a fascinating list of clients including 2 capital cases. I loved my work, but for some reason I decided to get into politics and promptly got my rear kicked in a 1982 race for District Attorney. Back in practice after the loss, things go great for Harwell & Nichols, and I am getting to practice with the best lawyer I had ever known.

The old saying that the definition of a judge is “a lawyer who knows a Governor” came true for me in June 1988 when Governor Ned McWherter appointed me to the Criminal Court for Knox County, Division I. I served for 50 months, 3 days, and 2 hours in a job that did not suit me well. I have tremendous respect for trial judges, and I wanted to emulate those who had trained me, but the practice had changed over the years and I missed being a player in the system not just the umpire.

February 2023

When the opportunity came to re-enter prosecution as Knox County District Attorney. I jumped at the chance and relished my career for the next 22 years. To this very day, I quote B. Rex McGee and Ralph Harwell as I remember all those previously mentioned who shaped the way I practice law. Truth, honor, hard work and a love of the law as it applies to humanity. The honor of upholding our Constitution, advocating for our basic freedoms and upholding the rule of law are gifts we lawyers are given to share and protect.

Once in the District Attorney’s office, and with my friend and former trial partner, John Gill, on board we decided to change from a reactive office to a proactive force to try to prevent crime in the first place.

Efforts on truancy, domestic violence, juvenile justice, and elder abuse began. Most are still in place, and some have been expanded and improved.

How much effect the programs achieved are hard to measure. Therein lies the problem and frustration. None of the problems have gone away and some are more compelling today without any apparent solutions.

But we can’t give up!

Lawyers must take the lead and we have fewer and fewer in the General Assembly year after year. Pass a law to increase punishment sounds good to the public – but does it work that way? We need a more thoughtful approach on criminal justice especially for juveniles, and lawyers are better suited to comprehend the issues involved.

Thank you to those who allowed me to share in their love of the law.

DICTA

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