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Practice Tips: Damn Zoom Depositions . . . Page 7 Schooled in Ethics : New ABA Ethics Opinion Addresses How to Respond to Negative Reviews on Social Media . . . Page 13

A Monthly Publication of the Knoxville Bar Association | March 2021

COURAGE, CONVICTION, AND CONSCIENCE: KNOXVILLE’S FIRST BLACK LAWYERS


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DICTA

March 2021


In This Issue

Officers of the Knoxville Bar Association

March 2021

COVER STORY 16

Courage, Conviction, and Conscience: Knoxville’s First Black Lawyers

CRITICAL FOCUS President Cheryl G. Rice

President Elect Jason H. Long

Treasurer Loretta G. Cravens

Secretary Catherine E. Shuck

Immediate Past President Hanson R. Tipton

KBA Board of Governors Sherri DeCosta Alley Mark A. Castleberry Meagan Collver Jonathan D. Cooper

Daniel L. Ellis Elizabeth B. Ford Rachel P. Hurt Allison Jackson Eric M. Lutton

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Carlos A. Yunsan

The Knoxville Bar Association Staff

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President’s Message

The Long GameBuilding Future Leaders

Damn Zoom Depositions

So, You’re a Retirement Plan Fiduciary

New ABA Ethics Opinion Addresses How to Respond to Negative Reviews On Social Media

The Ripple Effects of Bostock v. Clayton County Railway

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Practice Tips

Management Counsel

Schooled in Ethics

Legal Update

WISDOM 6

Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Elisabeth Martin Programs Administrator

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

Rebecca Eshbaugh LRIS Assistant

Dicta DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).

Knoxville Police Review Advisory Committee (PARC)

On Being Normal

Tattoos on the Heart: The Power of Boundless Compassion

Understanding Links Between Language Choices and Mental Health

A Lady in the Air

Law Is Like A Box of Chocolates

Administering the Bar Exam During A Global Pandemic

ReMarkable 2 Tablet

Hoarders, Gluttons and Banana Pudding

Senate’s Gonna Do What the Senate’s Gonna Do

Silver Linings

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Volume 49, Issue 3

Dicta is the official publication of the Knoxville Bar Association

Publications Committee

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Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco

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Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

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Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Eddy Smith Elizabeth Towe

Managing Editor Marsha Watson KBA Executive Director

Around the Community

What I Learned About Inclusion and Why It Matters Well Read

Grammar Grinch Boat Builders

Legal Myth Breakers

Stories of COVID-19 & Beyond Bill & Phil Gadget of the Month Barrister Bites

Your Monthly Constitutional Long Winded

COMMON GROUND Section Notices/Event Calendar Barrister Bullets Change of Addresses Welcome New Members Bench & Bar in the News Pro Bono Project Tell Me A Story

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. March 2021

DICTA

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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. Join the ADR Section for the upcoming CLE program “The Ethical Duties of a Family Law Mediator: What to Do When A Lawyer Gives Bonehead Advice” on March 9. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held virtually on March 13 and volunteer registration is available at www.knoxbar.org. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (2922307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. Join the Employment Law Section for the upcoming CLE program “Annual FLSA Update” on March 2 and “EEOC Trends and Developments” on April 28. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2019 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Campbell Cox (330-2577) or Mary Newton (224-6591). Senior Section If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307) Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).

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Law Office Tech Committee Employment Law Section CLE Fee Dispute Committee Membership Committee Professionalism Committee ADR Section CLE Access to Justice Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Webinar CLE Judicial Committee Barristers March Madness Social Hour Board of Governors CLE Committee

April 6 7 8 9 12 13 13 13 20 21 29

Law Office Tech Committee Law Practice Today Expo Law Practice Today Expo Law Practice Today Expo Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Planning Meeting Solo & Small Firm Webinar CLE Board of Governors LRIS Committee

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

Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. March 2021


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

THE LONG GAME– BUILDING FUTURE LEADERS In January, over sixty of the KBA’s Committee and Section chairs and Barrister leaders met with the Board of Governors over Zoom to kick off the new bar year. As a part of that meeting, these volunteer leaders were asked to help build the KBA with an eye to the long game—we challenged the organization’s leaders to help build future leaders by looking for ways to connect with members and encourage their participation in the work of the KBA. Among the KBA’s goals is ensuring that every attorney has the opportunity to succeed professionally and participate in the affairs of the legal community without regard to race, color, creed, religion, or gender. Despite past efforts, recent events have shown us that inclusion, equity, and cultural competence continue to be areas where work can be done, and not just in the community at large. You may ask, how does this relate to me? And, what is the Knoxville Bar Association doing in this regard? Inclusion is an integral part of professionalism. It demonstrates respect for ideas and perspectives which are different from our own and the people who hold them. For many years, the KBA has demonstrated a commitment to inclusion through its Diversity in the Profession Committee. Building on its long history of sponsoring diversity networking and training in the areas of inclusion and equity, this Committee is leading the charge in encouraging our bar to foster diversity in the profession locally and championing the rich benefits of inclusivity. On February 11th, the Diversity in the Profession Committee together with the Barristers’ Diversity Committee sponsored a panel presentation entitled “Combatting Racial Justice in the Legal System.” Duncan School of Law Professor M. Akram Faizer set the stage for the panel’s discussion by sharing compelling statistics of racial disparities in wealth, income, and educational attainment including higher education and law school in particular. With the help of past TACDL President Stephen Ross Johnson, Tennessee Innocence Project Executive Director Jessica Van Dyke, and City of Knoxville attorney Christina Magrans-Tillery, the panel explored how race impacts justice in both civil and criminal settings. Bass Berry attorney Jay Moneyhun shared several creative efforts private practitioners are pursuing to strengthen relationships between the judicial system and minority communities and support increased diversity in the legal profession. If you could not attend this webinar, it’s available for replay through the KBA website

March 2021

(free of charge for KBA members if you don’t need CLE credit for attending), and I commend it to you. This month, DICTA is looking back, with a cover article highlighting Knoxville’s first Black Lawyers. DICTA is also providing us a view into current community relations efforts through a piece explaining the mission and function of Knoxville’s Police Advisory Review Committee (PARC). Read it and learn how this Civilian Oversight of Law Enforcement organization builds community confidence in local law enforcement under the leadership of PARC Executive Director and KBA member Lakenya Middlebrook. The Diversity in the Profession Committee is also working to help the local legal community tackle the interrelated challenges of retention and building an environment where diverse lawyers feel like they belong. To that end, the Committee has planned a series of book discussions and “Difficult Conversations,” providing members a broad array of opportunities to consider the complex issues surrounding inclusion and equity. What else can we do to make Knoxville and the Knoxville Bar a place where lawyers of different backgrounds and experiences feel welcome? Consider the DICTA column, “What I Learned About Inclusion and Why it Matters,” recently added to the magazine’s monthly offerings. In each issue, you will read inspiring--and sometimes surprising--thoughts on this topic authored by a wide range of your colleagues in the bar. This month’s piece, by Maha Ayesh, Esq., provides a welcome reminder that when we take the time to get to know lawyers and others who are different from ourselves--whether in race, creed, religion, political persuasion, generation, or even practice setting--we reliably find areas of common ground. What unites us is indeed greater than what divides us. I hope you will take time to build a professional relationship with that lawyer you meet in the elevator or encounter for the first time opposite you in a matter. Invite them for a cup of coffee, get to know them, and then ask them to join you in participating in a KBA Committee or Section, or a KBA or Barristers event. Reach out to new lawyers and law students, introduce them to your colleagues, and help them become a contributing member of our profession. Your practice will be enriched by the experience, and the bar will benefit too.

DICTA

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AROUND THE COMMUNITY By: Ann Barker Barker Law and Mediation

KNOXVILLE POLICE ADVISORY REVIEW COMMITTEE (PARC) As lawyers we have the opportunity, if not the obligation, to see legal issues from more than one perspective. In recent years this duty has become crucial in situations involving severe injury or death due to physical conflict between law enforcement personnel and the public. The names of George Floyd and Breonna Taylor will forever recall to mind just two of the situations in America that have recently exposed this hurtful divide in our country. Twenty-two years ago Knoxville was flooded with demands for reforms after four men, most of whom were black, died during interactions with police. Community members organized to express an urgent need to reform policing and build trust between the Knoxville Police Department and the citizens they served. On September 22, 1998 Mayor Victor Ashe issued an Executive Order to establish the Knoxville Police Advisory Review Committee (PARC). Several members of the Bar were instrumental in the formation of PARC. It was chaired by Bernie Bernstein, and initial members included Mark Brown, Tom Dillard, Tony Farmer, and Richard Wirtz. In subsequent years the following Bar members also served terms as members of PARC: Robyn Askew, Bridget Bailey, LaKenya Middlebrook, Hon. Robert Murrian, and Laurens Tullock. Attorney Jenae Easterly and I currently serve on the committee. Since July 13, 2020 the Executive Director of PARC has been attorney LaKenya Middlebrook. LaKenya grew up in Knoxville, the daughter of the Reverend and Mrs. Harold Middlebrook. Rev. Middlebrook became a follower of Dr. Martin Luther King during his college days at Morehouse College in Atlanta. He was a participant at a sit in with Dr. King at Rich’s department store in Atlanta in 1960. As he recalls, all were arrested. This family history gave LaKenya the perfect background for the job of Executive Director of PARC. LaKenya describes the job as a unique combination of oversight and advocacy. PARC investigates complaints from members of the community and reviews investigations by the KPD Internal Affairs Unit. PARC must constantly balance advocating for transparency, effective training, policies and procedures that reflect the needs of the community and investigating allegations of misconduct with maintaining independence, fairness and due process. According to Middlebrook, “one of the challenges that has always faced civilian oversight bodies is the mandate to remain independent. It can be a lonely place. Community members sometimes expect that oversight bodies will always advocate for their points-of-view and law enforcement often believe that we are always ‘out to get them.’ Our job is to ensure that there is an accessible and fair process for persons to raise complaints or concerns, that those complaints are addressed, that policies and procedures are being followed, that policies and procedures that are not working are changed, and that members of the community have a voice in how they are policed.” Knoxville is fortunate that the leadership of KPD has embraced

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the value of PARC and works with the committee to address concerns and build relationships with the public. Since its inception, PARC has received over 2,000 complaints and reviewed every investigation completed by internal affairs. The City of Knoxville has seen very few officer involved shootings in the years since PARC was created and, until 2019, the KPD went several years with no officer involved shootings resulting in death. All complaints received by the Knoxville Police Department are reviewed and investigated. They can then be resolved by mediation, by referral to an appropriate agency, by meeting and consultation with the PARC Executive Director, or by further investigation by the Internal Affairs Unit which includes a review of the entire situation. If a complainant is not satisfied with the result of the investigation, he or she is invited to file the complaint with PARC so that it can be reviewed and reported on at its quarterly meetings. When PARC members receive Internal Affairs Unit investigations, it includes copies of the original hand-written complaint and notes of the interviewer, transcripts of all interviews with the officers and witnesses, copies of any relevant car camera footage, copies or descriptions of body camera footage including notations when cameras are not recording as they should be and the reason given for this infraction. PARC members also receive a copy of the outcome of the investigation, as determined above. At its quarterly meetings PARC members can ask questions of the officers or the Chief of Police, or of anyone else involved in the investigation. Initial questions are sent to the PARC Executive Director in advance so that the KPD can have personnel at the meeting who are necessary to explain and answer the questions. In addition, community members are encouraged to attend the meetings and sign up to speak about concerns or questions they would like to have answered. The Chief of Police or her representative also attends the meetings, and responds to questions as needed. A favorite part of every meeting is a training segment about something to do with policing. The topics can be almost anything policing. From how to avoid a parking ticket, to how to respond when driving a car that is stopped by an officer, to trying out new car radio equipment. Knoxville’s PARC was one of the first in the state of Tennessee; it is the longest continually serving civilian oversight body in Tennessee and has an excellent reputation. PARC is a member of the National Association for Civilian Oversight of Law Enforcement (NACOLE) and Ms. Middlebrook’s predecessor, Mr. Clarence Vaughn, III, serves on the NACOLE board. Having practiced law for 12 years before taking on the work of Knoxville’s PARC LaKenya hopes that members of the Bar will strive to find opportunities to lend their skills and talents to building stronger, more equitable communities.

DICTA

March 2021


PRACTICE TIPS By: Rachel P. Hurt Arnett, Draper & Hagood

DAMN ZOOM DEPOSITIONS First, let me say that Zoom and I are not friends. I don’t think I have had one Zoom deposition that did not have some complication or annoyance…not a single one. But, complaining hardly changes anything. So, instead, I press on with the new reality that Zoom depositions are here to stay and try to learn from past issues when possible to avoid future issues. So, without further ado, some tips learned from my bitter frustrations: 1. What you save in travel time, you lose in technical challenges. By this, I mean expect, in fact embrace, that there will be technical issues during the deposition. When the audio stops working or the video freezes, have a plan in place. I try to have a cell phone number for the person controlling the zoom if an issue arises so that I can send a quick text/call to alert someone of my issue in hopes that the deposition is quickly stopped so as not to have to plow ground already covered. (This lesson was learned from a deposition where every 30 minutes to the second, the audio at the deponent’s location just quit working). Depending on the setup, I have a pre-typed email to all counsel and the court reporter to quickly address technical challenges. (A lesson learned when all the attorneys I texted were not looking at their phone and had their ringers off ). Know how to use a phone to dial into the zoom deposition (when the computer audio is either insufficient or malfunctioning). 2. Prepare earlier. One frustration with Zoom depositions in the need to prepare for the deposition even earlier than before. Because exhibits are very commonplace in my depositions, lots of exhibits usually, preparing well in advance of the deposition is required so that I can have sufficient time to decide what documents that I will mark as exhibits, get them copied/ scanned, and get them to the Court reporter in sufficient time so that he or she can have sufficient time to make copies for the deposition to present to the witness. When sending the exhibits to the court reporter, make sure he or she understands that you want them copied and presented at the time of the deposition. (A lesson learned when the Court reporter just had them on her email to mark after the deposition). And, make sure that the Court reporter is going to be physically present with the deponent. (A lesson learned when the Court reporter had to quarantine and did the deposition remotely). 3. Know the Logistics of the Deposition in Advance. This one is really just a courtesy. If the Zoom deposition starts at 9 a.m., don’t start looking for the Zoom log in information at 9 a.m. Inevitably, you won’t be able to find it. You will then call your paralegal, who will then try to call the Court reporter, who has already turned off her phone. Then a group email is circulated to all counsel asking for the log in information, and just like that, it is 9:15. (A lesson learned from nearly every deposition so far). 4. Understand the Optics of the Deposition. Think about how you want to set up your conference room, living March 2021

room, sunroom, home theater, panic room, COVID bunker, or office for the deposition. First, obviously know what others can see behind you (like alcohol, or “humorous” signs). Second, know what others can see on you (your clothes…or lack thereof ). Third, understand how you and, if applicable, your witness is going to see and hear during the deposition. If you want to see how your witness looks on the zoom, you will likely need two computers…otherwise you end up sitting very close to the witness (which is uncomfortable for everybody). If you need two computers, think about how the audio will work to avoid interference (and that awful, high pitched 1990s busy fax line sound). Fourth, attempt to mitigate interruptions. Put a sign on your door to inform others (your co-workers, husband, two-year old son) that you are in a deposition and do not want to be interrupted. Of course, twoyear-old children cannot read so politely (and quickly) shoo them out or have them sit in on your lap as the case may be so that the deposition can continue without interruption. (And, yes, all of these are actual lessons learned, too!) 5. Prepare the Record. Because you are not physically in the presence of the deponent, here are some questions that I have found helpful to ask at the beginning of the deposition: • Can you hear me okay? • If at any point you cannot hear me, or you’re having difficulty understanding • me, or you feel that there is a disconnect in the video feed, I would appreciate it if you would just let me know. Is that acceptable? • Now, if you answer a question, is it fair that we’re going to agree that you understood the question, you did not have difficulty hearing me, and that there was no disconnect in the video feed? • Currently in the room that you’re sitting in, do you have any computers or laptops or iPads or any other devices open other than the computer that you’re looking at to see me talk to you? • Can we agree that while I am asking you questions during your deposition you will not open or refer to any electronic devices? • Can we agree on the computer you are using for the zoom deposition, that you have all apps, email accounts, and documents closed, other than the Zoom video feed? • Can we agree that that you will let me know if anybody joins you in the room? • What documents do you have in front of you? • Can we agree that if you look at any documents today during your testimony that you will identify those documents so we are on the same page? • Any hearing limitations that you are aware of ? • Do you have any visual limitations that you are aware of ?

DICTA

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PUBLIC NOTICE FOR APPOINTMENT OF UNITED STATES MAGISTRATE JUDGE

DICTA DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier. DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at www.knoxbar.org.

The current annual salary of the position is $201,112. The term of office is eight years. A full public notice for the magistrate judge position is posted in the office of the U.S. District Court Clerk, 800 Market Street, Suite 130, Knoxville, TN 37902, and on the Court’s website at www.tned.uscourts.gov. Application forms are also available on the Court’s website or may be obtained from the Clerk’s Office. More information on the magistrate judge position may be obtained from the Chairperson of the Merit Selection Panel, Wayne Ritchie, war@rddjlaw.com, Ritchie, Dillard, Davies, & Johnson, 606 W. Main Street, Suite 300, Knoxville, TN 37902.

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IR S C UP IS UL E S AT R U E IO

Applicants must personally email the applications to Human_Resources@tned.uscourts.gov in PDF format. For IT security purposes, other file types will not be accepted. Completed applications must be received by 5:00 p.m. EST on March 15, 2021.

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EDITORS’ NOTE:

The Judicial Conference of the United States has authorized the appointment of a full-time United States Magistrate Judge for the Eastern District of Tennessee at Knoxville.

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March 2021


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: Maha Ayesh Lincoln Memorial University Duncan School of Law

ON BEING NORMAL As I prepared for this article, my husband reminded me of a story that I had relayed to him many years ago. One day, as a timid and shy new lawyer, I was a quiet observer in a small group of important people. One person was discussing his recent travel experiences. He opined that it was entirely reasonable and appropriate for extra airport security screenings to be done on Muslims, who, in his mind, represented a greater threat than others. This person suddenly remembered that I was in the group, looked at me, and said, very sincerely, “But not you of course. You are one of the good ones.” This person was always very kind and friendly to me. I also am confident I was the only Muslim he knew at the time. I suspect that, if he knew more, he would have thought they were some of “the good ones” too. That was not the only time someone referred to me as “one of the good ones.” More recently, my client made a similar comment to me as we drove home from Cincinnati, after I had argued her case before the Sixth Circuit. This client also had not met many, if any, other Muslims in her life. While still a law student, I was working at an internship with a classmate whom I did not know well. After working together for two months, he asked to speak with me. Very sincerely and kindly, he told me that he enjoyed working with me and that it was very eye-opening for him to learn how “normal” I am.

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I’m sure some of these comments seem “cringe-worthy,” but, honestly, I’m not being critical. I am grateful to contribute to people learning something important—that there are good Muslims and that some of us are pretty normal. Usually when we talk about diversity and inclusion, we talk about the direct benefit conferred on under-represented people through increased opportunities and representation. But I have learned that the benefits of diversity are more far-reaching. I was a lawyer for about 10 years before I felt comfortable at bar functions. My default preference in group settings is to be a wallflower, but it’s hard to be a wallflower when you can’t “blend in.” I also didn’t fit my own image of who an East Tennessee lawyer is, and I assumed I didn’t fit anyone else’s either. This, despite having been born and raised in Knoxville, attending UT Law, and never having really known another place as home. Eventually, the more I practiced and met other lawyers, the more I gave myself permission to feel like a “normal” member of the bar. Inclusion allows us to confront our assumptions and prejudices about what is “good” and “normal,” about who is “good” and “normal.” It allows us to discover who people are, apart from who we’ve heard they are or fear they may be. It also allows us to see who we can be, if we give ourselves permission.

DICTA

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

Gail ASHWORTH (615) 254-1877

Bob ARRINGTON (423) 723-0402

Hon. Daryl FANSLER

(865) 546-8030

Paul HOGAN Jr. (865) 546-2200

Dana HOLLOWAY (865) 643-8720

James LONDON (865) 637-0203

Richard MARCUS (423) 756-0414

David NOBLIT (423) 265-0214

Sarah SHEPPEARD (865) 546-4646

Mark TRAVIS (931) 252-9123

William VINES (865) 637-3531

Howard VOGEL (865) 546-7190

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

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March 2021


MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Ashley N. Trotto Kennerly, Montgomery & Finley, P.C.

SO, YOU’RE A RETIREMENT PLAN FIDUCIARY I think it’s safe to say that lawyers generally don’t dabble in employee benefits. You are either an employee benefits attorney or you run screaming at the mere mention of “ERISA.” Don’t get me wrong— rigorous avoidance of employee benefits as a practice area is perfectly reasonable. However, if you find yourself managing a law firm that sponsors a retirement plan, you have likely taken on a fiduciary role and running is strongly discouraged. This article aims to educate you about your fiduciary duties and provide a series of best practices to keep you out of trouble. First things first, what makes you a fiduciary? The exercise of discretionary authority or control over the management or administration of a retirement plan makes you a fiduciary.1 This is a functional test. If you are performing a fiduciary function, you are a fiduciary. Thus, if your firm sponsors a retirement plan and you are responsible for the management of the firm, including its employee benefits, you may be a fiduciary. However, not all actions taken with respect to the plan are fiduciary in nature. For example, you are not acting in a fiduciary capacity when you make plan design, plan amendment, or plan termination decisions. These are considered settlor rather than fiduciary decisions.2 Similarly, ministerial tasks, such as calculating benefits, processing plan loans, and providing plan information are not fiduciary functions. In contrast, if you are interpreting (rather than simply applying) plan terms, making plan investment decisions, or selecting plan providers, you are exercising discretion over the administration of plan and are thus acting in a fiduciary capacity. As a fiduciary, you have four overarching duties: (1) to discharge your duties with respect to the plan for the exclusive benefit of the participants and beneficiaries;3 (2) to act with the care, skill, prudence, and diligence under the circumstances that a prudent person acting in a like capacity would act;4 (3) to diversify investments to minimize risk of loss unless it would be considered prudent not to;5 and (4) to act in accordance with the plan, but only to the extent the plan is consistent with ERISA.6 Sound like too much trouble already? The good news is that ERISA does permit plan sponsors to delegate fiduciary duties to third parties. However, a plan sponsor can never delegate all of its fiduciary duties. It will always maintain the duty to select and monitor its third-party providers. A fiduciary who breaches his or her fiduciary duties may be personally liable to the plan and its beneficiaries. To avoid unintentional fiduciary breaches, we recommend adhering to the following best practices: 1. Read and understand the plan documentation. You are tasked with administering the plan in the exclusive interests of its participants and beneficiaries using the care, skill, prudence, and diligence of a prudent person. You cannot accomplish this task if you do not know what the plan says. Many have tried, none have succeeded. 2. Identify all plan fiduciaries and clearly document roles and responsibilities. Blind finger pointing is not particularly helpful when responding to a claim of fiduciary breach. You need

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to know who the players are—and what they have accepted responsibility for—so that you can appropriately monitor their actions and defend your own. Retain independent, knowledgeable professionals. Remember, fiduciaries are held to a higher standard. If you do not feel confident on a particular issue, find someone who is! For example, if you have a participant who wants to invest in “unique assets” (e.g., precious jewels), you might consider phoning a friend—there could be tax consequences or diversification issues that you may not have considered. All retirement plan sponsors should have an ERISA attorney [insert shameless plug here] and an accountant/actuary to call for advice when needed. Adopt a prudent process for selecting and monitoring third-party providers. Do your due diligence before delegating your fiduciary duties! Take into consideration a potential advisor’s qualifications, experience, scope of services, and cost. Read all service contracts to ensure that the provider is assuming the appropriate level of fiduciary responsibility. Once selected, monitor the performance of the provider on a regular basis and remove/replace any advisor that fails to perform. Hold regular meetings with service providers and advisors. You should have at least one annual in-depth review to compare plan operation to plan terms and to verify compliance with ever-changing IRS and DOL requirements. If you have a third-party plan administrator or other “full-service” provider, they will be hounding you for this meeting. Please attend and actively participate. Adopt an investment policy statement for the plan. If you have third party investment managers or advisors, they will likely assist you with this. However, if responsibility for investment selection has not been delegated, you must have a detailed process for diligently selecting and monitoring plan investment options. Document Everything. Here’s the big secret: you do not have to make the right decisions all the time to avoid fiduciary liability. You simply have to have a reasonable, diligent process for making plan decisions. The key is to document your process, including the steps you took to educate yourself on your fiduciary role. Hint: print a copy of this article and place it in your retirement plan folder to show you took steps to educate yourself about your duties!

You’ve survived 1,000 words on an employee benefits topic—that’s a great first step. Now, take a deep breath and embrace your fiduciary role! 3 4 5 6 1 2

ERISA § 3(21)(A). See, e.g., Lockheed Corp. v. Spink, 517 U.S. 882, 890 (1996). ERISA § 404(a)(1)(A). ERISA § 404(a)(1)(B). ERISA § 404(a)(1)(C). ERISA § 404(a)(1)(D).

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. March 2021

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WELL READ By: Elizabeth Ford Federal Public Defender

TATTOOS ON THE HEART: THE POWER OF BOUNDLESS COMPASSION There is no question that if ever there was a time for a feel good story, now is the time, and Tattoos on the Heart by Father Gregory Boyle fits the bill. Father Greg is a very talented storyteller who has the ability to make the reader cry and then laugh within the space of a single paragraph. It is clear by his writing skill that Father Greg who is a Jesuit priest in Los Angeles has a master’s in English as well as his master’s in divinity. In addition to the book’s ability to bolster sagging pandemic spirits, it is, also, timely as many are examining the issue of criminal justice reform in both the state and federal arenas. The book demonstrates so well that we should “invest in people rather than incarcerating our way out of problems.” Father Boyle describes his work as being in the business of second chances. Father Boyle is the founder and CEO of Homeboy Industries. He takes us on the journey of how his idea to bring warring gang members together became a success. He describes a community where the chances of surviving to age 30 are not very high. In Los Angeles County, there are 1,100 gangs with nearly 86,000 members. In the last 20+ years, he has buried more than 230 young people from gang-related violence. Although, one wonders how many more might have been killed if he had not persevered in loving unconditionally people whom many of us might find very hard even to like being with. Even though the book is written by a priest and focuses on love and compassion, it is not at all preachy. It is sad. It is hilarious. It is moving. It tells a story of a man of great faith who is very realistic about where he lives and what he might accomplish. He is knowledgeable about gangs, sociology, psychology, faith, and business development. He is sarcastic and loving, and he is fine with telling a homie to come back when the

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homie is really ready to follow the rules and participate fully. What one will not learn from reading the book are the details of Homeboy Industries’ successes. Today, Homeboy Industries is the largest gang intervention, rehabilitation and reentry program in the world, welcoming over 8,000 people through its doors each year. The information found at www. homeboyindustries.org is overwhelming. What began as a bakery has expanded to include electronic recycling, cafes, catering, and silk screening. The services offered include tattoo removal with 3,000 treatments being completed yearly, solar panel training with a pass rate almost twice as high as the national average for those seeing certification, job seeker workshops, educational services, mental health, local services, substance abuse, and more. Father Boyle’s continued optimism is reflected in his plans for transitional housing, (because 60% of gang members are homeless,) day care, and more space for the mental health services. By the way, one can order the coffee cake, and it is fabulous. Father Boyle speaks to more than 200 groups per year. I had the good fortune of hearing him two years ago in LA, and he speaks just as he write. He is about the best speaker I have ever heard. (For anyone interested, he is scheduled to be in Knoxville in May at a fundraiser for Volunteer Ministries.)

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March 2021


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

NEW ABA ETHICS OPINION ADDRESSES HOW TO RESPOND TO NEGATIVE REVIEWS ON SOCIAL MEDIA Social media continues to pose ethical problems for attorneys. A recent ABA Formal Ethics Opinion1 addresses how to respond to negative reviews on social media. The governing ethics rule, and the only one considered in the opinion, is Rule 1.6(a): “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” The comments to Rule 1.6 clarify that the Rule covers “all information relating to the representation of a client, whatever its source”2 and prohibits “disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”3 Tennessee’s Rule 1.6 and comments are identical to the Model Rule in relevant respects.4 The ABA opinion assumes that substantively responding to online criticism, whether authored by a client, a former client, or a third party, will inevitably reveal client information or lead to the discovery of client information. Therefore, the opinion considers whether an exception applies, and notes that it is unlikely that the response would be impliedly authorized to carry out the representation, nor would the client likely have given informed consent to the disclosure. Looking to paragraph (b), the opinion notes that the only relevant exception is (b)(5), which permits disclosure as follows: (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;  According to the opinion, a negative online review is not a “proceeding,” and even if it could be characterized as “a criminal charge or civil claim,” the rule does not permit a public response in order to “establish a defense.” Therefore, the only possible exception is “to establish a claim or defense . . . in a controversy between the lawyer and the client.” The opinion concludes that a negative online review is too “informal” to constitute a “controversy,” and even if it were, the lawyer’s response is limited by the principle that “[p]aragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”5 According to the opinion, a public response would exceed what is reasonably necessary to establish a defense to the controversy. Having opined that the lawyer cannot make a public substantive response to the criticism, the ABA helpfully articulates what the lawyer can do. If the criticism is from a client or former client, • The “lawyer may request that the host of the website or search engine remove the post,” making sure not to reveal ethically protected information, “but may state that the post is not

accurate or that the lawyer has not represented the poster if that is the case.” • The lawyer “may respond with a request to take the conversation offline and to attempt to satisfy the person” by posting, for example, “‘Please contact me by telephone so that we can discuss your concerns.’” In this case, the opinion suggests that the lawyer be prepared to offer the former client a refund or reduction in fee. • “[T]he lawyer may, but is not required to, respond directly to the client or former client.” In this case, the opinion suggests that the lawyer “consult with counsel before responding.” • The lawyer may also “acknowledge that the lawyer’s professional obligations do not permit the lawyer to respond,” by posting for example, “‘Professional obligations do not allow me to respond as I would wish.’” If the criticism is from a third person, the lawyer may post “that the person posting is not a client or former client, as the lawyer owes no ethical duties to the person posting in that circumstance.” However, if the criticism comes from former opposing counsel or opposing party, the opinion cautions that “[e]ven a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information.” The opinion notes that, in this situation, the lawyer might succeed in getting the client’s informed consent to a public response, especially if responding is in the client’s best interest. Finally, the ABA offers some commonsense advice: Lawyers should give serious consideration to not responding to negative online reviews in all situations. Any response frequently will engender further responses from the original poster. Frequently, the more activity any individual post receives, the higher the post appears in search results online. As a practical matter, no response may cause the post to move down in search result rankings and eventually disappear into the ether. Further exchanges between the lawyer and the original poster could have the opposite effect.6 Rule 1.6 strictly limits the permissible range of a lawyer’s public responses to negative online reviews. Fortunately, the ABA has offered some specific advice about how to respond ethically. Kee this advice in mind the next time you are tempted to respond in kind to online criticism. 3 4 1 2

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ABA Formal Ethics Opinion 496 (Jan. 13, 2021) Model R. Prof. Cond. 1.6 comment 3. Id. Comment 4. Tennessee’s version of the rule adds ”or required by paragraph ( c),” but the disclosure mandated by paragraph ( c) is not relevant to this issue. Model R. Prof. Conduct 1.6 comment [16]; Tenn. R. Prof. Conduct 1.6 comment [15]. In a footnote, the ABA notes the “Streisand effect”: “The social phenomenon known as the Barbara Streisand effect recognizes that efforts to suppress a piece of online information may actually call more attention to its existence.”

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. March 2021

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The Members of

Elmore, Stone & Caffey, PLLC are pleased to announce that

G. Taylor Smith and Trent R. Kinkaid became Associates of the firm December 2020

5616 Kingston Pike, Ste 301 Knoxville, TN 37919 (865) 766-0056 www.elmore-stone-caffey.com

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March 2021


L E G A L U P DAT E By: Dacey Romberg Associate General Counsel at UCOR

THE RIPPLE EFFECTS OF BOSTOCK V. CLAYTON COUNTY In June of 2020, the Supreme Court decided Bostock v. Clayton County and held that Title VII’s prohibition on sex discrimination included discrimination on the basis of sexual orientation and transgender status.1 Writing for the majority, Justice Gorsuch explained: Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.2 This article explores how the Bostock ruling has impacted lower court decisions and a recent executive order. The first Title VII case to reach the Sixth Circuit after Bostock was Kilpatrick v. HCA Human Resources, LLC.3 Mr. Kilpatrick claimed he was subjected to a hostile work environment when, after learning he was gay, his co-workers gifted him pink nail polish, a nail file, and bath bombs for Christmas; left a pair of pink sunglasses on his desk; and repeatedly left what he interpreted as “anti-gay” Bible verses in his workspace.4 Mr. Kilpatrick also alleged sexual orientation discrimination, stating that HCA denied his request for reimbursement for graduate classes even though it had approved similar requests before learning of his sexual orientation.5 The Middle District of Tennessee, ruling before Bostock, granted HCA’s motion for summary judgment on the basis that Mr. Kilpatrick had failed to state a cognizable claim for sex-based discrimination.6 On appeal after Bostock, the Sixth Circuit held that sexual orientation is a protected trait and remanded so the district court could evaluate the merits of Mr. Kilpatrick’s claims.7 Moving to Sixth Circuit district courts, there have been few substantive decisions on sexual orientation or transgender status discrimination. However, the Southern District of Ohio has briefly addressed these types of claims. In McGuffey v. Hamilton County Sheriff ’s Office, the court denied the sheriff ’s office’s motion for summary judgement. The sheriff ’s office claimed it fired McGuffey, an open lesbian, because she used caustic language and harsh tones with employees. Despite this explanation, the court found that the investigation of McGuffey differed substantially from the investigations of heterosexual males against whom similar complaints had been lodged.8 The court therefore held that there were genuine issues of material fact related to whether the sheriff ’s office had fired McGuffey because of her conduct, as claimed, or because of her status as a woman and a homosexual.9 In another case, the Southern District of Ohio held that a manager’s statements that he “did not care for [the employee’s homosexual] lifestyle” and did not “want to see it in [his] face” were not severe or pervasive enough to create a hostile work environment.10 The precedent of Bostock has impacted legal issues outside of Title VII. In his dissent, Justice Alito predicted that the Court’s ruling would have “far-reaching consequences,” including that Title IX – which also prohibits sex discrimination – would now be interpreted to allow transgender students to use the bathroom matching the gender with which March 2021

they identify.11 This prognosis was prescient as the Eleventh Circuit cited Bostock in Adams v. School Board of St. John’s County, a case holding that the school’s policy of making a transgender student use the female bathroom or a solo, gender-neutral restroom violated Title IX.12 The Eleventh Circuit stated that Bostock had “great import” on the case because both Title VII and Title IX prohibit “sex discrimination” and use a “but-for” standard of causation.13 The court also relied on decisions from the Sixth14 and Seventh Circuits15 holding that such bathroom policies are illegal under Title IX. In a similar case in the Fourth Circuit, the court explained, “After the Supreme Court’s recent decision in Bostock v. Clayton County, we have little difficulty holding that a bathroom policy precluding [the transgender student] from using the boys restrooms discriminated against him ‘on the basis of sex.’”16 President Biden also cited Bostock in his January 20, 2021, “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The Order explains: Under Bostock’s reasoning, laws that prohibit sex discrimination – including Title IX of the Education Amendments of 1972, the Fair Housing Act, and section 412 of the Immigration and Nationality Act, along with their respective implementing regulations – prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.17 President Biden then directed federal agencies to review their orders, regulations, guidance, and other documents to ensure they all treat “sex discrimination” as including sexual orientation and transgender discrimination.18 By expanding Title VII protections, the Court’s landmark decision altered the workplace and employment discrimination law. As seen by the Title IX cases and President Biden’s executive order, Bostock will likely change other areas of the law as well. 3 4 5 6 7 8

Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Id. at 1737. Kilpatrick v. HCA Human Res., LLC, Case No. 19-5230 (6th Cir. Dec. 17, 2020). Id. at *2. Id. Id. at *3. Id. at *4. McGuffey v. Hamilton Cnty. Sheriff’s Office, Case No. 1:18-cv-322, at *12-18 (S.D. Ohio Jul. 29, 2020). 9 Id. at *18. 10 Shields v. Sinclair Media III, Inc., Case No. 1:18-cv-593, at *20-21 (S.D. Ohio Jun. 22, 2020). 11 Bostock v. Clayton County, 140 S. Ct. 1731, 1778-79 (2020). 12 Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286 (11th Cir. 2020). 13 Id. at 1305. 14 Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016). 15 Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017). 16 Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020) (internal citations omitted). 17 https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/ executive-order-preventing-and-combating-discrimination-on-basis-of-genderidentity-or-sexual-orientation/, at Sec. 1. 18 Id. at Sec. 2. 1 2

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COURAGE, CONVICTION AND CONSCIENCE: KNOXVILLE’S FIRST BLACK LAWYERS

In the South we have always respected history; but we have not always respected each other’s history. The history of Knoxville’s black lawyers, like “the bottom” – the black community east of downtown that was demolished during urban renewal in the 1950s1 – has largely been erased. But it is important that we remember it because it is our history too. Knoxville’s First Black Lawyer William Francis Yardley was born “free” in Knoxville to an Irish mother and a black father. He was abandoned after birth at the doorstep of the white Yardley family, who raised him as their own. He learned to read and write and eventually taught at the all-black Ebenezer School in west Knox County. After “reading” law under a white judge, he passed the Tennessee bar exam in 1872 to become Knoxville’s first black lawyer. In 1919 at age 76, Yardley represented Maurice Mays, who was accused of climbing through a window and shooting a white woman. The alleged murder led to the Knoxville Race Riot of 1919. Mays was found guilty, but historians believe that he was wrongly convicted. By the time he retired, Yardley was considered the dean of Knoxville black lawyers and mentored many of them. He was once described by Frederick Douglass, whom Yardley entertained in his home, as “one of the most remarkable men I have met.” Yardley was also active in Republican Party politics. He was elected Alderman in 1872 and to the Knox County Court from 18761882. While campaigning in 1876, he was excluded from speaking at a Republican rally because of his race. So he traveled to the state Republican convention in Nashville and spoke against proposed miscegenation laws and segregated schools. At the convention, he also announced that he would run for governor, making him the first black person to run for governor in Tennessee. Although he only received one percent of the vote, he was hailed for his oratory skills in newspapers across the state and referred to as “Governor” the rest of his life. America’s First Black Governor Although he never practiced law in Knoxville, William Henry Hastie was born here in 1904. His family lived in the Mechanicsville neighborhood, but moved shortly after his birth to the Woodlawn Pike area of South Knoxville. Hastie attended Knoxville public schools until 1917, when his father was transferred to Washington, D.C. for work during a time of increasing violence against blacks in the South under Jim Crow laws. He attended Harvard Law School and worked for the U.S. Department of the Interior. In 1937, President Franklin Roosevelt appointed Hastie as a federal judge for the Virgin Islands, a highly

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controversial appointment that one senator called a “blunder.”2 He later resigned to teach and serve as dean of Howard University Law School. In 1944, Hastie argued a case at the Supreme Court with one of his former law students, Thurgood Marshall. The case, Smith v. Allwright,3 successfully overturned a Texas law that authorized whites-only primaries. During World War II, Hastie was a civilian aide to Secretary of War Henry Stimson; however, he later resigned citing segregated training facilities, inadequate training for black pilots, and the unequal distribution of assignments. President Harry Truman appointed Hastie the governor of the U.S. Virgin Islands in 1946, making him the first black governor of any U.S. state or territory. He was later appointed to the United States Court of Appeals for the Third Circuit, making him the first black judge to be appointed to the federal appellate courts. He served on the Third Circuit for 21 years and was rumored to be a candidate for the Supreme Court. In 2002, the City of Knoxville created Hastie Park and the William Hastie Natural Area in South Knoxville in the area near his childhood home. Ahead of his time4 Avon Williams, Jr. was born in Knoxville in 1921, the fourth of five children. He attended public schools in Knox County and earned a law degree from Boston University in 1947. He was admitted to the Tennessee bar in 1948 and returned to Knoxville to practice law from 1949-1953 before moving to Nashville. He quickly became one of the leading advocates in the protection and advancement of blacks in education. In 1949, he filed the landmark case Gray v. University of Tennessee5 on behalf of four black students that had been denied admission to the Graduate School, including two law students. He argued the case with Knoxville attorney Carl A. Cowan and Thurgood Marshall. The case reached the Supreme Court before the University of Tennessee settled and admitted the students.6 A year later, Williams, Cowan, and Marshall filed the first public education segregation case in Tennessee: McSwain v. Board of Education.7 The case was filed four years before Brown v. Board of Education. After moving to Nashville, Williams filed the Nashville public school desegregation case, Kelley v. Board of Education,8 and Geier v. Blanton,9 the lawsuit over the merger between the (white) University of Tennessee Nashville and the (black) Tennessee State University. During his career, Williams assisted in almost every public school desegregation case in Tennessee and argued at the Supreme Court seven times. In 1968, Williams was elected to the State Senate and served until 1990. He became the first black chairman of a state senate committee in

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March 2021


COVER STORY By: Luke Ihnen London Amburn

1977 when he was named chair of the State and Local Government Committee. As a senator, he led the effort to put guidance counselors in public schools and make kindergarten mandatory. Today, the downtown campus of Tennessee State University bears his name. Change is hard to come by, but change will come10 Carl A. Cowan was born in Knoxville and grew up in the Mechanicsville community on College Street. He was an active student at Knoxville College and played halfback on the football team where he was known as a “dependable smashing halfback.”11 From 19261927 Cowan taught and coached at Knoxville College, becoming the first paid coach in the Negro Division. He earned his law degree from Howard University and returned to Knoxville to practice law for almost 50 years. He is best remembered for his civil rights work with the NAACP and for being an an outspoken voting rights advocate, once urging students at Knoxville College to exercise their right to vote.12 His life’s work was using the law to advance the rights of people of color in the United States.13 He was also appointed the first black Assistant District Attorney in Knox County in 1953. With Williams and Marshall, Cowan filed lawsuits to end segregation in public schools in Knoxville,14 SweetwaterMadisonville, and Johnson City. He also filed the precursors to Gray v. University of Tennessee in 1940 and 1944 (both dismissed). He was a close associate of Marshall and played a role in the 1954 decision Brown v. Board of Education. Cowan is a member of the Knoxville Sports Hall of Fame and the Knoxville College Hall of Fame. The City of Knoxville’s Carl A. Cowan Park is named in his honor. The Other Firsts Although they did not practice law in Knoxville, there are two important “other firsts”: Lincoln Blakeney and Roy B.J. Campbelle, Jr. Blakeney was the first black student admitted to the College of Law and was a named plaintiff in the Gray case. After enrolling, he was forced to study in the library basement and sit apart from his peers in class. Sadly, he only spent one quarter in law school and then withdrew. Roy B.J. Campbelle, Jr. was the first black graduate of the College of Law. He entered law school in 1953 and was the only black student in his class. He graduated in 1956 – only 65 years ago.15 Campbelle went on to become one of Tennessee’s leading authorities on juvenile law and March 2021

procedure, authoring two books on the topic. His work was a precursor to the Tennessee Rules of Juvenile Procedure. We will never understand the struggle and sacrifice that these men gave so that others could prosper. They were the firsts, so that others did not have to be. They paved the way for countless others to join their ranks. And their work made our city, state, and country a better, more equal union. We should honor them, revere them, and remember them. Photo Credit: The Beck Cultural Exchange Center

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The Beck Center estimates that 107 black-owned business were forced to move or close, 46 of which had been in business for more than 10 years; 15 black churches were affected by urban renewal; more than 2,500 families were displaced through urban renewal, including more than 70% of black families. See https://www. beckcenter.net/urban-renewal. Quote attributed to United States Senator William H. King of Utah, Chairman of the Committee on the Judiciary. 321 U.S. 649 (1944). S.J. Res. 0037, 99th Gen. Assem., Reg. Sess. (Tenn. 1995). 97 F. Supp. 463 (E.D. Tenn. 1951); 597 F.2d 1026 (6th Cir. 1979). Only two students enrolled. 104 F. Supp. 861 (E.D. Tenn. 1952); 214 F.2d 131 (6th Cir. 1954). 139 F. Supp. 578 (M.D. Tenn. 1956). 427 F. Supp. 655 (M.D. Tenn. 1977). Quote attributed to Carl A. Cowan and memorialized on the plaque at Carl A. Cowan Park. George Jennett, Athletic Notes, 37 Aurora 4, Jan. 1924, at 10. Cowan, Cherry Speak on Politics, Business, 47 Aurora 17, May 31, 1934, at 2. Quote attributed to Carl A. Cowan and memorialized on the plaque at Carl A. Cowan Park. Goss v. Bd. of Educ., 186 F. Supp. 559 (E.D. Tenn. 1960); See also, Goss v. Bd. of Educ., 373 U.S. 683 (1963); Goss v. Bd. of Educ., 270 F. Supp. 903 (E.D. Tenn. 1967). The College of Law only graduated three black students between 1956 and 1970: Campbelle, Frank M. Ennix, and Julian W. Blackshear, Jr.

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

UNDERSTANDING LINKS BETWEEN LANGUAGE CHOICES AND MENTAL HEALTH While this column traditionally focuses on the rules of the English language and grammar for clear communication, sometimes it is just as important that we focus our attention on the style and content choices of ourselves and those around us. In doing so, we can see that words truly do matter, not only to ensure our meaning is appropriately conveyed, but in helping us understand the more subtle intentions and mental condition of the speaker. This month’s article will focus specifically on identifying verbal signs of gaslighting, low self-esteem, and depression, and our next article will offer ideas for enlarging and improving our own lives with simple verbal tweaks. Gaslighting:1 Gaslighting is a form of psychological manipulation in which a person or a group covertly sows seeds of doubt in a targeted individual, making them question their own memory, perception, or judgment. “The language of gaslighting is designed to protect the gaslighter while making you call your own experience into question. It’s designed to silence you, warp events from the past, and make them look like the good guy and you a highly emotional, over-reactive fantasist.” While the following phrases are not exclusive to gaslighters, it is important to focus on the speaker’s intentions to determine if they are genuine or seeking to undermine you with manipulation. For example, when a gaslighter wants to “wipe the slate clean” or declare a past issue “water under the bridge,” they are attempting to absolve themselves of terrible behavior, while forcing you into the weak position of seeming petty if you do not accept their extended olive branch – regardless of the scars you may still have from their past behavior. Additionally, gaslighters love to strike first and state their case by telling you they “won’t stand for lies or dishonesty,” or proclaiming that, “nobody else feels the way you do.” While most rational, non-narcissists assume when speaking to each other that they are going to be fair and honest with each other without declaring it, gaslighters do not. Well-adjusted people will feel confident in their position without triangulating an issue, but it is very important to gaslighters that they surround themselves with sympathizers to force you to question if your experience is even valid. Low Self-Esteem:2 Often, as we prefer to move as fast as we can through our to-to list, we do not take the time to communicate our ideas properly in spoken and written forms. “Using the wrong language can been seen as an indicator of lack of preparedness, hence lack of confidence.” In other words, a person exudes greater confidence when they appear articulate and in possession of their words. For example, filler words such as “um,” “like,” or “you know what I mean” erode trust and hurt credibility by making you appear as though you are grasping for something to say and don’t have your full faculties about you. In our profession, where attorney/client relationships can go south in a hurry, maintaining our authority by deleting filler words from our vocabulary can be a difficult but powerful force. Likewise, oversharing or over-volunteering information can make you seem like a difficult person who cannot respect boundaries. Ask yourself if you can deliver your message in a more concise way – focus on quality over quantity. And refrain from telling someone, “Sorry, I can’t.” This defeatist phrase indicates you do not believe in your resources or abilities. Give a more constructive answer by suggesting a better alternative or tell them you will look into the issue and get back to them.

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Depression:3 A study published in Clinical Psychological Science in 2019 has unveiled a database and algorithm of words that can help predict if someone is suffering from depression, created from studying internet forums, diaries, conversations, and other communications of both control and depressed groups. When content – relating to meaning or subject matter of statements – was studied, researchers found depressed people used an excessive amount of words conveying negative emotions, specifically negative adjectives and adverbs. When they dug deeper, they found those with symptoms of depression use significantly more first-person pronouns and significantly fewer second and third person pronouns than the control groups. When style – how we express ourselves as opposed to the content we express - was considered, absolutist words like “always” or “nothing” were found to be used with 50% greater frequency in anxiety and depressed forums and 80% more frequently in suicidal ideation forums. When they studied individuals who felt they had recovered from a depressive episode, their negative emotion words were comparable to controls and positive words increased by 70%. The World Health Organization estimates that more than 300 million people worldwide now suffer from depression. Computers trained to detect a variety of mental health conditions are already outperforming such classifications made by trained therapists. Having these tools available online and to mental health professionals may help spot and prevent tragic suicides and improve the lives of many around us. Stay tuned next time as we delve into Lawrence Weinstein’s Grammar for a Full Life: How the Ways We Shape a Sentence Can Limit or Enlarge Us.

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Claire Jack, Ph.D., 7 Gaslighting Phrases Used to Confuse and Control, Psychology Today, January 11, 2021, https://www.psychologytoday.com/us/blog/womenautism-spectrum-disorder/202101/7-gaslighting-phrases-used-confuse-andcontrol. Anouare Abdou, People Who Use These 5 Phrases Have Very Low Self-Confidence, www.aol.com, January 26, 2021, https://www.aol.com/people-5-phrases-verylow-110010297.html. Mohammed Al-Mosaiwi, Can Language Accurately Predict Whether Someone is Suffering from Depression, The Conversation, December 2, 2019, http://scroll.in/ article/print/945449.

March 2021


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

A LADY IN THE AIR Reginald Joseph “R.J.” Mitchell got his start as an apprentice at a locomotive factory, but that only lasted a few years. He was only 13 years old when the Short brothers obtained a manufacturing license from Wilbur Wright,1 but Mitchell was hooked from the moment he laid eyes upon his first airplane. By the time he was 22, he had landed a job as an assistant at the Supermarine Aviation Works in Southampton, England.2 Within two years, he was the Chief Engineer and Designer, and that is when he started designing racing seaplanes and other racing airplanes, first the S.5, then the S.6, then the S.6B.3 Mitchell and his team at Supermarine were on the cutting edge of highspeed aircraft. In 1931, they submitted a design to the British Air Ministry for a brand new, incredibly fast, interceptor fighter airplane.4 The design was selected. It was a miserable failure. The Rolls-Royce Griffon engine was unreliable. The cooling system didn’t cool. The plane barely reached 230 mph, and it was temperamental—so temperamental it was called the “Spitfire.”5 Actually, Mitchell originally wanted to call it the “Shrew,” so “Spitfire” was an upgrade.6 Mitchell and his team worked at it for 6 years, and what they created was unlike any plane the world had ever seen.

mail, medical supplies, and other materials in non-combat locations so that the “real” pilots could be available for combat missions.12 Within a few months the ATA had a much more significant task: transporting the Spitfires, Typhoons, bombers, and other warplanes from their factories to the front lines.13 On New Year’s Day 1940, the first 8 women joined the ATA.14 They were paid 20% less than their male counterparts, and the public reaction was anything but mixed.15 An editorial in The Aeroplane magazine wrote, “Women anxious to serve their country should take on work more befitting their sex instead of encroaching on a man’s occupation.” Another publication warned, “The menace is the woman who thinks that she ought to be flying in a highspeed bomber when she really has not the intelligence to scrub the floor of a hospital properly.”16 There was a lot of yelling, but Mary and her colleagues did not listen. Within a few months, she was flying Spitfires and other airplanes across the front lines. It was risky business. She was shot at over Bournemouth, possibly by friendly fire, and had a near-miss as she landed in fog at the same time as another Spitfire coming in the opposite direction. She also survived a crash-landing when the undercarriage on her Spitfire jammed, causing the engine to overheat. “I just knew that I had to do something before the engine blew up. One didn’t get excited or anything else. It’s just a part of the job of coping with an aeroplane.”17

[It] had a narrow fuselage with wings that tapered to slender tips and were elliptical, and its cockpit was enclosed. Its undercarriage was set close together to lower stress on the wings, and the wheels swung outward to retract flush into wing cavities. Suspension was provided by “oleo” legs, which were telescopically spring on oil and air. A tail skid completed the technical arrangements for take-off and landing. The plane was originally fitted with a two-blade, fixed-pitch wooden propeller and a Merlin “C” engine.7 A year after its first test flight, Mitchell died in 1937.8 He was forty-two years old. But the plane lived on. Its light weight, long wings, and narrow undercarriage gave it incredible speed and agility in the air. Its springy legs and tail skid made maneuvering on the grass airfields of England a nightmare. One pilot noted, “She was a lady in the air, but a bitch on the ground.”9 And, when World War II broke out two years later, the Spitfire was exactly the lady that the Royal Air Force needed to go head-to-head with the German Luftwaffe. The RAF needed a lady. It got the Spitfire, but the Spitfire also needed a lady. It got Mary Ellis and the women of the ATA. Mary grew up on a farm watching airplanes take off and land at the nearby RAF base, and she was hooked.10 She took flying lessons and earned her pilot’s license.11 She was just 21 years old when World War II began. Women were not allowed to join the RAF, but when the Air Transport Auxiliary opened its doors to female pilots, she signed up. The ATA was a civilian force comprised of individuals who were considered too old or unfit for military service. Its job was to transport March 2021

Mary was not alone. Because their job was transporting airplanes, at any time, they could be called up to fly any type of aircraft to any location.18 They had no radios. They had no instruments (or at least they weren’t taught to read them because apparently women couldn’t do that kind of thing).19 That means they had to stay close to the ground where they could see the terrain, armed with only a compass, map, and a watch.20 Keep in mind that these were brand new planes straight from the factory, so many of the 173 ATA members who died during World War II lost their lives when the planes malfunctioned or crashed.21 By the end of the war, almost 10% of the ATA’s female pilots had died.22 Mary herself flew over 1,000 different “missions”—78 different types of planes—in her 4 years of service. 23 But her favorite was Mitchell’s Spitfire. She flew almost 400 of them,24 and when the war ended, the Royal Airforce invited her to join. No longer a civilian delivery girl, Mary became the first woman to fly the Meteor jet fighter.25 When Mitchell died, he had no idea that he had designed the airplane that would win World War II. But, he did more than that. Mary Ellis was born to fly, and Mitchell’s airplane is what gave Mary and hundreds of other female pilots their wings. They, in turn, got the planes to the front lines so that the Lady in the Air could win World War II. Mitchell and Mary: each one played their part to open the door for the people behind them. Boat builders build boats. Writers write. Engineers design. Pilots fly. Each one changes the world for themselves and others.

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

English Heritage, Short Brothers, https://www.english-heritage.org.uk/visit/blueplaques/short-brothers, last visited Feb. 10, 2021. Encyclopedia Britannica, R.J. Mitchell, https://www.britannica.com/biography/RJ-Mitchell, last visited Feb. 9, 2021; Reginald Joseph Mitchell CBE, FRAeS (18951937), https://www.spitfiresociety.org/content-RJ-Mitchell,Spitfire, last visited Feb. 9, 2021. Ralph Pegram, The Spitfire: R.J. Mitchell’s Radical Design Development, The History Press, https://www.thehistorypress.co.uk/articles/the-spitfire-rj-mitchell-s-radicaldesign-development, last visited Feb. 9, 2021. Id. Keith Robinson, Spitfire—History of the Spitfire’s Design & Development, Military History Matters (Mar. 4, 2011), https://www.military-history.org/articles/history-ofthe-spitfire.htm, last visited Feb. 9, 2021. Jack Malvern, How the Spitfire was very nearly named the Shrew, The British Times, available at https://www.thetimes.co.uk/article/how-the-spitfire-wasvery-nearly-named-the-shrew-2vmjjkg7908#:~:text=It%20was%20Robert%20 McLean%2C%20head,be%20adopted%2C%E2%80%9D%20Beaver%20said. Id. Id. Stephen J. Thorne, Spitfire Documentary Soars with Nostalgia, Legion (Aug. 15, 2018), https://legionmagazine.com/en/2018/08/spitfire-documentary-soars-withnostalgia, last visited Feb. 9, 2021. Obituary: Mary Ellis the Air Pioneer, https://www.bbc.com/news/uk-englandhampshire-43518517, last visited Feb. 9, 2021. Id. Air Transport Auxiliary, Museum & Archive at Maidenhead Heritage Centre, https:// atamuseum.org/, last visited Feb. 9, 2021. Id. Id. Id. Mary Ellis Obituary, supra n. 8. Id. Air Transport Auxiliary, supra n. 10. WW2’s Spitfire Women: Eleanor Wadsworth, one of the Last Female Pilots Dies,

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BBC News (Jan. 10, 2020), available at https://www.bbc.com/news/uk-englandnorfolk-55601962, last visited Feb. 9, 2021. 20 The History Press, Doing their Bit, https://www.thehistorypress.co.uk/articles/doingtheir-bit-the-female-fighter-pilots-of-world-war-ii, last visited Feb. 9, 2021. 21 A.T.A. Casualties by Date, available at http://www.raf-lichfield.co.uk/ATA%20 Casualties.htm. 22 Id. 23 Mary Ellis Obituary, supra n. 8. 24 Id. 25 Id.

barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. Networking will begin at 5:00 p.m., and committee reports will begin at 5:15 p.m. To attend, register for the meeting at www.knoxbar.org and a link will be sent to you on the day of the meeting. MARCH MADNESS SOCIAL HOUR ON MARCH 18 Join the Barristers for a March Madness Social Hour on Thursday, March 18, 2021 from 5:30-7:30 p.m. at 35 North located at 11321 Kingston Pike. Even though this event is sponsored by the Barristers, all KBA Members and Law Students are invited to attend. Come out and have a drink or grab a bite with friends and colleagues. This is a great opportunity to network, meet new faces, and get involved, so join us. 35 North is an outdoor food truck park and social distancing will be encouraged. Keep an eye out for future promotions for more information. VOLUNTEER BREAKFAST COMMITTEE SEEKS 2021 SPONSORS The Volunteer Breakfast Committee will continue to prepare and deliver breakfast to the Volunteer Ministry Center on the fourth Thursday of the month. The Barristers Volunteer Breakfast Committee continues to accept sponsors for breakfasts in 2021. Sponsorship is $150 and it provides a hearty meal to the most vulnerable members of our community. We offer our heartfelt thanks to all our sponsors and volunteers. Please contact Matt Knable (knablelaw@gmail.com) or Mitchell Panter (mpanter@ lewisthomason.com) with questions or to sign up.

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VOLUNTEER FOR THE VIRTUAL VETERANS LEGAL ADVICE CLINIC The Veterans Legal Advice Clinic is a general advice and referral clinic which will serve between 20 and 30 veterans in the community each month with a wide variety of legal issues.  Volunteers are needed between 12:00pm and 2:00pm on the 2nd Wednesday of every month. The next VIRTUAL clinic is expected to occur on March 10. Watch for updates as to the format of this clinic on the KBA website. Sign up to help at www.knoxbar.org/ volunteer, and contact Access to Justice Committee Co-Chairs Spencer Fair (sfair@londonamburn.com) or Luke Ihnen ( ihnen@londonamburn. com) with questions. CLE COMMITTEE TAKING SUGGESTIONS The CLE Committee will be meeting in early 2021 to begin planning informative and entertaining CLEs for the upcoming year. Please feel free to submit any ideas you may have to Sam Louderback (slouderback@ emlaw.com) and Seth Oakes (soakes@tcflattorneys.com) BARRISTERS & KBA ACCESS TO JUSTICE COMMITTEES COLLABORATE ON NEW INITIATIVES The Barristers are teaming up with the KBA to expand the reach of the Access to Justice Committees to even more individuals in our community. Keep an eye out for new Access to Justice initiatives on racial justice in the coming year. View information about the Barristers Access to Justice Committee on the KBA website.

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March 2021


LEGAL MYTHBREAKERS By: Brad Fraser Leitner, Williams, Dooley & Napolitan

LAW IS LIKE A BOX OF CHOCOLATES

TRAFFIC CITATION TO TORTFEASOR MAY EXTEND STATUTE OF LIMITATIONS TO 2 YEARS You may recall David Long’s recent Legal Mythbreakers article, “You Might Be Better Off Just Mailing in the Fine.” In that article, he outlined how Tennessee statutes and the Tennessee Rules of Evidence make a plea of nolo contendere inadmissible when a defendant issued a traffic citation elects not to contest the charge. David has always had a way of explaining things so I could understand them. Last month I read something that piqued my interest further about this issue: Younger v. Okbahhanes, a recent opinion from the Tennessee Court of Appeals1. In Younger, Plaintiff and Defendant had been involved in a traffic collision in September 2017. A state trooper issued a traffic citation to Defendant2, listing various offenses committed by Defendant, including failure to exercise due care3, violation of the financial responsibility law4, and failure to carry registration documents. 5 These were all violations under Title 55 of the Tennessee Code. Plaintiff filed a lawsuit in April 2019, which was more than one year after the collision. As expected, Defendant filed a Motion for Summary judgment, asserting the statute of limitations barred the action. Plaintiff filed a response arguing that the statute of limitations for personal injury actions was extended to two years, due to the traffic citation issued to the defendant for failure to exercise due care as a result of the vehicle collision. Mama always said you have to do the best with what God gave you. For no particular reason, I started to dig a little deeper. Defendant had signed the citation when issued by the officer. The citation, which was filed with the court in October 2017, commanded Defendant to appear before the Roane County General Sessions Court. However, Defendant simply paid the fine for his violation of the exercise of due care. The remaining offenses were then dismissed in November 2017. While this would render all these charges inadmissible in any actual trial of the civil suit, Plaintiff ’s Complaint specifically alleged that he had been injured as a direct result of Defendant’s negligent acts, omissions, and conduct, and that “Defendant was charged criminally for his conduct in causing the wreck” and had pled guilty to failure to exercise due care. The trial court agreed with Plaintiff. In its Order denying Defendant’s summary judgment motion, the Trial Court specifically found: 1. 2. 3. 4.

the citation for failure to use due care was related to the conduct or occurrence that gave rise to the cause of action; a citation for failure to exercise due care is a criminal charge; the traffic citation issued to Defendant was a sufficient “charging document” to commence a prosecution; and Plaintiff was the individual allegedly injured by Defendant’s criminal conduct.

Accordingly, the Trial Court found that Plaintiff ’s claims were not barred, pursuant to the two-year statute of limitations as set forth in March 2021

Tennessee Code Annotated § 28-3-104(a)(2). On appeal, the Tennessee Court of Appeals noted that whether Tennessee Code Annotated § 28-3-104(a)(2) is applicable to traffic citations was a matter of first impression in Tennessee. 6 The Court further held the language of Tennessee Code Annotated § 28-3-104(a) (2) was clear and unambiguous, and reiterated that the statute only requires that “criminal charges” be brought against the defendant and that a “criminal prosecution” be commenced by a law enforcement officer, a district attorney general, or a grand jury within one year of the defendant’s conduct. 7 Finding the statute clear and unambiguous, the Court applied the “plain meaning” of the statute. 8 The Court further noted that according to Tennessee Code Annotated § 55-10-207(d), when a traffic citation has been prepared, accepted, and the original citation delivered to the court, that original citation “shall constitute a complaint to which the person cited must answer and the officer issuing the citation shall not be required to file any other affidavit of complaint with the court (emphasis added).” 9 The Court further noted, that if “our General Assembly intended to exclude traffic citations from the application of Tennessee Code Annotated § 28-3-104(a)(2) for policy reasons, it easily could have done so… It is not the role of this Court to rewrite the statute.” 10 The Court of Appeals upheld the Trial Court’s denial of summary judgment, holding that the issuance of a traffic citation for failure to exercise due care satisfies the statutory requirement of a criminal charge to trigger the two (2) year extension of the statute of limitations in Tennessee Code Annotated § 28-3-104(a)(2). The Takeaways At press time, we were unable to determine whether Younger had been appealed to the Tennessee Supreme Court. In the meantime, Plaintiff counsel might want to dig a little deeper when presented with a case that might otherwise be barred by the 1-year statute of limitation. A traffic citation issued to the alleged tortfeasor may extend it another year. Let’s keep an eye on this one. Besides being a pretty smart guy, David is my good friend and even I know that ain’t something you can find just around the corner. That’s all I’ve got to say about that.

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Younger v. Okbahhanes, Tenn. Ct. App. No. E2020-00429-COA-R10-CV, Jan. 28, 2021. Tenn. Code Ann. § 55-10-207., et seq. Tenn. Code Ann. § 55-8-136. Tenn. Code Ann. § 55-12-139. Tenn. Code Ann. § 55-4-108. Tenn. Ct. App. No. E2020-00429-COA-R10-CV, at 6. See Tenn. Code Ann.§ 28-3-104(a)(2) (2017). See Coleman v. Olson, 551 S.W.3d at 693. Tenn. Ct. App. No. E2020-00429-COA-R10-CV, at 7. Id. At 8.

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

WELCOME NEW MEMBERS

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Adam Brock-Dagnan

Miranda Goodwin BPR #: 038465 P.O. Box 53085 Knoxville, TN 37950-3085 Ph: (865) 712-8687 mstoltz@vols.utk.edu N. Craig Holloway BPR #: 033354 Craig Holloway Attorney at Law, PLLC P.O. Box 607 Murrells Inlet, SC 29576-0607 Ph: (423) 458-1589 craig@craighollowayattorneypllc.com

John P. Cauley Elizabeth K. Collier-Pittman Collier Development Jessie Crane Crane McFarland Law George B. Gilliam The Gilliam Law Firm, PC

Courtney S. Matyac BPR #: 037994 P.O. Box 26388 Knoxville, TN 37912-9488 Ph: (865) 297-3117 Courtney@Matyaclaw.com

Miranda Goodwin Mark Crider Hazlewood The Hazlewood Law Firm Clayton Humphrey

Rochelle A. Oldfield BPR #: 032587 Law Office of Rochelle A. Oldfield 11909 Kingston Pike, Suite 201 Knoxville, TN 37934-4878 Ph: (865) 470-4105 rochelle.oldfield@oldfieldlaw.net

Stephanie M. Jernigan Trent Kinkaid Christine Knott Knott Law, P.C. Dianne E. Lashmit Blount County Juvenile Court

Daniel A. Sanders BPR #: 027514 Lowe Yeager & Brown PLLC 900 S. Gay St., Suite 2102 Knoxville, TN 37902-1862 Ph: (865) 521-6527 dsanders@lyblaw.net Laura Tragesser Weber BPR #: 022948 Cash Express 345 S. Jefferson Ave., Suite 300 Cookeville, TN 38501-3456 Ph: (865) 804-8193 lauratweber@gmail.com Edward G. White III BPR #: 029924 Law Offices of Edward G. White III 422 S. Gay St., Suite 302 Knoxville, TN 37202-1167 Ph: (865) 712-0963 trippwhite82@gmail.com

Sallie Papajohn Lewis Thomason, P.C. Ellen Joy Radice U.T. College of Law Sean Andrew Roberts District Attorney General, 6th Judicial District Jason Lee Rogers Hodges, Doughty & Carson, PLLC Sabrina C. Soltau Social Security Administration Benjamin David Stallard Stallard Law Firm Adam Strachn Law Office of Adam Strachn, PLLC Bianca White Lincoln Memorial University - Duncan School of Law Felisha B. Whi

NEW LAW STUDENT MEMBERS Carson D. Arnold

Ashley N. Hamilton

Louis J. Battino

Sarah M. Hempenstall

Emily Cala

Jordan N. Hutchins

Ryan E. Carroll

Esther Lewoczko

Miranda L. Coker

Breana N. Query

Josh B. Ferrell

Michael S. Shao

Scott F. Gelbart

Christopher R. Shaffer

Philip M. Gibson

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March 2021


STORIES OF COVID-19 AND BEYOND By: Brandon M. Allen McDonald, Levy & Taylor, PLLC

Laura Reagan

Stern Family Law, PLLC

ADMINISTERING THE BAR EXAM DURING A GLOBAL PANDEMIC We should preface this article with a disclaimer: reading the content contained within this section may drudge up memories of stress, anxiety, and waking up before daylight terrified that you misapplied the rule against perpetuities on yesterday’s practice exam. The Class of 2020 struggled with the bar exam no differently than the law school graduates who came before us. After all, the exam is designed to be a difficult, mental and academic challenge used to determine whether we should be released into the real practice of law. The practice of law is one in which our decisions impact the lives of those we represent. As graduates, we all understand the need for a qualifying examination to determine whether we absorbed the basics and understand how they are applied in practice. Why would this rigorous process be any different for 2020 graduates? In the paragraphs below, please allow two of those graduates to explain why taking the October bar exam was unprecedented. Brandon Allen is a graduate of the University of Tennessee College of Law and now works as an Associate Attorney at McDonald, Levy & Taylor, PLLC in Farragut, TN. Laura Reagan is a graduate of Lincoln Memorial University Duncan School of Law and is an Associate Attorney with Stern Family Law, PLLC in Sevierville, TN. We graduated from different law schools, but we share the same story. Everything was on-track in February 2020. We were set to finish our last semester of law school and in the process of organizing our commencement ceremonies. Some of us had jobs waiting, while others were diligently scouring career postings looking for a post-law school home. One thought was shared among all of us: We were almost finished and ready to take on the world. Then, IT happened. We were told in an instant that campuses would be closed; our remaining time in law school would be spent on our couches logged into Zoom. Learning how to Zoom in a weekend wasn’t bad. Learning how to be cold-called in a law school class via Zoom was a bit more entertaining. Our temporary living room modifications for Zoom classes eventually became permanent home bases. Bar prep courses would be held online. Our intentions over the previous three years of studying with our classmates for the bar as we had done for finals was now only a distant memory. A whirlwind of rumors regarding the bar exam, none of which had any basis, began to circulate on social media that encapsulated Tennessee’s intentions regarding the bar exam, along with the majority of other states. Would there be an exam? Would it be online? When would an alternate date be scheduled if it were cancelled? Many of us celebrated our Juris Doctor degrees by doing our part and staying home. Some moments were spent with immediate family. For others, those moments were spent at home determining next steps and contingency plans for the nearly certain cancellation of the bar exam. One thing was evident during this time: we had to study and prepare for March 2021

an exam under the assumption that it would take place. Many graduates found it extremely difficult to find quiet places to study. Schools were closed. Libraries were closed. We found ourselves setting up in closets, basements, spare rooms, law firm conference rooms, and just about anywhere else that would extend an invitation. Graduates with families and children dealt with daycares and summer programs that were closed. Some graduates live in areas where Internet isn’t readily available and had to rely on satellite or mobile hot spots which made Internet-based bar prep courses difficult at best. Some school facilities eventually opened for limited hours with social distancing guidelines that made group study impossible, but solved the quiet study space issue for struggling students. During this first round of studying, the ever-looming elephant in the room was whether the bar exam would even occur. The closer we got to the July dates the more comfortable we became thinking that we would be taking the exam as scheduled and the further along we got into our study plans. Many of our bar prep programs included completion meters. Watching these meters ticking slightly closer to 100% offered some degree of relief. Then, IT happened. Again. The July bar exam was officially cancelled In Tennessee. Truly the right thing to do but devastating to those who were mentally prepared for it. We were back to square one. Would there be an exam? Where? When? Many were now facing the ugly reality that student loan money was about to run out. Here we were nearing the peak of our knowledge for the most strenuous academic examination of our lives, and no idea how to retain that level of preparation and exhaustion for an unknown amount of time. Anxiety was the understatement of the season for new graduates. The Supreme Court was able to provide new test dates after some decision-making within the ranks. By the way, the exam would now be a hybrid model to be taken remotely. Bar prep services were quickly modifying study plans and sending emails on how to prepare on the fly. There was an option for in-person proctoring with limited space, but for many bar exam takers, it remained difficult to find a location that could support uninterrupted Internet and meet the requirements that came with an online assessment. After all, this wasn’t a typical online exam. Proctoring guidelines were implemented to maintain the integrity of the exam. While well-intentioned and important, these guidelines added an additional level of stress for bar takers. But, this was 2020, and we were learning how to adapt. In hindsight, the bar exam was the most stressful academic exam of our lives and one of our greatest achievements. The exam added an increased sense of connection among the class of 2020. Regardless of school, rank, or employment prospects, the Class of 2020 will forever share a bond as the first group to weather a bar exam during COVID.

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

By: Phil Hampton Founder and CEO, LogicForce Consulting

REMARKABLE 2 TABLET Despite all the love we have for gadgets and automation devices that do essential work for us, we still love and insist on taking notes by hand during important meetings, conferences, and presentations. Call us old-fashioned, but we hate pecking at a keyboard when meeting with clients one-on-one or in other smaller meetings. We are constantly on the lookout for technology that will enhance the note-taking process, especially when doing it by hand. We finally have found what we believe to be the holy grail of electronic note taking; and the result is quite remarkable. Literally, the name of the device that we purchased is called the ReMarkable 2 tablet. This second-generation tablet is really the best platform we have tried to date for taking notes by hand on an electronic device. The ReMarkable tablet features what is known as e-ink technology much akin to the monochrome display made popular with the Amazon Kindle. The ReMarkable display measures 10.3 inches and feels similar in size to an iPad. But ReMarkable is no iPad. For starters, the ReMarkable tablet doesn’t have apps, can’t play games or movies, and doesn’t display in color. It strictly is an electronic writing or sketching pad. So, if you are looking for an iPad replacement device, move along. But if you, like us, want a discreet tablet that simulates very closely the paper and pen writing experience, ReMarkable is for you. We have used the Apple pencil and other pens and styli on various phones and tablets in the past but can honestly say that nothing feels as authentic as the ReMarkable tablet and pen in replicating the feel of writing on a pad of paper on an electronic device. The Marker pen, that is sold separately, has replaceable tips that wear out over time; but really does create a type of friction that you would feel when writing with a real pencil or pen on physical paper. The ReMarkable tablet lets you choose which type of writing device you want to simulate: ballpoint pen, marker, fineliner, pencil, or even a calligraphy pen. You can set up any number of folders on your ReMarkable tablet to organize your notes or other documents. These folders will then sync with your cloud account that you create when you first login to the tablet. Wit the corresponding app that you can install on your PC or phone, you can synch documents to and from the ReMarkable cloud folders, which, in turn, gets synched with the physical tablet. You can upload PDF

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documents via the app which will then be available on your ReMarkable tablet after synching. This feature will essentially let you upload a file folder of documents (PDF only) to the tablet so you can review and/or mark-up on the ReMarkable tablet (in court, for example). Any changes or markups, of course, will be synched back to your cloud account when the tablet is connected to Wi-Fi. The ReMarkable interface allows you to choose a blank canvas to write on or any of a number of pre-defined templates, such as lined paper, grids, checklists, dayplanner, music charts, dots, etc. You can also send a document on the fly (for example, a page of handwritten notes) via e-mail as a PDF document directly from the ReMarkable tablet. The tablet will even convert your handwriting to text and send as a formatted PDF document via e-mail. We tested using our very sloppy handwriting and the ReMarkable lived up to its name in correctly converting our notes into text. We were quite pleased. The other thing that pleases us is the extended battery life on the ReMarkable tablet. The specs say that you can expect about two weeks of use in between charges. Of course, unlike an iPad or other computer-based tablet, the ReMarkable tablet is only being used to take notes or review PDF documents, so there is no opportunity to run the battery down playing games or watching videos. Slightly on the negative side is the price for this tablet, which we feel is a little high. Furthermore, the special Marker pen that you really must get is sold separately for $49. So, the total cost for the tablet and marker is approaching $500. Yes, it is an expensive electronic notepad; but we have not found anything we enjoy writing on better. Another negative is that the pen, which magnetically connects to the side of the tablet, is very easy to knock loose when transporting the tablet or taking in and out of your briefcase. We recommend keeping the Marker pen somewhere safe rather than just clicking it to the side of the tablet. The positives on the ReMarkable 2 tablet far outweigh the negatives in our view. We truly have found the perfect compromise between keeping our habit of taking notes by hand and having our notes captured electronically in the cloud. The answer is ReMarkable, and we love it.

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March 2021


BARRISTER BITES By: Angelia Morie Nystrom The University of Tennessee

HOARDERS, GLUTTONS AND BANANA PUDDING I don’t know if I think my husband is sentimental—or if I think he is just a hoarder. Hugh says that there is a fine line between the two, and I’m not exactly sure where I think he lands. Hugh keeps everything. Restaurant menus, ticket stubs, a box of candy that a Disney guest gave him in 1992, his tonsils. When I say “everything,” I mean everything. Because of the sheer volume of things he keeps, Hugh also tends to misplace things. Usually, when Hugh misplaces things, I end up cleaning the house to try to find whatever it is that he has lost. Christmas at our house was no different this year. During the Christmas break, Hugh had some time on his hands and began a mad search for the memorabilia (i.e., programs, menus, newspapers, airplane boarding passes, etc.) from our 2016 trip to Pearl Harbor. As he was frantically searching through drawers in the cabinet in our living room, I was having heart palpitations because I cannot stand disorganization and clutter. Although I told him that his paperwork was not there, he kept digging… until I shooed him away so that I could organize the drawers and prove once and for all that his memorabilia was not there. Fortunately for me, his hoarding and losing things caused me to make one of the great discoveries of 2020. While going through the paperwork, I found IT… the thing I thought was gone forever…. I found my grandmother’s Famous Banana Pudding recipe. For you to understand the significance of this discovery, I need to share some background information. I have always loved banana pudding. My mom made the Jell-O Instant Pudding version for us often, and it was good. However, it could not compare to the banana pudding my Mamaw French made for holidays. Banana pudding was a staple on my grandmother’s table at Thanksgiving and Christmas, and she always served it in a blue covered bowl. She has been gone for 15 years and was unable to cook for many before then, but my memories of her banana pudding in that pretty blue bowl have not faded. The love for banana pudding may be genetic because Trace loves it as much as I do. When Trace was about 6, we went to a buffet that had banana pudding in martini glasses. After Trace had devoured six of them, we made him stop. Had we not done that, I am scared to think how many he would have eaten. A couple of years later, Hugh and I planned a tailgate party before a UT football game. We are huge fans of Sweet P’s BBQ and decided that it would be the perfect tailgate food. I meticulously planned everything March 2021

out. I prepared a lot of food; however, Sweet P’s was the centerpiece to our culinary celebration. In addition to various meats, greens and macand-cheese, I ordered extra of my two favorites: potato salad and banana pudding. Prior to the game, the adults, including my cousin Todd, were enjoying the food while Trace played football and generally ran around with his friends like 8-year-old boys do. Todd was on his second trip through the buffet and saw that the banana pudding was low. He didn’t want to eat the last of the pudding. I told him not to worry…. We had plenty. After all, I had ordered two each of the banana pudding and potato salad. Todd grabbed a spoon and started eating straight out of the container. As Todd was finishing the banana pudding, Trace returned, ready to eat. He didn’t want barbecue; he didn’t want mac-and-cheese; he didn’t want any of the tailgate food. He just wanted banana pudding. Todd teased him that he was eating the last of it. I directed Trace to the cooler to get the other container of banana pudding. When Trace opened the first container, it was potato salad—not banana pudding. He repeated the process with the second container. Same result. Potato salad. To this day, I don’t think I have ever seen Trace look so dejected. Many years later, Trace still talks about the day Uncle Todd ate all of the banana pudding. While Sweet P’s banana pudding is great, it doesn’t compare to my grandmother’s. A few years ago, my aunt found my grandmother’s recipe and gave it to me. I made it several times, and it was always as good as I remembered. And then the recipe disappeared from my folder of recipes. I had searched for it for years, and I had become convinced it was gone forever. Thanks to Hugh’s hoarding, though, I found it tucked away in a drawer with some newspaper articles that we had saved. That day, I felt like all was right in the universe. This recipe is too good not to share. To make Mamaw French’s Famous Banana pudding, separate 4 large eggs. Add egg yolks to a mixing bowl and whisk in 4 cups evaporated milk. Transfer to a sauce pan. Add 1 ¾ cups sugar and 5 tsp cornstarch. Cook over medium heat until thick, whisking constantly to avoid lumps. Add ½ stick of butter and 1 TBS vanilla. When butter melts, remove from heat. Layer pudding mixture with sliced bananas and Nilla Wafers. I use lots of them because I love both bananas and Nilla Wafers. Let cool in refrigerator (if you can wait that long), and then eat and enjoy. This recipe is supposed to serve four. In our family, though, it becomes The Hunger Games when Mamaw French’s Banana Pudding is on the table.

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DICTA

Employee Owned

March 2021


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

SENATE’S GONNA DO WHAT THE SENATE’S GONNA DO By the time you read this, Donald Trump’s second impeachment trial should be over. Let’s hope so, anyway. Regardless of the outcome, a constitutional question has been settled, again: It is, indeed, constitutional to proceed with an impeachment trial after a president has left office. By a 56-44 vote, the United States Senate just said so. Of course, it had already said so, repeatedly, over the past two centuries. Remarkably, our own Founding Scoundrel, William Blount, was part of that history. Blount is Tennessee’s constitutional claim to fame: As a delegate from North Carolina (which then claimed Tennessee), he signed the United States Constitution. A few years later, around the time he became one of Tennessee’s first two United States Senators, he tarnished his reputation by concocting something called the Blount Conspiracy,1 which led to the first impeachment in American history. When the Blount Conspiracy came to light, the reaction was swift, but a bit disjointed. First, the House “impeached” Blount without specifying precisely why.2 The next day, the Senate independently expelled him.3 Only six months later did the House get around to drafting articles of impeachment, which it then delivered to the Senate.4 The Senate held a trial, but eventually dismissed the charges. Unfortunately, it didn’t explain why. There were two possible reasons: Either a Senator couldn’t be tried after leaving office, or a Senator couldn’t be impeached at all.5 So, Blount left the constitutional waters a bit muddy. It would take close to eighty years before a clearer precedent emerged. That’s when another William, President’s Grant’s Secretary of War, William Belknap, was both impeached and tried after resigning his office.6 Like Blount, Belknap was a mixed bag: He was a brave and respected general officer during the Civil War, and he accomplished several significant reforms within the War Department. But he also embezzled, big time, through a kickback scheme with an Army contractor, to support his socialite wives’ opulent lifestyles. When the kickback scheme was discovered and impeachment was imminent, Belknap raced to the White House, where he tearfully confessed to President Grant. He tendered a one-sentence resignation letter which Grant immediately accepted. Forty minutes later, advised of the resignation, the House impeached him anyway. The Senate subsequently tried him, voting to reject Belknap’s defense that the impeachment of a former federal official was unconstitutional.7 So, Belknap’s case pretty much settled things. Over a century ago. Which presents the question: Why did the Senate have to re-argue this issue during Trump’s second impeachment trial? Why did we have to watch that harrowing video of the Capitol Insurrection and listen to Rep. Jamie Raskin’s gut-wrenching account of what happened that day? Why did we have to listen to Rep. Joe Neguse’s re-telling of the Blount impeachment story (okay, that part was pretty cool). But why, on God’s green Earth, did we have to suffer through the rambling presentations of Trump’s third-string lawyers, which have been almost universally panned? The answer is very constitutional: When it comes to impeachment,

the Senate’s gonna do what the Senate’s gonna do. So said the United States Supreme Court in a 1993 case, Nixon v. United States.8 No, not that Nixon. This case involved another Nixon who disgraced himself, Walter Nixon, a federal judge who refused to resign his judgeship even after being imprisoned for committing a felony. One imagines him sitting in his cell, muttering to himself, wearing his robe and occasionally pounding on the bars with his gavel. So the House voted to impeach Judge Nixon and the Senate held a trial. Nixon was convicted and removed from office. But he wasn’t willing to concede defeat (sound familiar?), so he hired himself a fancy lawyer, a good friend of mine named David Stewart. David challenged the conviction in a case that went all the way to the High Court, where David argued that the procedure the Senate had followed—holding the trial before a committee, rather than the full Senate—was unconstitutional. He lost on a unanimous vote. Poor David. Ever the advocate, he still objects whenever I refer to his former client as “the jailbird judge.”9 The Court’s ruling was not only unanimous, but unequivocal. Since the Constitution gives the Senate the “sole power” to try impeachments, the federal courts could not even hear such a challenge, which the Court described as a non-justiciable “political question.” A political question is something that is left to the “political” branches of the national government—the Congress and/or the Executive—to decide. The supposedly non-political judicial branch must stay out of it. So, again, the Senate’s gonna do what the Senate’s gonna do. And this time around, the Senate has decided to say what it has said before: An impeachment trial is eminently constitutional, even after a federal official has left office. Will it say the same thing the next time around? Well, the Senate’s gonna do . . .

1 2

3

4

5

6

7

8 9

It’s complicated.

Library of Congress, The Annals of Congress, Journal of the House of Representatives, Friday, July 7, 1797, available at: http://memory.loc.gov/ammem/amlaw/lwac.html. United States Senate, “The First Impeachment,” available at: https://www.senate. gov/artandhistory/history/minute/The-First-Impeachment.htm. Library of Congress, The Annals of Congress, Journal of the House of Representatives, Monday, January 29, 1798, available at: http://memory.loc.gov/ ammem/amlaw/lwac.html. United States Senate, “The First Impeachment,” available at: https://www.senate. gov/artandhistory/history/minute/The-First-Impeachment.htm. Richard White, “The Trump Trial Wouldn’t Have Been Possible Without This Impeachment,” The New York Times, February 8, 2021, available at: https://www. nytimes.com/2021/02/08/opinion/trump-impeachment-william-belknap.html. While I agree that the Belknap case provides an important precedent, I respectfully disagree with Professor White that it was necessary, in light of the Nixon case discussed infra. United States Senate, “War Secretary’s Impeachment Trial,” available at: https:// www.senate.gov/artandhistory/history/minute/War_Secretarys_Impeachment_Trial. htm. 506 U.S. 224 (1993). As he did in this episode of my radio show: “Impeached!” available at https://www. podomatic.com/podcasts/ywc/episodes/2017-10-21T07_21_40-07_00.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. March 2021

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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. HDC ANNOUNCES FIRM CHANGES Hodges, Doughty & Carson, PLLC is pleased to announce that Mabern E. Wall and Bart C. Williams have become members of the firm effective January 1, 2021 and Jason L. Rogers and Matthew W. Graves have joined the firm as associates. CIVICS ESSAY CONTEST The U.S District Court for the Eastern District of Tennessee and the Knoxville and Greeneville Chapters of the Federal Bar Association announce the Third Annual Civics Essay Contest, open to public, private, and home high school students who reside in the counties of the Knoxville and Greeneville court divisions. This year’s contest, “What Does It Mean to Support and Defend the Constitution?” is offered in conjunction with the national FBA contest, with essays to be submitted separately to both the national and local contests on or before March 31, 2021. Local prizes totaling $950 will be awarded to the top three essays. More information can be found at the court’s civics and outreach website: connections.tned.uscourts.gov.

perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: • 1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!)and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545. •

Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email jfanduzz@gmail.com for inquiries.

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

CMC PEACE OUT VIRTUAL 5K/15K Kick off your spring with the Community Mediation Center’s inaugural Peace Out Virtual 5K Run/Walk or 15K Bike. This event will take place April 10th through April 24th, 2021. With each registration, Compassion Closet of East Tennessee will receive a pair of Bombas® socks to give to adoptive and foster families in East Tennessee. Register here: https://runsignup.com/Race/TN/EverywhereUSA/ThePeaceOutRun. LEWIS THOMASON NAMES NEW SHAREHOLDERS Jared Garceau focuses his practice primarily in the areas of business and commercial law, construction, and general civil litigation. Adam Rust focuses his practice primarily on civil litigation handling a wide range of individual and corporate clients. Tyler Smith has extensive experience representing employers in the defense of workers’ compensation claims and devotes a significant portion of his practice to insurance and casualty defense, and professional liability claims. KBA CLASSIFIEDS EXPANDED TO INCLUDE LAW STUDENT INTERNS Reliable help when you need it! Have you ever been short on time and in need of help to reach a deadline? Do you ever wish you could delegate tasks like research and writing so that you could better focus on practicing law? In short, do you need an intern? We want to help! The KBA has updated our Classifieds and added the option to post listings specifically seeking law student interns. We have been working closely with the law schools who have expressed that students are desperate for internships and opportunities to gain experience while in law school. Law students will benefit from this invaluable exposure to the local legal community. Students may post their resumes and signify that they are seeking internships. Attorneys and law firms will have the ability to post intern listings and browse resumes of eager candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource at www.knoxbar.org. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and

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March 2021


LONG WINDED By: Jason H. Long London Amburn

SILVER LININGS My wife was charged with writing a Lenten devotional for our church this past week. As her theme, she chose the lyric from John Lennon’s Beautiful Boy: “Life is what happens while you’re busy making other plans.” She posited that we are all waiting anxiously upon a vaccine, asking one another when the pandemic will be over and when can we return to our normal lives. Meanwhile, life continues on and, even during this tumultuous year, wonderful moments are taking place in our lives which we should notice and appreciate. In short, life goes on regardless of the circumstances so we should savor every moment of it. It’s a nice sentiment and one we would all do well to take heed of, particularly during the Lenten period (if you are into that sort of thing). Her piece got me thinking about the life of a litigator. We spend our lives getting ready for “trial.” From the moment a client walks through the door, plaintiff attorneys are evaluating how a case will play in front of a jury. They are investigating the merits of a claim, studying what will need to be proven at each stage of litigation to keep the claim viable, and developing a rapport with the client to assist them in putting on the best presentation of the case possible. Likewise, from the moment a Complaint is filed, we defense lawyers are conducting our own investigation, strategizing what plausible defenses make the most sense, and challenging the Plaintiff every step of the way in an attempt to prevent the matter from reaching its ultimate conclusion. Meanwhile, we are accounting for all of our time in six-minute intervals (I hate the billable hour, but that is a column for another time). The life of litigators is governed by our trial calendar. We are constantly looking at dates. Trying to squeeze in a deposition here or a court hearing there, all in contemplation of a trial which will occur in the distant future. However, as studies have shown over the years, the actual number of trials taking place is dwindling (citing actual studies is too much work for this column. Just take my word for it. Also, on a side note, did you know that “dwindle” is one of only three words in the English language that begins with “dw?”). It seems we are spending our lives preparing for an event that may never take place. I just looked at that last sentence and now I’m depressed. Imagine sitting in the backseat of your parent’s car, as a teenager, constantly asking “are we there yet?” and never actually getting anywhere. That sense of accomplishment is too frequently denied to those of us who wanted to litigate cases for a living. It’s hard to fulfill your dream of being Atticus Finch when you spend all of your time answering interrogatories. There is a reason why trials in television legal dramas occur during the same episode as the events giving rise to the cause of action. It’s not that we are watching the fastest administration of justice known to man. It is March 2021

simply that no one wants to watch lawyers argue a motion to dismiss or draft releases for disclosure of medical records. Shockingly, that is not compelling television. Of course, a primary reason we see so few trials in real life is the prohibitive cost of litigation. Very few cases merit the cost required to fully prepare a matter for trial and then actually litigate it. Even if a case has sufficient value, few people are willing to spend tens of thousands, if not hundreds of thousands, of dollars to prepare a case, only to have it decided by twelve people who were unable to get out of jury duty. The risk/reward ratio does not usually justify a full trial on the merits. Here is where COVID-19 comes in. There is a true silver lining even to the grimmest of situations. My high school freshman history teacher loved the quote “Necessity is the Mother of Invention” and she would drill it into our heads on almost a daily basis. We have seen that adage in full effect this year as social distancing and health precautions have necessitated that we embrace technology like never before. We have Zoom meetings daily, buy groceries online, and even attend church digitally. I am not saying all of these trends are good and I, like most others, long for the day we will be able to return to in person meeting and can strip off our masks and see each other’s smiles. (In addition, as I age, I think my hearing is slipping (Carol Anne is convinced it is) and I need us to get past these masks so I can hear everything again). Nonetheless, the technology will remain, long after the virus has passed, and presents an opportunity. How nice is it to sit at your desk, working on other matters, while you wait to get called into the Court Zoom meeting for a hearing? How convenient is it to meet with a client on routine matters over a videoconference? Who else is a big fan of the remote notarization of documents? All of these innovations have allowed us to be more efficient and cost effective in preparing our cases. Who knows? If we continue to innovate and pursue efficiencies, maybe we will see a revival of the jury trial. Perhaps those of us who got into the profession to try cases will be able to do so with more frequency. That could be the silver lining in all of this. In the meantime, I will heed the words of the late John Lennon and appreciate the journey itself. One quick disclaimer, my crack about a trial being decided by twelve people who couldn’t get out of jury duty was just a joke (and a stolen one at that – I can’t recall the comedian who said it). I have nothing but full faith in our system of justice and the last thing I need is opposing counsel waiving that quote in front of a jury saying “Here is what Mr. Long thinks of you!” Juries are great. I just hope I get to see one soon. Also, for those interested, the other “dw” words are “dwarf ” and “dwell.”

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

PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney Legal Aid of East Tennessee As 2021 opens, COVID continues to dictate how we all practice law and interact with the world around us. Nearly a year into the pandemic, COVID fatigue is real and we know both clients seeking pro bono help and advice as well as the volunteer attorneys who provide it are increasingly weary of virtual clinics. We are optimistic that as 2021 progresses and vaccination rates increase, we will be able to return to in person clinics that were a mainstay of pro bono service prior to COVID-19. However, in the interim we still very much need continued pro bono engagement from area attorneys as the need for pro bono representation and advice has not abated. With in-person clinics currently off the table, the Pro Bono Project has focused on matching clients with pro bono attorneys for direct representation. We are also continuing to offer a monthly Veteran’s Phone Advice Clinic in conjunction with KBA Barristers on the second Wednesday of every month; sign up is available through the KBA’s website. We can always use more volunteers willing to take on limited

scope cases through the Pro Bono Project! Please email me at ctorney@ laet.com or call 865-215-4951 if you are interested in taking on a case. You can also browse current available cases on our website https://www. laet.org/pro-bono-matters/

Mark Your Calendars

Veteran’s Phone Clinic: Wednesday April 14th Faith and Justice Phone Clinic

• Client Registration: March 15th – April 7th • Law Student Intakes: April 10th

• Volunteer Attorney Advice: April 13th – 15th Email: ctorney@laet.org or sign-up through the KBA’s website

ASSISTANCE PROGRAMS AVAILABLE IN THE KNOX COUNTY AREA Due to the pandemic, many area residents are practicing social distancing and have less direct engagement in their communities. Legal services may be a primary point of contact for many isolated individuals and I want to devote most of this column to spreading awareness about some of the programs available to area residents in the hopes that DICTA readers may be able to connect clients, friends, and community members with these programs.

TN Hope Line for Seniors: # 844-600-8362

Seniors are especially vulnerable to isolation and the Covid crisis has only amplified the epidemic of loneliness for area seniors cut off from their usual community activities and social support groups. In response, the Governor’s Office of Faith Based and Community initiatives, along with the Tennessee Commission on Aging and Disability and the Tennessee Baptist Mission Board have created the TN Hope Line. The TN Hopeline is a free hotline for Tennessee residents age 60 and over that will connect seniors with trained volunteers Monday – Friday between 10:00am-4:00pm. Seniors will be able to talk with caring volunteers who will also help connect seniors to local support services.

Savings Check Up for Seniors: # (865) 546-6262 Knox # (865) 724-1219 Blount or www.benefitscheckup.org

This free program provided through Knoxville Community Action Committee’s Office on Aging helps Knox County residents age 50 and

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CURE COVID Utility Relief Effort: # (865) 244-3085 or www.knoxcac.org

Funds are available to help pay for utility bills through KUB through KUB’s TVA Pandemic Relief Credit. To qualify, services must be provided by KUB and the program can assist with funds to satisfy electric, gas, water and wastewater charges. Applications may be requested by calling the number listed above or completed online at the www.knoxcac.org website.

Housing Assistance: 211

Knoxville residents may be eligible for help with past due rent or mortgage payments through a variety of Covid-19 related programs. 211 can help Knoxville residents determine what programs they may be eligible for and direct them to the appropriate agency to apply.

Covid-19 Rent Relief for non-Knox residents

The Knoxville-Knox County CAC Office on Aging is providing a “Savings Check up” to help seniors maximize their benefits and make sure they are enrolled in all the benefits and savings program available to them. Staff or trained volunteers are available to check resident’s eligibility for various programs and help qualified individuals complete applications and submit the required paperwork. Interested parties can also complete a basic questionnaire at www.benefitscheckup.org .

Rise Above Crime Program: # (865) 524-2786

older who are victims of physical, sexual, or psychological violence; or economic exploitation and fraud. Residents are connected with trained professional case workers who help to assess what services a client may be in need of and provides them with access to benefits, transportation, support navigating the legal system, and interpretation services. Case workers can also help provide references to counseling, therapy, and medical assistance as well as community services providing housing or in home care.

The Tennessee Housing Development Authority has announced a new program to help renters and landlords apply for assistance with overdue rent payments, late fees, and utility payments. Eligible residents outside Knox County will be eligible to apply directly through a THDA web portal in the near future. To receive updates, interested parties can sign up to be notified via email when the application is live at: https:// thda.org/help-for-renters-section-8/covidrentrelief . Knox County has chosen to administer its funds through this program directly so Knox County residents should call 211.

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March 2021


TELL ME A STORY By: Hon. Kristi Davis Tennessee Court of Appeals - Eastern Division

ONCE UPON A TIME IN YOUR WILDEST DREAMS If you had asked me at ten years old what I wanted to be when I grew up, the answer would have been easy. My dream was to be a television news anchor in New York City. Accordingly, I majored in broadcasting at UT, worked at a TV station, and DJ’d for New Rock 90. During my senior year, it occurred to me that I would need to find a job. In broadcasting. And that meant moving to a very small town and moving again to larger and larger markets. My dream of New York was light years away. Also, I had a boyfriend who would one day become my husband, and if you know Chris Davis, you know that New York City is not for him. I had participated in mock trial in high school and always thought the law was interesting, so off to law school I went. I became fascinated by criminal law. I took all the criminal law classes, interned with the U.S. Attorney and DA’s offices, and set my sights on being a prosecutor. The year I graduated, the DA’s office had one spot to fill, and that spot was filled by TaKisha Fitzgerald. It seems to have worked out well for her, but I needed to find a job. As luck would have it, I learned that Judge Tipton, on the Tennessee Court of Criminal Appeals, needed a law clerk, and I was hired. I fancied myself a great writer. One draft opinion filled with red ink later, I learned that I was not, but after two years, I think I got the hang of it. As my clerkship came to an end, I began searching for jobs where I could get courtroom experience. Judge Tipton suggested I apply at his brother’s firm, Hodges, Doughty & Carson. “But they don’t do criminal law,” I complained. “No, they don’t,” he said, “but I think you might like it there.” He was right. I did like it there, and I even got to try cases. Lots of them for someone my age. I spent many days in line in General Sessions Court on collections and evictions. I even oversaw the actual repossession of a mobile home in rural Monroe County, during which a bearded man literally walked out of the woods and offered me some poke salad. Good times. Although I loved my time in private practice, when Judge Rosenbalm announced his retirement, I had the audacity to think I might be good at being a judge. I loved going to motion days back when the courtroom was filled with lawyers. I loved listening to everybody else’s motions and trying to figure out what I would do if I were in the judge’s shoes. With unbridled optimism, I decided to apply. I made it to the top three and had a marvelous trip to Nashville, where I got to meet with Governor Haslam- the actual Governor! For a girl who grew up in Karns, it was heady stuff. Governor Haslam had the good sense to select March 2021

Debbie Stevens, and I went on about my merry way, disappointed but grateful for the experience. Then, in October of 2013, Judge Workman announced his retirement. This would be a different ballgame because if I wanted the job, I would have to run for it. In a county-wide election. Against other people. I don’t know why I am so optimistic about my chances in life, but I convinced myself I could do it. I embarked on a political campaign while raising two littles, continuing a busy law practice, and trying to help my mom and dad because during that time, my mom was tragically diagnosed with stage IV colon cancer. That guy Chris that I mentioned earlier? He was a good decision, and there is no way I could have managed without him. Somehow, I won. I was going to be a judge. My mom lived long enough to see that win before she passed in June of 2014. I was happy to make her proud. Fast forward to January 2020. Being a Circuit Court Judge was a dream. I loved that job. And then Judge Susano announced that he would be retiring from the Court of Appeals, and I got butterflies. These opportunities arise so infrequently. A job where I could spend my days reading, researching, thinking, and writing? These are my favorite things! Ever the naïve optimist, I applied, and I interviewed, and I got in the top three, and I got to go to Nashville and meet with another Governor. Still heady stuff ! If you’ve never applied for a judicial vacancy, you may not know this, but typically, after the Governor makes a decision, the Governor calls the “winner” personally, and his counsel has the difficult job of breaking the news to the two people who were not selected. I carried my phone everywhere for weeks, waiting on a call. One day, I left my phone in my office while I went to my assistant Judy’s office to discuss a matter. I returned to find a voicemail from Lang Wiseman, the Governor’s counsel. My stomach dropped. It was not me. I called him back. “Judge Davis,” he said, “The Governor would like to offer you the Court of Appeals job.” I couldn’t believe it. It turns out Governor Lee was extremely busy with something called COVID-19 and had asked Lang to make the call. I ran down the hall to Judge Stevens and yelled, “I got the job!” It was a great day- a mountain top moment. So here I am. Is being a judge on the Tennessee Court of Appeals the best job in the world? Yes, it is. If I had told that little ten year-old girl that she would be here, would she have believed it? Never in her wildest dreams.

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Prsrt Std US POSTAGE

PAID

P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 3 0 9

Profile for Knoxville Bar Association

DICTA. March 2021  

Volume 49, Issue 3

DICTA. March 2021  

Volume 49, Issue 3