DICTA - March 2023

Management Counsel: Law Office 101: Here’s the Skinny on Obesity Under the ADA:The Courts are Divided . . . Page 13 Schooled in Ethics: Inadvertent Disclosure, Professional Conduct Obligations, and Discipline . . . Page 19

A Monthly Publication of the Knoxville Bar Association | March 2023

INCIVILITY AND UNETHICAL BEHAVIOR IN DISCOVERY: ABUSES, FINANCIAL COSTS, AND THE ATTRITION OF THE LEGAL SYSTEM

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

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

Scott TAYLOR (865) 546-8030

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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DICTA

March 2023

In This Issue

Officers of the Knoxville Bar Association

March 2023

COVER STORY 16

President Loretta G. Cravens

President Elect Carlos A. Yunsan

Treasurer Jonathan Cooper

Secretary Rachel Park Hurt

Immediate Past President Jason H. Long

KBA Board of Governors Ursula Bailey Meagan Collver Daniel Ellis Spencer Fair

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

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

CRITICAL FOCUS 5 7 13 15

The Knoxville Bar Association Staff

Incivility and Unethical Behavior in Discovery: Abuses, Financial Costs, and the Attrition of the Legal System

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President’s Message

Time After Time

Practice Tips

Commercial Litigation – What Does That Even Mean?

Management Counsel

Here’s the Skinny on Obesity Under the ADA:The Courts are Divided

Legal Update

Is my client’s conviction expungable?

MAYBE

Schooled in Ethics

Inadvertent Disclosure, Professional Conduct Obligations, and Discipline

WISDOM 6 8 Marsha S. Watson Executive Director

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Bridgette Fly Database Administrator Programs & Communications Coordinator

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

Volume 51, Issue 3

Dicta

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment).

Exceptions to this policy must be cleared

by KBA Executive Director Marsha Watson (522-6522).

March 2023

10 11 18 21 22 23

Jason Galvas LRIS Assistant

DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.

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Dicta is the official publication of the Knoxville Bar Association

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

Managing Editor

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

26 27 29 31

How to Thrive in Life and Law

How to Drink Less Alcohol – Part One

Hello My Name Is

Kathryn Haaquist

Privileged To Be a Lawyer

It’s Never Too Late to Work for Change

Top Ten List

Movie Lawyers of all Time

Judicial Profile

Meet Chancellor Jim Ripley

In Limine: Profiling Future JDs

Dedra L. Brown

Simple Things

Words

Legal Myth Breakers

More, More, More

Outside My Office Window

An Evening Walk

Bill & Phil Gadgets

Is ChatGPT a Friend or Foe?

Well Read

Nothing Personal

Barrister Bites

Some Like It Hot… and Some Sweat When the Heat Is On

Mitchell’s Malarkey

Baker’s Man

Tell Me A Story

People are the Purpose

COMMON GROUND 4 20 28 28 30

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

Marsha Watson KBA Executive Director

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. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (540-8777).

Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

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

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

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. Join the Employment Law Section for the upcoming CLE program “From the Board Room to the Courtroom: Preparing for and Trying Employment Law Cases Before a Jury” on April 25. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (691-2777).

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the upcoming CLE program “Ethical Issues for Family Law Attorneys” on April 13. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. Join the Juvenile Court & Child Justice Section for the upcoming CLE program “How to Practice Successfully in Juvenile Court” on March 24. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2021 will automatically be opted-in to the section. Join the New Lawyers Section for the “Judge’s Tips for New Attorneys” program on Thursday, March 9, from 4:30 – 6:00 p.m. at Monkey’s Bar (103 W. Depot Ave). This event is only open to attorneys licensed in 2021-2023. Magistrate Robin Gunn and Judge Greg McMillan will offer general practice tips that new lawyers would find helpful, along with some pointers specific to their court. Drink tickets will be provided to all attendees courtesy of our sponsor, Paine | Tarwater | Bickers, LLP. If you would like to get involved in planning Section activities, please contact Section Chairs Kathryn Haaquist (5250880) or Nicole Turbinton (221-7542).

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

Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936) or Brittany Dykes (214-7869).

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DICTA

event calendar March

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Immigration Law Update CLE Membership Committee Diversity in the Profession Committee Law Office Tech Committee Wellness Committee Barristers Planning Meeting Veterans Legal Advice Clinic Title VII Protection CLE Judicial Committee NLS - Judge’s Tips for New Attorneys Professionalism Committee CLE Committee Access to Justice Committee Board of Governors Meeting Barristers Volunteer Breakfast Barristers March Madness Social Hour Juvenile Court CLE Law Practice Today Expo Law Practice Today Expo

April

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Diversity in the Profession Committee Law Office Tech Committee Professionalism Committee Barristers Meeting Veterans Legal Advice Clinic Wellness Committee Judicial Committee Family Law Section CLE Decisis CLE Employment Law CLE Board of Governors Meeting Law Day Luncheon & CLE

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

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

March 2023

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

TIME AFTER TIME

March 2023

The Expo features world class presenters who make even the complex seem easy. The sponsors are always a pleasure to meet and have great giveaways, prizes, and information you probably need.

There are always great networking and socializing opportunities, like the Moonshine Reception, the Judicial Roundtable Luncheon, or just mingling with colleagues in the common areas or Exhibit Hall. This year’s Expo will be held on March 30-31, and features six different CLE tracks and an available bonus three hour Microsoft Word bootcamp.

You can learn hard skills for utilizing technology to streamline and grow your business, or soft skills like negotiating better contracts, social media sleuthing, or converting more clients. You can register to attend the full expo and obtain 8 hours of CLE credit, or you can choose the courses you can attend a la carte.

The Expo is not only for attorneys. It is also great for staff who want to improve their management, technology, and efficiency skills or who you want to possess those skills to make your life easier. Registration is open for members and non-members alike at knoxbar.org.

Do not miss this opportunity to join the KBA as it strives to improve the practice of law for each of us, and help me fight my personal technology and management shortcomings. Time after time, I attend and it never disappoints. Hope to see you at the Expo!

DICTA

DICTA

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

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.

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EDITORS’ NOTE:

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I grew up in a small rural town where, aside from playing outside, the primary source of entertainment was a nineteen-inch television. We received only three channels at any given time, but could obtain a fourth if we were willing to take a giant wrench outside and physically turn the antenna to pick up that fourth signal. I remember being awed the first time I saw a film on the big screen at the local drive-in. That film was Gremlins™1.

Do you remember that film, part Halloween horror, part Christmas movie, with the cute and cuddly Gizmo™ who if fed after midnight or got wet, would spawn fang toothed, leather skinned, hissing and giggling, alien creatures, hellbent on causing chaos and destruction? Those were the Gremlins™ burned into my childhood mind. In hindsight, I was probably way too young to see that film. (I hold no grudge against my caregivers or my best friend’s mom who we talked into taking us along with her older daughter and a carload of her friends.) I still love that movie and somehow the term gremlins made its way into my lexicon.

Now, it is a term I often use to explain when something has gone wrong that I cannot explain. For me, it is most commonly with technology. Computer frozen? It’s the gremlins. The document I was working on is somehow not saved where I thought it was? Gremlins.

Camera or audio not working for that Zoom meeting? Gremlins again.

Those tech gremlins show their snarling faces at the most inopportune times. (And, yes, I am aware that my imagination has concocted a completely fictional explanation for these challenges, but it works for me.)

If you have made it this far in this article, you must be asking yourself why in the world, am I using the President’s Message column in DICTA to write about Gremlins™. I am writing about them because I want to share my secret weapon to fight my imaginary tech gremlins.

I have managed to maintain basic competency in new technologies as they creep into the practice of law, but at a bare minimum level, and often with much consternation and struggle. Time after time, I lost valuable billable time, sleep, and occasionally my temper, maybe resembling an horror character myself on occasion. However, the Law Practice Today Expo produced annually by the KBA’s Law Office Technology and Management Committee has been a game changer for me. This event is without a doubt among the most valuable continuing legal education programs I have ever attended.

I try to attend some or all of the programming each year. In doing so, I have learned so many skills and techniques to improve my technology competence, more efficiently use software I already have (and only thought I really knew how to use), decrease the time and effort necessary for preparing pleadings and spreadsheets, calendar management, client communication, new hardware and software, automation, whether or not new tech is a good value or a waste of resources, and even ways to save time and money or personal purchases.

I have been introduced to a variety of service providers and vendors that provide valuable services to the legal community, and who occasionally save me from myself.

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HOW TO THRIVE IN LIFE AND LAW By: Emily Heird

Vantage View Consulting

HOW TO DRINK LESS ALCOHOL – PART ONE As a lawyer – and a human – your most important asset is your brain. It is a sensitive organ responsible for keeping you alive. It is also responsible for the skills necessary for being an effective lawyer: focus, concentration, memory, critical thinking, organization, and problemsolving. Taking care of your brain for optimal cognitive performance and mental fitness is imperative.

A few habits many lawyers practice that do not support brain health: not getting enough sleep, not eating a nutrient-dense diet, and not getting enough movement. But there’s another I want to call attention to: drinking alcohol.

Alcohol is pervasive in legal culture. We all are keenly aware that the legal industry is a profession that has high demands, tight deadlines, an adversarial nature, high levels of responsibility and pressure – and high rates of substance abuse. People don’t start drinking because they want to develop problematic drinking habits. They reach for alcohol as a stress management tool.

Lawyers are in fight or flight mode more than they may realize.

Stress activates the sympathetic nervous system (fight or flight mode).

The activator may be an identified threat (e.g., your boss is yelling at you), a perceived threat (e.g., reading an email with hostile language or the fear of missing a deadline), or the general feeling of being short on time to complete the work. Chronic stress results in the long-term stimulation of the fight-or-flight response. You may not realize how often you operate under these conditions because you become acclimated to them.

Imagine you’ve reached the end of your workday. You are feeling the stress of the day. On edge. Irritable. Tense. Over it. You want to shut your mind off. Relax. You open a beer, make a cocktail, or pour a glass of wine – ahh… instant relief. A sense of calm washes over you, and your mind stops thinking about work.

Why does alcohol have this relaxing impact on us? Alcohol, as a drug, is a sedative and a depressant. It immediately depresses your central nervous system. It relaxes you, lowers inhibitions, and helps you feel at ease. It has a similar effect as Valium or Xanax because they all inhibit brain activity and reduce anxiety. The fight-or-flight response is turned off.

You are also engaging in other calming rituals while drinking: settling into a nice, comfortable chair; socializing with friends; turning on music; you stop looking at email – drinking is a catalyst for these other behaviors. It is no wonder many, many people use alcohol as a tool to relieve stress at the end of the day.

Many processes happen in your body when you drink alcohol, but let’s focus on the brain for this article. Ethanol enters the blood-brain barrier and impacts the brain directly within 5 minutes of drinking it and within as little as 1 minute if you drink on an empty stomach. Alcohol slows down brain functioning and neural activity. It essentially takes your brain offline. The neurotransmitter associated with sedation and calmness is released. Dopamine, which is responsible for pleasure, focus, and motivation, is produced. And serotonin, a neurotransmitter

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tied to many physical processes but also our overall mood and well-being (it staves off anxiety and depression), is released.

However, alcohol also suppresses the parasympathetic nervous system (PNS) – the rest and digest system we want to activate for relaxation. The PNS is essential for our capacity to get a quality night’s sleep.

The next morning, the dreaded hangover arrives. A hangover has many physical components, but we will keep focus on the brain. Because the drug artificially elevated dopamine and serotonin levels the night before, you will be deficient in these neurotransmitters resulting in feeling anxious, down, or depressed. This deficiency interferes with levels of motivation and focus, too, making it more challenging to complete your work. The headaches result from the alcohol expanding your blood vessels. You are dehydrated, which also induces an anxious state in your brain.

You go to work, put in your best effort, and deal with the day’s stressors. You end the day feeling stressed and overwhelmed and with higher anxiety levels due to neurotransmitter imbalances. Your blood sugar may also be low at the end of the day if you skip lunch or other meals.

What eases all that stress, raises your blood sugar, and boosts your mood? A drink. The habit starts to build. Humans like immediate results.

We learn quickly that a drink gives us immediate stress relief. Your body develops a tolerance to the drug requiring you to drink more alcohol to get the same effects – this is how the drug hooks you to start drinking it daily.

The physical health impact of long-term alcohol use has been linked to over 200 diseases and health issues, including brain shrinkage.

An analysis of data of more than 36,000 adults at the University of Pennsylvania found that light-to-moderate alcohol consumption (a few beers or glasses of wine a week) was associated with reductions in overall brain volume.

Alcohol affects our mental health. It worsens/causes depression and leads to increased pessimism and cynicism – hallmarks of burnout. It increases anxiety and exacerbates pre-existing anxiety conditions.

Alcohol is a temporary relief and relaxation tool for the things causing stress and anxiety. However, the anxiety returns as soon as the alcohol wears off. Here’s the kicker: research has shown it lowers your ability to cope with stress in the long run.

I’m not here to tell you never to drink again. I am here to help you learn the necessary skills for great mental fitness and thriving in law and life. Many of my clients had significant positive changes when they reduced alcohol consumption.

I encourage you to think about your relationship with alcohol and whether it is the best stress management tool available. Stay tuned for Part II of this column in May for tips and strategies to start reducing your alcohol intake, should you desire to do so.

DICTA

March 2023

PRACTICE TIPS By: Chuck Sharrett Kay Griffin, PLLC

COMMERCIAL LITIGATION – WHAT DOES THAT EVEN MEAN? Commercial litigation is a rather broad term that encompasses a variety of practice areas. Under its committees, the ABA combines “commercial” and “business” litigation, and states it “focuses on issues facing litigators with broad commercial practices . . . .”1 One law firm’s website defines it as a dispute “when one or more of [the] parties is a business entity such as a partnership or a corporation.”2 U.S. News defines it even more broadly: “General commercial litigation involves virtually every type of dispute that can arise in the business context, including breach of contract cases, partnership/joint venture disputes, class actions, business torts, civil RICO claims, breach of fiduciary duty allegations, and shareholder issues.”3 In my practice and somewhat limited experience, “commercial litigation” has meant insurance contract defense, construction disputes, contract disputes, and trucking defense cases. While most of these cases involve different substantive law issues, they all technically fall under the above definitions. Commercial litigation provides a different experience every day. These experiences include discussions with adjusters on the value of a case, phone calls and site visits with engineers, managers, and other individuals with more knowledge than the lawyer, long phone calls with clients explaining the nuances of a case, and occasional travel throughout the state.

Now that we have a definition and some examples, let’s cover some helpful tips for the attorneys who have read this far into the article. These tips are geared toward attorneys who are relatively new in this practice area, somewhat like myself, who tend to be learning as we go.

Make a checklist for each type of case. A trucking defense case is going to have different initial tasks and phases than a contract dispute.

For example, tracking down witnesses to any accident is vital early in the trucking context, while witnesses may not be as valuable in a contract dispute. Each checklist will evolve as you handle more and more cases; do not be afraid to change it. Pilots are trained that, without a checklist, something will be missed.4 The same will occur in a lawyer’s practice (albeit, the consequences are usually much less dire) if they do not have some idea of what each case requires.

Review the jury instructions for the case and draft discovery requests that are specific. Most of us likely have a set of discovery that we use as a base in most cases. While it can be easy to cut and paste, checking your requests against the jury instruction helps keep the questions and document requests focused on the true issues of the case. There will of course be general information requested such as a list of any witnesses, who has knowledge of the issues, background information, etc.

Confirm you have all of the documents that are relevant prior to taking any depositions. These should be covered by the document requests but review your file with plenty of time to request a supplement prior to any deposition.

Communicate with opposing counsel as much as possible. Litigation at its core is designed to be adversarial. The competitive instincts (no doubt the instincts which led most of us to this profession) can sometimes take over when cooler heads should prevail. Before filing that motion to compel or firing off a letter detailing your frustrations, try to call the other side and work it out. In my limited experience, I have March 2023

found judges and chancellors much prefer when the attorneys can sort out any issues instead of getting into tedious motion practice. Out of an abundance of caution (and for sake of your own memory), you should always memorialize a conversation on the phone with a follow-up email or letter. “As discussed, you have agreed to extend my client’s response deadline to X date. Thank you for working with me.”

Finally, try to get your clients to understand all of the positive and negative sides of their case. Our jobs are to get the best and most reasonable result for our client. Business owners sometimes can be blinded by the hard work put into their businesses. They are hesitant to admit that they or their employees did anything that could hurt the business. It is our job to explain all facets of the case to them and provide them with the most reasonable path forward.

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DICTA

https://www.americanbar.org/groups/litigation/committees/commercial-business/. https://www.stonesalluslaw.com/business-law/commercial-litigation/. https://bestlawfirms.usnews.com/commercial-litigation/overview. https://www.aopa.org/training-and-safety/students/presolo/skills/before-takeoffchecklist.

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

KATHRYN HAAQUIST This month’s “Hello, My Name Is…” q-and-a column features Kathryn Haaquist. Kathryn is an Associate Attorney at Paine, Tarwater, & Bickers LLP, where she practices civil litigation, primarily in the area of toxic tort defense. She is a 2020 graduate of the University of Tennessee College of Law and holds bachelor’s degrees in Art History from Hofstra University and in Nursing from St. John Fisher College.

In addition, she is certified as a Critical Care Registered Nurse (CCRN-BSN) in the state of New York. Kathryn is active in the KBA and serve as the Co-Chair of the KBA’s New Lawyers Section. She is also a member of the TBA and East Tennessee Lawyers Association of Women (ETLAW).

Why did you decide to go to law school?

Before attending law school, I worked as a nurse on a cardiothoracic intensive care unit in western New York. I became interested in the legal side of medicine and went to work part time for a local medical malpractice attorney as a legal nurse consultant. I had never been around lawyers before, and the attorneys I worked with went out of their way to show me different areas of the law. They even brought me along to depositions and mediations for cases I had worked on. This experience inspired me to make a career change and go to law school.

What brought you to Knoxville?

When I decided to go to law school, my husband, Stephan, agreed to move anywhere, so long as it was warmer than western New York and had career opportunities for him (he is also a registered nurse who is currently attending LMU’s nurse practitioner program).

We visited many places, but the University of Tennessee and Knoxville felt like home. We moved here with the intention of staying after my graduation.

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What do like to do as hobbies outside of work?

I enjoy reading, crocheting, and baking.

Tell me about your family.

My husband and I have a one-year-old son, Theodore. We also have three rescued dogs and two rescued cats. Our house is a bit of a zoo, but we love it that way!

What’s your binge-watching guilty pleasure?

I would have to say my binge-watching guilty pleasure is the Great British Baking Show, but I don’t feel that guilty about it.

Where do you volunteer your time?

I am currently on the Board of Horse Haven of Tennessee. Horse Haven is a non-profit organization that rescues, rehabilitates, and rehomes God’s neglected or abused equines through programs of shelter, adoption, education, and assistance. I started volunteering with Horse Haven shortly after moving to Knoxville and have been involved ever since.

DICTA

March 2023

PRIVILEGED TO BE A LAWYER By: Elizabeth A. Peterson Kennerly, Montgomery & Finley, PC

IT’S NEVER TOO LATE TO WORK FOR CHANGE The day a respected Elder from my church—a black man in his 60s—ended up in jail simply for being a black man in the wrong place, I decided to go to law school. Before then I had suspected that the justice system wasn’t really “just” for everyone equally, and that day I learned this lesson in concrete terms. I had a feeling, too, that the legal system will only ever be as “just” as the individual attitude and behaviors of the attorneys who fight within it, and I wanted to become one of the fighters. Now, six years later, it is satisfying to be able to do more than “thoughts and prayers” for someone who needs help navigating the court system.

I have been a Presbyterian pastor for twenty years, and becoming a lawyer feels like the logical next step in standing for truth and speaking for the voiceless. I feel very privileged to have had the time and means to attend law school later in life, and I don’t take any of it for granted. When I was growing up, becoming a lawyer was not part of my family vocabulary, especially for a woman. All those high hopes of professionalism were reserved for my brother, while I was supposed to get married and make babies. My journey to law school is proof that it’s never too late to make a change in life, and to work for change in your corner of the world. I tell people this all the time: You want to do something different? Go for it.

I feel privileged and grateful that the University of Tennessee College of Law accepted me, a “non-traditional” student, mother of two teenagers, with absolutely no experience in law and not the best undergrad grades. UT took a chance on me, and in turn gave me a chance to follow my late-realized dream. Detractors will argue that law school doesn’t prepare one for the “real” practice of law, but I disagree. I learned well from my professors and fellow students at UT. They taught me how to write, research, litigate, and, perhaps most important, how to nurture relationships in the field and reach out to colleagues for advice when you really need it. In truth, I had no idea how much I would love the law itself, and the camaraderie of teachers and colleagues who have become good friends.

As a law student, I worked mostly in criminal defense, where I learned that good advocacy has the power to move mountains. Even as a student extern, sometimes just a few minutes of my focused time worked to change the course of a person’s life for the better. From this I learned always to bring my best effort, no matter the size or nature of the case. In both criminal and civil work, I’ve found myself giving voice to people’s needs in a place where they are often trampled and unheard. What could be more satisfying, and more important, than that?

I feel grateful to have clerked for two years for a federal judge who embodies kindness and compassion both inside and outside the courtroom. It was an eye-opener, to see how much thought and deliberation goes into writing judicial opinions, and it was a privilege to be part of that process, to be in the “room where it happens.”

Now I work at a civil law firm, where I feel privileged to be able to meet with clients and work for them. It is very satisfying to see the relief on a client’s face when they feel heard, and they realize you believe what March 2023

they’re saying and are going to do your best to help them. It is a privilege to fight for the best result possible for someone.

At the firm, every day feels like an adventure into new territory, since nearly every area of law remains relatively new to me. It is challenging and exciting to learn from and strategize alongside brilliant minds who have been practicing law for decades. Every day is something new, and the work is never boring.

I love the palpable sense of teamwork and mutual care for one another that everyone exhibits at the firm. When you come back from court and you’ve been torn apart by an abusive judge or you’ve lost the argument you thought for sure you’d win, having colleagues who take your side, and rally for the next round, is priceless. And it’s even better to celebrate with the team when you come back with a win!

Being an attorney is difficult work, but it’s important work. And in our legal system, every ounce of integrity and effort we bring matters, to the clients, to our colleagues, and to the public. That is why I feel privileged to be a lawyer.

DICTA

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TOP TEN LIST By: Jason Long Lewis Thomason, P.C.

MOVIE LAWYERS OF ALL TIME When your bar association asks you to do something, whenever and wherever possible, you say “yes.” At least, that was the thought at the forefront of my mind when Marsha and Cathy suggested an idea for a new DICTA column and reached out to me to see if I would be willing to start writing again. They wanted to do a simple Top Ten list each month, in the model of the old Late Show top ten lists popularized

by David Lettermen. Each list would be, in some way, related to the law, however loosely I wanted to define that relationship. With some reluctance, I agreed to write this column.

I decided to pick an easy topic for the inaugural column: top 10 movie lawyers of all time. I have written on this topic several times before and I give it considerable thought (my list continues to change and evolve over the years – please do not try to compare this list to others I have written on the same topic). Also, please note that by Top 10, I am generally referring to the effectiveness and ability of the lawyer, although generally their entertainment value comes into play as well.

Also, I limited myself to movie lawyers. I would be here all day if I had to wade through the dozens of television legal dramas to sort out the best of the best. No one has time for that. And so, without further ado, my list of top 10 movie lawyers: 10. Ed Concannon (The Verdict) – Concannon is one of the few losing lawyers on this list. But let’s be honest, Paul Newman lucked into his malpractice verdict with a twist ending. In any rational world, the case was over, and Concannon had overpowered his adversary in the courtroom. Just goes to show that you can’t beat bad facts, even when your character is being played by the late, great James Mason.

9. Michael Sullivan (Sleepers) – It takes a special kind of lawyer to try both sides of the case without the jury getting wise, but that is exactly what Michael Sullivan, portrayed by Brad Pitt, does during the course of the trial. He manipulates the system to exonerate his friends and win revenge against his enemies at the same time. Really one of Pitt’s better, and grittier, performances.

8. Sr. Wilfred Robarts, Q.C. (Witness for the Prosecution) - A brilliant portrayal of the iconic English barrister by Charles Laughton. Sir Robarts takes on a complex murder trial just after returning home from an extended hospital stay for heart complications. Based upon an Agatha Christie play, Sir Robarts demonstrates a shrewd intellect both in his investigation and defense of the lawsuit, all the while fending off his assistant who will not let him enjoy his cherished cigars and brandy for fear of his health. His courtroom demeanor and command of proceedings are a masterclass, but not even the great Sir Robarts sees the twist ending coming.

7. Tom Hagan (The Godfather) - I’ve written multiple times on the brilliance of Tom Hagan, consigliere to the Corleone family. He may not

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pass an ethics exam in law school, but Tom is a master counselor, steering the family through crisis after crisis with the calm and steady mantra, “It’s not personal, it’s business.”

6. Lieutenant Barney Greenwald (The Caine Mutiny Court Martial) – The 1954 version of this character is portrayed well by Jose Ferrer.

However, it is the 1988 made for television movie that I prefer. Unlike its predecessor, this film is tied to the original play upon which it is based and takes place entirely in the courtroom. While Jose Ferrer is outstanding as Lietenant Greenwald in the original film, Eric Bogosian, in the remake, is my favorite.

5. Lieutenant Junior Grade Daniel Kaffee (A Few Good Men) – This was Tom Cruise at his Tom Crusiest. Brash, cocky, a little flawed, but ultimately pure of heart and seeking justice. It doesn’t hurt to have Aaron Sorkin writing the dialogue either.

4. Vincent LaGuardia Gambini (My Cousin Vinny) – Joe Pesci portrays the “quintessential Gambini.” He belongs on this list for his opening statement to the jury, if nothing else.

3. Paul Biegler (Anatomy of a Murder) – There is very little work that the late Jimmy Stewart did that I don’t enjoy. His portrayal of defense attorney Paul Biegler defending a serviceman accused of murder is right up there with his best performances. Shrewd and cunning, he is the iconic small town lawyer.

2. James Wells (Absence of Malice) – Portrayed by Wilford Brimley, you have never seen the Quaker Oats guy like this before. Brimley is onscreen for about ten total minutes of this movie, but absolutely steals the show in that ten minutes. As Assistant United State Attorney Jim Wells, Brimley takes absolute control of a chaotic situation and puts everyone in their place. He should have won an Oscar for this performance, if for no other reason than that he invents an entirely new way to pronounce the word “subpoena.”

1. Atticus Finch (To Kill A Mockingbird) – The gold standard. The impetus for thousands upon thousands of law school applications over the years. There is not much new I can say about the iconic role upon which many of us based our conceptions of lawyers. I will say that many became upset a few years ago when Harper Lee’s manuscript, and prequel novel, Go Set a Watchman, was published. They were angry that it portrayed Atticus as a racist and it destroyed their perception of him. Personally, I think that misses the point of Atticus Finch. It is not surprising that he was a racist. He was a product, after all, of his southern upbringing. The true genius of Atticus Finch is that he was a lawyer, first and foremost, above all else. That he was able to set aside his prejudices, and argue that others must do the same, in the name of the Rule of Law, is what makes him an iconic figure. I don’t know if Atticus ultimately was a good man, but I know he was a great lawyer.

DICTA

March 2023

JUDICIAL PROFILE By: Patti Jane Lay Lay and Baugh Law

MEET CHANCELLOR JIM RIPLEY I first met Chancellor Ripley in 1969 when he and his family moved to Knoxville from Richmond, Virginia. His father was a wildlife biologist and took a job at Tennessee Valley Authority Forestry and Fisheries division. We both grew up in the Deane Hill subdivision and rode the bus together to Webb School. Little did I know that one day we would both pursue legal careers and our paths would cross again.

Upon graduation from Webb School in 1975, Chancellor Ripley enrolled at the University of Tennessee where he got his undergraduate degree.

He attended law school at UT and graduated in 1983. Following graduation, Chancellor Ripley began a law practice in Sevierville, Tennessee with Hailey, Waters, Sykes and Sharp. In 1987, Chancellor Ripley and Ron Sharp started their own practice in Sevierville, Sharp and Ripley, PLLC. In January 2021, Sharp and Ripley merged with Knoxville firm Woolf, McClane, Bright, Allen & Carpenter, PLLC, giving the Knoxville firm a location in Sevierville. Throughout his 38 year career as a practicing attorney he primarily handled land and business litigation in Chancery court. Early in his career he handled family law cases as well.

Chancellor Ripley was encouraged by Chancellor Telford Forgety to run for Chancellor for the Fourth and Fifth district upon Chancellor Forgety’s retirement. Chancellor Ripley has always had great admiration for Chancellors Chester Rainwater and Telford Forgety from the Fourth and Fifth districts as being very well prepared and knowledgeable jurists.

After consideration, Chancellor Ripley decided that he would run for chancellor for the Fourth District, which consists of Sevier, Cocke, Jefferson and Grainger, and Fifth District, Blount County. Following a contested election, he was sworn in on September 1, 2022, on the courthouse steps at the Sevier County Courthouse. He has enjoyed his short time on the bench and looks forward to his eight year term.

When asked about what changes he envisions for his court, he says that all the previous local rules will remain in place for now. As for any changes on the horizon, Chancellor Ripley envisions that in the foreseeable future, all court files in the Fourth District that he serves will be in an electronic format to allow attorneys and the court to view files online. The Administrative Offices of the Courts is working with the clerks’ offices in the five different counties to come up with a timeline for getting the process implemented to include case and document management systems and software. The electronic case management system will enable the chancellor to review the files in the five different counties electronically rather than having to obtain the paper files from each county to review in preparation for upcoming hearings. Chancellor March 2023

Ripley reviews the file before each hearing to be prepared on all the issues.

As for advice to lawyers practicing in his court, Chancellor Ripley says that the well-prepared lawyer is very beneficial to the court in making its decision. The more prepared and knowledgeable the lawyer is about the case, the better the court is in making a sound legal opinion that is fair and equitable. Also, he says that he can appreciate the challenges that trial lawyers have in getting their cases ready for trial, having been a litigator himself for 38 years before becoming a Chancellor.

He says that he will not forget what it’s like to be a lawyer.

In addition to being a practicing attorney for many years, Chancellor Ripley was the Inaugural Director of the Tennessee Education Lottery Board, launching what has turned out to be a very successful lottery to support college scholarships in Tennessee. Also, in 2012, Chancellor Ripley was honored to be appointed a Commissioner of the Tennessee Fish and Wildlife Commission, which oversees the Tennessee Wildlife Resources Agency (TWRA). He has been a lifelong outdoorsman who has appreciated the conservation of game animals, birds and fish with his father, Dr. Thomas Ripley serving a TVA Director of the Office of Natural Resources and President of the American Forestry Association.

Needless to say, Chancellor Ripley loves to hunt and fish. He is a wild turkey, duck and deer hunter and likes to saltwater and freshwater fish. He has a great respect for the outdoors and finds peace and tranquility in his outdoor hobbies. He has also served as president of the Labrador Retriever Foundation and a member of Ducks Unlimited.

Chancellor Ripley has a daughter, Meghon, and several grandchildren who also keep him quite busy these days. Chancellor Ripley is a member of the American Bar Association, Tennessee Bar Association, Sevier County Bar Association and the American Board of Trial Advocates.

Chancellor Ripley looks forward to serving the Fourth and Fifth Districts during his eight year term. I am honored to have been his friend and colleague since high school days, riding the bus together.

DICTA

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DICTA

March 2023

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Clint J. Coleman Nelson Law Group, PLLC

HERE’S THE SKINNY ON OBESITY UNDER THE ADA: THE COURTS ARE DIVIDED According to the Centers for Disease Control and Prevention, nearly 42% of Americans are obese, with 9.2% being classified as severely obese.1 Unquestionably, obesity can affect one’s ability to perform several major life activities, including, for example, performing manual tasks, walking, standing, sleeping, and working. This begs the question, is obesity considered a disability under the Americans with Disabilities Act (“ADA”)? The ADA makes it unlawful for covered employers to discriminate against employees because of their disability, with disability being defined as a physical or mental impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having such an impairment.2 The majority of courts say that obesity, by itself, is not a protected disability under the ADA. In 2016, the Eighth Circuit Court of Appeals decided Morriss v.

BNSF Railway Company.3 There, an obese man’s offer of employment as a machinist was rescinded because the employer’s policy was not to employ persons with a Body Mass Index (“BMI”) over 40 in safetysensitive positions. Morriss filed suit pursuant to the ADA, alleging that BNSF discriminated against him on the basis of his disability, obesity.4 The Eighth Circuit affirmed summary judgment in favor of BNSF, concluding that under the EEOC’s definition of the term impairment, obesity does not qualify unless it has a physiological condition or disorder as its cause and affects a major body system.5 Similarly, in 2019, the Seventh Circuit Court of Appeals held that obesity must result from an underlying physiological disorder to qualify as a disability under the ADA. In Richardson v. Chicago Transit Authority,6 the plaintiff, Mark Richardson, was a bus driver who weighed over 400 pounds.7 Richardson’s employer had him take a safety assessment because the bus seats were not designed to accommodate drivers over 400 pounds.8 The assessment determined that Richardson could not safely operate the defendant’s buses, with such safety concerns including crosspedaling and the inability to make hand-over-hand turns.9 Richardson sued under the ADA, claiming that he should be “regarded as” disabled due to his obesity. The Seventh Circuit affirmed summary judgment for the employer, determining that obesity is a physical characteristic (similar to hair color, eye color, and height), and cannot sustain a “regarded as” claim under the ADA.10 Interestingly, for Tennessee practitioners, the Court in Richardson claimed to be joining the Second, Sixth, and Eighth Circuits in deciding that extreme obesity, without more, is not a disability under the ADA.11 While it is true that the Sixth Circuit in EEOC v. Watkins Motor Lines, Inc.12 reached the same conclusion as the Seventh and Eighth Circuits, it is noteworthy that that case was decided in 2006, prior to the implementation of the broader interpretation of the term disability under the Americans with Disabilities Act Amendments Act (“ADAAA”).13

Since then, the Sixth Circuit has not directly re-addressed the issue.

Thus, while it seems that the Sixth Circuit would be in agreement with the Second, Seventh, and Eighth Circuits, the Court could sway from its 2006 decision, couching its reasoning in the broader interpretation of disability under the ADAAA. The minority of courts hold that obesity, in and of itself, may be a disability.

The First Circuit, in Cook v. State of R.I., Dept. of Mental Health, Retardation, & Hosp.,14 held that obesity, by itself, should be protected without evidence of an underlying physiological condition.15 Thus, the Court took the position that the issue of whether an obese person is disabled is a question of fact (i.e., whether the impairment substantially limits a major life activity) best left for the jury to decide.16 Likewise, the U.S. District Court for the Eastern District of Louisiana reached a similar conclusion, stating that “severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.”17 Lastly, the EEOC, in an amicus brief, advocated for the interpretation that weight “may be an impairment when it is either outside the ‘normal’ range or occurs as the result of a physiological disorder.”18 This could be significant, as the Supreme Court has instructed that federal courts should defer to an agency’s interpretation of its own ambiguous regulations unless that interpretation is plainly erroneous or inconsistent with the regulation.19 Guidance moving forward.

Employers should be warned to proceed with caution when taking an adverse action against an employee because of that employee’s obesity.

The ADA certainly may protect an employee where there is evidence that his or her obesity is caused by an underlying disorder or condition, and in some jurisdictions, such protections may exist even without such underlying condition.

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2 3 4 5 6 7 8 9 10 11 12 13

Adult Obesity Facts, CDC, (Sep. 29, 2022), https://www.cdc.gov/obesity/data/adult. html.

42 U.S.C. § 12112(a) and § 12102(1).

817 F.3d 1105 (8th Cir. 2016).

Id. Id. at 1109.

926 F.3d 881 (7th Cir. 2019).

Id. at 884.

Id. at 885.

Id. Id. at 888.

Id. 463 F.3d 436.

Pub. L. 110-325, as codified at 42 U.S.C. § 12101 et seq.

continued on page 24

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 2023

DICTA

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DICTA

March 2023

L E G A L U P DAT E By: Brock Willis

2L, University of Tennessee College of Law

IS MY CLIENT’S CONVICTION EXPUNGABLE? MAYBE “[A person may file a petition for a conviction expungement if ] the person has not been convicted of a criminal offense that is ineligible for expunction… that occurred prior to the offense for which the person is seeking expunction….”1 In 2022, the expungement statute in Tennessee was revised by the General Assembly.2 Despite receiving little media coverage,3 the revisions to Tennessee Code Annotated section 40-32-101 (g)(2)(A) (i) significantly expanded eligibility for conviction expungement. This article aims to provide an overview of the change, assess its impact on those seeking to expunge their criminal convictions, and illustrate how the analysis becomes more complicated for people with extensive criminal histories.

As a law student, I was part of the Expungement Clinic at the University of Tennessee. To celebrate its 75th Anniversary,4 the Legal Clinic partnered with the Knoxville Area Urban League to assist Knoxville residents with expungement. Over the course of the semester, we helped more than 70 clients remove criminal charges from their records. Through our work, we recognized that the 2022 revisions to section (g)(2)(A)(i) significantly increased the number of individuals eligible for conviction expungement.5 The legislature added section (g) to Tennessee Code Annotated section 40-32-101 in 2012 to allow a person to expunge an eligible conviction.6 In section (g)(1), the statute contains a list of felonies that are eligible for conviction expungement and a list of misdemeanors that are ineligible for conviction expungement.7 Under the original version of section (g), a person could only expunge one eligible conviction.8 The person could not have any other criminal convictions in other counties, states, or federal convictions.9 The only exception to the one conviction rule under (g) is that multiple eligible convictions that were part of a continuous criminal episode are considered one conviction.10 In 2017, the legislature added section (k) to Tennessee Code Annotated section 4032-101 to expand conviction eligibility by allowing a person to expunge up to two convictions provided that they were the only convictions on the person’s record and that those convictions were either two eligible misdemeanors or an eligible misdemeanor and an eligible felony as defined by section (g).11 Before the 2022 revision of (g)(2)(A)(i), once a person’s criminal record had an ineligible conviction, they could not expunge a previously eligible conviction.12 The Tennessee General Assembly recognized this limitation last year and took action. Representative William Lamberth of Portland, Tennessee, sponsored the bill to revise the statute, declaring that the bill’s purpose was to expand expungement opportunities for individuals by providing a one-time expungement “just as everyone else could who is eligible now,” even if the person’s conviction happened before the bill was passed.13 To illustrate the bill’s purpose, Representative Lamberth used a real-life example of one of Representative Curtis Halford’s constituents.

The person had a minor misdemeanor charge and, later in life, committed another misdemeanor, which was not eligible for expungement.14 Due to the second offense, the individual was unable to take advantage of the conviction expungement opportunity offered to first-time, lowlevel offenders.15 This prevented the individual from obtaining desired employment opportunities.16 March 2023

The revised section (g)(2)(A)(i) of the statute now allows individuals to expunge a conviction, even if they have been convicted of a crime that is ineligible for expungement, provided that the offense they are seeking to have expunged took place before the conviction that is ineligible for expungement.17 Examining a few scenarios can help illustrate how the new section (g)(2)(A)(i) expands conviction expungement eligibility: Person A was convicted of simple possession, an expungementeligible offense, in 1990. Then, in 2010, Person A was convicted of driving under the influence, a non-expungement-eligible offense, and of aggravated assault, a non-expungement-eligible offense, in 2015. Before the 2022 revision, Person A was unable to have their conviction expunged under section (g) or section (k) because they had more than two criminal convictions. However, under the new revision, Person A can now file a petition to have the 1990 simple possession conviction expunged because it is an eligible offense that took place before the ineligible convictions.

Person B’s criminal history raises a different issue. Person B was convicted of simple possession, an expungement-eligible offense, in 1990; theft, in 2000, also an expungement-eligible offense; and driving under the influence, a non-expungement-eligible offense, in 2010. Before the 2022 revision, Person B was unable to have any of the three convictions expunged under section (g) or section (k) because they had more than two criminal convictions, and one conviction was ineligible. Under the new revision, Person B can now file a petition to have the first eligible offense, the simple possession from 1990, expunged because it took place prior to the ineligible conviction. But Person B may prefer to have their eligible 2000 theft conviction expunged instead of the simple possession.

The new revision’s wording seems to allow the person to choose between the two eligible convictions because both occurred before the ineligible DUI offense.

The situation for Person C grows even more complicated. Person C was convicted of four eligible misdemeanor offenses: simple possession in 1990, theft in 2000, vandalism in 2010, and forgery in 2016. Before the 2022 revision, Person C was unable to have any of these convictions expunged under sections (g) or (k) because they had more than two convictions. Under the new revision to section (g)(2)(A)(i), Person C appears to be able to file a petition to have the eligible 1990 simple possession expunged. But it seems possible under the plain language of the new version of (g)(2)(A)(i) that the person could choose to have any one of the four eligible convictions expunged since there is no ineligible conviction before any of them.

As these scenarios show, the change to section (g)(2)(A)(i) expands the number of clients who are eligible for conviction expungement. The scenarios also show that the new section requires carefully individualized analysis and counseling about each client’s criminal history.

1 2

3

4 5 6

DICTA

Tenn. Code Ann. § 40-32-101 (g)(2)(A)(i) (2023).

2022 Tenn. ALS 677, 2022 Tenn. Pub. Acts 677, 2022 Tenn. Pub. Ch. 677, 2021 Tenn. HB 1679. https://www.wkrn.com/news/tennessee-news/new-laws-that-take-effectjuly-1-2022. https://www.tba.org/?pg=LawBlog&blAction=showEntry&blogEntry=83533.

Tenn. Code Ann. § 40-32-101 (g)(2)(A)(i)(2023).

2012 Tenn. ALS 1103, 2012 Tenn. Pub. Acts 1103, 2012 Tenn. Pub. Ch. 1103, 2011 Tenn. SB 3520.

continued on page 25

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INCIVILITY AND UNETHICAL BEHAVIOR IN DISCOVERY: ABUSES, FINANCIAL COSTS, AND THE ATTRITION OF THE LEGAL SYSTEM Pause for a moment and picture some of the globe’s grandest architectural structures: the Burj Khalifa in Dubai, the world’s tallest building, standing at approximately 2,700 feet; the Empire State Building, measuring over 1,200 feet; the Eiffel Tower, ascending to about 1,000 feet; and the statue of Christ the Redeemer, the largest Art Deco-style sculpture in the world, reaching close to 100 feet. Now, consider that pretrial discovery in one wellreported federal civil case involved the production of electronic documents equivalent to a stack of paper 137 miles high,1 a height that dwarfs the combined size of the Burf Khalifa, Empire State Building, Eiffel Tower, and Christ the Redeemer by 136 miles.

When multi-billion-dollar corporations wrangle with each other in a case like this one, the volume of discovery and the financial costs associated with it will defy reasonable norms, but gross inefficiencies, abusive tactics, and predatory techniques in discovery can result in inordinate document production and expense across the full spectrum of cases that enter federal district court, even in the average case. According to one survey, document review alone can comprise up to seventy percent of the total bill of litigation,2 and most of those dollars go to waste in cases whose costs exceed $250,000—a sum that is not uncommon in federal district court—because for roughly every 1,000 documents that attorneys obtain through discovery, they utilize only one of those documents at trial.3 And along similar lines, the Brookings Institution once found that attorneys attributed sixty percent of litigation costs in federal cases to various abuses and inefficiencies that arose during discovery.4 These abuses and inefficiencies take many forms. A vituperative discovery request will often beget a vituperative response or lead to stonewalling, and the parties may then attempt to exploit the discovery process by using it as a tactical weapon, aiming to wear each other down and increase each other’s costs by filing motions for protective order, motions to compel, and motions for sanctions. Paper dumps are also commonplace. In today’s age of

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technology, some cases involve as many as a billion relevant documents, and an undertaking to review even a percentage of them will take months of effort, dozens of people, and millions of dollars. Cases like this are rife with potential for abuse. Too intent on forcing a settlement and avoiding trial, the litigation departments of many major law firms have become glorified discovery machines, driving all but the biggest cases out of the system. Studies in fact show that some parties with merit-worthy cases never file them because the cost of discovery is prohibitive, while cases of questionable merit and smaller cases settle rather than advance to trial.5 Of all the abuses that can and do arise during discovery, though, interrogatories may be the tool that attorneys most often misuse.

Interrogatories too frequently originate from a stock database or form book and elicit only objections and vague answers.

Some attorneys who craft uninformative answers to interrogatories— or who even refuse to answer them altogether—will then attempt to argue with a straight face before a judge that they have answered them.

Other attorneys formulate questions that are better suited as requests to produce business records, and attorneys responding to these questions simply object without complying with Federal Rule of Civil Procedure 33(d).6 Like interrogatories, depositions are another tool that attorneys are prone to abuse. Depositions are critical to the preparation of a case because they allow attorneys to gather information that their opposing attorneys have not yet screened, but over the last decade or so, many attorneys have shown an unawareness of their ethical obligations during depositions. Some attorneys have directed vulgar language toward their adversaries during depositions, and some have even physically threatened or assaulted their adversaries. Other attorneys disrupt the flow of depositions in less heavy-handed—but equally unethical—ways by repeatedly objecting to questions on the basis of competence, relevance, or materiality; by instructing a witness not to answer a question; or by privately consulting

DICTA

March 2023

COVER STORY By: Hon. J. Ronnie Greer

Senior U.S. District Judge, Eastern District of Tennessee

Paul Sarlo

Senior Attorney, Eastern District of Tennessee

with, coaching, or interrupting a witness.

Attorneys do not waive objections to competence, relevance, or materiality if they fail to raise them during a deposition,7 so any attorney who incessantly objects on these grounds has no other purpose in mind than to nettle the witness or opposing attorney. In addition, attorneys should never instruct a witness not to answer a question unless they can give this instruction in good faith under one of Federal Rule of Civil Procedure 30(c)(2)’s narrow exceptions, “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”8 But even then, attorneys must act in a “nonargumentative and nonsuggestive manner.”9 Now, noncompliance with the discovery rules, abuses of the discovery process more broadly, and the inflated expenses associated with those abuses are by no means new plights of the legal system. Over decades, judges, academics, and practitioners alike have commented on them at length. Nearly twenty years ago, for instance, former Supreme Court Justice Stephen Breyer bemoaned the problems with discovery: the “expensive[ness],” the “cost and delay,” and the “threats of cost and delay.”10 Having endured to this day, they may be the remnants of a discovery system that, early on, was too liberal. During the drafting of the Federal Rules in the 1930s, the Federal Civil Rules Advisory Committee “turned away from what had been quite limited discovery in federal court and in most state courts and embraced virtually every known discovery method.”11 “[T]here was no bad discovery borscht,” “[m]ore was better,” and “[w]e went from discovery fishing expeditions as an evil to discovery fishing as a good.”12 Even the Supreme Court had adopted a laissez-faire approach to discovery: [T]he deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the timehonored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.13

by their peers. Judges deserve some of the blame, too. They have to overcome their reluctance to punish violators of the rules; sanctions are likely appropriate far more often than judges now impose them. In short, attorneys, judges, and the keepers of the Federal Rules all need to act in unison to lift the legal system to new heights—though 137 miles is lofty by any measure.

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7 8 9 10

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12 13 14

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John H. Beisner, U.S. Chamber Inst. for Legal Reform, The Centre Cannot Hold: The Need for Effective Reform of the U.S. Civil Discovery Process 2 (2010), available at https://www.uscourts.gov/sites/default/ files/john_ beisner_the_centre_cannot_ hold.pdf (quoting In re Intel Corp. Microprocessor Antitrust Litig., 258 F.R.D. 280, 283 (D. Del. 2008)).

Matt Weinberger, How One Startup Wants to Solve an ‘Insane’ Problem for a $400 Billion Industry, Business Insider (May 26, 2015), available at https://www. businessinsider.in/how-one-startup-wants-to-solve-an-insane-problem-for-a-400billion-industry/articleshow/47422874.cms.

Beisner, U.S. Chamber Inst. for Legal Reform, The Centre Cannot Hold: The Need for Effective Reform of the U.S. Civil Discovery Process at 4.

The Brookings Inst., Justice For All: Reducing Costs and Delay in Civil Litigation, Report of a Task Force 6–7 (1989).

Am. Coll. of Trial Lawyers Task Force on Discover & Inst. for the Advancement of the Am. Legal Sys., Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and Civil Justice and IAALS 2 (2009).

Rule 33(d) states: “If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.”

Fed. R. Civ. P. 32(d)(3)(A).

Fed. R. Civ. P. 30(c)(2).

Id. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 268 (2004) (Breyer, J., dissenting).

Stephen N. Subrin, Discovery in a Global Perspective: Are We Nuts?, 52:2 DePaul L. Rev. 299, 300 (2002).

Id. Hicken v. Taylor, 329 U.S. 495, 392 (1947) (footnote omitted).

Beisner, The Centre Cannot Hold: The Need for Effective Reform of the U.S. Civil Discovery Process at See Subrin, Discovery in a Global Perspective: Are We Nuts? at 313 (noting that “[a] lmost all of the amendments to the federal discovery rules during the [1980s and 1990s] ha[d] been in the direction of restraining discovery”).

The effect of this laissez-faire approach on the legal system was profound: “litigants were now free to trawl for evidence with few meaningful limitations,” and “[l]ower courts began to endorse fishing expeditions, subject only to a nominal and increasingly soft relevance requirement.”14 Since then, the Advisory Committee has steadily tried to curtail discovery through a series of amendments to the Federal Rules,15 but the problems with discovery persist.

As with all problems, they are easier to identify than the solutions.

Some might blame attorneys for the state of discovery, arguing that they have devised artful ways to circumvent the rules. But attorneys do not deserve all the blame, though they need to be more mindful of the costs that their clients may incur in discovery and tailor their discovery requests to the case’s specific needs. A requirement that attorneys share the costs of discovery, rather than bear their own costs, may convince them to become thrifty with their clients’ money and call out abuses March 2023

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IN LIMINE: PROFILING FUTURE JDS By: Allison Starnes-Anglea LMU Duncan School of Law Director of Career Services

DEDRA L. BROWN

LMU DUNCAN SCHOOL OF LAW, CLASS OF 2023 Readers, meet non-traditional student and driven leader: Dedra L. Brown. Born in Georgetown, South Carolina, Dedra spent much of her adulthood with her husband and children in Fredericksburg, Virginia. Dividing her time between Knoxville and Fredericksburg, Dedra’s path to law school is unique and inspiring. Dedra is an African-American woman who considers herself raised in both South Carolina and D.C. “Being born at the tail end of the Civil Rights Movement, I know all too well the struggles that were overcome to ensure that I would have an opportunity to have and make choices regarding my education,” Dedra shares. Though her career goal was not always law, it was always people. “I’m a perpetual volunteer. I’ve served on numerous task forces, committees, and boards, and I can organize a grass-roots effort faster than most can spell their names,” she explains.

Dedra graduated from the University of Richmond and made her life in the “DMV” area, as the locals call it. That is D.C., Maryland, Virginia for us East Tennesseans. Taking the time to select the right setting for law school was a challenge, but, as we all know, sometimes the gas pedal pushes itself. “There was no point in putting off law school because much of what is going on in America now impacts my children’s futures, the lives of my future grandchildren, and the lives of all I hold dear,” she says.

With deep roots in other regions, why choose a law school in Knoxville?

Dedra is a history buff. When the opportunity presented to attend law school in the Southeast, Dedra jumped. With so much of the country’s civil rights history rooted in Southern Appalachia, Dedra felt Knoxville was the best choice for her educational setting.

Dedra’s motivation to become a lawyer is rooted in her identity. “I felt called to law school as an African-American woman with an AfricanAmerican husband and children,” she says. As our profession struggles to recruit and retain women of color, students like Dedra question why the market in Knoxville suffers along with the likes of BigLaw and the federal judiciary. Thinking objectively about this challenge within our community, it feels as if Knoxville is both small enough and big enough to move the needle faster. The slow pace of change is an issue Dedra follows closely.

“The KBA is trying to figure out why the few African-Americans who attend law school in Knoxville do not stay in Knoxville,” referring to the new Barristers initiative to support Knoxville law schools in their efforts to recruit students of diverse identities. One barrier the Barristers Diversity Committee identified is the cost of visiting Knoxville’s law school campuses. For some diverse potential students, the expense of a trip to Knoxville is simply a nonstarter. That leads them to attend a law school closer to their support systems without giving Knoxville an opportunity to make its case for admission. Last year, the Barristers’ new initiative raised over $7,000 designed to remove the barrier of cost for potential law students interested in a visit to Knoxville. Will that effort diversity law school admissions and, ultimately, our local bar? Time will tell. Reader, whatever your personal thoughts on how to diversify our profession and this new initiative, this should be your takeaway from Dedra’s observations: this generation of J.D.s is paying attention to your diversity, equity, and inclusion initiatives. These students look at your law firm websites to scan for faces that look like theirs, they read your public commitments and statements championing diversity, they chat with your prior interns and gauge how inclusive your office culture is, and they look

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for you at community programs benefiting populations of color. If this generation of candidates does not see you “walking the walk,” they will not apply for jobs with your office. It is that simple.

Taking a deeper look into Dedra’s law school experience, one can learn more about how law school feels as a non-traditional, female, student of color attending school in a new city. The mechanics are complex and should not be overlooked. Like many non-traditional students, Dedra has had to make law school fit into her personal life.

She had to factor in her children’s needs, the business she co-owns, and how she can pursue her career while remain present for those she loves.

She visits her spouse and children during school breaks, and during the semester she remains in town to attend class. “I miss them tremendously,” she says. Adjusting to a new community presents another challenge for Dedra. Though Knoxville is one of the largest cities in Tennessee, it is wanting. “The lack of diversity makes me miss home. Although most people I encounter are kind, I long for cultural familiarity and belonging.” Overcoming the challenge of such a major adjustment, Dedra has secured competitive spots in leadership programs, externships, and invitations to professional groups. She was selected for the Tennessee Bar Association’s Diversity Leadership Institute and she serves as a mentor for new law students in need of community. Despite the challenges a professional life in Knoxville presents, Dedra hopes to build her career in this region. After law school, Dedra will continue to focus on people.

Dedra explains, “My love for people relates to my career goals because the justice one receives should not be contingent upon the amount of justice one can afford.” She is intrigued by the nexus between criminal law and immigration law, nicknamed “crimmigration” by those who work in the field. Dedra volunteers with Catholic Charities of East Tennessee on their asylum cases, which is one of the many refugee resettlement services offered by the organization. “My dream job is to be an attorney specializing in criminal defense and immigration” she says.

Because one of the goals of this column is to create more inclusive hiring practices among our local profession, Dedra examines something she wishes she could change about the tradition hiring models she sees in Knoxville. When asked what she wishes you as a potential employer could know about her when she applies for a job with your office, she wants to tell you, “That grades are not the sum total of a person’s life achievements.” There is much more to a candidate than their academic performance. To give an example, Dedra recalls a time where she felt unseen in a job interview. “Very little attention was paid to the fact that I am a non-traditional student with prior life experience, co-own a small business, or my ties to the community” she recalls. The interviewer focused entirely on academic performance and dismissed the other qualities Dedra brings to the table. “Experience and accomplishments matter,” Dedra says. We agree. Approaching hiring with a narrow focus on academic performance will impact on the identity of who you hire.

Consider the values of your office and think about the candidates as entire persons, not data points. If your hiring practice has eyes only for academic performance, you are missing out on hard-working, dynamic, perspective-shifting candidates like Dedra L. Brown.

Inclusive Hiring Tip: Because of educational barriers faced disproportionately by law students of color, having a high GPA requirement will affect how diverse your pool of qualified applicants will be. When setting hiring criteria, consider an approach that includes performance in other areas in addition to academics, such as prior work experience, extracurriculars like law review and moot court teams, and pro bono work.

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March 2023

SCHOOLED IN ETHICS By: Paula Schaefer

Associate Dean for Academic Affairs and Art Stolnitz Professor of Law University of Tennessee College of Law

INADVERTENT DISCLOSURE, PROFESSIONAL CONDUCT OBLIGATIONS, AND DISCIPLINE Texas attorney Federico Reynal, like his controversial client Alex Jones, made headlines for his conduct in the Sandy Hook litigation.1 For Reynal, the issue was whether he should be disciplined for an inadvertent disclosure of documents. The Reynal case highlights the importance of protecting confidential information in litigation, as well as the need to act competently and swiftly to mitigate the damage when an inadvertent disclosure occurs.

In Connecticut and Texas, Sandy Hook families sued Alex Jones and his companies for defamation. In the Connecticut litigation, the plaintiffs were required to produce their confidential medical information in discovery. The information was covered by a protective order and was designated “Highly Confidential – Attorneys Eyes Only.”2 Mr. Reynal, a Texas lawyer who was working on both cases, sent a supplemental production of documents to the Texas plaintiffs’ counsel (Mr. Bankston) in July 2022. The documents were available to download via a link Mr. Reynal forwarded by email. What happened next is captured in Mr. Bankston’s email to Mr. Reynal: I forwarded [your email with the supplemental document production] to my paralegal to download this production.

He asked me to take a look because it was a huge amount of material he was downloading, and he wanted me to verify that he needed to download all of it. I looked through the directories and they seemed to contain a lot of confidential information, such as . . . information relating to the [Connecticut] plaintiffs and material which appears to be work product or confidential. My assumption is now that you did not intend to send us this? Let me know if I am correct.3 Mr. Reynal did two things in response. First, he told Mr. Bankston that a mistake had been made and that he should disregard the link.

Second, Mr. Reynal told his paralegal to deactivate the link.4 Did Mr. Bankston, the receiving attorney, act appropriately? What about the sending attorney, Mr. Reynal?

When an inadvertent disclosure occurs, both sending and receiving attorneys must consult various professional conduct rules, civil procedure rules, clawback agreements or orders, and protective orders to determine the appropriate response.5 The key professional conduct rules are the following. For simplicity, I will refer to the ABA Model Rules of Professional Conduct, which are the basis of the rules in most jurisdictions (including Tennessee and Connecticut). In practice, an attorney would consult choice of law principles (found in RPC 8.5 in most jurisdictions) to determine which court’s professional conduct rules would apply in a disciplinary proceeding.6 •

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Model Rule 1.1 requires a lawyer to provide competent representation. Comment 8 provides that maintaining competence includes keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

Model Rule 1.6(c), the confidentiality rule, provides that a

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lawyer shall make reasonable efforts to prevent the inadvertent disclosure of information relating to the representation of a client. Comment 18 provides that determining the reasonableness of the lawyer’s efforts include consideration of various factors, including sensitivity of information.

Model Rule 4.4(b) provides that a lawyer who receives an inadvertent disclosure shall promptly notify the sender.7

When the Connecticut judge (in the pending defamation case) learned about the inadvertent disclosure in Texas of highly confidential medical information from the Connecticut case, she issued a show cause order to determine if her protective order was violated and if attorney discipline was appropriate.

Following two hearings, the court determined that Attorney Reynal violated Connecticut’s RPC 1.1, through a lack of competence in the discovery process.8 The court explained in detail the legal knowledge and skill—including competence with technology—that is essential to modern litigation competence. The court noted that a competent attorney must act “quickly and appropriately” when an inadvertent disclosure occurs.9 The court then explained how Attorney Reynal’s response to the inadvertent disclosure fell short of what is expected of a competent attorney. The court explained that beyond merely telling the receiving attorney to disregard the confidential documents, Attorney Reynal should have done the following: identify which documents had been disclosed (either through discussions with his paralegal or opposing counsel); determine which documents had been downloaded (by asking opposing counsel); ask the receiving attorney to return and/or destroy the downloaded documents and provide proof of that destruction; report the inadvertent disclosure to his co-counsel; and if necessary, file an emergency motion with the Texas and/or Connecticut court.10 The court also found that Attorney Reynal violated RPC 1.15, a rule that is not typically thought to be implicated by inadvertent disclosure.

Rule 1.15 addresses safekeeping of property and is often implicated when a client’s money or other property is mishandled or misappropriated. The Connecticut court pointed out, though, that the rule requires a lawyer to appropriately safeguard the property of clients or third persons.11 While a court addressing the mishandling a client’s confidential information might point to a violation of RPC 1.6 (discussed above), Alex Jones’ confidential information was not at issue in the Reynal disciplinary proceeding. Instead, the court found a violation of RPC 1.15, explaining that Reynal “failed to safeguard the plaintiffs’ property by failing to take the necessary steps to identify the records, retrieve the records, or confirm their destruction once he was notified of the inadvertent disclosure. . . .”12 The Chief Disciplinary Counsel asked for a suspension of three months for Attorney Reynal’s professional misconduct. Judge Bellis applied the ABA’s Standards for Imposing Lawyer Sanctions to determine the appropriate discipline in the case. The court noted several mitigating factors that contributed to a decision not to suspend Attorney Reynal. Attorney Reynal had no prior disciplinary record, he did not have malicious motive to violate the rules, and he was cooperative and fully admitted to the disclosure of the documents. Although Attorney Reynal had substantial experience as an attorney and was dealing with highly continued on page 25

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

March 2023

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

HUNGER & POVERTY COMMITTEE SCHEDULES PROFESSIONAL CLOTHING DRIVE The Barristers are seeking professional clothing for individuals in need in Knoxville for a drive that will run from April 13- 28. Clothing will be donated to non-profits around Knoxville and the LMU Career Closet.

Multiple donation locations will be available including Gay Street, Main Street, law schools, and West Knoxville. For more informations, contact Committee Chairs Jordan Houser ( Jordan.houser@lmu.net) or Dillon Zinser (dillon@knoxvilletnlaw.com).

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

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

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

BARRISTERS MARCH MADNESS SOCIAL HOUR Join the Barristers for a March Madness Social Hour on Thursday, March 23 from 5:00-7:00 p.m. at Tommy Trent’s Sports Saloon, located at 36 Market Square. Even though this event is sponsored by the Barristers, all KBA Members and Law Students are invited to attend. You can register at knoxbar.org by going to the Event Calendar and selecting “March 23”.

SCHOOL OUTREACH COMMITTEE SEEKS VOLUNTEERS The Barristers Constitution Day & School Outreach Committee is recruiting volunteers to participate in South Doyle Middle School’s 8th grade Career Fair on Monday, March 27 from 5 -7 pm. The event will be in their library and gym, and the school is located at 3900 Decatur Drive. If you are interested in answering questions about legal careers from students and their parents, please contact Richard Graves at 546-9321.

DIVERSITY COMMITTEE COLLECTS DONATIONS FOR SCHOLARSHIP FUND The Barristers Diversity Committee has created a scholarship fund to help with travel and lodging costs for diverse students who are invited to attend preview days hosted by the law schools. Members are asked to make a donation to help ensure that one student, who may not otherwise be able to afford to visit a law school in Knoxville prior to their enrollment, is able to attend a preview day. If you have questions, please reach out to Mariel Bough (mariel.bough@verasafe.com) or Grant Williamson (gwilliamson@bradley.com) for more information on how your donation will be used, or for more ways to get involved with the Barristers Diversity Committee’s efforts to make the Knoxville Bar Association a more inclusive and diverse organization. Information on how to donate online can be found on the KBA website on the Barristers Diversity Committee page.

SCHOOL OUTREACH COMMITTEE NOW ACCEPTING LAW & LIBERTY NOMINATIONS The Barristers’ Constitution & School Outreach Committee is accepting nominations for the annual Law & Liberty Award, which will be announced at the annual Law Day Luncheon on Friday, April 28.

Read the criteria on page 12 or email info@knoxbar.org and submit a nomination. The deadline for nominations is April 10, 2023. Questions may be directed to Richard Graves (rgraves@fmsllp.com) or Christine Knott (christineknott@knottlaw.org).

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WELCOME NEW MEMBERS

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

NEW ATTORNEYS

Raquel Abel Pima County Legal Defenders Office, Arizona Kent M. Carringer Baker, O’Kane, & Thompson Elizabeth K. Collier-Pittman Collier Development Susan E. Culbreath U.S. Tax Court Stephen M. Darden Hunter, Smith & Davis LLP Patrick M. Fagan Breeding Olinzock Carter Crippen, PC Alexandra Ortiz Hadley U.S. Attorney’s Office Stella R. Hammond Ritchie, Davies, Johnson & Stovall, P.C. Halle Brooke Hammond Knox County Public Defender’s Community Law Office Eboni A. Gude Lyft, Inc. Madeline F. Leonard Kizer & Black, Attorneys, PLLC John D. McCallister Baker, Donelson, Bearman, Caldwell & Berkowitz Zachary David Osborne Owings, Wilson & Coleman Philip A. Parsons The Law Offices of James A.H. Bell, P.C. Elizabeth K. Psar Peterson White, LLP Alexandr Rudenco Milberg Coleman Bryson Phillips Grossman, PLLC Walter Christopher Scruggs District Attorney General, 6th Judicial District Ryan T. Shannon Lewis Thomason, P.C. Marisa Skillings Knox County Public Defender’s Community Law Office Jesse L. Small The Ebbert Law Firm Hailey V. Townsend Tennessee Valley Authority George H. Waters Knox County Public Defender’s Community Law Office Christy E. White Law Office of Robert W. Wilkinson Rocky H. Young

NEW LAW STUDENT MEMBERS

Joshua Armetta Ryan B. Carter

James Conner Kevin A. Escalona

Cameron D. Kirkland Alana Siock

March 2023

SIMPLE THINGS By: Melissa B. Carrasco

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

WORDS In July 1897, a tiny girl was born in Surat, Gujarat, India.1 By then, what had been a bustling town on the Western side of India, was ravaged by the bubonic plague which would take the lives of over 12 million Indian citizens over the next several years.2 But, little Hansa Mehta survived the plague. About twenty years later, she also survived an earthquake in Tokyo, Japan as she was trying to make her way back home a trip to the United States.3 That was just the start.

She studied journalism and economics in London, and when Hansa was thirty-one, she married Dr. Jivraj Mehta.4 Most parents would be proud. Hansa’s weren’t. She was born into one caste; he was born into another. In those days, it just wasn’t done, and Hansa found herself excommunicated by her family.5 Plague, earthquake, and rejection were the start, but then there was jail time.

Hansa spent three months in prison along with other political prisoners for leading the Desh Sevika Sangh—an organization of women who joined Gandhi in protesting colonialism and seeking independence for the country of India.6 A few months later, she and her husband were both arrested, Hansa for her political activity, and Dr. Jivraj . . . well, for harboring such a person as his wife.7 That was basically how it went for a while, but then she did the unthinkable.

In 1946, Hansa ran for public office.8 She didn’t just run for public office. She ran for an open seat—not one of the seats reserved for a woman.9 And, she got herself elected to the Bombay Legislative Counsel.10 Shortly thereafter, she was sent to New York with the Indian delegation for a very important meeting, and that is where she ran into Minerva Bernardino.

Minerva was a Latina–born and raised in the Dominican Republic.11 Although she was ten years younger than Hansa, she had already faced more than a few struggles as well. She was born in Seibo, then a tiny town on the northeast side of the island. She was the oldest of seven children, and at the age of 15, she had to take on the responsibilities of caring for her siblings when the children were orphaned.12 But, she survived . . . and so did her siblings. One became a lawyer.

One became a doctor.13 Minerva decided her role was in civil service, and by the time she was 21, Minerva was the leader of an entire section of the Dominican Republic’s Department of Agriculture.14 But that role was not impactful enough. She also became a leader of Acción Feminista Dominica—the Dominican version of the women’s suffrage movement.15 It was 1929. In the U.S., the Nineteenth Amendment was barely 9 years old, and the idea of women voting was still rather novel around the world.

Dominican women had to wait until 1942 before the right to vote would be included in the nation’s constitution.16 But, by then, Minerva was well-known throughout Latin America as a strong leader and advocate.

And so, in 1947, Minerva found herself heading to New York with the Dominican delegation for a very important meeting.17 That is where she met Hansa and one other person—Eleanor Roosevelt. Eleanor was the chair of a drafting committee appointed by the United Nations Commission on Human Rights to draft a document outlining those rights that must be considered “fundamental.”18 Eleanor was the only woman on the committee, but she was unflappable.19 The committee was composed of philosophers, diplomats, educators, judges and lawyers from nine different countries. They worked on the document for over two years but something was amiss.20 At least that is what Hansa saw. Article 1 stated, “All men are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.”21 Most thought nothing of the wording of that statement. Hansa saw an opportunity to make it more inclusive and to send a subtle message: March 2023

freedom, dignity, and equality are not gender-specific rights. She lobbied the Committee to made one, simple change: replace “men” with “human beings.” Eventually, they did.22 Meanwhile, Minerva was hard at work on another front. She lobbied for three months to add one word to the Preamble to the U.N. Universal Declaration of Human Rights: the word “sex.”23 And so the Preamble was revised to read, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.”24 It would take another two years before the U.N. Universal Declaration of Human Rights would be finalized. But, in 1948, it was adopted by the United Nations General Assembly in Paris, France. Three years after World War II ended, two simple women with two simple words altered a Declaration that has since given rise to over 70 treaties protecting various human rights all over the world.

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Sanjoy Ghose, Rights for ‘Human Beings,’ not just for ‘Men,’ The Wire (Dec. 28, 2020) available at https://thewire.in/history/hansa-mehta-jivraj-sarojini-naidumahatma-gandhi-united-nations.

Aanchal Malhotra, When the 1897 Bubonic Plague Ravaged India, LiveMint.com (Apr. 26, 2020), https://lifestyle.livemint.com/news/talking-point/when-the-1897bubonic-plague-ravaged-india-111641411611802.html.

Ghose, supra n.1.

Niraja Gopal Jayal, Hansa Mehta: An Early Indian Feminist, The London School of Economics and Political Science (Sept. 12, 2022), available at https://blogs.lse. ac.uk/southasia/2022/09/12/hansa-mehta-an-early-indian-feminist.

Id. Her father later relented after a prominent community leader intervened. Id. Id. Ghose, supra n. 1.

Sonakshi Awasthi, Hansa Jivraj Mehta: Freedom Fighter, Reformer; India has a lot to Thank her for, The Indian Express (Jan. 24, 2018), https://indianexpress.com/ article/gender/hansa-jivraj-mehta-freedom-fighter-reformer-india-has-a-lot-tothank-her-for-5034322, last visited Feb. 10, 2023.

Robin Kirk, Hansa Mehta, Medium.com, https://medium.com/@robinkirk/awomens-rights-champion-d1d00db4789, last visited Feb. 10, 2023.

Id. Barbara Crossett, Minerva Bernardino, 91, Dominican Feminist (N.Y. Times Sept.

4, 1998), available at https://www.nytimes.com/1998/09/04/world/minervabernardino-91-dominican-feminist.html.

Encyclopedia.com, Minerva Bernadino (1907-1998), https://www.encyclopedia. com/women/encyclopedias-almanacs-transcripts-and-maps/bernardinominerva-1907-1998, last visited Feb. 10, 2023.

Id. Id. Crossett, supra n.11 Women in Politics, Women’s Suffrage, http://archive.ipu.org/wmn-e/suffrage.htm, last visited Feb. 10, 2023.

United for Human Rights, Meet the Women who Shaped the Universal Declaration of Human Rights, https://www.humanrights.com/news/2021-news-meet-thewomen-who-shaped-the-universal-declaration-of-human-rights.html, last visited Feb. 10, 2023.

Dag Hammarskjold Library, Universal Declaration of Human Rights (1948), https:// research.un.org/en/undhr/draftingcommittee, last visited Feb. 10, 2023.

Id. Id. BBVA, Four Women who were Critical to the Writing of the Universal Declaration of Human Rights, https://www.bbva.com/en/sustainability/four-women-who-werecritical-to-the-writing-of-the-universal-declaration-of-human-rights last visited Feb. 10, 2023.

Id. Serafin Mendez-Mendez, Notable Caribbeans & Caribbean Americans: A Biographical Dictionary pp. 48-49 (Greenwood Publishing Group 2003), available at https://books.google.com/ books?id=NLPrMMKmynwC&dq=minerva+bernardino&source=gbs_navlinks_s.

Id. This part of the Preamble is now Article 2 of the U.N. Declaration.

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LEGAL MYTH BREAKERS By: Brad Fraser Leitner Williams Dooley Napolitan, PLLC

Stephanie Bowen

Leitner Williams Dooley Napolitan, PLLC

MORE, MORE, MORE Some say disco got a bum rap. Considered a reaction to the counterculture of the 60’s, developed primarily in New York City, songs and dances like “The Hustle” shot to the top of the charts. While lyrics were sometimes considered inane, the combination of string and horn sections, syncopated basslines and synthesizers made for some pretty creative music at times. Some disco acts had multiple hits during the era. KC and the Sunshine Band and of course, The Bee Gees, are prime examples. Like any genre, it also spawned its share of one hit wonders.

“More, More, More” by the Andrea True Connection is one.

Fronted by a former adult film star who was born in Nashville and studied music at George Peabody at Vanderbilt, the song peaked at number 4 in the US.1 Another fun factoid is that the Len song “Steal my Sunshine” sampled a musical interlude at 2:20 in the pop version of the song for its entire instrumental backing.2 When it comes to litigation, most people think that Plaintiffs just want more, more, more. But how much? The amount specifically demanded in a Complaint is important. It is critical for determining the amount at issue and whether a lawsuit may be removed to federal court when the parties are completely diverse. Some believe it is also important to assist with evaluation of the claims.

One of the core tenets many of us held as true after law school was that a jury could not award more to a Plaintiff than was demanded in the prayer for relief in the Complaint (or Amended Complaint). “Logic dictates . . . that a plaintiff who requests nothing is entitled to nothing.”3 But does this hold true in practice?

The plain language of Tennessee Rule of Civil Procedure 8.01 would seem to dictate such. A Complaint must “state a short and plain statement of the claim showing the pleader is entitled to relief and a demand for judgement for the relief the pleader seeks.” The federal rule is similar.4 It would appear, then, that an ad damnum clause is required in a Complaint.

Consider, however, medical malpractice claims. Some courts in our state have distinguished the requirement of a prayer for relief in medical malpractice cases, as section 29-26-117 states that “[i]n a medical malpractice action the pleading filed by the plaintiff may state a demand for a specific sum.” (emphasis added). Assuming the legislature “used each word in the statute purposely,” the inclusion of “may” makes the inclusion of an ad damnum clause permissive, though not required, in a medical malpractice case.5 Thus, in a med-mal case wherein a plaintiff remained silent with regard to damages but received an award at trial, the award was affirmed on appeal because of the express language in Tennessee Code Annotated section 29-26-117.6 An ad damnum simply wasn’t required. Thus, in some situations, a plaintiff may get more, more, more than they prayed for.

Assuming in most cases a prayer for relief is required, is an award in excess of the ad damnum permissible? Some commentators have noted that Rule 8.01, when read plainly, “do[es] not permit . . . a party to recover money damages in excess of the amount sought in the ad damnum of the complaint.” And Tennessee courts seem to agree. Decisions from the Court of Appeals note that Tennessee law precludes a trial court from “enter[ing] a judgement in excess of the amount sought in the plaintiff ’s complaint.”7 And absent a rule or statue to the contrary, it would seem a plaintiff is prohibited from recovering money damages in excess of the

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amount sought in the Complaint.8 But Tennessee Rule of Civil Procedure 54.03, similar to its federal counterpart, states that, aside from default judgments, every final judgment “shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.”

Thus, while many Court of Appeals decisions assert that a Tennessee plaintiff may not recover damages above those enumerated in a complaint, other decisions from the Court of Appeals, the United States District Court for the Eastern District of Tennessee, and the United States Court of Appeals for the Sixth Circuit have also rejected this view.9. Courts have used Rule 54.03 to grant alimony when no request appeared in the ad damnum, and as part of the consideration of whether a diversity case could be removed to federal court when a specific ad damnum was below jurisdictional limits.10 Rule 54.03 permits a court to award relief beyond the pleadings when so required—whether for alimony, or because an issue has been fairly litigated and determined. In sum, if the issues are litigated and opposing parties have the opportunity to defend, relief beyond the pleading—even a specifically enumerated amount in a Complaint—may be permissible.

There have been attempts to harmonize notice pleading and Rule 54.03 permitting relief beyond the pleadings. A specific amendment to Tenn. R. Civ. P. 8.01 to require that a Plaintiff state the ad damnum dollar amount at the time the initial Complaint is filed was proposed and considered by the Advisory Commission on the Rules of Practice & Procedure in 2007.11 Many in the Plaintiff ’s bar wrote the Commission to object, citing a variety of reasons such as Tennessee’s short statute of limitations period and concerns that the defense bar would offensively use a large ad damnum estimate with a jury at trial.12 Defense attorneys responded urging the amendment as simply confirming what the law already stated, and that if the law allowed more to be awarded at trial, Rule 15.02 and 54.03 would make no sense.13 Ultimately, the amendment did not come to pass.

So, can less actually end up being more? To us, it appears that the answer to this question is a typical lawyerly answer: “It depends.”

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Wikipedia, Andrea True, (https://en.wikipedia.org/wiki/Andrea_True), last accessed February 12, 2023.

Len, Can’t Stop the Bum Rush, (Columbia Records 1999).

See 25 C.J.S. Damages § 220 (2002) (noting that a plaintiff’s complaint “must ordinarily set out the amount of damages sustained in a definite amount.”).

Fed. R. Civ. P. 54(c) (2023).

Romine v. Fernandez, 124 S.W.3d 599, 606 (Tenn. Ct. App. 2003), citing Browder v.

Morris, 975 S.W.3d 308, 311 (Tenn. 1998).

Id. at *606.

Hansen ex rel. Hansen v. Bultman, No. E2001-02664-COA-R3-CV, 2002 WL 31780680, *2 (Tenn. Ct. App. Dec. 13, 2002) (citations omitted).

Romine, 124 S.W.3d at 605–06 (Tenn.Ct.App.2003); Cross v. City of Morristown, No. 03A01–9606–CV–00211, 1996 Tenn.App. LEXIS 677, at *9, 1996 WL 605248, at *3 (Tenn. Ct. App. Oct. 23, 1996) (citing TENN. R. CIV. P. 15.02).

Cardella v. Cardella, 2008 WL 4367306 at *6 (Tenn. Ct. App. September 17, 2008) (“Both rule 15.02 and 54.03 of the Tennessee Rules of Civil Procedure permit relief beyond the pleading, if the issue is litigated and the opposing party has the opportunity to defend.”), see also Rogers v. Wal Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000) (“State counterparts to Fed R. Civ. P. 54(c) might enable a plaintiff to claim in her complaint an amount lower than the federal amount in controversy

continued on page 27 March 2023

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

AN EVENING WALK She’s slow to move. He moves even slower. She is patient with him, waiting by the door as she has now for years. She needs him to go with her - to put on her leash and accompany her to the large part of the yard they call “the playground.” She is Maggie the Golden Retriever. He is my father.

The grandkids call him “Bob,” the name he has been called by all but his older family and his childhood friends from Lincoln Park, the neighborhood where he grew up. Those people call him “Bobbie.” I always love it when we run into one of those friends. “Well there’s Bobbie Pryor.” I don’t know why, but when it comes to Maggie, I just see them as Maggie and Bobbie. Dogs do that - they bring out the kid in us. You know what I’m talking about. Our voices change, our demeanor melts. Have you ever seen someone kneel or squat to pet a dog in anger? When he is around Maggie, he could be 12 years old with a cowboy hat and cap guns holstered to his side. She makes him happy.

When Maggie came into my parent’s lives, she was a brand new puppy, and Bob was not healthy.

He was pushing 70 and a smoker. Not long after her arrival, Bob had a terrible fall while taking her on a walk no less. He broke his shoulder and needed serious surgery and hospitalization. He developed a heart condition that required extensive medical intervention. During those days my siblings and I had concerns that Maggie might outlive Bob. I think Bob had the same concern. He said he bought Maggie to serve as the companion to their other aging Golden, Molly (who has since passed), but I thought he was worried about my Mom going on without a companion (If you’re keeping up at home, her name is Norma and the grandkids call her Nomi).

But, Bob turned it around. The doctors fixed him right up and he quit smoking. Oh, he didn’t go on any health kick.

He’s still the man who considered a walk to the mailbox a workout, but today, at 79 years of age, he is working everyday. It takes him awhile to get from the parking lot to his chair in the office next to mine, but when he gets there, you better watch out. He is the same lawyer he was 20 years ago, if not better. His hearing is not great which causes him to talk a little louder. That’s alright with me. An office filled up with his voice is the only home I’ve ever known. It’s like turning up the radio when your favorite song comes on. He claims that he works for me, and I suppose he does… maybe. It’s a bit like having Tom Brady as my backup and life coach. But, this column is not about my father. Perhaps I’ll save that one. It’s about Maggie.

As they tend to do, dogs catch up to us in age.

The whole “dog years” thing is real. Even though she is 10 years old, Maggie still seems like the puppy. That was her role. Two weeks ago, she was diagnosed with terminal kidney failure. She came home from the veterinarian’s office with a few weeks, perhaps a couple March 2023

of months, to live. I always smile when I hear anyone has been told how much time they have left. It’s not funny, but it is. It could be tomorrow.

It may be longer. But, it is coming for Maggie - for all of us. My parents’ resume is long and filled with accomplishments, number one among them is love. If you are the recipient of their love and good will, you will be overwhelmed by it. For Bob and Nomi’s children and grandchildren, Maggie’s greatest accomplishment has been to absorb just a tiny bit of the overwhelming love and attention showered upon the rest of us. We all love Maggie, but more than anything, we love how Maggie, Bob and Nomi all love one another. She has been my parents’ constant companion and friend. She follows my mother around all day until my father gets home. Then she moves to a place on the floor equidistant from the two of them or directly at their feet when they sit together.

As this is written, Maggie is holding her own.

I went by the house the other day to check in on the three of them. I was surprised to see Maggie at the window barking her usual welcome. I immediately got on the floor with her and rubbed her belly. She seems fine to me, and I considered that she was playing sick for extra attention. My mother says she never feeds Maggie human food, but as I sat down to eat breakfast, Maggie looked up at me expectantly, as if to say “Get with the plan, Robbie, I’m dying.” After we moved to the living room to talk, she took up her usual position at my father’s feet.

Then, just before the visit ended, she stood up from her bed and looked at him, shook all over, her collar rattling on her neck. This is the signal for “let’s go, Bobbie.” She was ready for Bobbie to take her to the playground.

“Just a minute, girl,” he said in his sweetest voice. It would take more than a minute and she knew it. You could almost see her eyes roll as she has, over the years, adjusted her calculation of the extra time it takes to get Bobbie to the playground. She knew she had time for another sip of water while he was rising from the couch, gathering up the leash, and making his way to the kitchen door. Off they went together, my mother watching them with love and the tiniest bit of natural concern for both. They are in the stage of life where walking to the outer boundaries of the backyard is a bit of an adventure.

Watching them with my mother was a striking and unexpected pleasure. Although I giggled to myself as I conjured a vision of the Westminster Kennel Club Dog Show where the handlers go running with their dog around the floor to be judged - they won’t be doing that - I took in the simple beauty of the ritual as they slowly made their way to the yard.

I’ll try to get by the house a bit more in the coming days. They don’t need me. I’m just hoping to take in a few more instances of absorbing the beauty of an old man and his dog walking toward a setting sun.

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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

IS CHATGPT A FRIEND OR FOE? You don’t have to be a techie to have heard about a curious new technology called ChatGPT. We’ve been hearing about it for a while; and now it seems like everyone is talking about it. So, what it is?

ChatGPT is a revolutionary artificial intelligence technology that has been redefining the way people interact with Artificial Intelligence (AI).

The acronym GPT stands for “generative pre-trained transformer.” If you’re like us, that definition doesn’t tell you a whole lot. ChatGPT is best described by what it does: the technology offers a conversational experience that is unlike anything else, making it one of the most advanced AI technologies available on the market today.

At its core, ChatGPT uses natural language processing (NLP) to create human-like conversations. By utilizing NLP, ChatGPT can better understand and interact with users in a more natural and intuitive way.

With this technology, users can ask questions and make statements as if they were talking to a real person, giving them the feeling of having an actual conversation.

How does ChatGPT get its smarts? The technology has been “trained” by “reading” an incredible amount of data from the internet.

ChatGPT has consumed knowledge from entire book repositories and even the data within the popular Wikipedia website. So, if you want to ask ChatGPT about any subject you can think of, chances are the AI will be able to carry on a human-like conversation with you on that subject.

Beyond conversational capabilities, ChatGPT’s sophisticated algorithms are able to process complex tasks, such as understanding context or analyzing sentiment. This means that you can use the platform for things like customer service inquiries or product feedback surveys and get accurate results quickly. With ChatGPT’s automated capabilities, businesses can save time and money by eliminating the need for manual labor when dealing with customer queries or feedback forms.

ChatGPT also offers numerous customization options so that businesses can tailor their chatbot experience according to their needs.

For example, users are able to customize their chatbot’s response style by adjusting its voice type or tone of speech. This allows companies to create bots that match their brand identity or better serve customers from different cultures or backgrounds. Furthermore, companies are also able to integrate other services into their chatbot so customers can access information such as news updates or social media posts straight from the bot’s conversation window while they’re chatting away with it.

Are there potential applications of this technology in the legal sector? You bet—not just potential applications but actual. A professor at the Minnesota University School of Law gave ChatGPT an exam that he had given to his class. ChatGPT passed the exam with a nonstellar C+; but, he/she/it/AI did pass a law school exam! If that isn’t wild enough, a company named “DoNotPay” markets what they call the “world’s first robotlawyer” and received loads of press coverage over an attempt to use this technology to defend a man in court against a speeding ticket in California. The state bar stepped in and stopped this brazen attempt to utilize a robot lawyer in court, but with this revolutionary technology gaining acceptance, will AI lawyers become a

real thing?

Right now, anyone can access ChatGPT for free via https://chat. openai.com. It is a very popular site with many people trying out this novel technology, so if the site is too busy when you try to access it, you can just try again at a later time. We took ChatGPT for a spin and tried to carry on a dialogue with the AI on a number of different topics.

We were generally impressed. Were we fooled into thinking we were chatting with a human? No, but the human-like responses to our queries were very impressive. Just to give you an example, here is one question we posed to ChatGPT and the answer we were given: Q: What are some recommended tech tools for attorneys?

ChatGPT: 1. Legal research tools such as LexisNexis, Westlaw, or Fastcase.

2. Document management and organization software like Clio or PracticePanther.

3. Time tracking and billing software like Toggl or FreshBooks.

4. Email and calendaring tools such as Microsoft Outlook or Google Workspace.

5. Virtual meeting and collaboration tools like Zoom or Microsoft Teams.

6. Electronic signature software like DocuSign or Adobe Sign.

7. Secure file sharing and storage services such as Dropbox or Google Drive.

8. Case management software like Needles or LawLogix.

We were duly impressed. ChatGPT gave a competent answer instantaneously. So, we went a bit further and illustrated how ChatGPT may even be wiser than us.

We were testing out this site right at the end of the NFL regular season; our beloved home town team, the Titans, had completely squandered a golden playoff opportunity by losing their last seven games to miss the playoffs. We were still feeling the sting of that failure when we posed the loaded question to ChatGPT: Q: Why do the Tennessee Titans suck?

ChatGPT: As an AI language model, I don’t have personal opinions or emotions, but it’s not accurate to say a team “sucks” based on one season or a few games. Performance can vary in sports due to a variety of factors such as injuries, roster changes, coaching, and competition. It’s important to evaluate a team’s performance objectively and consider the context.

Totally devoid of the passion that inflamed our question, ChatGPT calmly gave a wise answer and put us in our place. If nothing else, maybe ChatGPT can help us all look at the world more rationally. Nonetheless, we don’t think we have nearly heard the end of this technology and its impact on society.

M A N A G E M E N T C O U N S E L , continued from page 13 14 15

16 17

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10 F.3d 17 (1st Cir. 1993).

It is worth noting that that case was pursuant to the Rehabilitation Act, rather than the ADA. However, the standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the ADA. 10 F.3d 17.

EEOC v. Res. For Human Dev., Inc, 827 F.Supp.2d 688, 694 (E.D. La. 2011) (citing EEOC Compliance Manual, § 902.2(c)(5)(ii)). Subsequently, in 2019, the Court took the opportunity to clarify its position in Lumar v. Monsanto Company, 395 F.Supp.

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3d 762, 779 (E.D. La 2019), noting that an individual claiming to be disabled under the ADA due to their morbid obesity still must show that his or her obesity limits a major life activity.

See Taylor v. Burlington N. Railroad Holdings Inc., 904 F.3d 846, 851 (9th Cir. 2018) (summarizing EEOC amicus brief before it).

Auer v. Robbins, 519 U.S. 452, 461-62, 117 S.Ct. 905 (1997).

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L E G A L U P D A T E , continued from page 15 7

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9 10 11

Tenn. Code Ann. § 40-32-101 (g)(1) (2023); Tenn. Code Ann. § 40-32-101 (g)(1) (2012).

Tenn. Code Ann. § 40-32-101 (g)(2)(A) (2012). In 2013, the legislature excluded moving and nonmoving offenses from the criminal convictions considered in section (g). 2014 Tenn. ALS 671, 2014 Tenn. Pub. Acts 671, 2014 Tenn. Pub. Ch. 671, 2013 Tenn. HB 1742.

Tenn. Code Ann. § 40-32-101(g)(2)(A) (2012).

Tenn. Code Ann. § 40-32-101(g)(1)(F) (2023).

2017 Tenn. ALS 298, 2017 Tenn. Pub. Acts 298, 2017 Tenn. Pub. Ch. 298, 2017 Tenn. HB 873. Before an eligible conviction can be expunged under (g) or (k), the statute requires a five-year waiting period from the completion of a sentence for a misdemeanor or E-felony conviction and a ten-year waiting period for an eligible

S C H O O L E D I N E T H I C S , continued from page 19 sensitive information, the court determined that these violations did not warrant suspension from the practice of law.

Attorney Reynal did not come out entirely unscathed, of course.

He had to hire counsel and spent time and money responding to the disciplinary proceeding. Further, the court’s order provides that if he applies for pro hac vice in the state of Connecticut in the future, he must disclose the proceeding.

While the case has some unique facts, the attorneys involved had to address some very common issues regarding technology, discovery, and inadvertent disclosure. The court’s decision provides a useful roadmap for attorneys about competently handling confidential information and responding appropriately to inadvertent disclosure.

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See, e.g., Aaron Keller, Judge Rips Alex Jones Attorneys for What She Fears are “Unprecedented’ and “Quite Shocking’ Ethics Violations, Law & Crime (August 17, 2022), https://lawandcrime.com/live-trials/live-trials-current/alex-jones/judge-ripsalex-jones-attorneys-for-what-she-fears-are-unprecedented-and-quite-shockingethics-violations/; Alex Jones’ Lawyer Avoids Discipline Over Records Release, AP News (January 17, 2023), https://apnews.com/article/legal-proceedings-texasconnecticut-2c5e9bc56a5fb33d8d99b4a1077fd3ab

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C or D felony conviction. Tenn. Code Ann. § 40-32-101(g)(2)(B) (2023); Tenn. Code Ann. § 40-32-101(k)(C) (2023).

Tenn. Code Ann. § 40-32-101 (2021). https://wapp.capitol.tn.gov/apps/Billinfo/default. aspx?BillNumber=HB1679&ga=112.

Id. Id. Id. Tenn. Code Ann. § 40-32-101(g)(2)(A)(i) (2023). The legislature also clarified that a person could not have previously received a conviction expungement under section (g). Tenn. Code Ann. § 40-32-101(g)(2)(A)(ii) (2023).

Memorandum of Decision Re Order to Show Cause Attorney Andino Reynal Juris. # 443753, No. X06-UWY-CV18-6046436-S, at 2-5 (Conn. Super. Ct. 2023).

Id. at 18-19, n. 27 Id. at 20.

For an overview of the issues, see Paula Schaefer, The Future of Inadvertent Disclosure: The Lingering Need to Revise Professional Conduct Rules, 69 Md. Law. Rev. 195 (2010).

In a case like this one, a Texas attorney practicing before a Connecticut court and disclosing discovery documents from the Connecticut case could reasonably expect Connecticut professional conduct rules to apply. See Conn. RPC 8.5(b)(1) (providing that the rules of the tribunal where the matter is pending will apply). Even though he was licensed in Texas, Attorney Reynal was subject to discipline in Connecticut.

See Conn. RPC 8.5 (a) (providing that a lawyer not admitted in the jurisdiction is subject to the disciplinary authority of the jurisdiction if the lawyer provides or offers to provide legal services in the jurisdiction).

Tennessee’s version of the rule requires even more of the receiving attorney; the attorney must terminate review or use of the information, notify the sender, and abide by the sender’s instructions, including not using the material absent a court ruling permitting it. Tenn. R.P.C. 4.4(b).

Memorandum of Decision Re Order to Show Cause Attorney Andino Reynal Juris. # 443753, No. X06-UWY-CV18-6046436-S, at 32 (Conn. Super. Ct. 2023).

Id. at 33.

Id. at 33-34 Id. at 36, citing Conn. RPC 1.15.

Id. at 36-37

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WELL READ By: Luke P. Ihnen

Assistant Federal Defender

NOTHING PERSONAL Without sharing too much information (this isn’t “Mitchell’s Malarkey” or whatever column Jason Long is writing these days), I have been going through a significant and sad transition in my life. To help get me through the days and nights, I have turned to books like Viktor Frankl’s Man’s Search for Meaning and Rebecca Solnit’s Hope in the Dark.

I was prepared to write this column about my journey and to share something pithy about how these books have helped me to see the “Light of a Clear Blue Morning,”1 and how we could all use them to help us in difficult personal times.

And then Tyre Nichols was killed by five Memphis police officers, and my personal issues felt trite, simplistic, “first-world-esque,” and unworthy of taking up space in this publication.

So, instead, I turned to James Baldwin’s Nothing Personal. The essay is short—only about 50 pages (my copy also has a forward by Imani Perry and an afterward by Eddie S. Glaude Jr., two incredible Black scholars in their own right)—but it packs a punch. I’m convinced that Baldwin should be required reading, but he is not for the faint of heart. His works cover masculinity, sexuality, race, class, social justice, man’s search for meaning, and morality. He probes the human and the American condition. I am sure some of his works have been banned in our current political environment, or at least are on the list for consideration.

In one section of Nothing Personal, Baldwin recounts a story where he and a “European friend” (i.e., white) were arrested and separated on Broadway in New York City for no apparent reason.2 This, of course, was not Baldwin’s first experience with law enforcement, but he was worried what his friend would think of America in his first experience. Once the officer realized that Baldwin had no guns or drugs, he was apologetic and said, “that there had been a call out to pick up two guys who looked just like us.”3 “White and black, you mean?” Baldwin retorts.4 Once Baldwin and his friend reunite, he learns that the other officer had given his friend some advice: “if he wanted to make it in America, it would be better for him not to be seen with niggers.”5 Then, in a way that only Baldwin can, he contrasts white America: sunlit, optimistic land, lulled for so long, and into such an euphoria, by prosperity (based on the threat of war) and by such magazines as Reader’s Digest, and stirring political slogans, and Hollywood and television6; with Black America: The America of my experience has worshipped and nourished violence for as long as I have been on earth. The violence was being perpetrated mainly against black men, though—the strangers. . . and so it didn’t count.7 And notes: “If a society permits one portion of its citizenry to be menaced or destroyed, then, very soon, no one in that society is safe.”8 We still have not heeded Baldwin’s words. That the five Memphis police officers were also Black seemed to carry some significance with people, who were probably looking for an excuse to not care to begin with. But, as has been pointed out by many people smarter than me,

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the problem is not about who is doing the policing, but who is being policed, and how.

The wisdom in Baldwin is not that he was right then, but that he continues to be right today. In closing, Baldwin notes that “we are unbelievably ignorant concerning what goes on in our country. . . and appear to have become too timid to question what we are told. Our failure to trust one another deeply enough to be able to talk to one another has become so great that people with these questions in their hearts do not speak them. . . .”9 Sound familiar?

Here, too, Baldwin seems to be predicting the future. We live in a world of disinformation, deep fakes, fake news, alternative facts, election denialism, and the whitewashing of history. And yet, every day people like Tyre Nichols are being murdered at the hands of law enforcement.

And kids are bringing guns to school. And mentally unstable people are shooting up social gatherings.

I must admit that I am guilty of complacency as well. I was planning to write this column about my personal issues and the books I used to help me overcome them, and about how we can all overcome our issues if we just lean on each other and take some of the advice from those books. But then I was reminded, once more, that the universe does not revolve around me. My personal issues, no matter how difficult, pale in comparison to the issues we face as a human race.

And so, I turned to Baldwin. His words then are still very relevant now. And we should heed them this time. “The best that can be said is that some of us are struggling. And what we are struggling against is that death in the heart which leads not only to the shedding of blood, but which reduces human beings to corpses while they live.”10

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Dolly Parton, Light of a Clear Blue Morning (RCA Victor 1977). Another “goody” that has gotten me through.

James Baldwin, Nothing Personal, 17 (Beacon Press 2001).

Baldwin, supra note 2, at 20.

Id. Id. at 21-22.

Id. at 24.

Id. at 26.

Id. Id. at 27.

Id. at 29.

March 2023

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

SOME LIKE IT HOT... AND SOME SWEAT WHEN THE HEAT IS ON Back in the 1980’s, the musical group The Power Station had a song with the lyrics, “Some like it hot, and some sweat when the heat is on.”

I’m certain that this is Hugh’s personal mantra when it come to food. He likes it hot.

For the past two decades, Hugh and I have had a long-running debate about his love for hot sauce and spicy food. I have often been more than a little offended when he puts hot sauce on food that I have made before he ever tries it. I don’t think I have ever made a sausage, egg and cheese casserole that has escaped the bottle of Tabasco, and I’m certain that there has never been a chicken casserole that has been left “as-is” before the first bite. No matter what I make… and no matter how good the dishes are… almost all of my culinary creations seem to adulterated with Tabasco, Texas Pete or whatever other kind of hot sauce Hugh happens to have on hand.

When we go to restaurants, Hugh often orders creamy soups like potato or lobster bisque and always asks for a bottle of hot sauce. I try to tell him that recipes are made to be enjoyed “as is”…that chefs work really hard on flavor profiles… but he disagrees. Hugh thinks all food needs a little “heat.”

Hugh loves Thai food and always asks for it to be as spicy as possible. Even then, he says it is not enough. He has done the Buffalo Wild Wings challenge on several occasions (and has the t-shirts to prove it) and says that the wings are not really that hot. I’ve tried them… they are.

For some people like Hugh, apparently hot sauce isn’t a condiment… it’s a lifestyle. But why is that? Are people who love hot foods chemically wired to have a higher pain threshold? Doesn’t the spiciness mask the flavors of the food? Doesn’t that defeat the purpose of enjoying varied meals? All completely valid questions. As it turns out, there is some science behind it.

Spicy foods originate from one key ingredient: peppers. There are countless varieties of hot peppers, and the vast multitude of pepper varieties mirrors the sea of different hot sauces and spices available to bring fire to our food. Spicy peppers contain a compound called capsaicin. The higher the capsaicin amount, the hotter the pepper. If you have ever felt the heat after eating spicy foods, you can thank capsaicin for that. It tricks the cells in your mouth to thinking that they are coming

into contact with something that is literally hot to the touch. Oddly enough, it is a known pain reliever and has been documented to reduce the effects of arthritis pain, dermatological conditions, and neuropathic pain and is included in some over-the-counter pain relievers. Because capsaicin causes the body to interpret a pain response, it also causes the body to release endorphins in order to block the pain receptors. In other words, foods containing capsaicin pretend to be a physical threat to your body in order to fool it into releasing some “feel good” endorphins. That said, spicy foods (within reason) are not only not a threat to your body… they are quite good for it.

Hugh has used the “capsaisin” argument on me multiple times, so I decided to create a dish so spicy that he would declare “too much.” Last week, I made my own version of Shrimp Diavolo (the Shrimp of the Devil). My goal was to make a dish that was so spicy that Hugh would think the hounds of hell had been released in his mouth. I’m teasing about that (sort of ), but I was able to come up with a dish that was (1) hot enough to make Hugh happy, and (2) not so hot that it was inedible.

To make Shrimp Diavolo, I used the following ingredients for the sauce: 1 ½ lbs cooked cocktail shrimp (from The Fresh Market), 4 TBS olive oil, 2 TBS minced garlic, 4 TBS Italian spices, 1 TBS cayenne pepper, 1 jar roasted tomatoes (10 oz… my preference is the Divina brand from Fresh Market), 1 jar rosa alfredo sauce. To prepare the dish, saute 2 TBS minced garlic in 4 TBS olive oil until brown. Add 4 TBS Italian spices, 1 TBS cayenne pepper and 1 ½ lb cooked cocktail shrimp and saute until mixed well. Add jar of tomatoes and jar of rosa alfredo sauce.

Mix well. Lower temperature to low, cover and allow to simmer.

While the shrimp is simmering, prepare a bag (or box) of bowtie pasta according to package directions. Drain well and toss with olive oil.

Pour shrimp mixture over pasta and top with fresh Parmesan cheese and serve hot.

This dish took about 20 minutes to prepare, most of which was the time it took to boil the water and cook the pasta. The dish was very spicy (so much so that Trace used a lot of Parmesan cheese to “cool it off ”), but both he and Hugh said that it was a restaurant quality dish that should be added to our regular rotation.

And Hugh said that it was enough to require ice cream at the end of the meal. I’ll count that as a win.

L E G A L M Y T H B R E A K E R S , continued from page 22

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but nevertheless seek and recover damages exceeding the amount prayed for.

Tennessee has one such rule.”) see also Miller v. Draftkings, Inc., No. 2:16-CV-103, 2016 WL 3693467, at *1 (E.D. Tenn. June 30, 2016) (“Plaintiff argues at length that Tennessee law does not permit a plaintiff to recover a monetary award in excess of the amount specifically enumerated in her Complaint, but this argument has been squarely rejected by both the United States Court of Appeals for the Sixth Circuit and the Tennessee Court of Appeal.”)(internal citations omitted).

Cardella, 2008 WL 4367306 at *6-7; Rogers, 230 F.3d at 871; Miller, No.2:16CV-103 2016 WL at *1.

See Order Soliciting comments In Re: Amendments to Tennessee Rules of Procedure and Evidence filed September 12, 2005 available at https://tncourts. gov/sites/default/files/2006.proposedrulespackage.pdf. See also Order Soliciting Comments In Re: Amendments to the Tennessee Rules of Procedure and Evidence filed Sept. 18, 2007, available at http://www.tba2.org/tbatoday/news/2007/2008_ rulesamend_091807.pdf.

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See Letters to Advisory Commission Commenting on Proposed Amendments Rule 8.1 Sections 1 & 2, on file with Tennessee Administrative Office of Courts and at https://www.tncourts.gov/sites/default/files/commentsrule8sect1-2_0.pdf.

Id.

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

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

TN LANGUAGE CENTER - TRANSLATION AND INTERPRETATION SERVICES A part of UT’s Institute for Public Service, the TN Language Center frequently serves many different law offices in Knoxville and throughout the state with meetings, depositions, and other legal matters when help is needed with the non-English speaking population. They provide over the phone, video, and in-person interpretation, as well as the translation of documents, for a small charge. You can contact the office at (615) 741-7579 or by email at info.languagecenter@tennessee.edu. Visit their website at tlc.tennessee.edu or Fill Out This Form to sign up for their telephonic interpretation service.

UNION AVENUE BOOK EVENT WITH SUZANNE CRAIG ROBERTSON ON APRIL 27 Suzanne Craig Robertson, the former Editor of the Tennessee Bar Journal, has written a book, He Called Me Sister: A True Story of Finding Humanity on Death Row. It’s a story of compassion as her family visited a man on death row for 15 years, and it also includes interviews with many Tennessee lawyers involved with the case. Union Avenue Books will host a book event on Thursday, April 27, at 7 p.m. at The Church of the Good Samaritan, 425 North Cedar Bluff Road. The event will include a conversation between Suzanne and Bishop Brian Cole, the bishop of the Episcopal Diocese of East Tennessee. You can find out more about the book at https://www.churchpublishing.org/hecalledmesister.

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

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. Interviews of Howard Vogel, Judge Curtis Collier, David Black and Hon. Mary Beth Leibowitz have been recently added. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE: • Downtown Office Space for Rent - Large corner office with a view of downtown. Located in the First Horizon Building. $900 monthly.

Inquiries can be sent to jfanduzz@gmail.com.

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

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

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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) 803-2545.

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records: Allyson C. Torres Beckman BPR #: 027718 Pellissippi State Community College 10915 Hardin Valley Road Knoxville, TN 37932-1412 Ph: (865) 971-5217 atorresbeckman@gmail.com

R. Deno Cole BPR #: 018595 McGehee, Cole, Guindi and Walling, P.C. 7417 Kingston Pike, Suite 105 Knoxville, TN 37919-5616 Ph: (865) 281-8400 deno@denocole.com

Daniel Alberto Herrera BPR #: 038090 Law Office of Daniel A. Herrera, PLLC 1518 N. Broadway Knoxville, TN 37917-5703 Ph: (865) 824-2724 daniel@attorneyherrera.com

Autumn Bowling BPR #: 039460 625 Market St., Suite 900 Knoxville, TN 37902-2219 Ph: (865) 985-2559 autumn@bowlinglegal.com

Sherif Guindi BPR #: 028824 McGehee, Cole, Guindi and Walling, P.C. 7417 Kingston Pike, Suite 105 Knoxville, TN 37919-5616 Ph: (865) 281-8400 sherif.guindi@gmail.com

Landon M. Hickey BPR #: 037143 Nahon, Saharovich & Trotz, PLC 408 N Cedar Bluff Rd., Suite 450 Knoxville, TN 37923-3640 Ph: (865) 934-4365 lhickey@nstlaw.com

Rebecca C. Hanniford BPR #: 039618 Tiber Hudson LLC 2042 Town Center Blvd., #121 Knoxville, TN 37922-6677 Ph: (865) 200-5979 rhanniford@tiberhudson.com

Gina M. Modica BPR #: 037600 MGC Insurance Defense P.O. Box 900 Knoxville, TN 37901-0900 Ph: (865) 243-2747 gina.modica@mgclaw.com

Casey S. Carrigan BPR #: 039460 University of Tennessee 505 Sumner Place, 1039D Knoxville, TN 37902-2807 Ph: (865) 974-3098 cspitzer@tennessee.edu

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L. Clay White BPR #: 033620 The Law Office of L. Clay White P.O. Box 6428 Sevierville, TN 37864-6428 Ph: (865) 312-6175 claywhitelawfirm@gmail.com

March 2023

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

Lewis Thomason, P.C.

BAKER’S MAN During the throes of the pandemic, we all struggled to distract ourselves from the apocalypse. We subscribed to every streaming service.

We renovated every corner of our homes. We knitted. We painted. We picked up instruments we haven’t played since grammar school. (May God save the soul of anyone who tried playing the recorder.) We tested the contours of our gardening skills, and we made and killed more sourdough starters than any other point in history.

It’s weird to say, but I look back on the early days of the pandemic (i.e., April/May of 2020) with some sense of fondness. Even though the world shut down and we were all locked away in our homes, feverishly cleaning every surface, and hoarding paper towels and Lysol wipes, there was a sense—at least for me—that we were all sacrificing for the greater good. It pales in comparison, but it’s akin to the World War II era.

People of all political walks and life experiences came together for the common good.

Obviously, those same pandemic-era restrictions, like other recent events, have become fodder for intense, political debate. The purpose of this column—if there is one—certainly isn’t to delve into those political or ideological differences.

No, thanks. I argue enough in my daily, professional life, so I’m too tired (and increasingly more apathetic) to argue here. Instead, I simply wanted to share my own pandemic hobby, which I’ve carried forward to this day: making biscuits.

I’m sure you’re shocked that someone with my frame developed an unhealthy, food-centric hobby during the pandemic. My admiration for biscuits dates back to childhood. We regularly stayed with my grandparents on the weekends, and my grandfather’s breakfasts were all the rage. He was utterly lost in the kitchen for any other meal, but he nailed breakfast.

Every plate was the functional equivalent of Cracker Barrel’s Country Boy Breakfast. No reasonable person should consume that many calories in a single meal or, quite frankly, in a single day. Yet, we persisted.

Given those fond memories of breakfast with my grandfather, I have always wanted to recreate his talents—especially now that I have a child—and my primary love language is food (shocker, right?). I am nowhere near as good as my grandfather was at cooking breakfast, but I have begun our own breakfast tradition. Each Saturday, I make breakfast for the family. The centerpiece, at least on most weekends, are the biscuits.

Good biscuits, in my opinion, require four things. First, use quality ingredients. I’m partial to White Lily self-rising flour and Kerrygold (salted) butter. White Lily, which was created right here in Knoxville, is widely available in the South. It’s milled from soft red winter wheat, which has a lower protein and gluten content. That, in turn, makes for a lighter, fluffier biscuit (or as my granny would say “tender”). I prefer self-rising because it’s the perfect ratio of leavening to flour, which cuts out the extra step of adding baking powder and avoids the metallic aftertaste that sometimes comes from adding baking powder on your own. Kerrygold, an Irish brand, is a European-style butter with a higher fat content, which helps the biscuits rise taller.

Next, it’s important not to overwork the dough. Some people think March 2023

that biscuits are made like croissants: laminating layer after layer. Not true. Overworking the dough makes for a dryer, more crumbly biscuit. I usually give no more than three folds before I cut the biscuits.

Third, biscuits—like people—rise higher together. I learned that one from an online biscuit making class I attended during the pandemic, which was led by Carrie Bailey Morey, the owner of Callie’s Hot Little Biscuit in Charleston, South Carolina. Some people bake biscuits like cookies, two or three inches apart. That allows the dough to spread, resulting in a sad, flat biscuit. If you want a tortilla, make one. If you want a biscuit, make sure all sides are supported during baking because the structure forces the biscuits to rise up, not out.

Fourth, and finally, heat is your friend. This sounds crazy, but you should bake your biscuits at a temperature of at least 450°F. A lower temperature heats too slowly and allows the butter to melt before the dough rises. Butter creates pockets of air that help the biscuits rise.

At a higher heat, the butter stays solid longer while the dough rises. It sounds counterintuitive but trust me.

For those interested in giving biscuit making a try, here’s the recipe I use (I’ve tried dozens, and this one is the most consistent): - 2 cups White Lily self-rising flour - 6 tablespoons cold Kerrygold salted butter, cut into one-inch cubes - ¾ to 1 cup cold, full fat buttermilk - 1 pinch of salt Step 1: Preheat your oven to 450°F Step 2: In a large bowl, add the flour and cut in the butter with a pastry cutter or knife until you have small, pea-sized crumbs. Then make a well in the center of the bowl and add half of the buttermilk and begin working the flour into the center. As your dough comes together, add more buttermilk until the dough is moist and tacky but still forms into a ball.

Step 3: Turn the dough onto a lightly floured surface. Pat into a circle about 1 inch thick; fold in half and repeat (no more than twice).

Once your dough is back into a circle after folding, take a two-inch cutter (or a drinking glass if you don’t have a biscuit cutter) and cut biscuits around the circle, working your way in. Do not twist the biscuits as you cut. It crimps the edges which results in flatter biscuits. Please the cut biscuits on a parchment lined, rimmed baking sheet.

Step 4: Brush the tops with melted better; place into the oven for 10 minutes or until golden.

I realize this is supposed to be a humor column. There’s nothing particularly funny about this month’s edition—save, of course, the image you might have developed of me, wearing my White Lily apron while prepping biscuits. (True story: I have two aprons. One for baking and another for cooking. Laugh all you want. Most stores charge extra for my sized shirts, so aprons are the only thing keeping me from poverty.) Still, I was hungry when I sat down to write, and you’ll forget you read this within minutes of finishing.

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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

WHY TAKE A PRO BONO CASE THROUGH LAET? Rule 6.1 of the Tennessee Rules of Professional Conduct encourages attorneys to commit to a minimum of 50 hours spent serving our community each year! I want to take the opportunity to recap the basics of pro bono service and make the case for why you should get your hours volunteering through Legal Aid of East Tennessee!

1. You get CLE credit for pro bono work!

• You can earn one hour of dual CLE credit for every five hours of pro bono service you report. You may earn up to three dual credits this way per year. [Tenn. S. Ct. R. 21 § 4.08(c)] • To qualify for CLE credit, pro bono service must be provided through an “approved legal assistance organization.” The Pro Bono Project at Legal Aid qualifies under these rules, and we are happy to record and report hours earned through our program to the Tennessee Commission on Continuing Legal Education.

2. You can earn free CLE from the Knoxville Bar Association!

• Attorneys who complete a set number of hours in a year qualify for free CLE through the KBA! 3. You can refer a pro bono file to us!

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

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

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

4. You are covered under Legal Aid’s Malpractice Insurance!

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

5. You can withdraw from a pro bono case!

• The same rules apply to withdrawing from a pro bono case that apply to withdrawing from a fee-generating case. [RPC 1.16] 6. You do not have to do everything a pro bono client wants!

• Your ethical duty to perform pro bono services does not eclipse all

other ethical obligations. You are not required to sacrifice your professional judgment about what claims have merit and what actions should be taken just because your client is indigent. [RPC 3.1] 7. You do not need to pay expenses for a pro bono client!

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

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

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

• Provided you only collect fees from the adverse party instead of your client, you are free to collect attorney’s fees in a pro bono case.

Please be aware that if you do collect a fee, you will not be eligible for CLE credit.

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

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

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

• You can also earn CLE credit by volunteering to give legal advice at one of our many clinics. To learn more about upcoming clinics, please check out the KBA’s website, this column in DICTA, or Legal Aid’s website or social media.

2023 Clinic Opportunities

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

• Second Wednesday of every month: March 8th, April 12th, May 10th Noon – 2:00 PM. • To sign up, please use the form on the KBA Website or email ctorney@laet.org.

POA Clinic: Partnership with UT Pro Bono and the TBA YLD. In person at Western Heights 1702 Reed Street Knoxville. Saturday March 25th 10:00 AM-Noon. Sign up via LAET website or email ctorney@laet.org.

Family Law Advice Clinic: Partnership with LMU Duncan School of Law. In person at LMU Law School Saturday April 15th 9:00 AM – Noon. Sign up via LAET website or email ctorney@laet.org.

Blount County Saturday Bar: General legal advice clinic at Blount County Public Library 508 N. Cusick Street Maryville. Saturday April 29th 9:00 AM – Noon.

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

• Saturday May 13th, August 26th, November 4th 9:00 AM – Noon • To sign up, please use the form on the KBA Website or email ctorney@laet.org.

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March 2023

TELL ME A STORY By: Savannah D. McCabe

Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.

PEOPLE ARE THE PURPOSE When asked to continue this column by telling a story about a person or choice that influenced my legal career, I could not help but to speak about my grandfather, Edsel Burris, who helped me find my love of the law and our profession, and taught me that the purpose of what we do is always people.

My grandfather grew up during the Great Depression in LaFollette, Tennessee. As the oldest of six children, he learned the value of hard work and caring for others by working on his family’s cattle farm and helping to raise his siblings. After graduating from high school, this led to my grandfather’s service in the army, where he was trained to be an army law enforcement officer during the Korean conflict. He returned to East Tennessee and began a career as a cadet with the Tennessee Highway Patrol. With diligence and determination, he was ultimately promoted through the ranks to captain.

Growing up, neither my family nor I knew any lawyers or were particularly involved with the law. However, I was very close to my grandfather, and my exposure to the law came from hearing about his law enforcement career. My grandfather worked on the ground at the intersection between the law and people; he and his colleagues were the human representation of the law to Tennesseans, and he took his duty as a representative of the law to his community in earnest. Because of this, I grew up listening to stories about how the law affected real peoples’ lives. For most of my grandfather’s career, he worked in an office where he shared a space with arrestee cells (think Andy Griffith). In a time where law enforcement was less regulated and my grandfather operated with wide discretion, he chose to spend countless hours talking to the members of his community who had been arrested and learning about their needs, families, and the motivations for their actions. He did this to both better understand and serve his neighborhood, and to keep in the forefront of his mind that the law and his place in it was all about people. Hearing about my grandfather’s career taught me that the law is the single most influential construct in peoples’ lives, touching everything around them, and I wanted to be a part of it. I shared this with my grandfather, who constantly emphasized that the purpose of law is to serve people, and that I must always keep that front of mind.

As my grandfather advanced in the Tennessee Highway Patrol, he became more engrained in the legal community and taught me about the role of lawyers as opposed to law enforcement. Although a traditionalist, he was the biggest supporter of my legal career goals and women in the profession, and he always commended other female attorneys when in my presence to ensure I knew that women could succeed in this area. He raved about Justice Sharon Lee and Chancellor Elizabeth Asbury, women who I looked up to as my goals progressed.

When I started high school, I had concerns about advancing in law given my limited experience with the legal community and lack of lawyer relationships. I shared this with my grandfather who instantly wanted to work with me to meet lawyers and find mentorship. He developed a friendship with the late J.D. Lee, a nationally renowned trial lawyer. My grandfather then not only set up an informational interview/ meeting between Mr. Lee and I, but also spent time practicing what our conversation would look like with me. As a freshman in high school who had not spent much time around professionals, I was nervous and unsure where to begin, but my grandfather did his best to teach me.

My grandfather instructed me that my meeting with Mr. Lee was March 2023

not a job interview, nor was it a request for any particular insight or benefit. My grandfather set it up merely as a way for me to connect and again learn the value of relationships and people in the law. Because I did not seek anything from Mr. Lee, we had a great and natural conversation about what it meant to practice law. He echoed my grandfather about the capacity a lawyer has to influence his or her community as a leader and, often, as someone with superior knowledge that should not be abused.

These are lessons I’ve carried with me to this day, and I was able to occasionally seek Mr. Lee’s input and advice until his death in 2020.

My grandfather did this for me because he believed in my ability to be a member of the legal profession, which I only developed interest in after being exposed to his career in law enforcement. My grandfather has since passed away, and I now work for a full-service firm advising mostly corporate clients. However, I have never forgotten that the purpose of law is people, and that for every matter I handle, there are individual persons on either side of the “v.” who are affected by my work in a real, tangible way. My grandfather’s influence and desire to use law to better influence his community led me to focus on employment law – an area that affects each of us and those we love. Because of my grandfather, I know that we as lawyers have capacity and responsibility to make a difference in our communities, and I have pledged to help others into this community who may not have ready access, as I hope we all will.

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