Appellate Judicial Staff Tips: Earning Trust in Appellate Briefs . . . Page 7 Around the Bar: Diversity and Inclusion - A Call to Action . . . Page 15
A Monthly Publication of the Knoxville Bar Association | November 2018
EQUITABLE RELIEF IN IMMIGRATION LAW: IS THE UNIVERSAL INJUNCTION ON THE WAY OUT?
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DICTA
November 2018
In This Issue
Officers of the Knoxville Bar Association
COVER STORY 16
President Elect Wynne du Mariau Caffey-Knight
Treasurer Hanson R. Tipton
Immediate Past President Amanda M. Busby
Secretary Cheryl G. Rice
KBA Board of Governors Charme P. Allen Maha Ayesh Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis
Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear T. Mitchell Panter
M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe
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Is the Universal Injunction on the Way Out?
President’s Message
Celebrating Civility in the Practice of Law and its Impact on Others
Appellate Judicial Staff Tips
Earning Trust in Appellate Briefs
Practice Tips
Guardians ad Litem vs. Attorneys ad Litem in conservatorship proceedings: How do their roles differ?
Implications of Epic Systems v. Lewis
Legal Ethics Issues Involving Technology in the Practice of Law
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The Knoxville Bar Association Staff
Equitable Relief in Immigration Law:
CRITICAL FOCUS
5 President Keith H. Burroughs
November 2018
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Legal Update
Schooled in Ethics
Management Counsel: Law Practice 101
Dress with your Brain
WISDOM
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Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Lacey Dillon Programs Administrator
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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
Shari Holt LRIS Assistant
Volume 46, Issue 10
Dicta
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Elizabeth B. Ford Joseph G. Jarret F. Regina Koho Matthew R. Lyon
Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. November 2018
DICTA
Hello My Name Is
Meagan Collver
Outside My Office Window
Bluegrass
Around the Community
In Order to form a more perfect Union
Around the Bar
Diversity and Inclusion – A Call to Action
18 Legally Weird Jackass Jurisprudence 19 Of Thermometers and Thermostats More than a Number
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Of Local Lore & Lawyers
Justice on the Knox County Frontier: MORE Random Thoughts on The State of the Law in Knox County’s Formative Years
Gadgets
iPhone XS and Surface Go
Well Read
Edward Terry Sanford: A Tennessean on the US Supreme Court by Stephanie Slater
Your Monthly Constitutional
FDR and the Tango War
Long Winded
Overindulgent or Farsighted?
Barrister Bites
Pies, Biscuits and Learning By Doing
COMMON GROUND
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Golden Gala Section Notices/Event Calendar Annual Meeting Notice Bar Hopping Clinically Speaking Barrister Bullets Bench & Bar in the News Pro Bono Project Last Word
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EVENT CALENDAR & 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. Alternative Dispute Resolution Section
The ADR Section plans regular CLE throughout the year. Join the ADR Section for the following upcoming CLE programs “Mediating the Myriad Forces in a Medical Malpractice Case” on November 5 and “Mediation: Practice & Ethics Update” on December 3. To have your name added to the section list, please contact the KBA office at 522-6522. If you have a program topic or speaker suggestions, please contact the Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630).
Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. Join the Bankruptcy section for the next Pro Bono Debt Relief Clinic on November 3 and for a CLE on “Bankruptcy Case Law Update” on December 11. To have your name added to the section list, please contact the KBA office at 522-6522. If you have 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. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like to get involved, please contact Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the Section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. To have your name added to the Section list, please contact the KBA office at 522-6522. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chair 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 a CLE on “Evidence Issues in Family Law Cases – Mistakes Made, Mistakes Seen and How to Get it Right” on November 15. To have your name added to the Section list, please contact the KBA office at 522-6522. For more information about the Section, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. To have your name added to the Section list, please contact the KBA office at 522-6522. If you would like further information on the section, please contact Section Chairs Leah McClanahan (545-4260) 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. Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. Save the date for the annual Juvenile Court extended CLE program “Best Practices & Advice for Guardians Ad Litem Practicing in Knox County Juvenile Court” scheduled for November 9. To have your name added to the Section list, please contact the KBA office at 522-6522. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2016 will automatically be opted-in to the section. Join the Section for a CLE on “Law Practice 101” on November 5 at Elkmont Exchange Brewery. To have your name added to the section list, please contact the KBA office at 522-6522. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500). Senior Section The KBA Senior Section will meet next on Wednesday, December 12 at Calhoun’s on the River. The program title is “Russian Propaganda and Social Media Targeting of American Voters – Update 2018” and will feature Natalie Manaeva Rice, Institute for Nuclear Security, University of Tennessee. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. Please indicate your choice of Crab Cakes or Lemon Chicken. Register online by clicking December 12 in the Event Calendar at www.knoxbar.org. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo & 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. To have your name added to the Section list, please contact the KBA office at 522-6522. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).
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LRIS Committee Meeting Ain’t Behavin’ CLE New Admittee Welcome Reception Law Practice 101 CLE ADR Section CLE Law Office Tech Committee Meeting Lunch & Learn Judicial Committee Juvenile Court CLE In Chambers CLE Professionalism Committee Meeting Veterans Legal Advice Clinic Barristers Meeting Board of Governors Meeting Family Law Section CLE Memorial Service CLE Committee Meeting
December
3 Singo 3 ADR Section CLE 4 Law Office Tech Committee Meeting 7 Ethics Bowl CLE 11 Professionalism Committee Meeting 11 Bankruptcy Section CLE 12 Veterans Legal Advice Clinic 12 Senior Section 12 Barristers Election & Holiday Party 13 Lunch & Learn 14 Judicial Committee 15 Annual Meeting & Election 17 Diversity in the Profession Committee 17-21 Video Replay CLE 26-28 Video Replay CLE
Mark Your Calendar Annual Memorial Service November 16, 2018 November 2018
PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.
CELEBRATING CIVILITY IN THE PRACTICE OF LAW AND ITS IMPACT ON OTHERS As I began my year as President of the Knoxville Bar Association, my first President’s Message emphasized the need to reexamine how we interact with one another, our clients, and the public with the focus on the importance of civility in the practice of the law. At that time, I shared with you that the Knoxville Bar Association Professionalism Committee planned to take a stab at reevaluating the Guidelines for Professional Courtesy and Conduct first adopted in October 2002. Over the past several months, a subcommittee of the Professionalism Committee was formed to study and evaluate appropriate revisions and additions to those Guidelines. The full Professionalism Committee then made a recommendation to the Knoxville Bar Association Board of Governors for the consideration and adoption of revised Guidelines. During our September 2018 meeting of the Board of Governors, it was determined that these revised Guidelines should be circulated to the membership for comment as the Guidelines are not those of the Board of Governors but of the membership at large. Accordingly, on September 20, 2018, Executive Director Marsha Watson circulated the Revisions to the Guidelines for Professional Courtesy and Conduct proposed by the Professionalism Committee to the Knoxville Bar Association Board of Governors. Since the circulation of those revised Guidelines to the membership, we have received numerous comments from members that have been extraordinarily helpful to the Board of Governors in evaluating and resolving upon the final version of the revised Guidelines. Thanks to all of you who commented on the proposed revised Guidelines as your comments were extraordinarily helpful. The Guidelines were never intended to be “rules of conduct” for which discipline could be sought if violated. Rather, they are aspirational statements, many of which are derivatives of the lessons our parents taught us as children. They are also intended to be an encouragement for lawyers to work together cooperatively and collaboratively to seek the best outcome for our clients where their interests may mutually intersect, resulting in a hopefully better outcome than might be otherwise realized through an adversarial process. Although a mutual resolution is not always possible, it is more times than not. It is my hope that our membership will embrace these Guidelines for their intended purpose, not as being preachy and dictatorial but rather instructive to promote and foster the ideals of professional courtesy, conduct and cooperation among all attorneys to realize the highest level of professionalism by the members of our Association.
On that note, a new class of recent law graduates will soon be admitted to practice law in the State of Tennessee. On November 5, 2018 at 10:00 a.m., the Tennessee Supreme Court will convene in the Main Assembly Room of the City County Building to administer the oath of office to the new admittee applicants to be licensed to practice of law in Tennessee, most of whom will practice in Knoxville and the immediately surrounding area. Also, from 5:30-7:00 p.m. on that same day, a New Admittees Reception will be hosted by the Knoxville Bar Association at Elkmont Exchange located at 745 North Broadway, and all members of the Knoxville Bar Association are invited and encouraged to attend this free event to welcome our new colleagues to the practice of law in East Tennessee. This is a wonderful opportunity to meet these new lawyers, make their acquaintance and have a face to match with a name when one of our new lawyers comes calling in a case. It is also a time for us to gather together to socialize and mentor those newly admitted professionals and help them on the right road to civility and professionalism. Through the years of my practice, I have had numerous mentors who have taught me invaluable lessons about the practice of law and the practicality of practicing law. On many occasions, those mentors have taught me without intentionally doing so. Merely listening to stories shared about alternative approaches to civilly navigate a matter to conclusion have had a meaningful impact on how I now approach disputes between parties or counsel clients regarding optional ways to address their legal concerns and provide recommendations. Without the help of those mentors, I very well may not have identified these techniques that make the practice of law very much more enjoyable. I hope you will join me on November 5 to welcome the next generation of lawyers to our Bar and lead by example to continue to make the Knoxville Bar Association the best bar association ever.
As practitioners, we are being observed as much, or more than we observe others. Our actions serve as an example to lawyers that come behind us who often adopt the behaviors of their mentors. If we set a good example of how to be a practitioner in a professional and courteous manner, it is more likely than not that those new lawyers who follow will mimic our behaviors and perpetuate the practice of law in its highest professional state.
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f we set a good example of how to be a practitioner in a professional and courteous manner, it is more likely than not that those new lawyers who follow will mimic our behaviors and perpetuate the practice of law in its highest professional state.
November 2018
DICTA
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HELLO MY NAME IS . . . By: Jennifer A. Dobbins Lipsey, Morrison, Waller & Lipsey, P.C.
MEAGAN COLLVER Attorney Meagan Collver had always known she wanted to be a lawyer. Growing up, her mother’s favorite TV channel was Court TV. “We always had Court TV on,” she reflects. “We even watched the O.J. Simpson trial.” She recalls that she was inspired by the attorneys who could effortlessly recall and recite the proper rules, laws, and cases to advocate for their client. Meagan grew up in Kingston, Tennessee, and her parents laid the groundwork for the budding lawyer in their family by establishing in her a drive for success and a desire to give back. Meagan says that her father has been influential in her career. “He has always been there for me and instilled a strong work ethic in me as well. He has always believed in me and told me that I could do anything I set my mind to.”
“Too often, we can get wrapped up in our legal arguments and case citations and strategies, and we forget that we have a human client seated next to us at the table,” she says. Meagan is married to Jason Collver, who is a fellow KBA member, the owner of Collver Law, UT Pro Bono Coordinator, and an adjunct professor at the UT College of Law. When Meagan and Jason want to unwind, they hike with their two dogs, Layla and Ira. When they can find the time, they enjoy trying out new trails in the Smokies, but if they need a quick get-a-way, Meagan says their hike of choice is House Mountain, a short drive from downtown. Meagan’s desire to give back is evident in her work as Co-Chair of the KBA Barrister’s Hunger and Poverty Relief Committee. The Committee coordinates events such as the recent “Backpacks for Brews” fundraiser, which contributed $850.00 and additional backpacks filled with school supplies to the ChildHelp Foster Family Agency of East Tennessee. Meagan’s relentless enthusiasm is contagious, and the KBA looks forward to her very bright future.
After graduating from Roane County High School, Meagan began her undergraduate education at the University of Tennessee, seeking a major in Psychology and a minor in Political Science. While at UT, Meagan interned for Tennessee State Representative Bill Dunn, and she returned to the Tennessee House of Representatives Clerk’s office to work before she started law school. Her time working at the Tennessee House of Representatives only strengthened her resolve to become a lawyer. During her time at the legislature, she observed countless hours of committee meetings and House floor sessions. Meagan seized this opportunity to learn the tangible impact of collaboration in legislation. “This showed me from the ground up where each law comes from,” she explains. “Each law really transforms as Representatives from both parties work on the bills.” Meagan pursued her dream by attending the University of Tennessee College of Law. While in law school, Meagan was active on the Moot Court Board, interned for the Honorable Judge Debbie Stevens, and was a student attorney in the Advocacy Legal Clinic. She identified her experiences in the Advocacy Clinic as a watershed moment in her legal education. One client in particular expressed overwhelming gratitude. “At the conclusion of that case, I had never been more certain that I wanted to be an attorney, to help this client by making this incident a minor setback instead of a life-derailing one.” The Advocacy Clinic gave Meagan a glimpse of what was to come as a litigator. As an Associate Attorney at London & Amburn, P.C., Meagan’s practice areas include healthcare liability defense, general civil litigation, and transaction matters. The diversity of her work allows her to continue to expand her legal education and regularly delve into new areas of law. She also enjoys that her work often permits her to work directly with clients, and her perspective offers wisdom beyond her years of practice.
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November 2018
AROUND THE BAR By: Sally Goade Judicial Law Clerk, Tennessee Court of Appeals
EARNING TRUST IN APPELLATE BRIEFS 5. Cite to current authority. Occasionally, I have the impression that an attorney has utilized an argument from a brief submitted a few years ago, revising it to fit the current appeal, but neglected to check whether the legal standard has changed. As one clerk noted: “It hurts your argument if you cite an old standard that has since been overturned or updated. The court will think that if you don’t care enough to research something so basic, you don’t care enough to research the hard parts, either.”
Not long ago, a lawyer entering the Knoxville Supreme Court Building struck up a conversation with me as I was holding the elevator button. When he learned that I was an appellate judicial law clerk, he said that he had once thought of the audience for his appellate briefs as solely the judges on the panel until he realized that what he thought of as “young” lawyers, the judges’ clerks, were also an important part of his audience. Many of us are not as young as you might think, in great part because we have made working for the state appellate courts a career rather than a launching point. Still, at least my new acquaintance was aware that law clerks and staff attorneys form a whole second tier of readers whom it would serve him well to think of as part of his audience when drafting appellate briefs. As one longtime law clerk phrased it, you should “know that several pairs of eyes read every word you write. Be accurate, be thorough, and don’t mislead the court about the facts or the law.”
6. Use complete citations. The need for complete citations is especially important with unreported cases when you will save judicial staff time and frustration if you include the full date of the decision; the appellate number; and for a criminal case, the defendant’s full name. 7. Acknowledge facts, findings, and precedent that may weigh against your position. As an experienced staff attorney advises: “Remember the ‘presumption of correctness’ of the trial court’s judgment when writing a summary of the facts and do not attempt to skew the facts to the evidence presented by one side during trial.” Because appellate judges and staff will read the entire record and the applicable case law, misrepresenting either is a surefire way to lose trust.
I have had the privilege of clerking for two state appellate judges in Tennessee, one on the Court of Criminal Appeals and one on the Court of Appeals. In an earlier career, I taught literature – how to read it, analyze it, write about it – and I have found a common theme from those days often coming to the foreground as I read appellate briefs. First and foremost, the law must be properly applied to the facts of the case, but within this overarching mandate, a constant undertone for me is whether I trust what the appellate advocate is saying. No advocate intends to give an untrustworthy impression, but considering the responses I received to requests for brief-writing tips from my closest colleagues – judicial law clerks and staff attorneys working for the state appellate courts in the eastern section – some advocates are unfortunately giving that impression. Here is a compilation of trust-building tips:
8. Address the Opposing Party’s Arguments. As the appellee, explain why your opponent’s arguments lack merit or should not prevail. As the appellant, read the appellee’s brief when you receive it. Often, issues raised by the appellee that warrant a reply brief are left unaddressed. 9. Craft headings as a “road map” of your argument. Aside from a summary of the argument, which can be helpful, beware of lumping all arguments under one heading, which can make the points of your argument difficult to follow. Also beware of open questions in headings that miss an opportunity to make your point.
1. Proofread, proofread, and have someone else proofread! Staff attorneys and law clerks understand the occasional overlooked typo – we have all been there. Sometimes, though, the errors are glaring, or repeated, or so basic that it appears the writer never read the finished product. As one law clerk with twenty years of experience working for the Court of Appeals stated: “A brief full of grammatical errors and typos carries little weight. If you think we will not notice, you clearly do not understand the personality type that does this job.”
10. Write the end of the brief as though cognizant that your audience has read the beginning. In general, avoid repetition. Specifically, avoid copying and pasting entire paragraphs from one section to another. In Dr. Seuss’s immortal words: “So the writer who breeds more words than he needs, is making a chore for the reader who reads.”
2. Craft issues according to the law that needs to be applied and organize issues in the order in which the law needs to be applied. As a law clerk who has worked for several judges on the Court of Criminal Appeals explained: “Don’t get creative in ordering the issues or in scattering issues related to the same facts throughout the brief. In a criminal appeal, many judges (and the State) address issues in the following order: jurisdictional issues, sufficiency of the evidence, trial error, sentencing. In general, work first with issues that would mandate an outright dismissal, move next to issues that might result in a new trial, and conclude with issues related to sentencing.” Similarly, threshold issues in civil appeals are best addressed first. 3. State issues with concise detail. This tip can admittedly seem paradoxical. The key is to include enough relevant facts and supporting argument in your issues for the court to know what you are challenging. One law clerk advises that when crafted well, the issues can be an “opportunity to show why the issue should be resolved in your favor.” 4. Make sure the record is complete and cite to it. If something is not included in the record but is relevant to your appeal, file a motion to supplement the record. Attaching it as an appendix to your brief is insufficient to make it part of the record. November 2018
11. Give a legal basis on which the court can grant relief. As one clerk advised: “Don’t rely on merely emotional arguments. No one wants to feel like an ogre, but the court is compelled to follow the law.” 12. Avoid “unexpected” appellate representation. When appointed to represent a criminal defendant in the trial court, know the procedure, pursuant to Tennessee Rule of Criminal Procedure 37(e)(3), for requesting permission to withdraw prior to an appeal to avoid “unexpectedly” representing a defendant who files a pro se notice of appeal. Finally, my favorite tip from one of my cohorts is to remember that as an appellate advocate, “your goal should be to aid the court in understanding.” This advice echoes helpful advice I received in law school: to explain to the appellate court rather than attempting to dazzle, or worse, obfuscate. Many thanks to the following individuals who graciously contributed tips to this article: Alan Groves, Vanessa Johnson, Amye King, Cindy Padilla, Amy Paul, Porsche Shantz, and Carlos Yunsan.
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OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber robertpryorjr.blogspot.com
BLUEGRASS The sky was summer blue with no clouds for shade. My mother spread the blanket in the middle of a hay field on Redgate Farm in Maynardville. It felt as though we were situating ourselves on the face of the sun. It was June of 1977. I was 8. My mother put another blanket down after realizing an extra one was necessary to keep us from being scraped and stabbed by the sharp blades of the cut hay beneath. Then she opened the cooler she had packed that morning with loving care. It is still her trademark in all endeavors - love and care. Inside, beneath the ice, were Ziplocs of fried chicken and deviled eggs and Tupperware with homemade peach ice cream. There were a few beers for Dad and Orange Crush for me and my little brother. We had a frisbee and a football, items to occupy two little boys who would certainly get bored and testy at a bluegrass festival, but once the music started I was transfixed - not just with the music but its effect on my parents. All around us were the different flavors of a bluegrass-loving humanity. Large and small, young and old. Hair was in abundance. Showering mullet strands and teased bleach-blonde hair locks curled in the humidity. Men without shirts and women with bikini tops, all with a beer in hand, let out “woo hoos” and “amens.” Old men buck danced, having set aside ambulatory aids to accept the momentary healing of hill music. From the stage, bands like The Knoxville Grass, J.D. Crowe and the New South, and the Osborne Brothers ripped through bluegrass standards. “Rocky Top” rang out over the crowd. It had not yet been named the official song of the University of Tennessee. It sounded just right. UT’s band does it well, but “Rocky Top” ain’t “Rocky Top” without a banjo. My memory of the day was highlighted by the fact it was the first time I heard “Fox on the Run” by Country Gentlemen. It is my song. What I mean by that is simply that over the span of my years since first hearing it, I occasionally just start singing it. It’s my go to, “my jam” as my girls might say. I don’t know why. It may sound strange - a couple of kids at a bluegrass festival - but we were a music-loving family. I don’t remember the first time I heard the heavenly mix of a five-string banjo, a Martin guitar, a stand-up bass and a country fiddle, but I suspect that the hill music of my ancestors reverberated inside the red blood cells that first populated my body when I was formed in the womb. What was born to me was then cultivated at bluegrass festivals like Redgate and nights at Buddy’s BBQ in Bearden.
Today, the Department of Children Services might get a referral. If they had back then, they’d found me and my baby brother with BBQ sauce on our faces dancing in chairs to “Salty Dog Blues,” while my parents and their friends danced and sang. Instead of getting a babysitter, my parents would simply take us along. It is truly one of the great gifts of my life. Our visits there were transformative. Smoking in a restaurant wasn’t a problem in those days, and the inside of the place looked like a fog bank rolled in. I remember a swinging screen door where people entered and phrases like “He’s a fine picker,” and calls of “hallelujah” and “yee haw” ringing out when someone felt moved by the inspiration coming from the stage. My father loved the music, but it wasn’t just the sound. It was the traditions and mannerisms of the good bluegrass musicians. He observed it all and would point out things about the musicians and the sound to my mother. Band members would gather around the microphone, each leaning in to be heard. The technique of moving in and out when each member’s skill was on display and all without missing a note was worth the watch. Mom and Dad sang along. They knew the words and sang and danced as though no one was watching - the only way to do it. But John and I, and later, Amy, were watching. We have always watched as my parents enjoyed music and each other, and in the process of learning the words and rhythms to bluegrass standards we learned what a marriage was supposed to look and sound like. They don’t get around as easy these days. Dad has a bad knee and a cane. It doesn’t keep him from the office, but I think our Redgate days are behind us. Mom has had problems with her hip, but her fried chicken and deviled eggs still can’t be beat. I was caught a bit off guard when Dad bought tickets for the Earls of Leceister at the Bijou a couple of Fridays back. Nancy and I went with them and my sister Amy joined in. Once the Earls broke into their first number, “Salty Dog Blues,” my Dad and I, without prompting began singing the chorus - “Let me be your Salty Dog or I won’t be your man at all, Honey let me be your Salty Dog.” I was lost in the sound as the musicians moved in and out around the microphone, and two songs in I felt my eyes welling up as I listened to my parents singing along. Neither could ever hold a tune, a trait they passed down untainted, but to me it sounded just as sweet as it had in 1977. It is a harmony carried by 53 years of marriage and an abiding love for one another, of music, and of family. I suddenly craved a BBQ sandwich and an Orange Crush. Funny what a well-played banjo can do.
Buddy’s, the original, was located in Bearden on the same spot it stands today, but it isn’t anything like it used to be. It wasn’t a chain in those days, but an original, and it was bluegrass on Friday and Saturday nights of my childhood. My parents and their friends would take their children to what amounted to a hillbilly night club to eat pulled pork sandwiches and baked beans and listen to “The Old Home Place” and “Will the Circle be Unbroken” played by bands with names like Homegrown Grass, Heights of Grass and Boot Hill. My brother and I would crawl under the tables with the Watts brothers and the Oglesby girls, taking in the language and behavior of adults. It was amazing theatre.
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November 2018
PRACTICE TIPS By: Amanda Peralta Jarret Attorney at Law
GUARDIANS AD LITEM VS. ATTORNEYS AD LITEM IN CONSERVATORSHIP PROCEEDINGS: HOW DO THEIR ROLES DIFFER? I’ve had the privilege of serving as a Guardian ad Litem (GAL) in termination of parental rights and in custody proceedings, and as a GAL, an Attorney ad Litem (AAL), or the Conservator of the Respondent’s person and estate in conservatorship proceedings. Several years ago, an attorney representing a party in a contested conservatorship action in which I was serving as the GAL asked me whether my role “was the same as that of an AAL.” I’ve also been asked about the difference between a GAL and an AAL incidental to other conservatorship proceedings. The purpose of this writing is to briefly discuss the differences between the roles of GAL and AAL as they apply to conservatorship proceedings.
Conservatorship proceedings in a nutshell The purpose of a conservatorship proceeding is to protect the person and the property of a person whose functional and decisionmaking capacity has become impaired.1 The threshold question in every conservatorship proceeding is whether the person for whom a conservator is sought is disabled or incapacitated. If the answer is no, the trial court cannot appoint a conservator. If, however, the answer is yes, the court must then determine (1) whether the person is fully or partially disabled or incapacitated, (2) whether the incapacity is temporary or permanent, and (3) whether, based on the nature of the disability, the disabled person requires full-time or partial supervision, protection, or assistance from the court.2 If the trial court determines that the disabled person needs a conservator, it must enter an order appointing a conservator, which shall specifically enumerate the powers removed from the Respondent and vested in the conservator. Any power not specifically vested in the conservator remains with the Respondent.3 The law governing conservatorship proceedings in Tennessee can be found in Chapters 1 and 3 of Title 34 of the Tennessee Code.
The Guardian ad Litem The attorney appointed as GAL by the court in a conservatorship proceeding owes a duty to the court to impartially investigate the facts and make a report and recommendations to the court.4 The GAL serves as an agent of the court, and is not an advocate for the Respondent or any other party.5
The Attorney ad Litem The court shall appoint an AAL to represent the Respondent on his/her request, upon the recommendation of the GAL, or if it appears to the court to be necessary to protect the rights or interests of the Respondent.14 The AAL shall be an advocate for the Respondent in resisting the requested relief.15 When I serve as AAL in a conservatorship proceeding, I meet with my client as many times as necessary to discuss, inter alia, the following: the allegations in any petition(s) filed with the Court; the Respondent’s wishes to contest the Petition(s); the Physician’s Report in support of the Petition(s); the Respondent’s alleged disability and how it impacts the Respondent’s functioning; viable, less restrictive alternatives to a conservatorship; the Respondent’s relationship and history with the Petitioner; the role of the GAL and the impact of the GAL’s recommendations; written discovery requests and depositions of parties and witnesses; the trial, its potential outcomes, and the effects on the Respondent.
Conclusion The roles of GAL and AAL are, generally speaking, mutually exclusive.16 The AAL is the zealous advocate for a Respondent who wishes to challenge the establishment of a conservatorship or the person seeking to be conservator, even if that is not necessarily what is in the best interest of the Respondent.17 The GAL, a non advocate, conducts an investigation, and recommends, based on said investigation, what is in the best interest of the Respondent, even if that is contrary to the Respondent’s stated wishes.18
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
In Re Conservatorship of Groves, 109 S.W.3d 317, 349 (Tenn. Ct. App. 2003), citing In Re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn. Ct. App. 1995). Id., at 331. Id. Tenn. Code Ann. § 34-1-107(d)(1). Id. Tenn. Code Ann. § 34-1-107(f). Tenn. Code Ann. § 34-1-107(f)(1)(A). Tenn. Code Ann. § 34-1-107(f)(2). Tenn. Code Ann. § 34-1-107(d)(2)(C). Tenn. Code Ann. § 34-3-106. Tenn. Code Ann. § 34-3-106(5). Tenn. Code Ann. § 34-1-107(f)(1)(B). Tenn. Code Ann. § 34-1-132(a). Tenn. Code Ann. § 34-1-125(a). Id. In Re Conservatorship for William J. Allen, E2010-01625-COA-R10-CV at 11 (Tenn. Ct. App. December 29, 2010). Id. Id.
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The GAL shall file a written report with the Court at least three (3) days prior to the date set for hearing the matter, which shall contain the results of the GAL’s fact-finding investigation.6 That report shall state whether the Respondent wants to contest the need for a conservator, or merely the person to be the conservator, or neither.7 The GAL’s report must also address whether a conservator should be appointed and, if so, who should be appointed as the conservator.8 When I serve as GAL and meet with the Respondent in a conservatorship proceeding, I explain my role, and also explain the substance and nature of the Petition, the nature of the proceeding, the identity of the Petitioner, and the date, time, and nature of the hearing.9 I also explain to the Respondent his/her statutory rights10, including his/her right to contest the petition and to have an AAL appointed to advocate his/her interests.11 November 2018
If the Respondent wants to contest any portion of the conservatorship proceeding, and the GAL is of the opinion that a conservator should be appointed, the GAL shall identify the adversary counsel, or indicate there is none, and request the appointment of an AAL.12 Moreover, when a petition for the appointment of an emergency conservator is filed, the Court must immediately, upon receipt of the petition, appoint an AAL to represent the Respondent in the proceeding.13
L E G A L U P DAT E By: Matthew R. Lyon LMU Duncan School of Lawv
IMPLICATIONS OF EPIC SYSTEMS V. LEWIS Several months ago, I wrote an article in DICTA summarizing the U.S. Supreme Court’s recent jurisprudence in the area of mandatory arbitration and anticipating the Court’s forthcoming decision in Epic Systems v. Lewis.1 Epic Systems was released on May 21, 2018,2 and took its place among several other recent Court decisions enforcing mandatory arbitration clauses under the Federal Arbitration Act (FAA), even in the face of competing state or federal laws.3 Now, with a six months having passed, we can start to assess the impact of Epic Systems. We also have some insight into the Court’s next frontiers in mandatory arbitration.
Background of Epic Systems Epic Systems deals with a mandatory arbitration clause and class action waiver in an employment agreement. The percentage of privatesector, non-union employees in the United States who are subject to mandatory arbitration of employment disputes has increased from two percent in the early 1990s to about 25 percent in the early 2000s to over 55 percent in 2017.4 Many of these mandatory arbitration agreements also include class-action waivers.5 That percentage surely will increase in light of the Epic Systems decision. In Epic Systems, which was consolidated with two other cases, employees challenged the validity of an agreement their employer emailed to them mandating that “wage-and-hour claims could be brought only through individual arbitration and that [they] waived ‘the right to participate in or receive money or any other relief from any class, collective, or representative proceeding.’”6 By continuing to work for the employer after receiving the email, the employees were deemed to have accepted these amendments to their employment contracts; there was no option to decline and keep their jobs.7 Section 7 of the National Labor Relations Act (“NLRA”) states that employees shall have the right to form labor unions, to collectively bargain, “and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”8 The phrase “concerted activities” is not defined in the NLRA, but many courts, as well as the National Labor Relations Board (“NLRB”), have long held it to include employees’ ability to sue their employers as a class.9 Thus, the FAA’s policy in favor of arbitration appeared to be at odds with the NLRA’s policy in favor of employee class actions. The Seventh Circuit agreed with the employees, holding that Section 7 of the NLRA rendered the mandatory arbitration agreement unenforceable.10 Other circuit courts held differently on similar facts.11 Seemingly always game for a mandatory arbitration case, the Supreme Court took up the circuit split.
The Epic Systems Decision In a 5-4 decision, the Court enforced the arbitration provision that had been emailed to the employees. Justice Neil Gorsuch’s majority opinion gave no quarter to the employees’ objections to the individualized nature of their forced arbitration proceedings. That argument “interfere[d] with one of arbitration’s fundamental attributes,” and the Court’s decision seven years earlier in AT&T Mobility LLC v. Concepcion disallowed such claims.12 Moreover, although the “concerted activities” language of the NLRA included employees’ right to organize unions and bargain collectively, the NLRA does not mention arbitration or class actions. Therefore, the NLRA does not conflict with the FAA.13 Finally,
the Court determined that the NLRB’s interpretation of the NLRA was entitled to no deference for several reasons, including that the Trump Administration’s own Solicitor General had weighed in for the employer, expressing a view of the statute that competed with the NLRB’s view.14 In dissent, Justice Ruth Bader Ginsburg characterized the majority’s opinion as “egregiously wrong.”15 Undertaking a review of “the NLRA’s text, history, purposes, and longstanding construction,” the dissent surmised that Congress, through the “concerted activities” language of Section 7, “meant to protect employees’ joining together to engage in collective litigation.”16 In short, the dissenters believed “[t]he FAA demands no such suppression of the right of workers to take concerted action for their ‘mutual aid or protection.’”17
Post-Epic Systems Cases A recent Sixth Circuit opinion is likely indicative of the lower federal court response to Epic Systems.18 The plaintiff, who worked from home for a “virtual” call center, brought a class action suit claiming the employer had underpaid its employees.19 The employee opposed arbitration based upon both the NLRA and Fair Labor Standards Act (FLSA).20 The Sixth Circuit applied the instruction of Epic Systems “that a federal statute does not displace the [FAA] unless it includes a ‘clear and manifest’ congressional intent to make individual arbitration agreements unenforceable.”21 Because Congress did not expressly state in either the NLRA or the FLSA “that an arbitration agreement poses no obstacle to pursuing a collective action,” the court upheld the arbitration clause.22 The Supreme Court has docketed two more mandatory arbitration cases for its current term. On October 3, while the country was consumed with the drama surrounding the confirmation of then-Judge Brett Kavanaugh, the Court’s eight justices heard oral arguments in New Prime, Inc. v. Oliveira. The primary issue in Oliveira was thought to be who should decide whether the FAA applies and mandate that the parties submit to binding arbitration: a court, as has traditionally been the case, or an arbitrator. However, counsel for the employer appeared to concede that point during oral argument, stating that “we trust courts” to decide the issue.23 ( Justice Roberts responded: “Did I understand you’d be perfectly happy to have a court decide the arbitrability issue here? I thought there was a lot of fighting over the question.”)24 In Lamps Plus, Inc. v. Verela, which is scheduled for oral argument on October 29, the issue is how clear the parties’ arbitration agreement must be on the question of whether the parties authorized class arbitration, and whether the FAA forecloses state-law interpretation rules that might answer the question. The Ninth Circuit held in the case that there was a “contractual basis” for arbitration based upon, among other things, language in the contract that “arbitration shall be in lieu of any and all lawsuits.”25 The recent retirement of Justice Anthony Kennedy and subsequent appointment of Justice Kavanaugh may very well shift the balance of the Court to the right in areas of constitutional law, where Justice Kennedy occasionally voted with the Court’s more liberal justices. However, it will not change much in the areas of corporate law and civil procedure, including the Court’s steady enlargement of the use of mandatory arbitration, because Justice Kennedy was a reliable conservative vote in those areas. It remains to be seen exactly where, and whether, there exist outer boundaries at which the Court’s conservative majority becomes uncomfortable enforcing a mandatory arbitration clause.
(Continued on page 11)
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November 2018
2018 Annual Meeting Notice The Annual Membership Meeting will be held on Friday, December 14, 2018 at 8:30 a.m. at the Main Assembly Room of the City County Building. A continental breakfast will be available at 8:00 a.m. in the hallway outside of the Main Assembly Room. The Nominating Committee for the Officers and Board of Governors of the Knoxville Bar Association for the upcoming year is comprised of: Wynne Caffey-Knight, Chair, Robyn J. Askew, Amanda M. Busby, Hon. Kristi M. Davis, Mitchell Panter, John E. Winters and Carlos A. Yunsan. The Committee, having met, recommends that the following, all of whom are members of the Knoxville Bar Association, be placed in nomination at the Annual Meeting: President-Elect: Treasurer: Secretary:
Hanson R. Tipton Cheryl G. Rice Jason H. Long
There are four open positions on the Board of Governors. Three of the Board of Governor positions will be for threeyear terms. The fourth is the one-year term government/public sector position. Nominations to fill the open positions on the Board of Governors are the following: Three-Year Terms: Loretta G. Cravens Elizabeth B. Ford Ian P. Hennessey
Rachel P. Hurt James R. Stovall C. Scott Taylor
Government/Public Sector Position: Hon. Suzanne H. Bauknight According to Article VI, Section 1, of the KBA By-Laws: "Nominations may also be made from the floor during the Annual Meeting by any member in good standing." Pursuant to the Bylaws change approved at the Annual Meeting in 1996, members are permitted to vote by absentee ballot. The provisions are included at the bottom of this page. All judges have been requested to delay court until 10:00 a.m. on the morning of December 14, 2018. Wynne Caffey-Knight, Chair, KBA Nominating Committee
ABSENTEE BALLOTS VOTING IN THE KBA ELECTIONS Any member in good standing who personally comes to the offices of the Knoxville Bar Association during regular business hours on any of the ten (10) working days immediately preceding the day of the Annual Meeting will be permitted to vote. The member must first file a written form making oath that he or she will not be in town or otherwise be unable to attend the Annual Meeting. Then the member will be permitted to cast an absentee ballot for such officer or board positions as may be contested. KBA Office Regular Business Hours: Monday - Friday 9:00 a.m. - 5:00 p.m. 10 Working Days Prior to the Annual Meeting: November 30 - December 13, 2018
IMPLICATIONS OF EPIC SYSTEMS V. LEWIS (Continued from page 10)
Matthew R. Lyon, U.S. Supreme Court to Release Epic Decision on Mandatory Arbitration of Employment Disputes, DICTA (Apr. 2018), at 16. 2 138 S. Ct. 1612 (2018). 3 See, e.g., AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); Am. Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013); DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015); Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421 (2017). 4 Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration, Economic Policy Institute (Sept. 27, 2017), available at https://www.epi.org/publication/the-growing- use-of-mandatory-arbitration/. 5 Id. 6 Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1151 (7th Cir. 2016). 7 Id. 8 Id. (quoting 29 U.S.C. § 157). 9 Id. at 1152-53. 10 Id. at 1155-56. 11 See, e.g., D.R. Horton, Inc. v. Nat’l Labor Relations Bd., 737 F.3d 344, 357 (5th Cir. 2013). 12 Epic Systems, 138 S. Ct. at 1622-23. 13 Id. at 1624. 1
November 2018
Id. at 1629-30. Id. at 1633 (Ginsburg, J., dissenting). 16 Id. at 1641. 17 Id. at 1649. 18 See Gaffers v. Kelly Services, Inc., __ F.3d __, 2018 WL 3863422 (6th Cir. Aug. 15, 2018) 19 Id. at *1. 20 Id. 21 Id. 22 Id. 23 Perry Cooper, Employer’s Attorney Concedes Arbitration Issue at SCOTUS, Bloomberg Law (Oct. 3, 2018), available at https://www.bloomberglaw.com/ document/XAO7G9JG000000?bna_news_filter=class-action&jcsearch=BNA%2520 000001663b04dc10aff7ffceac0b0000#jcite, 24 Id. 25 See Amy Howe, Justices Add Three New Cases to Next Term’s Docket, ScotusBlog (Apr. 30, 2018), available at http://www.scotusblog.com/2018/04/justices-add- three-new-cases-to-next-terms-docket/. 14 15
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AROUND THE COMMUNITY By: Luke P. Ihnen Assistant Director of Chapters with the American Constitution Society Knoxville, Tennessee
IN ORDER TO FORM A MORE PERFECT UNION We the people are civics illiterate. Only 32% of Americans can name all three branches of government.1 The data, released annually by the Annenberg Public Policy Center of the University of Pennsylvania, is sobering. In fact, 33% of Americans could not name any of the three branches of government. I could go on (37% cannot name any of the rights guaranteed under the First Amendment2; only 61.4% of eligible Americans voted in the 2016 election3), but you get the picture. The state of civics education in this country is shameful. Forty-one states and the District of Columbia require civics courses in high school, and 17 require a civics exam to graduate. However, only 9 states require one full-year of U.S. government or civics courses, and 31 states require a half-year of civics or U.S. government. Ten states have no civics requirement at all. Moreover, no states have experiential learning or local problem-solving components in their civics requirements, and only Maryland and the District of Columbia require both community service and civics for graduation.4
The program had two components: an education component and an applied skills component. The education component consisted of one full day educating students in six separate third-grade classes on the Constitution. Over the next week, the third-grade teachers built from the education program to help their students prepare short presentations on the Constitution. For the applied skills component, the students in each class were broken up into smaller groups. On Constitution Day, each group prepared a short presentation to members of the local judiciary based on their understanding of the Constitution. Groups memorized (and sang) The Preamble, created classroom bills of rights, and created a fourth branch of government. I have never been prouder than watching the students present their understanding of the Constitution to the judges. Their excitement for and understanding of the Constitution and the freedoms we too often take for granted, was inspiring. One group’s idea for a fourth branch of government was the equality branch:
What can we, as members of the bar and supposed civics experts, do? This year, the KBA Barristers developed a pilot program for Constitution Day. Constitution Day commemorates the signing of the U.S. Constitution by our Founding Fathers on September 17, 1787. How many of you knew that?
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The next branch should be the equality branch to protect us from discrimination based upon our gender, skin color, or age. We need the equality branch because we don’t deserve the racism in our country. And we need to be equal. And it is not right to judge people for their personality. And it is not right to judge citizens. People of the United States need to be equal.
November 2018
Out of the mouths of babes. There were many other great ideas and proposals. All of them were well-thought out and evidenced the students’ deep understanding of the Constitution.
Next year we plan to implement the program in more schools. If you are interested in volunteering, please contact Luke Ihnen at lihnen@acslaw.org or Zack Walden at zwalden@eblaw.us.
This year, with the support of Knox County Schools, we implemented the program at Christenberry Elementary. Christenberry Elementary has a large population of minority and immigrant students. In fact, after watching the various group presentations, one of the students asked Judge Bauknight how she could become a United States citizen. Many of the students have been exposed to drug use in the home or in their neighborhoods, and many more have had negative experiences with the justice system. Which brings me back to what we (you) can do. Believe it or not, like it or not, our profession affords us a certain prestige even if our day-to-day does not. We can have a positive impact on our communities outside of the courtroom or office. We should seek out those opportunities with passion. The state of civics education requires us to. Civics education does more than teach about our government and its institutions. It equips students with the skills to be active and contributing members of our society. Our democracy depends on it.
Press Release, Civics knowledge predicts willingness to protect Supreme Court, (2018), https://www.annenbergpublicpolicycenter.org/civics-knowledge-survey- willingness-protect-supreme-court/ (last visited Oct 10, 2018). 2 Press Release, Americans are poorly informed about basic constitutional provisions, (2017), https://www.annenbergpublicpolicycenter.org/americans-are-poorly- informed-about-basic-constitutional-provisions/ (last visited Oct 10, 2018) 3 United States Census Bureau, Voting in America: A Look at the 2016 Presidential Election, Census Blogs (May 10, 2017), https://www.census.gov/newsroom/blogs/ random-samplings/2017/05/voting_in_america.html. 4 Sarah Shapiro and Catherine Brown, Issue Brief: The State of Civics Education, The Center for American Progress (Feb. 21, 2018), https://www.americanprogress.org/ issues/education-k-12/reports/2018/02/21/446857/state-civics-education/. 1
I want to thank Jessica Seaton, a third-grade teacher at Christenberry Elementary for allowing us to implement this program with her students, and for having the vision to see it through. Additionally, I want to thank our three judges: the Hon. Suzanne Bauknight and her law clerk Shanna Fuller Veach (who “dabbed” with the students – we have photo proof ), the Hon. Charles Cerny (who challenged the students to pursue their passions and to read as much as they could), and the Hon. Lisa Lowe (who let the students try on and take pictures in her robe). I also want to thank Knox County Schools, especially Julie Thompson, Judy Newgent, and Katherine Petko, for supporting the KBA Barristers when we approached them with this idea a year ago. Lastly, I want to thank Marsha Watson and Mitchell Panter who encouraged us to develop a new program and gave us the support to do so.
November 2018
DICTA
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BAR HOPPING
CORRECTION TO THE 2018 ATTORNEYS’ DIRECTORY
By: Brady Cody Lewis Thomason
In the KBA Attorneys’ Directory on page 21 within the Court Directory section, please note the following corrections to the U.S. Magistrate Judges:
New for 2018, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Congratulations to Will Brewer, R. Deno Cole, Kyle Hixon, Robert Frost, and Chad Hatmaker for correctly identifying the 5th Sessions Courtroom in the Old County Courthouse in Knox County. I’m sure you’ll go bananas for this month’s courthouse.
Hon. H. Bruce Guyton should be listed as the Chief U.S. Magistrate Judge Hon. C. Clifford Shirley, who has retired, should be removed and Hon. Debra C. Poplin should be added as follows: Hon. Debra C. Poplin U.S Magistrate Judge Judicial Assistant Holly Nease Howard H. Baker, Jr. U.S. Courthouse, Suite 144 800 Market Street, Knoxville, TN 37902 Ph: (865) 545-4260 FAX: (865) 545-4086
Think you can name this courthouse? Email me at bcody@lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of DICTA. Check back next month for the reveal and a list of the big winners.
The KBA staff apologizes for any inconvenience this error may have caused.
Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.
C L I N I C A L LY S P E A K I N G The Volunteers are in full swing in East Tennessee (and there’s also some football going on too). Find your Volunteer niche in November and December.
Clinics coordinated by KBA committees and sections may be found at www.knoxbar.org under “CLE & Events” and “Upcoming Legal Clinics” along with online signup forms.
Upcoming opportunities:
To volunteer for ANY Saturday Bar, contact Kathryn Ellis, LAET Pro Bono Project Director by phone at (865)637-0484, by email at kellis@laet.org, or visit http://bit.ly/2PBPvol to sign up online.
• November 3 – Pro Bono Debt Relief Clinic – 9:30 a.m. – 12 p.m., Knox County Public Defender’s Community Law office. (sign up at www.knoxbar.org)
Photo Op
• November 3 – Morristown Bar’s Faith and Justice Clinic, St. Patrick Catholic Church, 2518 W. Andrew Johnson Hwy, Morristown, TN, 9 a.m. – 12 p.m. • November 3 – Knox County Saturday Bar, LAET’s Knoxville Office, 9 a.m. – 12 p.m. • November 10 - Catholic Charities Screening Clinic – Knox County ; 10:00 a.m. – 2:00 p.m.; Sacred Heart Cathedral, 711 S. Northshore Drive, Knoxville, TN 37919. Third in the relief clinic series. • November 14 - Barristers’ Access to Justice Veterans’ Legal Clinic, at the Knox County Public Defender’s Community Law Office, from 12 Noon- 2 p.m. • November 17 – Blount County Saturday Bar at LAET’s Blount County Office, 9 a.m. – 12 p.m. • December 8 – Faith and Justice Clinic at Overcoming Believers Church, 9 a.m. – 12 p.m. • December 12 - Barristers’ Access to Justice Veterans’ Legal Clinic, at the Knox County Public Defender’s Community Law Office, from 12 Noon- 2 p.m. • December 15 – Blount County Saturday Bar at LAET’s Blount County Office, 9 a.m. – 12 p.m.
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Volunteers Tom Humphries and Mitch Eisenberg assist veterans at the October 10th Legal Advice Clinic.
DICTA
November 2018
AROUND THE BAR By: M. Akram Faizer Professor of Law, LMU Duncan School of Law
DIVERSITY AND INCLUSION – A CALL TO ACTION Antonio Guterres, when asked how he became U.N. Secretary General, attributed much of his success to understanding the complexity of human relations. He elaborated, stating “when you have two persons in a room, you do not have two, you have six: what each person is; what each person thinks he or she is; and what each person thinks the other is. This is the reason personal relations are so complex. But what is true for persons is true for groups and countries.”1 Add in race, sex, sexual orientation, socio-economic status and other metrics of hierarchy in a heterogeneous society, and one can easily see how we tend toward social exclusion and inequality. The problem for the U.S. in general, and East Tennessee legal community, in particular, is that minorities and women are, based on exclusion, increasingly leaving the region for larger metropolitan areas, or, exiting the profession altogether. On September 25, 2018, the KBA hosted a comprehensive event devoted to diversity, inclusion and cultural competence at the Foundry in World’s Fair Park titled “Diversity and Inclusion: A Call to Action from Awareness to Commitment,” which was its major annual event devoted to highlighting the importance of diversity, inclusion and cultural competence within the Knoxville bar. To its great credit, the KBA’s Diversity in the Profession Committee, headed by the Hon. Deborah C. Stevens and Amanda Morse, with detailed involvement by both KBA President Keith Burroughs and Executive Director Marsha Watson, held several meetings prior to this event to both promote diversity, inclusion and cultural competence and develop “Buddy Match” program to pair local attorneys with law students for mentoring purposes. Though open to all students, regardless of background, the “Buddy Match” program is anticipated to be especially helpful to women and minority students who tend to lack access to mentoring. Fifty-four students and forty-six mentors, who first met each other prior to the event, participated in the program. Keynote speaker, Vicki Clark, gave an hour-long, substantive, warmhearted and humorous power point presentation, to an audience of 132 attendees, including 69 lawyers and 63 law students, seated at 18 round tables that filled the Foundry’s main reception hall on the importance and benefits of diversity, inclusion and cultural competence. In so doing, she highlighted the fact that from an African American Memphian’s perspective, the country has taken too long to address the negative consequences of social exclusion. Clark began by highlighting that solicitude for diversity, inclusion and cultural competence should not be conflated with affirmative action, which focuses almost exclusively on race and gender and not the myriad social hierarchies that preclude full integration, including race, gender, socioeconomic and immigration status, English language proficiency, learning ability, religious identity and sexual orientation. Citing a verse by the late Maya Angelou, Clark emphasized that diversity and inclusion goes a step beyond formal equality to recognize that addressing people’s needs can require an individualized approach, based on cultural awareness, to problem solving. Clark defines cultural competence as “the understanding of diverse attitudes, beliefs, behaviors, practices, and communication patterns attributable to a variety of factors” that present organizations with the challenge of “implementing changes to improve services based upon [actual] cultural needs.” Cultural competence requires adjustments in the way we think and behave to operate in a different cultural context. An example of culturally competence would be a law firm that shifts from allowing its Jewish lawyers to take time off to celebrate the High Holidays to one that recognizing and celebrating the High Holidays in conjunction with traditional Christian and secular holidays. True cultural competence, in turn, requires us to October 2018
recognize our collective explicit and implicit biases against the historically marginalized. Unlike explicit bias, which is expressed directly and operates consciously, implicit bias is often expressed indirectly and sub-consciously, notwithstanding the lack of discriminatory intent. An example of implicit bias would be to cross the street to avoid a person of color or to make an assumption about a person’s workplace commitment based on sex. Clark emphasized that we are most prone to implicit bias when stressed, distracted, in competition or very relaxed, which means law firms inadvertently cultivate implicit bias. Clark said that this can be combatted by taking the following steps to identify and address unconscious bias, namely 1. recognize that we all have biases that must be identified and dissected; 2. decide which of these biases to address first; 3. seek out common interest groups to acknowledge and eventually remediate biases; and 4. be mindful of bias kick-back based on the power of acculturation and pattern recognition. Clark went further and discussed how achieving true diversity, inclusion and cultural competence is made more difficult by the fact that people with organizational power tend to be privileged individuals who, based on society’s uneven power distribution, seamlessly integrate into power structures. The privileged, who can be identified based on a variety of metrics including race, sex, socio-economic status, physical appearance and fertility, tend to see the world in a monographic way that makes it difficult to empathize with those from inauspicious backgrounds. As such, the best means of managing privilege is not to demonize those with it, but to focus awareness as to its consequences. Clark closed by stating that we have discussed the benefits of diversity for too long without effectuating systemic plans to make our society more inclusive and culturally competent. Organizations therefore need to make every effort, with all due haste, to make it a priority. Clark’s presentation was followed by table discussion groups, led by 18 table group leaders that included myself, on our individual plans to demonstrate a commitment to diversity, inclusion and cultural competence over the next 30 days. Representative comments from attorneys include “mentoring minority law students,” “starting a conversation in my organization” as to the need for more diversity and inclusion, and “evaluate current practices within my office and create an action plan to increase diversity, inclusion and cultural competence of myself, coworkers and the policies of my office.” Representative law student comments include “finding a mentor to help me further my cultural competency and listen to the areas that need this commitment in East Tennessee,” avoid defaulting to “a defensive mindset when examining bias,” joining “diversity promotion groups in my student organization,” “learn to recognize my own biases, as well as those of people around me, and become more comfortable and proactive about having a conversation about it,” and “try to understand others’ arguments and points in my class so that I can better understand them. Look at my own privilege.” At the end of the discussion group sessions, a delightful reception with refreshments was enjoyed by all, who left with a positive outlook as to the feasibility of making the Knoxville bar diverse, inclusive and culturally competent.
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https://www.ft.com/content/c3e252d2-ca0d-11e7-ab18-7a9fb7d6163e
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Equitable Relief in Immigration Law: Is the Universal Injunction on the Way Out? In the recent spate of contentious immigration issues, a pattern of governmental behavior has emerged. First, frustrated with Congressional inaction, the president attempts to address an immigration issue through executive action. Then a fight ensues in the federal judiciary as to whether the new policy should take effect. Next, a federal district court chosen by the plaintiff initially strikes down the executive action, leaving the matter to be decided on appeal months or years later. This sequence of events has played out repeatedly. It happened when President Obama tried to expand Deferred Action for Childhood Arrivals (DACA) and tried to adopt Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). It happened when President Trump tried to repeal DACA and tried to deny funding to sanctuary jurisdictions. And it happened with all three versions of the travel ban. The cases that decided those issues all involved the same form of equitable relief: a “universal” or “nationwide” injunction. That type of injunction applies across the nation and constrains the defendant’s behavior as to everyone, not just the parties to the case. Proponents of the universal injunction contend that it ensures uniformity, serves as a check on presidential power, and provides the only way to accord meaningful relief when an unlawful governmental policy affects numerous people.1 Opponents question whether there is any legal basis for such relief and argue that it improperly allows a single federal judge, selected by the plaintiff, to set national policy.2 This article examines two questions pertaining to universal injunctions. First, why have federal judges resorted to this extraordinary form of relief in so many recent immigration cases? And second, will those cases lead either the Supreme Court or Congress to put an end to the universal injunction?
Immigration Cases Involving Universal Injunctions This trend began in 2012 when President Obama implemented DACA.3 Successful DACA applicants obtained two important benefits: a work permit and a renewable two-year period of deferral of deportation.4 Two years later, President Obama announced his intent to expand DACA and to implement DAPA, a program that would have awarded similar benefits to qualifying undocumented immigrants with children who were U.S. citizens or permanent residents.5 Neither the DACA expansion nor DAPA took effect because a federal judge in Texas stopped their implementation with a temporary universal injunction.6 The Fifth Circuit affirmed, explaining as follows: [T]he Constitution requires “an uniform Rule of Naturalization”; Congress has instructed that “the immigration laws of the United States should be enforced vigorously and uniformly”; and the Supreme Court has described immigration policy as “a comprehensive and unified system.” Partial implementation of DAPA would “detract[] from the ‘integrated scheme of regulation’ created by Congress,” and there is a substantial likelihood that a geographicallylimited injunction would be ineffective because DAPA beneficiaries would be free to move among states.7 Although the case was remanded, the proceedings came to an end when the Trump administration rescinded DAPA.
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In September 2017, Attorney General Jeff Sessions announced the repeal of DACA, characterizing it as an “unconstitutional” program that had benefitted “illegal aliens” at the expense of American citizens.8 In early 2018, two federal district court judges, one in California and one in New York, held that the Trump administration had acted in an arbitrary and capricious manner by rescinding DACA.9 Both courts concluded that Attorney General Sessions was wrong about the policy being unconstitutional.10 Moreover, the courts agreed that a preliminary universal injunction was appropriate. Relying on the Fifth Circuit’s justification for shutting down DAPA, the courts emphasized the need for uniformity in immigration law and the absence of a narrower form of relief that would protect the plaintiffs’ interests.11 These cases are currently on appeal in the Second and Fourth Circuits. President Trump has encountered similar issues with his executive order purporting to deny funding to “sanctuary” jurisdictions, a term referring to state or local governmental entities that “willfully violate Federal law in an attempt to shield aliens from removal from the United States.”12 A federal district court in California held that the executive order violated several provisions of the Constitution, including the Due Process Clause of the Fifth Amendment, the Tenth Amendment, and the separation-of-powers doctrine.13 The court imposed a universal injunction because the executive order was “unconstitutional on its face, and not simply in its application to the plaintiffs.”14 On appeal, the Ninth Circuit agreed that the executive order was unconstitutional but found that the record was insufficient to support a universal injunction.15 Accordingly, the court remanded the case for the district court to conduct a “more searching inquiry.”16 In a similar sequence of events, federal courts awarded temporary universal injunctions to halt all three versions of President Trump’s travel ban, each of which restricted non-citizens from various Muslim-majority countries from entering the U.S. A federal judge in the Washington struck down the first version of the travel ban, holding that it violated due process.17 The court’s rationale was taken directly from the Fifth Circuit’s DAPA decision: to allow a partial implementation of the travel ban “would undermine the constitutional imperative of ‘a uniform Rule of Naturalization’ and Congress’s instruction that ‘the immigration laws of the United States should be enforced vigorously and uniformly.’”18 Instead of appealing, President Trump issued a second version of the travel ban. Like its predecessor, the second travel ban was initially blocked by a universal preliminary injunction, but the Supreme Court held that such broad relief was not warranted. The Court limited the injunction to the plaintiffs and “those similarly situated,” which included “foreign nationals who [had] a credible claim of a bona fide relationship with a person or entity in the United States.”19 When President Trump issued the third version of the travel ban, a district judge in Hawaii blocked its implementation with a temporary universal injunction.20 On appeal, the Ninth Circuit limited the scope of the injunction in the same manner that the Supreme Court had limited the second version.21 This time, the Supreme Court reversed on the merits, issuing a 5-4 decision in Trump v. Hawaii that upheld the travel ban as a valid exercise of presidential authority.22 The majority opinion did not address the scope of the injunction awarded by the lower courts.
DICTA
November 2018
COVER STORY By: William Gill LMU Duncan School of Law
Threats to the Continued Use of Universal Injunctions There are two reasons to believe that universal injunctions may soon be outlawed. The first is Justice Thomas’ concurrence in Trump v. Hawaii, in which he excoriated the increasingly frequent use of universal injunctions. Observing that universal injunctions did not exist in this country until the 1960s, Justice Thomas declared his skepticism that district courts have any authority to award such relief.23 In addition, if such authority exists, he opined that it must be “meaningfully constrained” so as to “comply with longstanding principles of equity that predate this country’s founding.”24 According to Justice Thomas, universal injunctions rarely, if ever, comply with those principles. For example, in Justice Thomas’ view, American courts inherited the tradition that the English Chancellor, as an agent of the King, “had no authority to enjoin him” through equitable relief.25 In a similar vein, Justice Thomas emphasized the principle that “American courts of equity [should] not provide relief beyond the parties to the case,” and he warned that expanding equitable relief would be inconsistent with the limited role of the judiciary envisioned by our founders.26 Justice Thomas ended his concurrence by labeling universal injunctions “legally and historically dubious” and warning that “[i]f federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”27 A second threat to the continued use of universal injunctions is the Injunctive Authority Clarification Act of 2018, a bill introduced in September 2018 by House Judiciary Chairman Bob Goodlatte. If enacted, the bill would amend the federal statute authorizing equitable relief by adding the following language: No court of the United States . . . shall issue an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.28 Chairman Goodlatte touts this bill as a method of curbing “judicial overreach in the form of national injunctions” and “restor[ing] the proper balance of power between the branches of government.”29 There are several obstacles to the enactment of this legislation. Most notably, it is unlikely that Democrats would support a bill removing a potent judicial check on executive power during the Trump presidency. It is likelier, therefore, that if anyone delivers the death blow to the universal injunction, it will be the Supreme Court. It will be interesting to see if the Roberts Court is willing to take on such a highprofile issue in the wake of the contentious confirmation process of Justice Kavanaugh. If the Supreme Court adopts the position of Justice Thomas by either eliminating or severely curtailing the use of universal injunctions, the result will be a significant shift in power in favor of the executive branch.
November 2018
See, e.g., Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. Forum 49 (2017); Suzette M. Malveaux, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. Forum 56 (2017). 2 See, e.g., Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 418 (2017); Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. Rev. 615 (2017); Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017). 3 See Remarks by the President on Immigration, White House Office of the Press Secretary (June 15, 2012), available at https://obamawhitehouse.archives.gov/the- press-office/2012/06/15/remarks-president-immigration. 4 Id. 5 Haeyoun Park and Alicia Parlapiano, Supreme Court’s Decision on Immigration Case Affects Millions of Unauthorized Immigrants, N.Y. Times (June 23, 2016), https://www.nytimes.com/ interactive/2016/06/22/us/who-is-affected-by-supreme-court-decision-on-immigration.html. 6 Texas v. United States, 86 F. Supp. 3d 591, 677-78 (S.D. Tex. 2015). 7 Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015) (citations omitted), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (per curiam). 8 Attorney General Sessions Delivers Remarks on DACA, U.S. Dep’t of Justice, Office of Public Affairs (Sept. 5, 2017), available at https://www.justice.gov/opa/speech/attorney-general- sessions-delivers-remarks-daca. 9 Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 433 (E.D.N.Y. 2018); Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1046 (N.D. Cal. 2018). 10 Batalla Vidal, 279 F. Supp. 3d at 433; Regents of Univ. of Cal., 279 F. Supp. 3d at 1046. 11 Batalla Vidal, 279 F. Supp. 3d at 437-38; Regents of Univ. of Cal., 279 F. Supp. 3d at 1049. 12 Enhancing Public Safety in the Interior of the United States, Exec. Order 13767, § 1. 13 Cnty. of Santa Clara v. Trump, 275 F. Supp. 3d 1196, 1219 (N.D. Cal. 2017). 14 Id. 15 City & Cnty. of S.F. v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018). 16 Id. at 1245. 17 Washington v. Trump, No. C17-0141JLR, 2017 WL 462040, at *2 (W.D. Wash. Feb. 3, 2017). 18 Id. 19 Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017) (per curiam). 20 State v. Trump, 265 F. Supp. 3d 1140, 1160 (D. Haw. 2017). 21 Hawaii v. Trump, 878 F.3d 662, 702 (9th Cir. 2017). 22 Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018). 23 Id. at 2425 (Thomas, J., concurring). 24 Id. at 2426. 25 Id.. at 2427. 26 Id.. at 2428. 27 Id. at 2429. 28 Injunctive Authority Clarification Act of 2018, H.R. 6730, 115th Cong. (2018). 29 House of Representatives Judiciary Committee, Goodlatte Introduces the Injunctive Authority Clarification Act of 2018, Press Release (Sept. 10, 2018). 1
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L E G A L LY W E I R D By: Lisa J. Hall Hodges, Doughty & Carson
JACKASS JURISPRUDENCE In my extensive research to prepare for authoring this very important installation of the esteemed “Legally Weird” column, I have come to the jarring realization that we just don’t use jackass in our modern vernacular as did those who came before us. It all started when Cecilia Petersen found “The Celebrated Jackass Case” amongst her late father (and Hodges, Doughty & Carson lawyer) David E. Smith’s papers and forwarded it to Marsha for possible use in a future edition of DICTA. The case was reproduced on the letterhead of a Tampa lawyer and apparently forwarded to Mr. Smith and possibly other friends and colleagues – apparently this was the 1960s version of forwarded email chains. (Yes, I am aware that kids today have new and improved means of forwarding funny things beyond email chains.) I have to make clear that in The Celebrated Jackass Case, it was not the jackass that was celebrated. The plaintiff was unhappy because the animal in question was unfit for breeding purposes, and the judge noted “no reasonable man would attempt to use a jackass for any other purpose than to outrage nature by propagating mules.” Obviously the plaintiff did not desire to use the jackass as a pet: “Its form is neither pleasing to the eye, nor its voice soothing to the ear. He is neither ornamental in his appearance, nor amusing in his habits.” Despite being placed in the society of “certain soft-eyed, sleek coated mares…supposed to arouse the interest and attract the attention of any reasonably amorous jackass,” he “passed them up and knew them not.” In conclusion:
The newspaper called these doctors “jackasses in the guise of doctors.” The court stated: To say of a minister that he is immoral, of a lawyer that he is an ignoramus, a drunkard, or a cheat, of an architect or a teller of a bank that he is crazy, of a physician that he is a humbug, or a quack, or a butcher, or a blockhead, or a quacksalver, or an empiric, or a mountebank, or that he is no scholar, or that his diploma is worthless, has been held actionable per se, as touching the vocation. The court affirmed the trial court’s judgment for the plaintiff due to the article’s characterization of “the ignorance of a jackass, the brutality of a savage, and the fiendishness of a ghoul.” Finally, once upon a time in California during Prohibition, a detective named N.C. Kazar asked for a drink of whiskey and “got a drink of jackass.”2 The defendants who appealed their convictions of unlawful sale of intoxicating liquor raised the issue that the court could not take judicial notice of the alcoholic contents of jackass brandy. The court decisively shot that silly vargument down: “If there is any person at this late day who does not know that jackass brandy is a distilled liquor containing a high percentage of alcohol, he must have lived far from the haunts of the bootlegger and outside the zone of circulation of the daily press.” At this late day almost 100 years after that late day (in Silva, if you are not paying attention), I know of no bar in which you can walk in and get a drink of jackass. However, I do believe that to this day, saying to a doctor, “You sir are no scholar!” is asking for a defamation action which will leave you without even enough money to purchase a Missouri-bred jackass afflicted with lost manhood.
He was, indeed, a worthless, unpedigreed and impotent jackass, without pride of ancestry or hope of posterity – a source of disappointment to his female friends, and an item of expense to his owner. There is no brute in all the animal kingdom more worthless than a Missouri-bred jackass afflicted with lost manhood. In addition to an express warranty, the court found there was an implied warranty as to the jackass’ fitness as a breeder and foal getter. While the defendant had represented that the jackass was a “good teaser,” the evidence showed that he failed to “practice it with the zeal and ardor becoming of an ambitious jackass in full possession of his sexual faculties.” What a loser. In other words, what a jackass. Or actually, what a Missouri-bred jackass afflicted with lost manhood. In 1900, twelve young doctors were annoyed with the superintendent of their hospital because he would not let them “talk or visit with nurses at night.” He also became very angry when he learned that two of the doctors “had been served with coffee and toast at 4 in the morning by a nurse in the diet kitchen.”1 He also had directed the watchman to follow and watch them closely. These twelve doctors apparently had higher ambitions than the non-celebrated jackass referenced above, but their actions unfortunately landed them in the jackass category nonetheless. The newspaper reported that the doctors took a dead body from the hospital morgue and strung the body up to a pole in the superintendent’s lawn so he could see if when he looked out of his window in the morning “and went away, almost bursting with laughter.” (In fact, the men had constructed an effigy of the superintendent and hung it by the neck on a pole in front of his house).
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Bornmann v. Star Co., 12 Bedell 212 (N.Y. 1903). People v. Silva, 67 Cal. App. 35 (1924).
November 2018
O F T H E R M O M E T E R S & T H E R M O S TAT S By: Melissa B. Carrasco Shareholder, Egerton, McAfee, Armistead & Davis, P.C.
MORE THAN A NUMBER The first number you should know is 60 8079. The “60” stands for Section 60. To get to Section 60, take a left onto Eisenhower Drive and walk about a ½ mile, to the fourth road on your left – York Drive. It is a long, shady road, lined with huge trees. Section 60 is on the right.
after he used his body to shield the Marines behind him from enemy fire after he uncovered an enemy combatant behind a closed door.4 You can find LCpl. Houck at Grave 8083, a few feet away from Gavriel and Ziolkowski.
You could stay in the shade. But, you will have to leave the comfort of the trees to find Grave 8079. Fourteen years ago, it was in the last row of Section 60. Now, there are at least twenty more rows of plain, white headstones going on and on in perfectly straight lines. If you are willing to take a walk, you won’t be disappointed.
For the Marines in Fallujah, Veterans Day 2004 and the weeks that followed were bloody. In total, the 1st Battalion, 8th Marine Regiment lost 17 brothers during those three weeks in November 2004; 102 were wounded making Operation Phantom Fury the bloodiest battle of the Iraq War.5
Lance Corporal Dimitrios Gavriel was not a career Marine. He had no plans for a military career. He was a financial analyst working on Wall Street for the big firms, like J.P. Morgan. Everything changed on September 11, 2001 when four friends were killed in the attacks on the World Trade Center. It wasn’t long before he quit his job and enlisted.
The loss was great, but many more survived. For his bravery that day, Esquibel would have been awarded the Navy Cross, but he declined the medal citing “personal reasons.” He has earned the right to make that choice.6 He stayed in the Marines until, seven year later, he sustained a severe leg injury when he stepped on an IED in Afghanistan.
Even that wasn’t easy. He had to lose 40 pounds and prove that his old wrestling injuries did not disqualify him. But, he was persistent, and he was not taking “No” for an answer. He was assigned to the 1st Battalion, 8th Marine Regiment, 2nd Marine Division II Expeditionary Force out of Camp Lejeune, North Carolina. At the age of 29, he was ten years older than many in Bravo Company.
One of the Marines in LCpl. Houck’s fire squad was Corporal Jeremy LaForce. He is now a Staff Sergeant. A few years after Fallujah, he had a son – David Hawk LaForce – named after LCpl. Houck who saved his life in Fallujah.
He was a rifleman. He was killed in an explosion a week before Thanksgiving on November 19, 2004, in the Second Battle of Fallujah – Operation Iraqi Freedom’s offensive to retake the city of Fallujah, Iraq. He was laid to rest in Section 60 of Arlington National Cemetery on December 2, 2004.1 Three headstones away is Grave 8076. That is where you will find Corporal Nicholas Ziolkowski. Unlike LCpl. Gavriel, Cpl. Ziolkowski wanted to be a Marine since the ninth grade. At 17 years old, he participated in the Navy Seal Odyssey program and finished in the top 10 – the youngest finisher that year. In 2001, he enlisted the morning after his high school graduation, and he too was assigned to Bravo Company of the 1st Battalion, 8th Marine Regiment. He was a sniper. He was killed on a rooftop in Fallujah, Iraq on November 14, 2004, at the age of 22. He was shot by an enemy sniper after he took off his helmet to get a better view. His last thought was protecting the rest of Bravo Company which was going house to house on the streets below. He joined the others in Section 60 on November 24, 2004.2 Next to Cpl. Ziolkowski that day was sniper scout Lance Corporal Dominic Esquibel. He helped protect Cpl. Ziolkowski’s body, but he had no time to process and recover from the loss. The Second Battle of Fallujah was still ongoing, and Bravo Company needed its overwatch. On November 25, 2004, Thanksgiving Day and the day after Cpl. Ziolkowski joined his brothers in Arlington, LCpl. Esquibel spotted five wounded Marines pinned down in a courtyard. He quickly ran through enemy fire on the rooftops to relay information about their position to his commanding officer. Then, he left his position of relative safety on the rooftop and entered the courtyard. He and another Marine, Lance Corporal David (“Hawk”) Houck, entered that courtyard under heavy fire three different times, pulling Marine after Marine out of the fire. They fought for another forty-five minutes to recover the bodies of the remaining two Marines.
Others have not been so fortunate. For many who survived, the physical, mental, and emotional scars sustained over a decade ago are real. The Department of Veterans Affairs estimates that 2.7 million servicemen and women served in Iraq and Afghanistan from 2001 to 2014,7 and PTSD affects 11% of veterans of Afghanistan and 20% of veterans who served in Iraq.8 They struggle to feel normal, overcome flashbacks, and avoid self-destructive behaviors, drug and alcohol abuse, and suicide. Each November, we celebrate Veterans Day. It is fitting to remember those we have lost and hear their stories. But, more importantly, we ought to renew our commitment to serving those veterans who remain – those whose experiences may make it hard to celebrate. Many of them are our colleagues of the Bar, and they deserve at least a simple, “thank you” and an acknowledgment that service never ends. The Barrister’s monthly Veterans Legal Advice Clinic is one way to do this – to help veterans restore that sense of “normal,” to let them know we are thankful they served, and to recognize that 60 8076, 60 8079, and 60 8083 are not just numbers. They set the temperature for service like thousands of men and women before and after them – because that is what thermostats do.
You can learn more about Lance Corporal Gavriel from his family and friends at the following website: http://www.arlingtoncemetery.net/dimitrios-gavriel.htm, last visited Oct. 9, 2018. 2 You can learn more about Cpl. Ziolkowski from his family and friends at the following website: http://arlingtoncemetery.net/nlziolkowski.htm, last visited Oct. 9, 2018. 3 Matthew Dodd, A Hero’s Unusual Decision and Extraordinary Actions, Leatherneck (Apr. 27, 2007), http://www.leatherneck.com/forums/archive/index.php/t-45528.html, last visited Oct. 9, 2018; Cdr. Richard Jadick, On Call in Hell, a Doctor’s Iraq War Story (New American Library 2007). 4 You can learn more about LCpl. Houck from his family and friends at the following website: http://www.arlingtoncemetery.net/dbhouck.htm, last visited Oct. 9, 2018. 5 Dan Lamothe, Remembering the Iraq War’s Bloodiest Battle, 10 Years Later, Washington Post (Nov. 4, 2014). 6 Id. 7 15 Years on, for Iraq War Veterans the Effects of Trauma are an Ongoing Battle, Japan Times (Mar. 23, 2018). 8 Emily Bager, Why the Iraq War has Produced more PTSD than the Conflict in Afghanistan, Washington Post (Apr. 3, 2014). 1
Because of their efforts, two of the five Marines who were pinned down in that courtyard survived.3 The next day, LCpl. Houck was killed November 2018
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barrister bullets BARRISTER ELECTIONS & HOLIDAY PARTY The Barristers are seeking nominations for the following officers to serve in 2019: • Vice President • Secretary/Treasurer • (2) At-Large Executive Committee Seats Please notify Lacey Dillon (ldillon@knoxbar.org) by Monday, November 5th, if you would like to nominate someone or are interested in running for a Barristers office. Please note that the person elected Vice-President in December will automatically become the Barristers President for the 2020 bar year. Candidates must be current KBA members. Additionally, please mark your calendar to attend the December 6 Knoxville Barristers meeting, elections and holiday party at the Bistro at the Bijou. We’ll be electing Vice President, Secretary/Treasurer, and the two At-Large Executive Committee seats. Even if you can’t stay for the whole party, make sure to drop in before 5:15 p.m. to be able to vote. There is no need to RSVP just stop by, have a drink on us, grab some refreshments and help shape the future of our profession and community. MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meeting begins promptly at 5:15 p.m. The next meeting will be held on November 14, 2018. There are many opportunities to get involved, so please contact Barristers President Mitchell Panter (tmp@painebickers.com) or Vice President Mikel Towe (mtowe@lewisthomason.com) for more information. ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on November 14, 2018, at the Knox County Public Defenders’ Community Law Office from 12:00 p.m. to 2:00 p.m. If you are interested in signing up for the Veterans Clinic, you can do so on the KBA’s website: https://www.knoxbar.org/index.cfm?pg=Upcoming-Legal-Clinics. MEMBERSHIP COMMITTEE The Welcome Reception for New Bar Admittees will be held on Monday,
November 5, 2018 from 5:30-7:00 p.m. at Elkmont Exchange, 745 N. Broadway. KBA Members are encouraged to attend this festive occasion to welcome the 2018 new admittees to our local legal community. The Knoxville Barristers host this event and all KBA members are invited to attend this free event. Drink tickets and light refreshments are provided compliments of Pugh CPA’s, our event partner. The KBA New Lawyers Section has planned a one hour CLE entitled “Law Practice 101” featuring Shelley S. Breeding, Breeding Henry Baysan PC, before the New Admittee Reception. This CLE will cover everything from how to hang your own shingle, managing attorney/client relationships and client expectations, and how to turn a profit. The CLE has been approved for 1 hour of Dual CLE Credit and is open to all attorneys regardless of experience. Register online by clicking November 5 on the event calendar at www.knoxbar.org. SOCIAL HOUR WITH PYA Members of the Knoxville Barristers have been invited to a networking event with PYA on Thursday, November 15th from 5:30-7:30 p.m. at PYA Atrium, One Cherokee Mills, 2220 Sutherland Avenue. Register online by clicking on November 15 on the event calendar at www.knoxbar.org HUNGER AND POVERTY The Hunger & Poverty Relief committee would like to thank everyone who donated to last month’s coat drive! Our annual canned food drive to benefit Second Harvest will take place November 5 - 26. For specific rules and details, keep an eye on communications from the KBA or contact Courtney Houpt (crhoupt@gmail.com) or Meagan Davis-Collver (mdaviscollver@londonamburn.com) VOLUNTEER BREAKFAST The Volunteer Breakfast is a Barristers’ project. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast in 2019, please contact Paul E. Wehmeier at pwehmeier@adhknox.com, Matthew Knable at knablelaw@gmail.com, or sign up on the KBA’s website at http://www.knoxbar.org/KBA-News/help-volunteer-ministries.
KNOXVILLE BAR ASSOCIATION
Annual Memorial Service FRIDAY, NOVEMBER 16, 2018 | 3:00 P.M.
Tennessee Supreme Court Courtroom | 505 Main Street, 2nd Floor We gather, not for the purpose of grieving, but rather to celebrate the careers of, and to honor, applaud, and express our gratitude to, those members of the Knoxville Bar who passed away in the last year.
IN MEMORIAM: E. Riley Anderson A.C. Myers Richard Ralph Baumgartner Michael Anthony Nolan Janice Leyton Claytor Philip James Pfeifer David Dickason Creekmore Spenser Flinn Powell Paul Edward Dunn Jonathan Rohr Thomas Draper Kerr Hon. Richard R. Vance John D. Lockridge Edward Eugene Wilson William Eugene Mcclamroch, Ill Joining KBA President Keith H. Burroughs in the reflection and celebration of the lives of these individuals will be Rev. Charles Fels and Hon. D. Michael Swiney, Presiding Judge, Tennessee Court of Appeals, Eastern District.
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November 2018
SCHOOLED IN ETHICS By: Alex B. Long Associate Dean for Academic Affairs University of Tennessee College of Law
LEGAL ETHICS ISSUES INVOLVING TECHNOLOGY IN THE PRACTICE OF LAW “I have to confess to this Court, I am not computer literate. I have not found presence in the cybernetic revolution. I need a secretary to help me turn on the computer. This was out of my bailiwick.”
help hack BigLaw for information related to client mergers. ABA Ethics Opinion 477R (2017) addressed cybersecurity and the risks associated with hackers in relation to a lawyer’s ethical duties of competence and confidentiality. The opinion offered general advice about the need for lawyers to understand how client information is stored and transmitted and on the need for due diligence in selecting vendors.
- Explanation of lawyer to judge for E-discovery violation, James v. National Finance LLC, No. 8931-VCL, 2014 WL 6845560 (Del. Ch. Dec. 5, 2014) A lawyer’s ethical duty of competence “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” TRPC R. 1.1 Tennessee is one of 31 states to have recently adopted an amendment to the comments to Rule 1.1 that explains how technology relates to the duty of competent representation: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. Id. cmt. 8 (emphasis added). With the addition of the new language to comment 8, it is clear that as a Delaware court said in response to the lawyer who said he needed his secretary to help turn on his computer, “[p]rofessed technological incompetence is not an excuse for discovery misconduct.” See also Oklahoma ex. Rel. Oklahoma Bar Association v. Oliver, 369 P.3d 1074 (Okla. 2016) (publicly censuring attorney who claimed lack of computer literacy for his inability to comply with a bankruptcy court’s e-filing requirements).
For lawyers looking for specific advice on technology and its relation to the practice of law, a useful resource is the series of Leading Practices published by the Delaware Commission on Law & Technology. This commission, established by the Delaware Supreme Court, was created to develop and publish guidelines and best practices regarding the use of technology and the practice of law. To date, the Commission has produced helpful guidelines on the practical and ethical issues related to the cloud, courtroom technology, data security, eDiscovery, email, mobile technology, social media. These Leading Practices provide a useful starting point for any lawyer seeking to develop greater competence with respect to technology and any office law office evaluating its own practices.
Tennessee Formal Ethics Opinion 2015-F-159 reiterates that point and explains that “[t]he duties of competence and confidentiality owed to the client by the lawyer are ongoing and are not delegable.” So, for example, a lawyer who is completely ignorant about the risks associated with cloud-based legal services and who assigns the task of choosing a service provider to a non-lawyer office manager cannot claim computer illiteracy as an excuse if the provider proves to be less than reliable. In an effort to help ensure that lawyers keep abreast of the benefits and risks associated with relevant technology, Florida now requires that lawyers complete three hours of CLE classes during the three-year reporting period related to technology in the practice of law. A similar requirement was recently proposed by the North Carolina State Bar Council. It may just be a matter of time before other states follow suit. The Rules of Professional Conduct already identify several areas where technology may pose a risk for clients and their lawyers. TRPC R. 1.6(d) requires that a lawyer “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Twenty-five years ago, the standard hypothetical to illustrate inadvertent or unauthorized disclosure of client information would have involved accidentally sending a confidential fax to opposing counsel. Today, inadvertent or unauthorized disclosure is more likely to involve an email, Twitter, or other social media mishap. Not surprisingly, more law firms are adopting policies regarding the download of permissible smart phone apps and privacy settings on smart phones and other devices. Today’s lawyers also have to concern themselves with preventing unauthorized access to client information in the form of hackers. For example, in 2016, Ukranian cyber-criminal “Oleras” offered $100,000 to
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. November 2018
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OF LOCAL LORE & LAWYERS By: Joe Jarret Attorney At Law, University of Tennessee
JUSTICE ON THE KNOX COUNTY FRONTIER:
MORE RANDOM THOUGHTS ON THE STATE OF THE LAW IN KNOX COUNTY’S FORMATIVE YEARS A Lawyer is Born! It was reported that, in 1796, five years after the City of Knoxville was founded, “the first male child” (non-native American) was born in the territory. 1 It might not come as a surprise that the child went on to become a lawyer. His name was Richard G. Dunlap, and, although he was considered to be a fine lawyer who “attained a measure of success at the bar,” he was also a “restless and energetic man” who found the sedentary life of an attorney unsatisfying, leading him to pursue the life of a soldier. Richard attended Ebenezer Academy in Knox County, a preparatory school which was a leading educational institution for 20 years, and was a student of its founder, Samuel G. Ramsey. Later, he read law in the office of John McCampbell, and began practicing law in Knoxville, becoming a member of the Bar in 1822. 2 Although often described as an honest, brave, and patriotic man, it was noted that, while Mr. Dunlap qualified to become a good lawyer, he “did not make a conspicuous success in the profession because he allowed his energy and ambition to divert him to other channels.” 3 Nevertheless, according to a piece that appeared in the Knoxville Gazette newspaper in 1826, R. G. Dunlap and W. B. A. Ramsey, attorneys at law, were “Open for business to attend to diverse legal matters” and, “unlike men unfit by character, culture, or training to become members of this learned profession,” were “men of sound report and community standing.”
the said Garod was bitten off; and it is ordered that a record be made thereof, that he receive a certificate accordingly.” 6
Conclusion As the Knox County legal frontier passed into history, the myths, legends, and factual accounts of that bygone era continue to keep a firm hold on the imagination of us all. To be sure, the more I explore this topic, the more I learn just how rich and colorful our local legal history is.
The Knoxville Gazette, September 6, 1796 History of Tennessee, Folmsbee, Corlew & Mitchell. Pg. 328 –329. Lewis Historical Publishing. New York, 1960 3 Green, John. Bench and bar of Knox County, Tennessee, brief sketches of the bench and bar of Knox County, Archer and Smith, publishers, 1947 4 Library of Congress, Dunlap, Richard Gilliam. www.loc.gov 5 History of Tennessee, Folmsbee, Corlew & Mitchell. Pg. 328 –329. Lewis Historical Publishing. New York, 1960 6 Rothback, Mary. The French Broad-Holston country: A history of Knox County, Tennessee: a contribution to the sesquicentennial celebration of Tennessee statehood, page 46. East Tennessee Historical Society 1 2
Although Richard did not excel at the bar, it must be reported that he twice served in the Tennessee Legislature, was a gubernatorial candidate (who was forced to withdraw his candidacy due to ill health), and was considered to be a first-rate soldier by his commanders and peers. 4 One historian reported that, in December 1817, Richard was in middle Tennessee on business with his father when he heard that Gen. Andrew Jackson had left Nashville to take command of the Southern Army and head off trouble with the Creek and Seminole Indians. He returned home to Roane County after soliciting an order from Col. Williamson to raise a company and join Gen. Jackson. Previous to that time, he fought alongside General Jackson during the Battle of New Orleans, an experience that forged a deep friendship between the two. 5
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Lend me an ear While Richard was following passions other than the law, the Knox County Court of Common Pleas was staying quite busy. In 1821, one John McIntyre was prosecuted as a “Common Cheat” when it was learned that he diluted a barrel of brandy with water, and added a large quantity of sand to a bag of sugar, “with an intent to cheat and fraud the good people of the State.” Having been found guilty, he was ordered to pay a fine in the amount of $25.00. Another miscreant, one David Clapp, was fined $2.00 for the offense of “profane swearing,” a grand redundancy to be sure. However, the following altercation between two of Knoxville’s citizens was even more remarkable: “John Garod who has a small piece off the upper part of his left ear appeared in court and being sworn saith (sic) that the same was cut off in a fight between him and Samuel Rutherford and William Rodgers being sworn as a witness testifies to this same fact-whereupon the Court are [sic] of the opinion that the ear of
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It’s a Family Matter
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John L. Billings, Vice President - Client Administration 865.297.4070 | tcvwealth.com A trust is not required to utilize our investment expertise. November 2018
MANAGEMENT COUNSEL By: Melissa B. Carrasco Shareholder, Egerton, McAfee, Armistead & Davis, P.C.
DRESS WITH YOUR BRAIN As far as Sylvia knew, it was supposed to be another, normal day at work. She woke up, fixed her hair and makeup, got dressed, and headed in to start the day. Ten minutes later, her supervisor sent her home. Why? Sylvia’s supervisor said that the red, pleated shorts she was wearing were “too revealing.” Sylvia’s defense? She had purchased those same shorts in the “career wear” section of JCPenney – which is where she worked. How is a seventeen-year-old to know that the red, pleated shorts that JCPenney labelled “career wear” were not going to help her career at JCPenney? “I bought (the shorts) thinking they were pretty professional,” Sylvia said. “They didn’t show anything other than my legs, which I don’t think is too provocative.”1 Ignoring the obvious question about what else a pair of red, pleated shorts could show, other than a person’s legs, Sylvia took her defense of red, pleated shorts as career wear to Twitter, and Sylvia’s plight (and that of red, pleated career shorts everywhere) was hotly debated by thousands of legal analysts on Twitter for the next 83 seconds until one of the Kardashians tweeted about using a new mascara. Sylvia and her red, pleated career shorts were left to fend for themselves, which may explain why, to this day, the red, pleated career short has not become a closet staple for professionals everywhere. In their rush to discuss red, pleated career shorts in 140 characters or less, most people missed the fact that JCPenney had a counter-defense: the DRESS CODE. The DRESS CODE prohibited shorts of all kinds. It applied to males and females. There was no exception in the DRESS CODE for red, pleated career shorts.2 Yes, it is a lame defense, but everyone knows the DRESS CODE sometimes produces harsh results. Office dress codes have their place – particularly in law firms. Law firms are associations3 of professionals, and most people who seek the services of an attorney – and have to pay the attorney’s substantial fee – expect to see their attorney and her staff dressed in a professional manner. But, what exactly does that mean? In 2013, Berwin Leighton Paisner took some heat for purportedly telling its female attorneys and staff to “invest in neutral T-Shirt bras” and its male attorneys that “black suits are only for funeral mourners or bouncers while skinny ties are only for cool bars, not the office.”4 In 2010, UBS shared the pain once the press got ahold of its 44-page dress code which contained hundreds of guidelines such as The problem is your blazer, not your head. “The shoulders should have natural proportions: if the shoulders are too broad, you will appear too big with a too-small head. Conversely, too narrow shoulders could make your head look excessively large.” Avoid being a scent invader. “If you like wearing perfume or after-shave, remember, the scent of a perfume is more pleasant than being invaded by a fragrant cloud. The ideal time to apply perfume is directly after you take a hot shower, when your pores are still open.” What do I do with this information? “Every little hair that grows on the body has a function. The eyebrows protect the eyes from perspiration and eyelashes protect dust and small insects. Nose hair traps dust and foreign matter...5”
UBS has since downgraded its dress code to a booklet.6
Dress codes have their place in a professional workplace, but there are three rules you should follow if you are going to implement an office dress code at your firm. November 2018
Keep it gender-neutral. Federal and state law prohibit discrimination because of a person’s sex. That includes dress codes. You can describe most professional clothing in gender-neutral terms: button-down shirts; suit coats, blazers & cardigans; dress pants; dress shoes. You can prohibit certain types of clothes in gender neutral terms: no shorts (score JCPenney!), no yoga pants, no flip-flops, etc. Also, make sure your gender-neutral dress code is applied in a gender-neutral manner. If your dress code requires employees to cover all tattoos, that applies to the barbed-wire armband and the little flower ankle tattoo. Don’t be overly specific. If your dress code is discussing underwear, or nose hair, it is too specific. Encourage common sense. Most employers think they have to adopt a dress code or else their employees will stop bathing and start wearing yoga pants to depositions. One employer took a different approach: Lendio employs professional individuals in each capacity of employ. Typically, professional individuals have a brain and are at least borderline intelligent. Our dress code requires you to use the best judgment your brain can calculate to determine whether something you want to wear is appropriate for the workplace. For example, most rational people agree that wearing T-shirts with obscenities or clothes with holes next to private body parts isn’t appropriate. So please, police yourselves and use good judgment so we don’t have to implement a dress code as a result of one individual’s bad judgment, which might lead to disgruntled peers having to visit a psychiatrist to get over their emotional pain and suffering.7 On that same note, remember that federal law also requires employers to make reasonable accommodations for employees’ religious beliefs and practices. This includes allowing reasonable exceptions to a dress code to allow an employee to wear a religious headcovering, keep a beard at a particular length, or wear some other expression of faith. The DRESS CODE should not be treated like the Code of Hammurabi. Using a little common sense, attorneys and staff alike might be able to agree that there is a place for a pair of red, pleated career shorts, just not at a will signing. 1 Jason Molinet, Teen Sent Home from JCPenney Job after Being Told Shorts She Bought at Store’s Career Section Too Revealing, NY Daily News (July 30, 2015), available at http://www.nydailynews.com/life-style/penney-worker-home-revealing- shorts-article-1.2308863. 2 Id. 3 To my transactional colleagues, please put down your pitchforks and torches. The word “association” is used in the colloquial sense in this sentence, and it does not in any way preclude the idea that a law firm can be a PC, PLLC, LLP, or any other form of entity that you want to conjure. 4 Louisa Peacock, The Worst Workplace Dress Codes, The Telegraph (Oct. 10, 2013), available at https://www.telegraph.co.uk/women/womens-business/10369763/The- worst-workplace-dress-codes.html. 5 Katya Wachtel, LA Dress Code: a Banker’s Guide to Dressing and Smelling Like a Winner, Business Insider (Dec. 15, 2010), available at https://www.businessinsider. com/ubs-dresscode-clothes-bank-2010-12. 6 Katya Wachtel, That Crazy, 44-Page Long Dresscode Got Ridiculed So Much That Now It’s Getting Revised, Business Insider (Jan. 18, 2011), available at https:// www.businessinsider.com/swiss-bank-ubs-changes-much-mocked-dress-code- garlic-underwear-smell-shower-january-2011-1. 7 Ruth Graham, Is This the Best Dress Code Ever?, The Grindstone (Apr. 23, 2012), available at http://www.thegrindstone.com/2012/04/23/work-life-balance/is-this- the-best-office-dress-code-ever-789/.
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B I L L & P H I L’ S G A D G E T S By: Bill Ramsey Neal & Harwell By: Phil Hampton Founder and CEO, LogicForce Consulting
IPHONE XS AND SURFACE GO Every autumn, we doublecheck our tech budget to make sure we have plenty of resources for all of the new device announcements from the big tech companies, Apple, Microsoft, and Google. Even though sometimes the new devices are not ground breaking in terms of new features or functionality, we are easy marks for the tech barons and usually shell out some of our hard-earned money on the flashy new gadgets like clockwork. This year was no different. First, Microsoft got us with their breathtaking announcement about their new “iPad killer”, the Surface Go. Then, Apple always ensnares us with each new iPhone model, regardless if it looks almost exactly like the last model or not. This year it got us with the new iPhone XS. So, off to the tech store we went, cold hard cash firmly in hand, and we came home with two of the most heralded products of the season. Here’s what we discovered when we got home.
competitively against Chromebooks and iPads. For a good business computer, however, we think professionals would be better served spending a little extra for the larger and more laptop-like Surface Pro.
iPhone XS Our next purchase was the much-heralded iPhone XS. We were determined to be TC (technically correct) in pronouncing the name as iPhone “Ten S” (which Apple insists is correct) when we went to the Verizon store. The store clerk looked at us blankly and said, you mean iPhone “Ex S”? So much for being TC. We looked at both the XS with its 5.8-inch screen and the XS Max with its gigantic 6.5-inch screen (the largest iPhone ever). Since we both already have oversized phones as our personal phones and since our tech budget was dwindling fast, we opted for the cheaper (but not cheap) iPhone XS. After unboxing this $999 rectangle of metal and glass, we couldn’t tell a whole lot of difference outwardly between this new iPhone and the original iPhone X, introduced last year. They look a lot alike. We guess it’s not a surprise that Apple announced it was discontinuing the iPhone X once the XS and XS Max came to market. It’s essentially the same phone outwardly with some internal upgrades.
Microsoft Surface Go First, it should be said that we are huge fans of Microsoft’s Surface line of tablets/computers. We have owned just about every Surface model that has been released since they first came out in 2012. So, when we heard that Microsoft was releasing a new variant of the Surface that would be more akin to an iPad than a laptop, we immediately were intrigued. When we heard these new Surface Go tablets were going to start at a $399 price point, we didn’t think twice and bought one on the very day it was released. So, what is so novel about the Surface Go (other than the incredibly low price point for a Surface branded device)? It is the compact size that differentiates the Go from its larger and more laptop-like cousins, the Surface Pros. The Go touchscreen measures just 10 inches and, to us, actually seems even smaller probably because of the large bezel that surrounds the screen. The Go has the patented built-in kickstand found on other Surface devices, which is a big plus. A big minus, however, is the absence of a keyboard for the stated price. As with the Surface Pro, we had to pay extra for the keyboard that attaches magnetically to the Go. With the extra $99 for the keyboard, our small investment in a low-cost computer was beginning to grow. And, in our opinion, the keyboard leaves a lot to be desired. The keys are so small that we were making many more typing mistakes than normal as we were trying to edit a document. The positive aspect of the Surface Go is that you are getting the full-blown Windows 10 operating system (it ships with Windows 10S which can be upgraded for free to full Windows 10). This means that unlike an iPad or a Chromebook, you can theoretically run any application that you currently run on a Windows desktop on the Surface Go. The downside is that the small keyboard and tiny screen make the Go less attractive as a “work” device. We see the Surface Go positioned as a light and compact travel tablet that can double as a work laptop in a pinch. We really think that Microsoft is going after the school market with a device that is priced
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Of course, the first thing you notice about any of the newer iPhones (and the XS is certainly no exception) is the screen resolution, and clarity is outstanding. We quickly set up the Face ID authentication module which debuted in the X model last year. Face ID works great and is a welcome feature, although we really miss the fingerprint authentication that we have on some of our Android devices. Under the hood is where you see most of the significant upgrades on the XS. The processor is more powerful, meaning you can do things more quickly and use less battery. The camera has been upgraded as well. We typically take just one type of photo (point and click), but for those who are more advanced there are new features that can take your photos to the next level. The durability of the XS has been enhanced significantly. The device can survive a dunk in 6 feet of water and spills of soda or beer. We haven’t tested that feature yet, but it’s probably just a matter of time. We really do love the iPhone XS. We’re just not sure it is enough of a change to justify spending the money to upgrade if you already have the iPhone X (or even the iPhone 8). If you have an older phone and you want a premium smartphone that is top of the line, the iPhone XS is an excellent choice. If you are having sticker shock at the prices on these new iPhone models, you might hang on to check out yet another lower cost iPhone, the XR. We’ll have to check it out and talk about that model later.
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See you next month. November 2018
WELL READ By:
Dwight Aarons UT College of Law
EDWARD TERRY SANFORD: A TENNESSEAN ON THE US SUPREME COURT Edward Terry Sanford: A Tennessean on the US Supreme Court by Stephanie Slater, a member of the Knoxville Bar Association, is an impressive work of scholarship that tells the story of Edward Sanford, the only Knoxvillian to serve on the United States Supreme Court. Usually his life and achievements are overlooked, and this is the first complete biography of him.1 A Tennessean on the US Supreme Court is a book worth reading. The biography is wellsourced, with both book and article references and citations to reliable (and presumably long-term) internet sources mentioned in the endnotes. For those impatient with letting the story unfold, the packed index can help you find the answer to some of the most frequent questions: how did Sanford, a Tennessee trial judge, come to the President’s attention; why was he nominated; what was his role and influence on the Taft Court; what type of relationship did he have with the more venerable members of that Court (William H. Taft, Oliver W. Holmes, Jr., Louis D. Brandies, and Harlan F. Stone)? A Tennessean on the US Supreme Court starts with the end: Sanford’s death, and sets the stage for his quick “descent[] into obscurity” (p. 4). Sanford comes across as hard-working and ambitious, and those traits not diminished by his upper-class status and all but assured place in this world. He spent nearly two decades in private practice, and was active in both the Tennessee and American Bar Associations. Sanford also was a long-time trustee at the University of Tennessee, his undergraduate alma mater. After serving as a federal prosecutor from 1905 to 1908, Sanford was appointed to a district judgeship for the Eastern District and Middle District of Tennessee, a position he held for 15 years. Sanford, when remembered, is noted for his briefer seven-year tenure on the Supreme Court, and for authoring one opinion: Gitlow v. New York.2 Sanford was appointed to the Supreme Court in 1923; he is the last justice promoted directly from the trial bench to the high court. Slater provides insightful information on the Taft Court, putting Sanford’s service in context. Simply put, the Court was expected to act as “a team,” even though the Court had distinct voting blocks.3 Slater also informs us that Sanford wrote the Court’s opinion in about seven percent of the Court’s cases in which he participated; he wrote seven dissents, joined in 23 dissenting opinions and seven concurring opinions. He changed his vote in 93 cases so the Court could speak with one voice.
In the next sentence and accompanying footnote, he distinguished as “incidental” statements in seven Court precedents that in his words said that “the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech.”5 According to Sanford, a state could punish speech if the speaker intended to encourage unlawful conduct and the speech had a tendency to bring about that conduct. Justice Brandies joined Justice Holmes’ famous dissent in the case, which maintained that the state had to prove that there was a clear and present danger before it could punish speech. Agreeing with other commentators on Gitlow, Slater writes, “With Sanford’s words, the Supreme Court took a major step down the road of nationalizing the Bill of Rights.” (p. 296-97) Two years later, in Whitney v. California6 and Fiske v. Kansas,7 Sanford, again writing for the Court, repeated that the First Amendment applied to the States. Over Whitney’s First Amendment defense, the Court affirmed the conviction; but Fiske’s conviction was reversed. Slater tells us that Fiske “marked the first time the Court overturned a state law on the grounds that it violated the First and Fourteenth Amendments to the Constitution by denying an individual his freedom of speech.” (p. 303) Sanford died suddenly three years later. After Gitlow, more than a decade would pass before members of the Court began to debate in the Court’s opinions whether the Bill of Rights applied to the States. As of today, the Court has held that most of the Bill of Rights applies to the States through the due process clause of the Fourteenth Amendment. Slater has written a rich biography of Sanford, even though it comes more than two generations after his death.
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A more limited review of Sanford’s life is Stanley A. Cook, Path to the High Bench: The Pre-Supreme Court Career of Justice Edward Terry Sanford (1977) (unpublished Ph.D. thesis, University of Tennessee) (on file with University of Tennessee). 268 U.S. 652 (1925). After 1923, Justices Brandies and Holmes were typically left of center. Justice McKenna occupied the center. The right of center was usually occupied by Chief Justice Taft, Justices Butler, McReynolds, Sanford, Sutherland, and Van Devanter. See Russell W. Galloway, Jr., The Taft Court (1921-29), 25 Santa Clara L. Rev. 1, 10 (1985). 268 U.S. 652, 666 (1925). Id. 274 U.S. 357 (1927). 274 U.S. 380 (1927).
Sanford’s notoriety is because of Gitlow. In Gitlow the Court affirmed Benjamin Gitlow’s criminal anarchy conviction, which was based on his publication of a pamphlet that advocated the adoption of socialism, and not on any overt act or conspiracy towards that end. Gitlow argued that the First Amendment prohibited his conviction. To establish Supreme Court jurisdiction to hear the case, Sanford wrote: For present purposes, we may and do assume that freedom of speech and of the press – which are protected by the First Amendment from abridgement by Congress – are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.4 November 2018
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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
FDR AND THE TANGO WAR Do we elect a president every four years, or a King? It’s a bit of a trick question. Domestically, we have a president with great but limited constitutional powers that are checked by Congress and the judiciary. Just ask Donald Trump. Despite leading a political party that controls all three branches of the national government, he does not always get his way. And if you really want to understand how power is further divided within our federal system, ask President Trump how he feels about California. But when it comes to foreign and military affairs, the answer is quite different: The Constitution gives the president almost unlimited powers. Overseas, he is actually closer to a king than to a chief executive. Ah, you say, but Congress has to declare war before the president becomes Commander-in-Chief. Well, technically, you have a point. Article II provides that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”1 But, technically, Congress has not declared war since December 8, 1941, and yet we’ve been almost continuously at war for the past eight decades: Korea, Vietnam, the Dominican Republic, Grenada, Panama, the Gulf War, Bosnia, Haiti, Kosovo, Afghanistan, Iraq, Libya, Syria, Yemen, Somalia . . . and that list doesn’t include all of the clandestine U.S. interventions in places like Guatemala and Iran. In all likelihood, there are other foreign adventures that We the People don’t even know about. So, yes, when it comes to foreign and military affairs, we elect something close to a king every four years. And our current president has embraced that role, reversing or disregarding military, political and trade policies that previous presidents have painstakingly fashioned over the past eighty years. How did this happen? After all, when James Madison fought the War of 1812, he followed both the spirit and the letter of the Constitution to a T. He didn’t save the White House, but he did save our form of government. I call that a good tradeoff. So how did we get from James Madison to Donald Trump? That’s a big question with lots of possible answers. Some scholars look to Abraham Lincoln, who unquestionably pushed his powers to the constitutional limit, and perhaps beyond. Others focus upon Woodrow Wilson, who, as a scholar, argued for a stronger executive, and who, as Chief Executive, put his scholarly thoughts into action. But perhaps the most enthusiastic and effective purveyor of presidential power in all of our history was Franklin Delano Roosevelt. Much has been written about FDR’s twelve-year presidency, which spanned the greatest economic and military crises in the history not just of the United States, but of the world. Remarkably, journalist Mary Jo McConahay has found something new to say about it. Her recently-
published book, The Tango War, chronicles FDR’s decade-long dance with the Axis Powers and their sympathizers, not in Europe or the Pacific, but in a place you may never have considered a theater of war: Latin America. Look at a map. The eastern bulge of South America is not so far from the western bulge of Africa. In 1941, Hitler and his Vichy lapdogs occupied northwestern Africa. FDR was concerned that Morocco or some other west African nation could be the jumping-off point for a Nazi invasion of the Americas. His concern was not far-fetched. In October, 1942, a U.S. invasion force led by a fellow named Patton would sail an even greater distance, in more or less the opposite direction, from Hampton Roads, Virginia, to Morocco. In January, 1943, FDR himself would fly from Belém, on the east coast of Brazil, to Bathurst (now Banjul), in Gambia, on Africa’s west coast, to attend the Casablanca Conference. The problem was not merely geographical, but political: South America was full of Nazis, or, at least, Nazi sympathizers. Some governments, notably in Argentina, were essentially fascist. German or Italian nationals operated several major South American airlines, some of which ferried intelligence and war materiel to the Axis. And the long history of U.S. conflict with Latin America, dating back at least to the Mexican War, didn’t help. Perhaps that is among the reasons FDR announced the Good Neighbor Policy in his First Inaugural Address, in March, 1933. It was a policy of non-intervention and mutual respect, and it seems to have helped. But later, as war clouds gathered, Roosevelt did what many presidents had done before him: he used American resources, and the implicit threat of military intervention, to secure U.S. interests in the region. One of those interests was rubber, a natural resource essential to mid-twentieth-century war fighting. Brazil had a lot of rubber trees and a government willing to draft tens of thousands of its citizens to harvest them. They were called Rubber Soldiers, and many never came back from the harsh conditions in the Amazon. Another interest was the hearts and minds of South Americans themselves. To win the propaganda war, FDR’s emissary, Nelson Rockefeller, enlisted Walt Disney. And remember those airlines? One of them operated within range of the Panama Canal. In an operation worthy of a Hollywood movie, FDR replaced every one of its pilots in a surprise move on a single day. There is much more in The Tango War, and Mary Jo McConahay tells it well. She recently shared some of her stories with me on my radio show. If you’d like to listen in, check out our podcast. And make sure you vote in 2020 – because you won’t be electing just a chief executive.
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U.S. Const. art. II, § 2.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
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November 2018
LONG WINDED By:
Jason H. Long London Amburn
OVERINDULGENT OR FARSIGHTED? I just got back from my annual guys’ trip with several of my closest friends from college (We had a great time in Austin, Texas). What started out as a simple opportunity for us to reconnect and spend some time together (usually camping out somewhere) has grown and solidified over the years to a highly organized event which has taken us all over the United States and into Mexico and Belize. Next year, the host is planning a trip to Cuba. It really is special to me that I have managed to stay in touch with these guys going on 25 years and, in many ways, our relationships are just as strong as they were in college. We have seen each other become professionals, get married, have kids, lose parents, and raise families. To me, part of the fascination of getting together has been watching my friends grow from college boys into accomplished men and to see the successes they have had. One friend, who seemed completely lost in college has truly gotten his act together. He is a leader in his industry nationally and has achieved a level of personal and financial success I would not have thought possible twenty-five years ago. While we were hanging out this past week, he was talking about his children (both teenagers) and discussing the fact that they both recently upgraded to the iPhone X. I thought this a little overindulgent. My friend has plenty of disposable income and can certainly afford the purchase but, to me, showering kids with the latest and the best of everything can be dangerous. I think it can place too heavy an emphasis on material objects and devalue the reward of things truly earned. If a kid is given the new iPhone as soon as it comes out, how can he or she truly value the worth of that phone or the effort necessary to purchase it? My friend could tell that I questioned his choice of bestowing such extravagance on his children. He explained to me that he worked hard to avoid showering his kids with gifts and financial rewards. He made sure both of them worked and learned the value of a dollar. However, he had a very particular philosophy when it came to technology. He believed that, especially in this day and age, the ability to utilize and master technology is a skill that separates people. Those who can use technology for its convenience and efficiency have a leg up on everyone else, even those who may have higher education. For that reason, he said, he never hesitated to make sure his kids had the latest and newest innovations. He considered it part of their education and access to such technology would be essential to their success in the future. I have thought on that conversation for several days and, the more I think about it, the more I think he is probably right. We have been preaching for years that the practice of law is changing and those who embrace technology will be those best positioned to succeed in the future. This mantra applies across all industries and professions. From that perspective, arbitrarily limiting our children in their access to technology November 2018
to teach them the value of hard work may be doing them a disservice. There are other ways to teach them to value hard work while at the same time ensuring they have every opportunity to succeed. Certainly, it has given me food for thought as to how I am going to train my kids for the future. I only had to look at my return trip from our guys’ weekend to see the impact of my friend’s philosophy. My friend and I were both set to fly out on Delta (at different times). The night before, we both got the obligatory email from the airline offering the opportunity to check in online. I never take advantage of online check-in. I have this irrational fear that, if I check in early, my tickets will be on my phone and I may not be able to access them, or if the phone runs out of power before I get to the airport, disaster will strike. I have always thought that it only takes a few extra minutes to check in at the kiosk, and I like the idea of having paper tickets in hand. We drove to the airport separately. He used the Waze App to tell him the fastest route, and avoided a slow down that I ran into head on. It was only a few minutes of delay, but it was a few minutes I waited that he did not. He used the Delta App to check his gate when he connected out of Atlanta while I walked over to find a departure board and looked up what gate the Knoxville flight was going out of. Again, only a few minutes, but it was an unnecessary waste of time. A few minutes here or there added up at the end of the day. Moreover, opportunities to save a few minutes here and there exist all around us every day. My wife preorders deli meat online from Publix so that when she goes grocery shopping it is already waiting for her when she gets there. I stand at the deli counter like a schmuck waiting for the attended to slice up ham and turkey for me. My wife does virtually all of our bill pay online. I still often use a checkbook. She purchases our movie tickets through Fandango while I stand in line at the ticket booth. Someone once referred to me as a luddite (a person opposed to the use of new technology). That’s a great word, but I took umbrage at its application to me. I can use a computer. I am proficient with email. I am interested in learning new ways of doing things. However, the more I think about it, I probably am a luddite, as least as that word applies to the world now. It is not enough to be comfortable with the basics. We have to be prepared to adapt to any new technology that may save time and energy which may be better applied elsewhere (representing our clients, spending time with our family) because someone else will be out there mastering the next new thing. I admit to being an old dog who needs to learn new tricks. I just hope I have the opportunity to make sure those tricks are second nature to my kids.
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BARRISTER BITES By: Angelia M. Nystrom, JD, LLM UT Institute of Agriculture
PIES, BISCUITS AND LEARNING BY DOING Hugh often asks how I learned to cook because, to quote him, “Your mother’s idea of homemade is something delivered to the house by the Schwann’s man.” Truth be told, I learned to cook because I can follow directions in a recipe book. And homemade is often cheaper than pre-made.
I had always thought that my friends who cook learned their skills from their mothers and grandmothers… culinary traditions passed from generation to generation. I have learned, though, that a lot of my friends are a lot like me. Case in point: Dawn Coppock, who is famous for her blackberry pie! She shared: “Southern cooks usually tell stories about learning the secrets of biscuits, pies and dumplings by shadowing their mothers or grandmothers. But it wasn’t like that for me. As a kid in the 1970’s, I lived in a loud and chaotic house in Holston Hills. I was the second of five children. We had dinner together every night and went camping for vacations. My dad was a professor at Carson-Newman, and my mom taught kindergarten at Chilhowee School, where my grandmother, who lived about a mile away, taught 6th grade. All of them had master’s degrees. Ms. Magazine arrived at our house every month, but plenty of people attributed any misbehavior and mismatched clothes to our mom having a job. It was a different time. I am proud of my mom and grandmother and grateful for their examples. But they were not cooks.
going straight to the kitchen after school to make dinner by myself. I got home first, and I just couldn’t take another plateful of weird. The budget was tight, and Mom was the shopper. I had to work with the groceries at hand and within Mom’s home economics template. Every dinner required a properly set table, green salad or coleslaw, whole grain, protein, and unsweetened iced tea. It was still a menu heavy on beans, brown rice and ground beef, but pretty soon things tasted a whole lot better. My first meals were things like spaghetti, tacos, baked chicken and tuna casserole. I would ask the odd question of mom or dad, but no one taught me to cook. I used directions on the back of packages and cans, and we had that red and white, checked, 3-ring cookbook most homes had back then. I turned out to be an intuitive cook. If I ate something at a church supper, I could usually figure out how to make it at home. By the time I was in high school, I made Chinese and Italian meals for company and laid them out like photo spreads in the cookbooks. I still love to set a table. At 16, I had a job at Hardee’s on Asheville Highway and learned to make biscuits from Wanda. In college, I bought a copy of the classic, Joy of Cooking. Since then, I’ve picked different favorites of friends and family and mastered them one at a time with research, practice and, if I’m lucky, a bit of mentoring from a good cook.
Mamaw preferred to eat out-- after all, she had worked all day. When she cooked, it was pretty perfunctory. She was enamored with the great modern conveniences like Cool Whip, cream of mushroom soup, and margarine.
I’m fascinated by food history, particular Appalachia. I have my great Aunt Rose’s apple stack cake recipe and make it every December 23rd to bring to Christmas dinner as a nod to our family heritage. I create cocktail recipes now too, which is a refreshing departure from my Baptist upbringing.
Mom loved to have her family around the table; but during my early childhood, the food on that table was icky. Back then, the health food guru, Adelle Davis, attributed all health problems and most social problems, including crime and divorce, to poor diet. Mom had wellworn copies of her books, which sadly included recipes. “Junk food” even in moderation, was a moral failing. Mom would make carob bricks for our birthday cakes and put brewer’s yeast in pancakes. She thought raw, unsalted sunflower seeds made a good afterschool snack, and she snuck healthy ingredients like bran, wheat germ, odd oils, and seeds into whatever she baked. We kids had this “she did it again” look that we would exchange at the first fork full. She would pronounce, “‘Food is medicine’ -Hippocrates.” At our house, it certainly tasted like medicine.
My pie crust recipe came out of research and experimentation. I love to pick and eat wild blackberries and wanted a pie crust to do them justice. I’m sure I’ve made over 100 blackberry pies. Sour cherry and chicken potpie are two of my other favorites. My husband likes apple, which I can do pretty well, and Boston crème pie. Despite being a prize-winning pie baker, my husband and I don’t eat a lot of sugar or white flour at home. I make pies and biscuits for entertaining mostly. Like my mom, I love a house full of friends and relatives. I grow a garden, and I still cook dinner several nights a week, but it is pretty healthy stuff. If I feel I should eat flax oil or chia seeds, I’ll slam that separately like medicine. I will not sprinkle it on a perfectly good Tuscan salad or Mango smoothie.
I
do not ‘eat to live.’ I was born with a sensitive palate and a decided inclination toward the ‘good life’ in the classical sense: flowers, landscapes, music, art, poetry and FOOD.
My parents still live in our childhood home. Years ago, I bought the family farm in Strawberry Plains. We all still meet at a Mexican restaurant most Sunday nights and never miss a holiday together. These gathering are much like the dinners of our childhood, but bigger with our spouses and mostly now adult kids. Talk is still boisterous with multiple conversations at once, family news, and inside jokes. My mom loves having us all together. And the food is so much better.
Unlike my mom, I do not ‘eat to live.’ I was born with a sensitive palate and a decided inclination toward the ‘good life’ in the classical sense: flowers, landscapes, music, art, poetry and FOOD. When I was about ten-years-old, I went from setting the table and making the salad, to
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More recipes can be found in the online version of the November DICTA in the Publications Section at www.knoxbar.org November 2018
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. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.
LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: •
Class A office space for rent in Bearden! The office is a total of 1342sq feet which includes six offices, two conference rooms, a kitchen, three storage areas, and a reception area. The space can be rented as a whole, or by the individual office. Utilities are included, however phone and internet would be the responsibility of the tenant. Contact Meghan Bodie at 865-539-3515 or meghankinglaw@gmail.com for more information.
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Fully Furnished office space available at Bank of America Building; 2 window offices available; 3 interior offices available with cubicle space attached to each interior office; Accessibility to two large conference rooms, full kitchen, and patio area overlooking the TN river; Full lobby area with a receptionist to greet clients; Aggressively priced, 2 parking cards may be available. Call Lance Baker if interested. Office number is 865-200-4117 and cell phone is 865-310-0997.
FOR SALE: Ricoh Aficio 3035 b/w copy machine $600.00 or best offer Law office upgraded copier equipment. Ricoh Aficio 3035 is in good working order. You must take delivery. Sold “AS IS” with no warranty whatsoever. Has been under service and maintenance plan and well maintained. Also included are two unopened toner cartridges and staples. Contact Number: 865-540-8777 Two Kyocera FS-3900DN Laser Printers $250 each or best offer Law office upgraded printers. Two Kyocera FS-3900DN printers are in good working order. Printers include envelope feeder and two paper trays. Lower paper tray on one printer is inoperable (asking $200 obo). Top tray works fine. Sold “AS IS” with no warranty whatsoever. Printers have been under service and maintenance plan and well maintained. Contact Number: 865-540-8777 PARALEGAL ASSOCIATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, October 11, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. The Honorable David R. Duggan, Judge of the Blount Co. Circuit Court Division II, will be presenting the Tennessee Judicial System. A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@smparalegal.org or 865-2153676 for additional information and/or lunch reservations. ATTORNEYS JOIN LEWIS THOMASON Lewis Thomason welcomes David A. Chapman, Adam F. Rust, and Tyler D. Smith, who have joined the firm as Special Counsel.
November 2018
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Shared office space available for one to two attorneys in Farragut. Convenient location right off Kingston Pike. A small office space for support staff is available, as well as a shared file room, conference and reception areas. Contact Jerry Martin at 777-2700.
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3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806.
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Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
Address Changes
Please note the following changes in your KBA Attorneys’ Directory and other office records: Maria Foley Danker BPR #: 028213 Tenn. Dept. of Human Services - Appeals & Hearings 2700 Middlebrook Pike, Suite 201 Knoxville, TN 37921-5671 Ph: (865) 594-5876 maria.danker@tn.gov
Stephanie L. Prager BPR #: 032318 Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, TN 37902 Ph: (865) 632-4161 slprager@tva.gov
Ralph H. Lehman BPR #: 020175 USI 900 Gay Street, Suite 1796 Knoxville, TN 37902-1859 Ph: (865) 450-1916 ralph.lehman@usi.com
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee
PRO BONO CLINIC SPOTLIGHT: DEBT RELIEF CLINICS On July 29, 2017, the first quarterly Debt Relief Clinic took place at the Knox County Public Defender’s Community Law Office on Liberty Street. Since then, U.S. Bankruptcy Court Judge Suzanne Bauknight and members of the Knoxville Bar Association’s Bankruptcy Section have shown up for the clinics where they educate Legal Aid of East Tennessee clients about their options for dealing with their debt issues. The proposal for the Debt Relief Clinic came from Judge Bauknight who learned about a similar program from another judge at a judicial conference. At each clinic, as many as sixteen clients have had the opportunity to hear from Judge Bauknight about the differences between Chapter 7 and Chapter 13 bankruptcy, about some of the reasons filing for bankruptcy might now be their best option, and about how they can address their debt issues. After Judge Bauknight does her presentation, complete with PowerPoint slides and video, to the clients, they are each paired with one of the Pro Bono attorneys at the clinic. The clients have the opportunity to sit down and speak with an attorney one-on-one about their issues. Unlike some of LAET’s other legal advice clinics, these clients have already gone through our intake process and come to the clinic prepared with a packet of information about their personal debt issues for the attorneys to review. This means that the attorneys are able to evaluate the client’s situations with as much information as possible in front of them. As the attorneys and clients meet, each pair talks about the client’s issues and about whether or not filing for bankruptcy is their best option. If the attorney determines that filing for a Chapter 7 is the best option for the client, the attorney then accepts the client for full representation through the Pro Bono Project. If the attorney determines that filing for bankruptcy is not the best option for the client, they give the client advice about how to deal with any creditors or others who are contacting them. In 2016 and the first half of 2017, there were two Pro Bono attorneys who assisted LAET clients with their bankruptcy matters. Lynn Tarpy led the pack through our Pillar Law Firm program. But, since the first Debt Relief Clinic, thirteen Pro Bono attorneys have assisted clients with their bankruptcy matters. That is a 650% increase in the number of Pro Bono attorneys helping LAET clients with their debt issues!!!
Mark Your Calendars: * November 3 (9:30-12:30) Debt Relief Clinic at the Knox County Public Defender’s Community Law Office * November 14 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * November 17 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office * December 8 (9:00-12:00) – Faith & Justice Alliance Clinic at Overcoming Believers Church * December 12 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * December 15 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office * December 18 – Outstanding Pro Bono Case Status Reports and File Closure Reports Due (e-mail: kellis@laet.org; fax 865-525-1162)
Want to Volunteer? Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt
Now that they have gotten a taste of the clinic experience, many of the Bankruptcy Section attorneys who volunteer at the Debt Relief Clinics also volunteer at our monthly Veterans Legal Advice Clinics, our Faith & Justice Alliance Clinics, and Saturday Bar.
Thank you Judge Bauknight and members of the KBA’s Bankruptcy Section for all you have done for Legal Aid of East Tennessee’s clients and for the Pro Bono Project! The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162
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November 2018
THE LAST WORD By:
Jack H. (Nick) McCall
“THE WAR TO END ALL WARS”: A CENTENNIAL REFLECTION One hundred years ago, “over there,” on the eleventh hour of the eleventh day of the eleventh month, the guns fell silent along the Western Front in France and Belgium. November 11 would be commemorated as Armistice Day and, later, as Veterans Day. For this centennial, Nick McCall looks back on the “Great War” and its lingering echoes. It was called the Great War. Also dubbed the “war to end all wars,” President Woodrow Wilson proclaimed it America’s war to “make the world safe for democracy.” It brought about the principle of self-determination for nationalities and peoples. Its Treaty of Versailles planted several seeds for another, bloodier global war, despite the formation of the League of Nations as an early precursor to the UN, and the Allies’ reorganization efforts in the Middle East brought about conflicts in that region that last to the present day. As kings and empires collapsed, Communism rose in Russia. Yet, World War I was far more than just the “prequel” to World War II. The war established new weapons: tanks, gas, combat airplanes, submarines and machine guns. It gave rise to new words and expressions: trenchcoats, No Man’s Land, shellshock (now termed combat fatigue or PTSD), cooties (lice), Gold Star mothers (women whose soldier-sons died in service), and basket cases (this one, supposedly, for soldiers who had lost all four limbs in artillery explosions). Poison gas was the first true weapon of mass destruction. Civilians were targeted intentionally as an act of “total war,” and German Zeppelin airships and bomber aircraft attacked London, Paris and other urban areas. Turkey’s atrocities against its Armenian minority would point the way to the legal concept of genocide. In the midst of all of the chaos of global warfare, the Spanish Influenza of 1918 broke with a fury and killed millions worldwide. At home, the war led to increased opportunities for women in the workplace. After all, the 1940s-vintage “Rosie the Riveter’s” mother might have been working in a war-related job in 1917-18. (The first women in the American military, the “Hello Girls,” U.S. Army switchboard and radio operators, entered the service.) Burgeoning war production impelled the growth of industrial cities like Detroit and Pittsburgh;1 at the same time that African-Americans and immigrants were entering the armed services in record numbers, their relatives were on the move, often heading to seek work in the big cities. These were heady and powerful socio-economic factors that helped to fuel the causes of women’s suffrage and civil rights in the ensuing years.2 Yet the war led to curtailments in civil rights, challenging seemingly sacrosanct legal and social values. Sauerkraut became “liberty cabbage”; dachshunds became “liberty pups”; and frankfurters, “liberty sausages.” (Another alternative, “hot dog,” became more in vogue at this time, too.) Streets and businesses with Germanic-sounding names were rebranded, and at least two towns--Berlin, Michigan and Germania, Iowa--were renamed, to avoid having their citizens’ patriotism called into question. German-American citizens were heckled, or far worse. Espionage and anti-sedition statutes (e.g., the constitutional law case of Schenck v. United States3); domestic intelligence-gathering; the Selective Service system and the draft; an enhanced federal income tax--all were consequences of the war with broad-reaching legal effect. The 25th Amendment is partly traceable to President Wilson’s debilitating stroke and extended absence from his duties after his strenuous efforts to muster congressional support for the League of Nations--a quest that failed in the face of a strongly isolationist Senate.
The war made heroes of a host of East Tennesseans, whose names have left their mark on this city and region. A father and son--one, an Army general, the other a naval lieutenant and early aviator--answered the call to duty. The father, Lawrence Tyson, survived the war; his 59th Brigade, comprised largely of Tennesseans, broke the Germans’ vaunted Hindenburg Line defenses in September 1918. Just days after his father’s victory, his pilot son, Charles McGhee Tyson, crashed and died in the North Sea. UT’s Tyson House and McGhee Tyson Airfield honor these Knoxvillians. Another legacy is the “Doughboy Statue” in front of old Knoxville High School, dedicated to the area’s 117th Infantry. God would never be cruel enough to create a cyclone as terrible as that Argonne battle. Only man would ever think of doing an awful thing like that…. And all through the long night those big guns flashed and growled, just like the lightning and the thunder when it storms in the mountains at home. -- Alvin C. York Five East Tennesseans earned the Medal of Honor for their heroism. The most famous, of course, one of the war’s most decorated enlisted men in all armies, was Fentress County’s Alvin C. York, who showed unflagging courage on October 8, 1918 in France’s Argonne Forest against a ridgeline studded with chattering German machine guns. That same day, many miles away from York’s battlefield, Knoxville’s own James E. “Buck” Karnes and his best friend, Greeneville’s Calvin J. Ward, charged another German machine-gun position. They both received the Medal of Honor for this deed. Not all wounds are physical: evidence suggests that Ward suffered greatly from what we now call PTSD, contributing to his death in 1967. Calvin Ward, Buck Karnes, York, fellow Medal of Honor recipients Milo Lemert and Edward Talley, and 1,090 other East Tennesseans who died in military service during the Great War are honored on the East Tennessee Veterans Memorial in World Fair’s Park. Many Knoxvillians pass daily across the Buck Karnes Bridge on Alcoa Highway without knowing for whom it is named or what he did to merit this recognition. Alvin C. York, too, was greatly affected by the war. Devoutly religious and a pacifist, he never forgot his buddies who died beside him in the woods of the Argonne or, equally, the young Germans he had killed there. He refused to identify himself as a hero--rather, more like a survivor. York devoted the rest of his life to civic works, including his pride, the York Institute, founded to bring education to East Tennessee’s children and youth. His words illustrate his post-war mission and strivings, having survived the horrors of the Great War: Let’s train our boys and girls; let’s have them well qualified to take care of our future. [In] this great nation of ours, we have numerous districts in the rural sections that have been forgotten for ages.... Many are up there who can’t sign their own names. I am giving my life, trying to raise money and establish a school there.4
Amen, Sergeant York. Amen.
The War Department began building Wilson Dam and two nitrate plants in Muscle Shoals in 1918. Had World War I continued, this enormous site would have been the Allies’ largest ammunition factory. In 1933, these facilities were transferred to the newly created Tennessee Valley Authority. Thus, the infant TVA and the citizens of the Tennessee Valley directly benefited years later from the industrial mobilization required for the war effort. 2 Postwar white reactions to African-American veterans and others seeking civil rights could be very violent; in summer 1919, numerous race riots occurred across America. An extremely violent one erupted in Knoxville, as recounted by the late Don Paine. See Donald F. Paine, Race and Murder in Knoxville, 1919: The Trials of Maurice Mays, Tenn. Bar J., Mar. 2007, at 28-33. 3 Schenck v. United States, 249 U.S. 47 (1919). 4 Inscribed on a plaque at the Alvin C. York State Historic Park in Pall Mall, Tennessee. 1
“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com November 2018 DICTA
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Prsrt Std US POSTAGE
PAID
KNOXVILLE, TN PERMIT NO. 3 0 9
P.O. Box 2027 Knoxville, TN 37901
Diversity Program & Reception The Knoxville Bar Association has sponsored an event for minority law students for more than twenty-five years and this year’s “Diversity & Inclusion: A Call to Action: From Awareness to Commitment” brought record attendance. The “Call to Action” message was delivered by renowned speaker Vicki Clark, who shared a powerful message on human connections, inclusivity and cultural competence and she left quite an impression. The event drew more than 150 participants including 79 law students from the U.T. College of Law and the LMU Duncan School of Law. Attorneys from the following local law firms and government agencies participated in the event. Anderson Busby PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz Bill Hotz & Associates, P.C. Breeding Henry Baysan, PC Knox County Circuit Court City of Knoxville Law Department Cravens Legal District Attorney General, 6th Judicial District Dunn, MacDonald & Reynolds, P.C. East Tennessee Children’s Hospital
Egerton, McAfee, Armistead & Davis, P.C. Elmore, Stone & Caffey, PLLC Federal Defender Services Frantz, McConnell & Seymour, LLP Hodges, Doughty & Carson, PLLC Kennerly, Montgomery & Finley, P.C. Knox County Law Department Knox County Public Defender’s Community Law Office Kramer Rayson LLP Legal Aid of East Tennessee, Inc.
Leitner, Williams, Dooley & Napolitan, PLLC Lewis, Thomason, King, Krieg & Waldrop, P.C. Lipsey, Morrison, Waller & Lipsey, P.C. Nestor Law, PLLC Pryor, Priest, Harber, Floyd & Coffey Spicer Rudstrom, PLLC Tennessee Supreme Court Tennessee Valley Authority Watson, Roach, Batson, Rowell & Lauderback, P.L.C. Woolf, McClane, Bright, Allen & Carpenter, PLLC