Practice Tips: A Few More Tips for Indigent Claims Billing . . . Page 7 Management Counsel: Law Office 101: Can An Employer Require Its Employees To Be Vaccinated Against COVID 19? . . . Page 11
A Monthly Publication of the Knoxville Bar Association | February 2021
A DYING ART:
PERSONAL PERSPECTIVES ON THE DECLINE OF JURY TRIALS IN OUR REGION & BEYOND
In This Issue
Officers of the Knoxville Bar Association
COVER STORY 16
A Dying Art: Personal Perspectives on the Decline of Jury Trials in Our Region & Beyond
CRITICAL FOCUS President Cheryl G. Rice
President Elect Jason H. Long
Treasurer Loretta G. Cravens
Secretary Catherine E. Shuck
Immediate Past President Hanson R. Tipton
KBA Board of Governors Sherri DeCosta Alley Mark A. Castleberry Meagan Collver Jonathan D. Cooper
Daniel L. Ellis Elizabeth B. Ford Rachel P. Hurt Allison Jackson Eric M. Lutton
Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Carlos A. Yunsan
The Knoxville Bar Association Staff
When Will The Sun Shine Again?
A Few More Tips for Indigent Claims Billing
Can An Employer Require Its Employees To Be Vaccinated Against COVID 19?
Who Gets to Decide—Attorney or Client?
Tennessee Supreme Court Revisits Specific Personal Jurisdiction in Crouch Railway
7 11 13 15
Management Counsel Schooled in Ethics Legal Update
Sallie Papajohn Neese
Introducing Charles E. Atchley, Jr – Newly Confirmed United States District Judge
Step into The Arena (Lest We Miss Out On Each Other)
small great things
The Ghosts of Suttree
From Tariffs to Tennessee
Of Collegiality and Cooperation
From The Pit to The Palace
Privacy Settings for Smart Phones
Access to Justice in Tennessee’s Workers’ Compensation System
Abandoning the Rule of Law
8 Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Elisabeth Martin Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Rebecca Eshbaugh LRIS Assistant
Dicta DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. February 2021
10 12 18 19 21
Volume 49, Issue 2
Profile: Barristers President
23 24 25 27 29
Hello My Name Is Judicial News
What I Learned About Inclusion and Why It Matters Well Read
Urban Legends Boat Builders
Of Local Lore and Lawyers Stories of COVID-19 & Beyond Bill & Phil Gadget of the Month Around the Community
Your Monthly Constitutional
COMMON GROUND 4 20 22 22 28 30 31
Section Notices/Event Calendar Barrister Bullets Change of Addresses Welcome New Members Bench & Bar in the News Pro Bono Project Tell Me A Story
SECTION NOTICES & EVENT CALENDAR
Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE programs “What Mediators Need to Know about the New Statewide ADR Backlog Relief Plan” on February 2 and “The Ethical Duties of a Family Law Mediator: What to Do When A Lawyer Gives Bonehead Advice” on March 9. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held virtually on March 13 and volunteer registration is available at www.knoxbar.org. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (2922307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2019 will automatically be opted-in to the section. The inaugural event for 2021 will be held as a virtual program via Zoom on February 3 from 12-1 p.m. The theme of the program will focus on the TV show The Office. The event will start with a cameo message from Brian Baumgartner, who played Kevin on The Office. Program attendees will partake in some trivia based on The Office and then KBA member Mitchell Panter will lead a short discussion about making connections and business development. More details to follow on www.knoxar.org. If you would like to get involved in planning Section activities, please contact Section Chairs Campbell Cox (3302577) or Mary Newton (224-6591). Senior Section The KBA Senior Section generally meets quarterly for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307) Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).
event calendar n n n n n n n n n n n n
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2 Law Office Tech Committee 3 New Lawyers Section Zoom Event 3 ADR Section CLE 5 PPP Loan Update Webinar CLE 9 Professionalism Committee 10 Veteran’s Legal Advice Clinic 10 Diversity in the Profession Committee 10 Barristers Planning Meeting 11 Diversity Webinar CLE 11 Judicial Committee 17 Board of Governors 26 Webinar: Trial Skills
2 Law Office Tech Committee 2 Employment Law Section CLE 9 Professionalism Committee 9 ADR Section CLE 9 Access to Justice Committee 10 Veteran’s Legal Advice Clinic 10 Diversity in the Profession Committee 10 Barristers Meeting 14 Judicial Committee 24 Board of Governors 30 CLE Committee
Save the Date: Virtual Law Practice Today Expo April 7, 8 & 9
Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. February 2021
PRESIDENT’S MESSAGE By: Cheryl G. Rice Egerton, McAfee, Armistead & Davis, P.C.
WHEN WILL THE SUN SHINE AGAIN? February is here, and we are in the depths of winter. Snowflakes are falling from a gray sky to the wet ground as I write this. About this time of year, many of us wish for an escape to a warmer place; some of us are fortunate enough to be able to take those trips, others are starting to plan a summer vacation. Irregardless, in one way or another, most of us are dreaming of sunnier skies. For months we have been largely pinned down, with little to no travel, little to no chance to gather with friends and family, and seemingly little to no good news. We’ve been faced with multiple stressors, from tornadoes to a pandemic, marches and riots, a contentious election season, a Christmas morning explosion in Nashville, vaccine delays, and on the list goes. And did I mention it is Winter? Meaning it is cold, the air is often damp, and more often, our days are quite dark and dreary. This week, I watched news reports showing the U.S. Capitol being overrun by angry citizens—something I never imagined I would see in my lifetime—and as I thought back on all the events of the past twelve months, I wondered, when will the sun shine again? Soon Groundhog Day will arrive and, just as in years past, people across the United States will again watch and hope that “Punxsutawney Phil” will not see his shadow and run for cover. If he does not, folks will cross their fingers and take his reaction (or, more accurately, his lack thereof ) as a sign that winter is near its end. But, regardless of whether the groundhog sees his shadow or not, spring is coming. Life itself may seem dark and dreary at this moment, but the sun is still out there, and it does still shine and will be shining even brighter soon. How can I say that? Well, let’s think for a moment. Throughout the past year, we have seen countless examples of kindness toward others and the strength of the volunteer spirit. Recall the many donations of food, water, medical supplies, and more that poured into Nashville after the tornado in early 2020. When the pandemic arrived in March, we saw many deliver meals to the sick, needy, and disadvantaged in our community. We enjoyed “drive-by” parades organized to commemorate accomplishments and milestones. We participated in various efforts to “shop local” and support hometown restaurants and business owners affected by COVID-19. We leveraged our creativity to find ways to gather
safely. The holidays came with fewer and quieter celebrations, which allowed us to slow down, and take much needed time to quietly reflect on what—and who—really matters in our lives. Vaccines are rolling out in our community, bringing a ray of hope on the COVID-19 front, and we are becoming more adept at and more comfortable with new ways of carrying out our roles. In the process, we are finding that, in some ways, change is bringing improvements. The Knoxville legal community has also been “paying it forward” in many ways, large and small. Our Barristers are front and center in that regard. For example, last year Mitchell Panter and Matt Knable continued the Barristers’ tradition of providing monthly breakfasts for the Volunteer Ministry Center despite COVID-19-related restrictions by cooking breakfast at home and delivering it to the VMC each month. The Barristers also collected canned food for the Second Harvest Food Bank, coats for the cold, and toys for SPARK. In this new year, the New Lawyers Section is creating opportunities for our “newest” lawyers to connect and support one another, and a multitude of opportunities for community service are planned. But it’s not just the Barristers who are demonstrating care and compassion. Throughout the Knoxville bar, attorneys are helping one another manage through less than sunny weather by sharing expertise and experiences, stepping in to assist each other when needed, and, sometimes, just being there to see and hear one another. We continue our local practice of treating one another with respect and civility; we give grace to colleagues by agreeing to additional time for responses, collaborating on re-settings, and cooperating in many other ways; and we generously share heartfelt words of sympathy, meaningful encouragement, and genuine congratulations to fellow lawyers when it is deserved or needed. Rather than focusing on what seems to be going wrong, our members continue to work together to make things right. As the pandemic eases, let’s not let go of the good that has resulted during this past year. Let’s continue to use each challenge as an opportunity to seek out the silver lining in what appears to be a cloud. In Tennessee, and particularly in Knoxville, we each have so much for which we can be grateful. Keep looking for the sunshine— promise you, it is out there!
AT TO R N E Y P R O F I L E By: Kevin Tonkin Attorney at Law
KNOXVILLE BARRISTERS PRESIDENT AMANDA TONKIN Amanda was born and raised in Miami, with her father and other family members serving in law enforcement during the Miami Vice heyday (although she doesn’t seem to recall seeing any them rocking linen sport coats and cruising in their Ferraris on the way to the precinct like Crockett and Tubbs). Growing up around so much family involved in law enforcement, Amanda was inspired from a young age to go to law school, and for as far back as she can remember, she always wanted to become an attorney. Although both of her parents were University of Miami graduates and encouraged Amanda to become a fan of “The U” as soon as she could walk, by the time she was finishing up high school, she was ready to move as far out of the nest as she could for college (as long as it didn’t get too cold for the Florida girl!). She settled on Elon University in North Carolina, and while there she was an active member of Elon Mock Trial and the Phi Alpha Delta Law Fraternity Pre-Law chapter – she would ultimately major in both Public Administration and Political Science and graduate Cum Laude, with her sights still firmly set on attending law school. Immediately after completing her undergraduate degree, Amanda began law school at the Elon University School of Law. There, on the first day of Professor Jeff Kinsler’s Property class (who would later go on to be the founding Dean and professor at Belmont School of Law), she met her now-husband, Kevin Tonkin, who is also a Knoxville attorney and KBA member. While at Elon Law, Amanda was the founding President of the Phi Alpha Delta Law Fraternity chapter, competed in moot court, and interned for local District Attorneys and Criminal Defense firms, getting a taste of the sort of law she thought she would practice since childhood. Shortly after graduation, Amanda and Kevin decided to move back to Kevin’s hometown of Knoxville to pursue professional opportunities there, ultimately getting
married shortly thereafter. Kevin even convinced Amanda to trade her Miami orange for Tennessee orange on at least a few Saturdays each fall, and they reside in West Knoxville, along with their pet rabbits, Finn and Mirabella. If you’re reading this and have never met Amanda and are looking for an icebreaker sometime in the future, just ask to see a picture of her bunnies! Since moving to Knoxville, Amanda has worked in private practice, as an Administrative Hearing Officer for the State of Tennessee, and currently works as an Attorney Advisor for the Social Security Administration. Although she hasn’t ended up in law enforcement like her father and other family members, she is proud to have worked in positions with the State and Federal government that still allow her to serve the public good. Her moot court experience in law school, alongside her extensive legal research and writing inherent in her legal career have also led Amanda to work as an Adjunct Professor at Lincoln Memorial School of Law. There, she teaches and coaches the law school’s moot court team, and she greatly appreciates all the support received from Barristers members and others in the Knoxville legal community who have helped her coach her students up for competitions. Amanda has been a dedicated member of the KBA Barristers since being admitted to the Bar in 2014, having previously served as Chair of the Habitat for Humanity and Mock Trial Committees, Secretary, Vice President, and Member at Large on the KBA Board of Governors. She is excited to take on this new role and is looking forward to continuing to serve the KBA Barristers this year and contribute to the organization’s long legacy of success and service to the Knoxville legal community, and she hopes to see many of you (in-person, these “unprecedented times”-permitting) at KBA Barristers meetings and events in the near future!
PRACTICE TIPS By: Robin McMillin Staff Attorney for the Eastern Section of the Tennessee Court of Appeals
A FEW MORE TIPS FOR INDIGENT CLAIMS BILLING After reading the article written by Michael J. Stanuszek titled “ACAP, Tennessee’s Indigent Claims Billing System, Best Practices” in the October issue of DICTA, I felt inspired to provide a few more tips, offered from a different vantage point, which I hope will be of assistance to appointed counsel filing for compensation via the AOC Claims and Payment System (“ACAP”). These tips are based upon Rule 13 of the Rules of the Supreme Court, which governs the appointment, qualifications, and compensation of counsel for indigent defendants, and common mistakes I have seen in practice. First, and foremost, Section 6 of Rule 13 of the Rules of the Supreme Court contains specific rules with regard to the timing of filing claims. There is one set of rules for non-capital cases and a different set for capital cases. Adherence to these rules with regard to the timing of filing claims is critical. Although the filing requirements differ between these two types of cases, both rely upon a 180-day dropdead period, and failure to abide by this deadline is fatal to a claim. In non-capital cases, appointed counsel must file claims within 180 days of disposition in the court in which the representation was provided.1 As noted above, failure to timely file is fatal to the claim.2 Interim claims, however, are not permitted.3 If you are seeking compensation for representation provided in the Court of Appeals or Court of Criminal Appeals in a non-capital case, you must await the final disposition of the case in the intermediate appellate court, but be sure to file your claim within 180 days of the date that the opinion and judgment are entered in that court. Do not wait for a ruling on a Rule 11 application to the Supreme Court before filing your claim. Be aware that there is one exception4 to the rule regarding filing after final disposition in non-capital cases. The exception is that “claims for the post-dispositional phase of a juvenile dependency and neglect proceeding shall be filed no later than 180 days from the last activity related to the case.”5 In contrast, appointed counsel in capital cases “shall file interim claims” and must do so “at least every 180 days, but no more frequently than every 30 days.”6 In capital cases, any portion of a claim for services rendered more than 180 days prior to the court’s approval of the claim will be deemed waived.7 Factor in some time for the court to approve your claim as the rule is based upon the court’s approval of the claim and not the filing of the claim. Second, be sure to file your claim in ACAP in the correct court and the correct section of that court. Claims cannot be transferred within ACAP between courts or even between sections of the same court. The judge who “presided over final disposition” will need to approve the claim.8 Now we reach an area of confusion. The behindthe-scenes process differs between the Court of Criminal Appeals and the Court of Appeals. If you are filing a claim for representation in the Court of Criminal Appeals, file it in the section noted in the case number. For example, if the appellate case number begins with an “E,” file the claim in the Eastern Section. If, however, you are filing a claim for representation provided in the Court of Appeals, file the claim in February 2021
the home section of the judge who authored the opinion. For instance, if you are seeking compensation for representation provided in the Court of Appeals in a case with an Eastern Section case number, i.e., one that begins with an “E,” but the judge who authored the opinion is based in the Middle Section, file your claim in the Middle Section. Although filing in the wrong section of the court is not fatal to a claim, it does impact how quickly the claim will be approved. If you file a claim in the wrong section, it may be returned to you with directions to re-file in the correct section. Third, particulars regarding amounts of compensation allowed are provided in Rule 13 in Section 2 for non-capital cases, and in Section 3 for capital cases. Section 2 provides a listing of maximum amounts of compensation for the various types of non-capital cases.9 Section 3 provides hourly rates of compensation, but does not include a maximum amount.10 If you seek increased compensation beyond the maximum listed amount in a non-capital case, you must file a motion in the court in which the representation is provided.11 These motions are often referred to as motions to have a case declared complex and extended. By way of example, if you seek increased compensation for a claim for representation in the Court of Appeals, you must file a motion in the Court of Appeals. An order from the trial court declaring the case complex and extended will apply only to the claim for compensation for representation in the trial court.12 The trial court order will not apply to a claim for compensation for representation in the appellate court. The motion to have the case declared complex and extended must comply with the criteria provided in Tenn. R. Sup. Ct. 13, § 2(e)(1) and should be filed with the court as you would file any other motion, not simply submitted via ACAP. Pursuant to Tenn. R. Sup. Ct. 13, § 2(e) (1)(E) an order granting a motion and certifying the case as complex and extended “must be signed contemporaneously with the court’s approval of the claim.”13 So, file your motion to have the case declared complex and extended with the court at the same time as you submit your fee claim via ACAP. This will allow the court to review all of the necessary information contemporaneously and comply with the rule. I sincerely hope that these tips coupled with the practical technical tips provided by Mr. Stanuszek will assist appointed counsel in filing fee claims and receiving compensation with a minimum amount of agony or wasted effort. Tenn. R. Sup. Ct. 13, § 6(a)(5). Id. 3 Id. 4 Isn’t there always one exception! 5 Id. 6 Tenn. R. Sup. Ct. 13, § 6(a)(4). 7 Id. 8 Tenn. R. Sup. Ct. 13, § 6(a)(1). 9 Tenn. R. Sup. Ct. 13, § 2(d). 10 Tenn. R. Sup. Ct. 13, § 3(k). 11 Tenn. R. Sup. Ct. 13, § 2(e)(1). 12 Id. 13 Tenn. R. Sup. Ct. 13, § 2(e)(1)(E). 1 2
HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan
SALLIE PAPAJOHN NEESE This month, we are highlighting Sallie Papajohn Neese, an Associate Attorney at Lewis Thomason, PC. Sallie graduated from the University of Tennessee College of Law in May of 2020 and was recently sworn in as a new Tennessee attorney. As a new associate, Sallie has worked in various practice areas including employment, transportation, and medical malpractice, and she looks forward to discovering her niche practice area. I hope you enjoy getting to know Sallie! What do you enjoy most about your job? Because I am so new, I get to collaborate in several different fields of law and with a bunch of different attorneys which is so fun. I work with some amazingly talented and creative people, and they also happen to be wonderful individuals, so it has been an exciting and informative experience. Where are you from? I am from a small town in the Florida panhandle called Gulf Breeze. I enjoyed growing up there, but Tennessee definitely feels like home now. Why did you decide to stay in Knoxville? My husband and I fell in love with the community and the people. Tennesseans probably give Texans a run for their money with their friendliness and unique Appalachian spirit. My Dad was stationed in Knoxville for a small period of time in 1982 or 1983, and he always talked about it so fondly. Now I understand why.
Tell me about a person who has a significant impact on your life. My husband, George. He is easily the most patient, generous, kindhearted person you will ever meet. I try every day to mirror his grace and his compassion. He has helped me develop confidence in myself and my abilities, and he is my most avid cheerleader; he is always the first person to celebrate any of my accomplishments. What is your favorite book? It is a tie between Island of the Blue Dolphins (Scott Oâ€™Dell) and Pride and Prejudice ( Jane Austen).
Have you lived in another country? I lived in Melbourne, Australia, for a year after graduating from undergrad at Louisiana State University. I had a two-month internship,
but after that had ended, I stayed in Melbourne and tended bar and was a server at a little pub. I was able to travel around the county and visited the Outback, Great Barrier Reef, Western Australia and much more.
If you could have dinner with any famous person, dead or alive, who would you choose? This question is easy: Johnny Cash. I have loved his music and his story ever since I was a little girl. And, admittedly, I am a huge romantic (see my favorite books, above), so I was always mesmerized at his and Juneâ€™s relationship.
JUDICIAL NEWS By: David M. Eldridge Eldridge & Blakney, P.C.
INTRODUCING CHARLES E. ATCHLEY, JR – NEWLY CONFIRMED UNITED STATES DISTRICT JUDGE IN THE EASTERN DISTRICT OF TENNESSEE In the mid 1990’s, I represented a young man in his early 20s in a “DUI by purloined golf cart” case. My client was in a wedding party staying at a golf resort in Sevier County, had significantly over indulged, and had the bright idea to take joy ride in one of the resort’s golf carts which ended when he ran into a guest’s car. I found the prosecutor handling the case to be professional, reasonable, compassionate, and pragmatic. The resolution we reached included restitution and community service which taught my client a significant life lesson and enabled him to avoid a criminal record at his young age for a stupid mistake. That prosecutor was Charles E. Atchley, Jr, known as Chuck, who is now a United States District Judge. That is how my professional and personal relationship with Judge Atchley began over 25 years ago. Judge Atchley was born in Knoxville and raised in Jefferson County. His parents, Charles and Linda Atchley, in Judge Atchley’s words are “100% self-made”. They taught him the value of hard work and that by working hard, one makes their own good luck. Judge Atchley has applied those lessons during his entire educational and professional career. He graduated from the University of Tennessee in 1989 with a Bachelor of Arts degree in history and a minor in economics. Following his graduation, he attended the Cumberland School of Law at Samford University in Birmingham. Upon completing law school, he returned to Sevier County and, after a brief stint in private practice, joined the District Attorney’s office. He tried many serious felony prosecutions while in that office. After over 7 years as a state prosecutor, he became an Assistant United States Attorney in 2001. Judge Atchley distinguished himself in this position serving as a supervisor in that office, participating in Department of Justice working groups, and performing inspections of other United States Attorney’s Offices around the country. Even as a supervisor, when he could easily have steered difficult and challenging cases to others in his office to handle, he took on these cases personally. Of note to me is his personal participation in the prosecution of law enforcement officers for civil rights violations as being emblematic of his commitment to the principle that all citizens deserve equal justice under the law. For the last three years, he has been the First Assistant United States Attorney to United States Attorney Doug Overbey. Judge Atchley was a vigorous and effective advocate for the United States fulfilling that responsibility in a fashion that maintained the respect of those in the defense bar. A number of attorneys who served as opposing counsel in cases he handled supported his nomination to the bench and signed a letter to the Chairman and Ranking Member of the Senate Committee on the Judiciary. This letter included the following statement about him: “We know him to be an honorable person who respects the law and understands the grave importance of the issues that come before the court. We know him to be a dedicated public servant and attorney. Though he has always been a talented and zealous adversary, we believe he has a strong sense of fairness and a genuine interest in the law. We believe he will have a strong judicial temperament. In often highly contentious cases, he has maintained courteous and personable relations with each of us and has shown respect for the court staff, witnesses, and litigants.” Judge Atchley received his Presidential Commission and was sworn in by Chief Judge Travis R. McDonough on December 22, 2020 in Chattanooga. Although he will maintain his residence in Knoxville, he will serve in the Chattanooga Division filling the vacancy created when Judge Harry S. (Sandy) Mattice, Jr. took senior status. After Department of Justice vetting, he was formally nominated for the position on September 22. His hearing before the Judiciary Committee was on November 18, was voted out of the Committee on December 10, and confirmed by the Senate very promptly on December 17. Even in today’s current highly partisan climate, his Committee vote and Senate vote were not purely along party lines. He picked up one Democratic vote coming out of Committee and 6 Democratic votes for his confirmation in the Senate. Judge Atchley has always impressed me as someone with a healthy dose of humility. This was evidenced when I asked him if being a federal judge was something to which he had long aspired. His response was to the effect he never thought being a district judge was really obtainable and quoted the late Judge James H. Jarvis II who described ascending to the federal bench as “ten percent who you know and ninety percent luck”. More seriously, Judge Atchley expressed his genuine appreciation of the opportunity given him to serve in this capacity recognizing the fortunate timing for him having the right experience level and the right age. I think it important for KBA members to know that since coming to Knoxville, Judge Atchley has been a KBA member, served on KBA committees, and on the KBA Board of Governors. This has been his choice and at his expense – the United States Attorney’s Office has no budget for KBA dues. He has also been active in the United States District Court Historical Society and served as President of the Hamilton Burnett Inn of Court. Judge Atchley and his wife Catherine, whose maiden name is also Atchley interestingly (from another branch of the Atchley clan in Sevier County) have been married over 23 years. They have a lovely daughter, Cate, who is 9 years old. The Atchley family are members of St. John’s Episcopal Church where Judge Atchley serves as a lay reader. I am very pleased to introduce you to my friend Judge Atchley. I am also very pleased that he is on our Federal Bench. He will be a real asset to our federal court. February 2021
W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Carlos A. Yunsan Judicial Law Clerk, Tennessee Court of Appeals
STEP INTO THE ARENA (LEST WE MISS OUT ON EACH OTHER) If you don’t know the kind of person I am and I don’t know the kind of person you are, a pattern that others made may prevail in the world and following the wrong god home we may miss our star. -William E. Stafford Let me start by confessing that although being a foreign-born, minority attorney, I have always felt woefully inadequate to speak about the topics of diversity and inclusion—and for good reason. First, I am the product of privilege. In the early 90s, the annual per capita income in my native Panama hovered around $6,500. Lucky for me, my mother, a single parent and pediatrician, was better off than most and—through much effort—put me through private Catholic high school and sent me to learn English at wonderful Maryville College. Second, I have not been discriminated against (at least overtly) for 27 years in our country. Upon arriving in East Tennessee, the world was as sweet as it could be for a sixteen-year-old kid in the land of Michael Jordan, Bon Jovi, the 49ers (with 4 Super Bowls in the 80s), and the Red Hot Chili Peppers. Despite my accent, mixed-race looks and names (Hispanic and Chinese), place of birth, and even long hair (at one point reaching the middle of my back), I was greeted with, and continue to enjoy, kindness and support. That said, I have painfully learned and relearned that my experience does not reflect what other minorities have lived, some for multiple generations. And yet, for me, America truly became the “land of opportunity.” The bliss ended mere hours after the shameful acts of January 6, 2021. I condemned unequivocally on social media the desecration of the U.S. Capitol by domestic actors. For that, I was swiftly told that I did not “have a dog in this hunt!” The clear implication was that my citizenship meant “NOTHING” (yes, I’m quoting the CAPS) because I had not been born on American soil. I hope none of you harbor the same animus. If you do, I respectfully say to you what I said to that “friend”: An attempt to diminish my love and devotion for our country means
little from someone who had to personally do exactly nothing to earn the privilege of American citizenship. It would be more than two decades after my arrival until I was able to freely and proudly take the Oath of Allegiance in 2016 (but that’s another, long and rich, conversation). It’s what followed the punch in the gut that really impacted me. Within moments, a number of fellow American friends and acquaintances—some older, some younger; some personal, some professional; some local, some out of state—used their voice to challenge the fallacy that we have degrees of citizenship in our country, to declare that such condescendence is antithetical to what America stands for, to refute the notion that I don’t deserve to have a stake and a voice in its future. I wept that night. So, what have I learned about inclusion and why it matters? I have learned that inclusion must be pursued, shared, and defended. I have learned that we, especially those of us privileged with a legal education, must use our voices to speak up clearly and unapologetically when the situation presents itself and to defend our shared values. Importantly, we must acknowledge things as they are before we can move toward what we aspire them to be. And we must refuse to indulge in the illusion that the issues we know exist will magically improve without personally engaging in self-examination, difficult conversations, and—yes—holding each other accountable for actions that do not reflect who we are and what we stand for. It matters because standing on the sidelines only perpetuates the status quo. It matters because without our actions, we will certainly miss out on each other. The path ahead is long and steep, no doubt. I feel like I just began mine with the words before you. If you haven’t yet, I hope you choose to get going—today. I guarantee that for each challenge you’ll encounter, you’ll also find a multitude of voices cheering you on. You have my contact info.
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: J. Chadwick Hatmaker and Kaitlyn E. Hutcherson Woolf, McClane, Bright, Allen & Carpenter, PLLC
CAN AN EMPLOYER REQUIRE ITS EMPLOYEES TO BE VACCINATED AGAINST COVID-19? In November 2020, pharmaceutical companies Pfizer, AstraZeneca and Moderna announced that they had each developed a coronavirus vaccine. On December 30, 2020, the Tennessee Department of Health published the COVID-19 Vaccination Plan for the State of Tennessee. In accordance with the current distribution plan, distribution of the vaccine will occur in three broad phases, with the first phase focusing on residents and staff of long-term care facilities, inpatient and other high exposure healthcare workers, and certain first responders, among others.1 Individuals not included in one of the phases will receive access to the vaccine subject to availability following Phase 3. While Tennessee has started implementing the phased distribution plan it will likely be several months before the vaccine is available to the general public. Many people will take the vaccine voluntarily. But as an employer, can you require your employees to be vaccinated against the coronavirus as a condition of employment? The answer is yes, with some exceptions. On December 16, 2020, the EEOC updated its publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws” to include guidance regarding whether or not employers can require employees to receive the COVID-19 vaccine as a condition of employment.2 With respect to the COVID-19 vaccine, the EEOC states that requiring an employee to be vaccinated does not constitute an impermissible medical examination under the Americans with Disabilities Act (“ADA”) and does not implicate the Genetic Information Nondiscrimination Act (“GINA”). Thus, an employer can require an employee to be vaccinated unless the employee should be exempted because of an ADA disability or his or her sincerely-held religious beliefs. If the employee has an ADA disability that prevents the employee from taking the COVID-19 vaccine, the employer must analyze whether the unvaccinated employee poses a “direct threat” to the workplace due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation,” where the reasonable accommodation would not create an undue hardship on the employer. For example, can the employer reasonably accommodate the employee’s disability and address the health and safety concern by having the employee wear a mask or PPE at all times when the employee is around others? If this reasonable accommodation will not create an undue hardship, then the employer must provide that reasonable accommodation. The employer should conduct an individualized inquiry for each unvaccinated employee to determine if the employee poses a direct threat that cannot be reduced or eliminated with a reasonable accommodation. In accordance with Title VII of the Civil Rights Act, an employee’s sincerely-held religious belief, practice, or observance may also prevent that employee from taking the vaccine. For those employees, the employer must also determine whether it can provide a reasonable accom-
modation, such as the mask or PPE requirement, or working remotely, that will not impose an undue hardship on the employer. The EEOC further states that employers should generally assume that a request for a religious accommodation is based on a sincerely-held belief, but if the employer has an objective basis for questioning the sincerity of a particular belief, practice, or observance, the employer may request additional supporting information. Although a mandatory vaccination is not a medical exam under the ADA, employers must use caution when asking any pre-vaccination screening questions. Pre-vaccination screening questions may elicit information about an employee’s disability or genetic information and implicate the ADA and/or GINA. Specifically, the EEOC states that if an employer requires an employee to receive the COVID-19 vaccine administered by the employer, the employer must show that any disability-related pre-vaccination screening questions are “job-related and consistent with business necessity.” Pre-vaccination screening does not implicate the ADA or GINA if the vaccination program is voluntary, or if the vaccination is administered by a third party that does not have a contract with the employer, such as a pharmacy or healthcare provider. Similarly, the EEOC advises employers to proceed with caution when asking employees for proof of vaccination. Simply asking an employee about vaccination status or proof of vaccination is not a disability-related inquiry. But asking additional questions regarding the reasons why an employee is not vaccinated may elicit information about a disability and implicate the ADA. Therefore, such questions must be “job-related and consistent with business necessity.” While the EEOC guidance provides that employers may mandate COVID-19 vaccinations, employers must understand that they will not be able to require vaccinations for those employees who have an ADA disability or a sincerely-held religious belief that prohibits vaccination and will have to consider whether those employees can be reasonably accommodated without undue hardship. Employers should also be cautious when asking pre-vaccination screening questions, and should consider making COVID-19 vaccines voluntary or having a third party administer the vaccine to avoid potential ADA or GINA implications. The rules and regulations on this issue may continue to evolve. Certain industries may ultimately be required to vaccinate employees, such as those employers in the healthcare industry. As a result, before requiring mandatory vaccinations, employers should review relevant EEOC, CDC and any state guidance and consult legal counsel to ensure that they meet their goal of protecting the health and safety of their workforce without violating applicable laws.
The Covid-19 Vaccination Plan for the State of Tennessee can be found at https://www.tn.gov/content/dam/tn/health/documents/cedep/novel-coronavirus/ COVID-19_Vaccination_Plan.pdf This publication is available on the EEOC’s website, https://www.eeoc.gov/wysk/ what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeolaws.
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646. February 2021
WELL READ By: Cheryl G. Rice Egerton, McAfee, Armistead & Davis, P.C.
SMALL GREAT THINGS: JODI PICOULT Honestly, I was less than excited when my book club recently selected small great things, by Jodi Picoult, as the next group read. I’ve read a few of Jodi Picoult’s works and wasn’t really up for another one at the moment. But being the faithful book club member that I am, and having some extra time on my hands at the right time, I decided to dive in. And I’m glad I did–I found it to be an entertaining page-turner that also made me think. I encourage you to check it out. small great things is a story of race and racism in America told around the central figure of Ruth Jefferson, a Yale-educated Black woman, wife of a fallen soldier, and mother to a teenaged honors student. Ruth is an experienced and skillful labor and delivery nurse raised in Harlem by her mother, a domestic for a well-to-do Manhattan family. Ruth’s mother sent her to the best school she could, where Ruth worked hard, achieved, and ended up living what she believes is a version of the American Dream. One day, as Ruth begins her shift at the suburban Connecticut hospital where she works, she enters the room of a couple and their newborn son. Ruth immediately senses an uncomfortable tension but cannot discern its root. Shortly after she leaves the room, Ruth’s supervisor tells her the couple has declared that they do not want Ruth or anyone who “looks like her” having any further contact with them or their child. The hospital goes along with the family’s request, but later, due to short staffing, Ruth is left alone with the newborn when he goes into cardiac distress. Ruth is torn between honoring her ethical duty to help the child and her employer’s directive that she not touch the infant. Ruth ultimately follows her instincts to help the child, who dies. The couple, white supremacists, allege that Ruth intentionally harmed their baby, and soon Ruth is charged with racially motivated murder and loses her job. Ruth receives appointed counsel, and we meet Kennedy, the white, upper-middle-class, female public defender whose job it is to clear Ruth’s name. The novel moves between the perspectives of Ruth, Kennedy, and Turk, the father of the deceased infant, providing readers a back story for each character that humanizes them and provides insights into their individual viewpoints. Ruth is forced to confront not only the realities of racism in the mainly white community where she lives and works that she has tried to overlook for years, but also prejudice within the Black community. Kennedy, who lives in an upscale neighborhood with her daughter and her physician husband, thinks she “doesn’t see color.” But, as she joins Ruth’s journey from arraignment to trial, Kennedy’s eyes are opened to her own biases and privilege, and the insights she gains aid her zealous representation of Ruth. Through Turk, we follow the path
of a disturbing childhood to his indoctrination as a neo-Nazi and gain a frightening glimpse of the modern-day Ku Klux Klan in America. In the story of Ruth, her attorney, and her accusers, Picoult explores race, racism, prejudice, privilege, justice, and more. As the story unfolds, we see our society and the justice system through the eyes of Ruth, Kennedy, and Turk, their family members, co-workers, police, and court personnel, among others. Picoult often explores current social issues in her novels, and small great things is another such endeavor by this author. While some may critique aspects of this novel as contrived or unrealistic, Picoult does a credible job presenting the social issues through her work. Although purely fiction, the main premise for the story–Ruth’s initial dilemma–is drawn from a real-life incident involving a Black nurse in Flint, Michigan. Picoult’s efforts to research the topics she attempts to address through this tale included reading works on race and privilege, conducting in-depth interviews with actual skinheads and African American women, and doing detailed research into the criminal justice system, and all lend credibility to her work. Drawing her title from the words of the late Dr. Martin Luther King, Picoult uses the small act of penning this novel to contribute to the greater goal of dismantling racism in America. Though at times dark and disturbing, Picoult’s small great things is a book many will enjoy, and feel has enhanced their own perspective on this complex issue.
SCHOOLED IN ETHICS By: Paula Schaefer Associate Dean for Academic Affairs and Professor of Law U.T. College of Law
WHO GETS TO DECIDE – ATTORNEY OR CLIENT? In November 2020, an attorney for Luzerne County Pennsylvania filed a motion to recuse U.S. Supreme Court Justice Amy Coney Barrett. The attorney, Larry Moran, was representing the county in litigation about counting mail-in ballots in the 2020 election. In the motion, he asserted that the justice’s partiality might reasonably be questioned due to her unprecedented nomination and confirmation so close to the election. Moran thought that the motion was in the best interest of the county. He would later explain that his goal in filing the motion was to win. The Court had been split 4-4 on the mail-in ballot issue before Barrett’s appointment. He reasoned, “If Barrett recuses herself, we will prevail in the lawsuit.”1 Moran had filed many motions in the course of the litigation. By his count, more than thirty. He was never told to consult with the Luzerne County Council prior to filing a motion. In the case of the recusal motion, he did not go to the County Council to seek permission to file the motion or to discuss his plans, but he did talk to the County Manager. Luzerne County Council members learned about the motion when it made national news just before a scheduled council meeting. Many of the eleven council members were angry that they had not been consulted in advance. Councilman Harry Haas said, “This is a colossal big deal. We were not informed about this. This is wrong. I am extremely upset.” Councilman Walter Griffith said that he did not believe it was proper to seek the justice’s recusal and that the county should have been alerted to “something of this magnitude.” The Chief Solicitor from the Lucerne County Office of Law said that while the county does not micromanage outside attorneys in litigation, the county should have been consulted on an issue like this. Moran defended his decision to file the recusal motion without consulting with the County Council. “It was a decision by me, the owner of the firm that was assigned with the task of winning the lawsuit and defending Luzerne County,” he said.2 The issue faced by lawyer Moran is not novel. In the course of a client’s matter, hundreds of decisions must be made. Are those decisions the province of the attorney or the client? Many attorneys, like Moran, would say they are hired to make these decisions. A client hires an attorney because of the attorney’s expertise in deciding such matters. An attorney cannot possibly be expected to consult a client about every decision much less seek client consent before any action is taken. The law of agency is instructive. The attorney-client relationship is an agency relationship. The client is the principal and the attorney is the agent. As the principal, the client is in control and gives authority to the attorney.3 Actual authority can be expressly given, “Defend me in this litigation.”4 Actual authority may also be implied from the client’s request and includes the acts necessary and incidental to achieving the client’s objectives.5 As an agent, the lawyer has an obligation to communicate information to the client/principal that the principal would wish to know or that is material to the agent’s duties.6 The law of agency is embodied in our professional conduct rules. Tennessee RPC 1.2(a) provides that a lawyer must abide by the client’s decision concerning the objectives of the representation and “may take such action as impliedly authorized to carry out the representation.” Tennessee RPC 1.2 refers the lawyer to RPC 1.4 concerning the duty to communicate with the client about the means of achieving its goals. Tennessee RPC 1.4(a)(2) provides, “A lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Tennessee RPC 1.4(a)(5) provides that the lawyer should explain that he or she cannot take any action that is prohibited by law or professional conduct rules if the client expects such assistance. Comments to Tennessee RPC 1.2 discuss the allocation of authority between attorney and client when they disagree about the means to be
utilized in the case. Comment 2 provides that clients normally defer to lawyers on such issues, “particularly with respect to technical, legal, and tactical matters.” In contrast, the comment notes that lawyers usually defer to clients on the expense to be incurred and the impact on third parties. The comment provides that “other law” may address how such disputes should be resolved, but that ultimately a fundamental disagreement can be resolved by the lawyer’s withdrawal or the client’s discharge of the lawyer. These legal principles should guide the lawyer throughout the representation. The client is in charge. The lawyer has been given actual authority to make many decisions on the client’s behalf, but the lawyer must also reasonably consult with the client along the way. Some decisions are so insignificant that the lawyer need not consult the client. Other decisions obviously require consultation. The trick is determining when the client expects or reasonably could expect communication. In the case of attorney Moran and Luzerne County, the mistake was failing to communicate about such a significant decision before the motion was filed. When attorney and client disagree about a decision, resolution of the dispute is relatively easy—easier than suggested by RPC 1.2, comment 2. Attorneys cannot budge on decisions that run afoul of the law or professional conduct obligations. And they certainly can make the case that they are in the best position to determine if a tactical decision—such as whether to file a motion—is wise. But as long as the decision is legal and consistent with professional conduct rules, the choice is the client’s. The client is the principal in the agency relationship. Even if the lawyer had authority to make the decision, the client can take that authority away. This is a basic tenet of the law of agency.7 The lawyer could, of course, withdraw from the representation in order to avoid carrying out that decision. But if the lawyer is to continue representing the client, the lawyer must abide by the client’s instructions. That is what ultimately happened in the dispute between attorney Moran and his client. The Luzerne County Council voted to withdraw the recusal motion and Moran abided by the client’s decision.8 The issue caused the County’s Office of Law to rethink its instructions when it hires litigation counsel. The County’s Chief Solicitor Romilda Crocamo stated that in the future she will inform all outside legal counsel that her office should be notified of all planned filings in advance.9 That outside counsel likely will not be Moran. After the County Council’s public disagreement with Moran about the recusal motion, it voted 6 to 5 not to hire Moran’s firm in the future.10
6 7 4 5
https://www.citizensvoice.com/news/election/county-council-wants-barrettrecusal-request-rescinded/article_f71f1f21-575e-5cfc-8607-861f089fc181.html. https://www.timesleader.com/news/807723/luzerne-county-council-votes-towithdraw-barrett-filing https://www.pahomepage.com/top-stories/luzerne-county-council-votes-towithdraw-motion-for-justice-barretts-recusal/?utm_medium=referral&utm_ campaign=socialflow&utm_source=t.co Restatement (Third) of Agency, § 1.01 (explaining that the fiduciary agency relationship arises when the agent assents to acting on the principal’s behalf and subject to the principal’s control). Id. at §§ 2.01, 2.02. Id. Id. at § 8.11. Id. at § 3.06(5) (an agent’s actual authority may be terminated by a manifestation of revocation by the principal to the agent). https://reason.com/volokh/2020/10/29/motion-for-justice-barrett-to-recuse-iswithdrawn/ https://www.timesleader.com/news/807723/luzerne-county-council-votes-towithdraw-barrett-filing https://www.post-gazette.com/news/politics-state/2020/11/11/Countycouncil-Luzerne-pennsylvaniacut-ties-law-firm-Barrett-recusal-motion/ stories/202011110111
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. February 2021
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L E G A L U P DAT E By: Adam R. Duggan Breeding Olinzock Carter Crippen, P.C.
TENNESSEE SUPREME COURT REVISITS SPECIFIC PERSONAL JURISDICTION IN CROUCH RAILWAY Nonresident defendants have been on a decade’s long winning streak, limiting courts’ exercise of personal jurisdiction over nonresident defendants. The Tennessee Supreme Court has seen enough. In Crouch Railway Consulting, LLC v. LS Energy Fabrication, LLC, issued on October 6, 20201, the Tennessee Supreme Court revisited the scope of specific personal jurisdiction in Tennessee and held that a Tennessee plaintiff established a prima facie case for the exercise of personal jurisdiction where a Texas defendant contracted with a Tennessee resident. Let us take a brief dive into the facts of Crouch Railway, understand its ruling, and compare it with recent U.S. Supreme Court opinions. Defendant’s Tennessee Connections Crouch, the plaintiff, was a Tennessee limited liability company with its principal place of business in Tennessee. Lonestar, the defendant, was a Texas limited liability company with its principal place of business in Texas. Pursuant to the parties’ contract, Crouch was to perform planning and design work for the construction of Lonestar’s railway repair facility in Texas. Lonestar signed the contract in Texas and never visited Tennessee in relation to the contract. Other than signing a contract—one that did not contain a forum selection clause or choice of law provision—with a Tennessee resident, Lonestar’s only connections with Tennessee were mailing a partial payment to Tennessee and virtually communicating with Crouch representatives located in Tennessee. All other Tennessee connections arose from Crouch: Crouch prepared the proposal in Tennessee, signed the contract in Tennessee, performed most of the work in Tennessee, conducted meetings with Lonestar while located in Tennessee, and communicated with Lonestar while located in Tennessee. The Crouch Railway Decision In holding that specifical personal jurisdiction was appropriate,2 the Tennessee Supreme Court made clear that Tennessee law is co-extensive with the U.S. constitution. Thus, a nonresident defendant may be subject to suit in the forum if it has “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”3 The court characterized this as a two-part test. Under part one of this test, the minimum contacts prong, the court explained that Lonestar must have purposefully availed itself of Tennessee such that Lonestar could expect to be haled into court in Tennessee. Lonestar purposefully availed itself of Tennessee: Lonestar entered into a contract with a Tennessee resident, knew Crouch would primarily conduct its activities in Tennessee, communicated with Crouch while Crouch was located in Tennessee, and sent partial payment to Crouch in Tennessee. It was of no moment that Crouch was the party who initiated the relationship, that Crouch physically visited Texas, and that this was a single contract relationship; these were but non-determinative factors. Ultimately, “Lonestar voluntarily chose to take advantage of a business opportunity in Tennessee.”4 Under part two of the test, the fairness prong, the Tennessee Supreme Court looked at five factors: “(1) the burden on the defendant; (2) the interests of the forum state; (3) the plaintiff ’s interest in obtaining relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the February 2021
several states in furthering fundamental substantive social policies.”5 The court dealt with this prong swiftly. Tennessee has a significant interest in redressing injuries inflicted on Tennessee residents by nonresident defendants. This interest is not outweighed by the burden on Lonestar to litigate in Tennessee. “[A]dvancements in transportation and communications” make it easy for nonresident litigants to defend in foreign forums. U.S. Supreme Court The Tennessee Supreme Court primarily relied on the U.S. Supreme Court’s 1985 Burger King opinion, in which the U.S. Supreme Court held that Wisconsin residents who entered into a 20-year contract with Florida residents that contained a Florida choice of law provision could be sued in Florida.6 Burger King was the last significant U.S. Supreme Court decision involving personal jurisdiction in a contract dispute. In the intervening four decades, however, the U.S. Supreme Court has significantly limited general personal jurisdiction and specific personal jurisdiction in non-contract cases. Additionally, the U.S. Supreme Court will soon be releasing an opinion addressing the relatedness prong in a tort case, i.e., when do a defendant’s contacts with a forum give rise or relate to the claim?7 One might expect this opinion to have no effect on the Crouch Railway opinion. The primary contact in Crouch Railway was entering into a contract with a Tennessee resident. That contract gave rise to the litigation. On the other hand, the Tennessee Supreme Court conflated the relatedness prong, a prong deriving from Burger King, with foreseeability. The Burger King defendants’ actions toward the forum were arguably more intentional, extensive, and long-lasting, and there was a clearer showing of relatedness. This fact, weighed against the near universal tightening of personal jurisdiction, makes it reasonable to question the longevity of Crouch Railway. Conclusion That Crouch Railway was a contract dispute is paramount—if a nonresident defendant enters into a contract with a Tennessee resident, it should reasonably expect to be haled to court in Tennessee. The Tennessee Supreme Court disregarded the fact that most of the Tennessee specific connections were not created by the nonresident defendant. This approach—i.e., looking at the connections with the forum sate regardless of whether created by the plaintiff or defendant— will be at the heart of the U.S. Supreme Court’s opinion in Ford Motor Company. In the meantime, Tennessee courts may exercise personal jurisdiction over nonresident defendants who enter into a contract with a Tennessee resident.
No. M2017-02540-SC-R11-CV (Oct. 6, 2020). Crouch Railway was a case of specific personal jurisdiction. The U.S. Supreme Court has effectively limited general personal jurisdiction to the place where a defendant is incorporated and maintains its principal place of business. See Adam R. Duggan, Home Isn’t Necessarily Where the Plaintiff Is: Daimler AG v. Bauman and Its Effect on General Jurisdiction, DICTA (Nov. 2016). 3 Quoting Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). 4 Crouch, Slip Op. at 20. 5 Crouch, Slip Op. at 28-29 (citing State v. Sumatra Tobacco Trading Co., 403 S.W.3d 726, 752 (Tenn. 2013). 6 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). 7 Ford Motor Company v. Montana Eighth Judicial District Court, Docket No. 19-368. 1 2
A DYING ART:
PERSONAL PERSPECTIVES ON THE DECLINE OF JURY TRIALS IN OUR REGION & BEYOND I went to law school to be a trial attorney. I counted down the credit hours until I could get my limited license to practice. By the time I began my 3L year, I had sat second chair in a four-day, six-count criminal trial in Union County. The elation I felt when the verdict came back for us was indescribable and incomparable, and I can still feel the joy almost six years later. Good thing, because the great irony is that less than ten days later, I was a law clerk at a personal injury firm downtown. I’ve never had a civil jury trial since becoming licensed in 2016. Not one. As I sit here writing today, I still have no idea when this so-called decline in civil jury trials happened. No one can tell me exactly, although signs indicate 10-15 years ago. All I know is there are two starkly different camps in civil litigation: those who remember how it used to be and those of us who just recognize today’s reality as how it has always been.1 Regardless of the point of view, several themes emerged regarding how we arrived here and the influence it is having locally on our profession. WHY JURY TRIALS DECLINED THE NATURE OF THE BEAST While it may seem overly simplistic, the lack of civil jury trials is largely a product of the system itself. “Contingency fee contracts are generally the means for most lower income clients to have access to justice,” says Professor Akram Faizer. “There is an incentive for attorneys to quickly and efficiently dispose of cases, but the client also doesn’t want to take risks because they are in need of that money.” Civil litigation is a balancing act where plaintiffs would prefer to get a faster settlement rather than a potentially larger verdict later.2 It’s the nature of civilization. We don’t want to air our dirty laundry and share things about ourselves in public with a jury we don’t know. As a result, our clients would rather settle the case even if it means ‘selling the farm.’3 However, the desire to resolve quickly does not rest solely on plaintiffs. Judges similarly pressure attorneys to settle, which can be frustrating. “The court’s inability to try cases with any urgency – instead routinely setting cases 12-18+ months out means clients would rather settle than keep the matter open for such a long time,” says defense attorney Allen Callison. “When we were young, people used trials as a way to resolve their case. If you were four deep on the docket, you were probably getting bumped,” recalls veteran litigator Terry Adkins. “But it was easier to get to trial. We didn’t take a ton of discovery; we took statements.” THE COST OF GOING TO TRIAL Adkins continues, “Now, the ability to conduct discovery is overdone. It is exploding the costs of getting to trial. Discovery is unrelenting and there’s tons of depositions.” Jason Fisher has also seen an increase in discovery and pre-trial motions filed to be increasing the costs of litigation. Jaimee Johnson has seen not only economic trial costs rising, but also the emotional ones. “On the defense side, a lot of times it is the cost of litigating versus the cost of the insurance policy. The little companies especially would just pay out and not go to trial. Now the little companies are being bought out by the bigger companies who prefer to roll the dice
and take it to trial.” But on the plaintiff ’s side, she says, the trend has shifted in a different way. Fifteen years ago, most plaintiff ’s attorneys would go to trial, but now she senses a lot of uncomfortableness from her opposing counsel. FEAR There is an incredible amount of fear surrounding jury trials. “Parties have become terrified of juries, and I don’t understand it. I have rarely been surprised by a jury, whether it is case value or liability. I just don’t see runaway juries on either side,” says Adkins. While one plaintiff ’s attorney agreed that juries usually do the right thing, almost every attorney I talked to cited fear of the jury itself as a reason for the trial decline.4 Our area tends to have very conservative juries, so clients and attorneys both are very cognizant of how a jury will perceive the party and their history in light of the facts of the case.5 Tennessee juries are “a tougher crowd” compared with other states and, in these very divisive times, it’s much harder to place your case in the hands of twelve unknown fellow citizens.6 Attorneys, while not necessarily fearful of the jury, are similarly fearful of the trial process. A tremendous amount of time and effort is invested in a process that has an unsure outcome. Additionally, lawyers today avoid going to trial because of a lack of experience.7 They don’t have a good grasp of the rules of evidence and the rules of civil procedure.8 But then again, they can’t get the experience to get comfortable because trials aren’t as common now. And in these divisive times, there may be less tolerance for the discomfort that might accompany disagreement (and discussion) and the perception of the lack of control over any outcome of a dispute.9 MEDIATION “Years ago, we got great mediators who plowed the road for us and mentored us,” says Fisher. While some judges these days order parties to mediation as a stepping stone to trial, it is still a popular voluntary method for parties to resolve their case because it has taught attorneys how to be less adversarial and provided clients an alternative to the perception of being yelled at and embarrassed in a room full of people.10 It is non-binding, informal, more predictable, speedier, more efficient, and allows the client and attorney to maintain control of the case until the very end. It allows the client to make the final decision. There is great comfort in that. In cases where the attorneys are poor communicators or are not managing to cooperate with one another, the mediator adds significant value to the case’s resolution.11 HOW IT AFFECTS OUR PRACTICE CASE VALUE IS DISTORTED “Attorneys who are willing to go to trial get better offers for their clients,” said Callison. “Nobody wants to be the defense attorney on a case that could have settled but didn’t because a plaintiff ’s attorney decided this was the one they wanted to take to trial.” Plaintiff ’s attorneys agreed. “Without trials, no one really has a good idea of case values. It’s everyone feeling their way around a dark room,” said Jeff Glaspie. “The more you want to go to trial, the higher your settlements will be,” asserts Robbie Davis. But a defense attorney was quick to point out the opposite. “Not going to trial makes it harder to distinguish
COVER STORY By: Sarah M. Booher OEB Law, PLLC
yourself these days. We are doing what most insurance adjusters could do, and that has likely led to the downward pressure on rates.”12 More importantly, it cheats our clients. Some cases should be settled, but we can’t forget that some cases should go to trial.13 It isn’t our job to win every case; it’s our job to advocate the best we can for our clients.14 It is our job to shepherd and convince the jury that the right thing to do is to find in favor of our client.15 WE LACK VALUABLE SKILLS Adkins lamented that new attorneys don’t have and don’t get trial experience. “Our CLEs about trial tactics are ringing more and more hollow. The overwhelming majority of attorneys sitting in these presentations will never see the inside of a courtroom.” It was a notion that rang true in many of my subsequent interviews. “The lack of trials makes us lazy,” Callison points out. “We keep kicking the can down the road and assuring ourselves it will settle, and that’s a terrible way to practice law.” “The burden of proof is easy,” says Adkins. “It’s the burden of persuasion that is really hard.” Johnson completely agreed. “We are losing the art of communication as a humanity and as lawyers. We should be able to look somebody in the eye and tell them a story. We should be able to command a room. We can’t get to the point where attorneys are sending texts to their juries.” Several other attorneys pointed out that even communication amongst attorneys is failing. “It’s not entirely a bad thing, because it levels the playing field in a sense.”16 On the other hand, identified another interviewee, many attorneys have such poor communication skills that even the simplest matters, such as agreeing on trial stipulations or basic matters of admissibility, can’t be worked out.17 If we can’t communicate, we can’t properly evaluate or negotiate.18 WE ARE HAVING AN IDENTITY CRISIS19 One defense attorney identified themselves as a glorified paralegal. Yet another said it is difficult to provide any real value to their client. “Previously, a litigator’s primary value/worth was being able to argue before a judge and jury with the rules of evidence at your fingertips. These days we assist in discovery and mediation.”20 One plaintiff ’s attorney indicated our roles have been reduced from great litigators to successful mediators. Both a defense attorney and a plaintiff ’s lawyer identified civil litigation attorneys as being in the risk assessment business. Remarked the former, “We’ve gotten so good at controlling risk that it has resulted in a lower risk tolerance for our clients.” Said the latter, “As a plaintiff, if you go to trial, it is either because you believe in your case more than the defense does, or your case is so awful that the only way to resolve it is by trial. In other words, you’re only going to trial if one side hasn’t generated enough risk to require the other side to settle the case.” But mediator Paul Hogan takes the perspective that public perception is also changing. “It used to be that our clients viewed us as incompetent crooks, and the judge as incompetent or a crook. But people are respecting lawyers more than they have in the past. They don’t have
the bad feelings they used to.” Hogan asserts that this means there might not be as many “greats” as there used to be, but the system isn’t for us. It’s for our clients.
9 7 8
Special thanks to all attorneys who were willing to speak to me for this article, including but not limited to, Bo Reed, Jason Fisher, Terry Adkins, Allen Callison, Jaimee Johnson, Jeff Glaspie, Michael Beehan, Michael Bernard, Glen Rutherford, David Hollow, Tim Elrod, Akram Faizer, Robbie Davis, Wilson Wages, and three anonymous interviewees. Special thanks also to Allison Cyrus for her help with this article. E-mail from Jeff Glaspie, Assoc. Att’y at Garza Law Firm, PLLC, to author (Jan. 7, 2021, 12:55 EST)(on file with author). Interview with Timothy G. Elrod, Managing Att’y, OEB Law, PLLC (Jan. 6, 2021). Interview by Allison Cyrus with Glen Rutherford, Solo Att’y in Knoxville, Tenn. (Jan. 4, 2021). Id. Telephone Interview with First Anonymous Defense Att’y in Knoxville, Tenn. (Jan. 5, 2021). Telephone Interview with Bo Reed, Solo Att’y in Knoxville, Tenn. (Jan. 5, 2021). Telephone Interviews with Jaimee Johnson and Terry Adkins (Jan. 5, 2021). E-mail from Jason Fisher, Att’y at Fisher|Russell, PLLC, to author (Jan. 8, 2021, 11:12 EST)(on file with author). Telephone Interview with Paul Hogan, Att’y at Hogan & Hogan, PLLC, in Knoxville, Tenn. (Jan. 5, 2021). Telephone Interview by Allison Cyrus with Second Anonymous Defense Att’y in Knoxville, Tenn. (Jan. 4, 2021). E-mail from Third Anonymous Defense Att’y in Knoxville, Tenn., to author (Jan. 5, 2021, 10:46 EST). E-mail from Robbie Davis, Att’y at Davis, Kessler & Davis, to author (Jan. 4, 2021, 18:46 EST). Id. Telephone Interview with Terry Adkins, Att’y at Trammell, Adkins, & Ward, P.C. in Knoxville, Tenn. (Jan. 5, 2021). Telephone Interview with First Anonymous Defense Att’y, supra note 5. Telephone Interview by Allison Cyrus with Second Anonymous Defense Att’y, supra note 10. E-mail from Jason Fisher, Att’y at Fisher|Russell, PLLC, supra note 8. Specific interviewee identities will not be attributed in this section, at their request, unless already identified as anonymous or permission to identify expressly granted. E-mail from Third Anonymous Defense Att’y, supra note 11.
URBAN LEGENDS By: Sarah M. Booher OEB Law, PLLC
Allison Cyrus LMU-DSOL Juris Doctor Candidate, ’22
THE GHOSTS OF SUTTREE Cormac McCarthy’s fourth novel, Suttree, chronicles the encounters and misadventures of its protagonist, Cornelius Suttree, through his sojourn in the underbelly of 1950’s Knoxville society. Since Suttree’s publication in 1979, literary scholars have posited that the novel’s characters and events were heavily drawn from McCarthy’s personal experience.1 McCarthy’s family moved to Knoxville from Providence, Rhode Island, shortly after McCarthy was born, and his childhood and early life were spent mostly in Knoxville and the East Tennessee region.2 His father, Charles McCarthy, was an attorney for the Tennessee Valley Authority (TVA), and McCarthy grew up with a first-hand insight into the socio-economic impact of the federal government’s “social experiment”.3 Indeed, McCarthy’s footsteps throughout Knoxville are reflected in the characters and background scenery of Suttree.4 Many of the physical sites throughout Knoxville depicted in Suttree stand today as they were in 1951, including the Church of the Immaculate Conception, Southern Railway Station, and the Henley and Gay Street Bridges.5 Perhaps even more intriguing than Suttree’s dearth of local historical geography is the fact that several of the novel’s characters were perpetually preserved by McCarthy’s writing in those very places that they lived and frequented.6 Over a dozen articles from the Knoxville Journal and Knoxville News-Sentinel from the 1950’s through the 1960’s reported events that took place involving the real-life characters of Suttree, some of which were detailed in the novel’s text in a manner based largely on their actual occurrence.7 For example, one of Cornelius Suttree’s friends who appears throughout the novel, was inspired by the notorious Billy Ray “Red” Callahan, who was a resident of Knoxville.8 In a close semblance to his real-life persona, Red Callahan was depicted as a mostly goodnatured drunkard and rogue, in and out of jail for petty thievery and drunkenness.9 He and Lonas Ray Caughorn are, incidentally, both characters who have gathered a cult following as rogue legends of Knoxville.10 One local news columnist explained that, “the two cults were ‘rivals for the allegiance of the “reasonably-pretty-good-sometimes-butnot-always-ol’-boys”’”.11 While Red Callahan’s legendary notoriety was certainly employed by McCarthy in crafting his character in Suttree, a closer reading of the text reveals that Callahan’s significance to McCarthy was more rooted in his heritage and history than in his status as an outlaw legend.12 Understanding the importance of the history of characters like Red Callahan requires a closer inspection of the intricacies of 1950’s Knoxville society—for both the elite and those at the fringes—which McCarthy witnessed unfolding in his formative years.13 Charles McCarthy, Cormac’s father, was instrumental in drafting TVA’s eminent domain condemnation policies and procedures as an attorney for TVA.14 While these condemnation proceedings compensated dispossessed landowners, the vast majority of the families and persons dispossessed were tenant
farmers who received nothing, yet were forced to relocate in the midst of the Great Depression to facilitate flooding for dam construction.15 Many of the impoverished dispossessed were forced to relocate to shanty towns along the river and slums such as McAnally Flats, which McCarthy mentions throughout Suttree.16 As William Prather aptly noted, Certainly the strong, the young, and many of the landowners removed by TVA were in a position to hazard a transition from a traditional community to a modern society. However, many of the dispossessed were elderly, infirm, mentally incapacitated, and on relief. Others, the tenants and sharecroppers, got nothing, just had to move on and hope for the best.17 McCarthy alluded to the detrimental impact that was leveraged by the mass dispossession in one of the novel’s scenes depicted in Abednego Jones’s Floating Tavern.18 The tabletops in the floating tavern were made of gravestones from land that was flooded by TVA, and as Suttree and his companion cipher the names etched in the stone, the name “Callahan” is found.19 The narration of the following section details the life and untimely death of Red Callahan, ultimately mourning the tragedy of an existence disrupted and fragmented in the name of progress.20 Individuals like Red Callahan were likely children at the time of their family’s dispossession, and in this depiction, McCarthy’s protagonist subtly questions whether life might have been different for people like Red Callahan if they hadn’t been forcibly uprooted.21 “What would their life have been like if their traditional community had not been destroyed by TVA? How many others in the ‘Encampment of the damned’ are rifted, dispersed fragments, like the stones themselves, of a world destroyed?”22
5 3 4
10 11 12
16 17 18 19 20 21 22 13 14 15
Wesley G. Morgan, Suttree’s Dead Acquaintances and McCarthy’s Dead Friends, 11 the cormac mccarthy j. 96, 96-97 (2013). William Prather, “The Color of This Life is Water”: History, Stones, and the River in “Suttree”, 4 the cormac mccarthy j. 39, 42-48 (2004). Id. at 40-41. Id. at 44-45. Wes Morgan, Searching for Suttree, suttree (Jul. 28, 2008), http://web.utk. edu/~wmorgan/Suttree/suttree.htm. Wesley G. Morgan, Suttree’s Dead Acquaintances and McCarthy’s Dead Friends, 11 the cormac mccarthy j. 96, 96-98 (2013). Id. at 96-104. Wesley G. Morgan, Red Callahan in Suttree: The Actual and the Fictitious, 4 the cormac mccarthy j. 244, 245-246 (2004). Id. at 246-253. Id. at 252-253. Id. at 253. William Prather, “The Color of This Life is Water”: History, Stones, and the River in “Suttree”, 4 the cormac mccarthy j. 39, 51-52 (2004). Id. at 53-54 Id. at 44-51. Id. at 42-44. Id. at 52-56. Id. at 43-44. Id. at 39-40. Id. at 51-52. Id. at 52. Id. Id.
B O AT B U I L D E R S By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
FROM TARIFFS TO TENNESSEE On August 4, 1790, President George Washington signed a law whose stated purpose was to “provide more effectually for the collection of the duties imposed by law on goods, wares and merchandise imported into the United States, and on the tonnage of ships or vessels.”1 I suppose there is nothing earthshattering about the fact that Congress had to come up with a way to collect the tariffs they had imposed a year before. Apparently, people weren’t standing in line to pay the tariffs voluntarily—or maybe they were, shall we say, finding a way to get their goods into the United States without going through the proper channels. What the law did was authorize Treasury Secretary Alexander Hamilton to build ten boats to catch the smugglers and enforce the tariffs.2 Over the years, the little fleet of “revenue cutters” continued to expand both in number and in duties, and in 1915, it was combined with the U.S. Life-Saving Service to become the United States Coast Guard, which has now been saving lives and protecting our nation’s 100,000 miles of coastlines and ports of entry for past 231 years.3 But in 1939, the Coast Guard was much smaller than the fleet of 243 Cutters and 1,600 boats that it is today.4 President Franklin Roosevelt had just transferred the Lighthouse Service to the Coast Guard, and Hitler’s invasion of Poland seemed far-removed from the Coast Guard’s jurisdiction closer to home.5 That is the year eighteenyear-old Alex enlisted.6 For the next twenty years, Alex served in the Coast Guard, starting as a mess attendant, which means he did all of the worst jobs anyone could find in the kitchen.7 It wasn’t great, but considering that the military was still largely segregated at that point in history, AfricanAmericans like Alex often got the worst jobs. In fact, it wasn’t until 1942 that the Secretary of the Navy (and the Coast Guard by default) announced that African Americans would be accepted in capacities other than messmen.8 As the U.S. entered World War II, Alex and many other Coast Guardsmen played an integral role transporting troops, equipment, and supplies to the soldiers and sailors from California to the Asiatic-Pacific Theater. Alex was stationed on the USS Murizim, which spent most of the last two years of the war at sea.9 That meant he had a lot of time to develop another talent. As it turns out, Alex could write. Week after week, he sent out letters. Some said he sent out as many as 40 letters a week. Other sailors recognized his gift, and they started paying him to write love letters to their girlfriends. He wrote their stories, and he wrote about what he saw to the people back home in the tiny town of Henning, Tennessee.10 He wrote short stories and sent story after story to magazines and publishers in the United States. He received rejection letter after rejection letter, for the most part (although a few were published).11 When the war ended, Alex, asked the Coast Guard to transfer him to the journalist rating, which didn’t actually exist at that time. He persisted, and eventually, the Coast Guard allowed it, making him the first chief journalist. By the time he retired in 1959, Alex held the rank of Chief Petty Officer and permanent assistant to the Public Relations Officer at the Coast Guard Headquarters having served in World War II,
the Korean War, and the first part of the Vietnam War.12 The Coast Guard even named a cutter after its first chief journalist—the USCGC Alex Haley, which you can still find stationed in Kodiak, Alaska, conducting search and rescue missions and patrolling the Bering Sea.13 They call it the “Bulldog of the Bering,” and the name fits. As the largest Medium Endurance Cutter in the Coast Guard’s fleet, it is designed to stay stable even in the heaviest of seas,14 which is fitting considering its namesake was the mess attendant who stayed stable through three wars, helped hundreds of Coast Guardsmen and sailors stay connected with their loved ones, created the rank of journalist in the Coast Guard, and rose to the rank of Chief Petty Officer all during a time of heightened tension and division in our nation and around the world. Alex wasn’t done. About four years after he retired, he wrote a book: The Autobiography of Malcolm X. Then, a few years after that, he wrote another book, Roots. When most people hear the name Alexander Murray Palmer Haley, that is what they think about—these two books. The Alex Haley Heritage Square off of Hazen Street in East Knoxville is a great place to sit and read, by the way. Clinton, Tennessee was lucky enough to have Alex Haley call it home during the latter part of his life. But to become a Pulitzer prize-winning, internationally acclaimed author, sometimes you have to start in the hull of a ship writing letters home for yourself and your peers. Sometimes you have to spend decades just doing what you know how to do and changing perspectives along the way. Boat builders build boats. Writers write. Both change the world.
First Congress, 2nd Sess, Ch. XXXV, p. 180 (Aug. 4, 1790), available at https://www. statutesandstories.com/blog_html/act-creating-coast-guard/. 2 Statutes and Stories, Hamilton’s Act Creating the Coast Guard (Apr. 12, 2018), https://www.statutesandstories.com/blog_html/act-creating-coast-guard, last visited Jan. 8, 2021. 3 The Coast Guard: America’s Oldest Maritime Defenders, https://www. statutesandstories.com/blog_html/act-creating-coast-guard, last visited Jan. 8, 2021. Because I am the daughter of a retired, Navy Senior Chief, I am not allowed to tell you that the Coast Guard is older than the U.S. Navy, and even if I was allowed to give you this information, the Senior Chief would tell you it is irrelevant. 4 Id. 5 United States Coast Guard Historian’s Office, U.S. Coast Guard History Program, https://www.history.uscg.mil/home/history-program/#:~:text=The%20Coast%20 Guard%20began%20maintaining,the%20Coast%20Guard%20in%201939., last visited Jan. 8, 2021. 6 United States Coast Guard, CGC Alex Haley History, https://www.dcms.uscg.mil/ Our-Organization/Director-of-Operational-Logistics-DOL/Bases/Base-Kodiak/TeamKodiak/USCGC-ALEX-HALEY/history, last visited Jan. 8, 2021. 7 Id. 8 United States Coast Guard, African Americans in the U.S. Coast Guard, https://www. history.uscg.mil/Browse-by-Topic/Notable-People/Minorities/African-Americans, last visited Jan. 8, 2021. 9 Murzim, Dictionary of American Naval Fighting Ships, Naval History and Heritage Command (Aug. 12, 2015). 10 CGC Alex Haley History, supra n.6; Biography, Alex Haley, https://www.biography. com/writer/alex-haley, last visited Jan. 8, 2021. 11 Biography, supra n.10. 12 CGC Alex Haley History, supra n.6. 13 United States Coast Guard, USCGC Alex Haley “The Bulldog of the Bering,” https:// www.pacificarea.uscg.mil/Our-Organization/Cutters/cgcAlexHaley, last visited Jan. 8, 2021. 14 Id. 1
barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. Networking will begin at 5:00 p.m., and committee reports will begin at 5:15 p.m. To attend, register for the meeting at www.knoxbar.org and a link will be sent to you on the day of the meeting. DIVERSITY COMMITTEE HOSTS CLE PROGRAM ON FEBRUARY 11 The Barristers Diversity Committee has prepared the following CLE program for February: Combating Racial Bias in the Judicial System. Everyone is invited to attend the CLE on Thursday, February 11, 2021, 12 – 1 p.m. via Zoom. Our panelists will explore race-based disparities in the justice system and as these concepts relate to civil and criminal litigation, using scientific data and real-world success stories. Learn about creative efforts private practitioners are pursuing to give back to the community and strengthen relationships between the judicial system and minority communities. Make sure to register through the KBA website by clicking February 11 on the events calendar. VOLUNTEER BREAKFAST COMMITTEE SEEKS 2021 SPONSORS The Volunteer Breakfast Committee will continue to prepare and deliver breakfast to the Volunteer Ministry Center on the fourth Thursday of the month. The Barristers Volunteer Breakfast Committee continues to accept sponsors for breakfasts in 2021. Sponsorship is $150 and it provides a hearty meal to the most vulnerable members of our community. We offer our heartfelt thanks to all our sponsors and volunteers. Please contact Matt Knable (email@example.com) or Mitchell Panter (mpanter@ lewisthomason.com) for questions or concerns.
VOLUNTEER FOR THE VETERANS LEGAL ADVICE CLINIC The Veterans Legal Advice Clinic is a general advice and referral clinic which will serve between 20 and 30 veterans in the community each month with a wide variety of legal issues. Volunteers are needed between 12:00pm and 2:00pm on the 2nd Wednesday of every month. Sign up to help at www.knoxbar.org/volunteer, and contact Access to Justice Committee CoChairs Spencer Fair (firstname.lastname@example.org) or Luke Ihnen ( ihnen@ londonamburn.com) with questions. MOCK TRIAL COMPETITION TO TAKE PLACE VIRTUALLY The virtual Grand Division Mock Trial Competition will take place February 15-27, with specific dates for each division announced on or before February 1, 2021. The virtual State Mock Trial Competition will be held March 15-20, 2021. If anyone has any questions, please contact Stephanie Vonnahme with the TBA Young Lawyers Division at email@example.com or KBA Mock Trial Committee Chair Patrick O’Neal (Patrick.firstname.lastname@example.org). CLE COMMITTEE TAKING SUGGESTIONS The CLE Committee will be meeting in early 2021 to begin planning informative and entertaining CLEs for the upcoming year. Please feel free to submit any ideas you may have to Sam Louderback (slouderback@ emlaw.com) and Seth Oakes (email@example.com)
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OF LOCAL LORE AND LAWYERS By: Joe Jarret Attorney, University of Tennessee
OF COLLEGIALITY AND COOPERATION Recently, I was going through some old research files when I came across an opinion 1 regarding a breach of contract case. I couldn’t recall why I kept the opinion until I read a portion I had highlighted some years ago. It reads: “Notice of the motion for default was not given, nor was a telephone call made before entry of the default, on the mistaken notion that an attorney’s duty to his client prohibits such exercises in professional courtesy. . . . [C]ounsel’s obligation to his client does not outweigh his duty as an officer of the court. It is the function of our legal system to resolve controversy on the basis of appropriately presented facts, not tactical proficiency. Time limitations exist for the sake of efficiency, not as traps for the unwary. Suffice it to say that in this case a great deal of time and energy has been wasted for want of a single, simple telephone call that a decade ago would have been considered the rule rather than the exception.’” The judge who penned the opinion was the Honorable George W. Hersey, formerly with Florida’s 4th District Court of Appeal. Judge Hersey’s acerbic commentary was an attempt to illuminate attorney behavior that was indicative of a legal community where the extension of professional courtesy between lawyers was a dying tradition. He was deeply concerned that the practice of law was increasingly devolving into a disregard for standards that legal philosophers once considered mandatory in the ethical practice of the lawyers’ craft, namely, collegiality and cooperation. Years later, the Honorable James Larry Edmondson, Senior United States Court Judge of the United States Court of Appeals for the Eleventh Circuit, had this to say about a contentious lawsuit that was before the court: “Plaintiff ’s lawyer slavishly followed his client’s instructions and—without a word to [d]efendants in advance—just sued his fellow lawyers. As the district court saw it, this conscious disregard for lawyer-to-lawyer collegiality and civility caused (among other things) the judiciary to waste significant time and resources on unnecessary litigation and stood in stark contrast to the behavior expected of an officer of the court. We believe and defend the idea that maintaining a bar that promotes civility and collegiality is in the public interest and greatly advances judicial efficiency.” 2 I feel privileged to be a Knoxville Bar Association member, a professional organization that consistently promotes civility and collegiality amongst its members. I likewise feel privileged to practice law in a town where judges and lawyers mutually respect and support one another. However, that some members of the judiciary (outside of Tennessee) have seen fit to mention lawyer collegiality and cooperation in published legal opinions is both telling and troubling. Attorney Andrew Herron succinctly noted that two major forces control lawyer collegiality: philosophical guidelines that the lawyer sets for her or himself and legal guidelines that the profession provides.3 Each lawyer’s particular philosophical understanding of the adversary system of advocacy may influence her/ his view of the relative necessity of collegial behavior and may create self-imposed duties for and against collegial behavior. Similarly, the codes of ethics and case law in force where the lawyer practices may impose legal duties of collegiality.” In Tennessee, we willingly adhere to a code that presumes an atmosphere of collegiality. In the preamble to Tennessee Rules of Professional Conduct, lawyers are reminded that “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.” The rule goes on to read, “These principles include the lawyer’s obligation to zealously protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.” 4 I believe it goes without saying that lawyers are included in this group. The profession, the legal system, and the public good are all better served by the exhibition of greater civility and collegiality by lawyers towards one another. As a self-governing profession, we must inculcate in the next generation of lawyers the importance of civility and collegiality. By exhibiting greater civility and collegiality towards one another, our profession, the legal system in which we practice, and the people we represent will all be better served.
3 4 1 2
Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So. 2d 281, 284 (Fla. Dist. Ct. App. 1980) (Hersey, J., concurring). Sahyers v. Prugh, Holliday & Karatinos, P.L. (Sahyers I), 560 F.3d 1241, 1244 n.5 (11th Cir. 2009) (quoting FED. R. CIV. P. 1), cert. denied, 131 S. Ct. 415 (2010). Andrew R. Herron, Collegiality, Justice, and the Public Image: Why One Lawyer’s Pleasure Is Another’s Poison, 44 U. Miami L. Rev. 807 (1990). Tennessee Rules of Professional Conduct, Rule 8.
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John L. Billings Vice President - Client Administration 865.297.4070 tcvwealth.com Independent Trust Company
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STORIES OF COVID-19 AND BEYOND By: Steven W. Sword Criminal Court Judge, Division I Sixth Judicial District
FROM THE PIT TO THE PALACE There is a wonderful story from the book of Genesis where Joseph is thrown into a pit to die by his jealous older brothers. They eventually decided to sell him into slavery and tell their father that he had been killed by wild animals. However, Joseph was such a faithful servant that he ended up being placed in charge of all the land of Egypt, second only to Pharaoh in power. He ruled wisely through a period of prosperity and a period of famine. When his brothers discovered he was alive and in power they fell down before him and cried out. Joseph replied with the fateful words, “what you meant as evil against me, God meant for good, to bring it about that many people should be kept alive.” Such is oft the case in life. The hardest challenges we face end up leading to the greatest progress. The criminal justice system has not been immune to the hardships created by the COVID-19 pandemic. Yet, these new challenges necessitated new ways of administering justice by those involved in the system. Many of the newly adopted procedures will have a lasting positive impact on criminal justice in Knox County long after the pandemic has ended. One of the first priorities the criminal justice system needed to address at the outbreak of COVID-19 was the large jail population and the imminent danger of community spread throughout the detention facilities. After consultation with District Attorney Charme Allen and the defense bar, the five Sessions Court judges and three Criminal Court judges developed a district wide general order addressing the bonds of all inmates and new arrestees. The jail population was reduced by 40% within a matter of a few weeks. Although the numbers have increased, there are still currently 30% fewer inmates being detained than in February 2020. As more inmates were released from jail, the Knox County Sheriff ’s Office stepped forward with increased pre-trial supervision. The supervising officers currently oversee approximately 2,300 defendants under the program. The success of the pre-trial release program will likely result in several of the release policies adopted in the emergency order to be continued in the future. Although this program began before the pandemic, COVID-19 has accelerated the implementation of pre-trial release across the district. Despite our limitations on in-court hearings, criminal court cases have not stagnated. Renewed efforts toward agreed resolutions by the prosecutors and the defense bar have resulted in a closure rate nearly 70% of previous years for the late fall months. There is no question that once restrictions on jury trials are lifted the courts and attorneys will be very busy. The resumption of jury trials is the highest priority of the courts. However, thanks to the attorneys’ ability to reach negotiated plea agreements, justice is still proceeding. During the brief period of time where jury trials were conducted, February 2021
Mike Hammond and his staff developed detailed procedures to ensure the safety and health of the jurors reporting for duty. Many of the new processes for jurors installed by jury coordinator Kasey Stone have led to permanent efficiencies. Instead of having to take a day off from work to attend a mass jury orientation at a rented space, jurors now sign up and go through orientation on-line. They can even apply for a hardship excusal or deferral through the juror webpage. Attorneys will now receive juror personal information forms electronically which will allow more time to review the pool prior to jury selection. The most significant change in court procedures has been the use of video technology. Ninety-five percent of all Criminal Court hearings are currently being conducted through video appearances. The use of video technology has not only assisted in reducing community contact in the courthouse, it has resulted in great efficiencies for the Sheriff and the Department of Corrections. Inmates housed in East Knox County or on the other side of the state in a prison can now appear via Microsoft Teams. They can hear and see their attorney, the assistant district attorney, and the judge on screen. Transportation from TDOC that used to require a week-long bus journey can now be accomplished with a five minute walk down the hall. Perhaps the greatest benefit from the pandemic challenge has been the coming together of the stakeholders in the criminal justice system. From the early weeks in March to present day, the stakeholders have met almost every Monday by video to discuss the issues and how to address them as a group. Representatives from the District Attorney’s Office, the Public Defender’s Office, the Sheriff ’s Office, the private defense bar, the Criminal Court and Sessions Court Clerk’s Office, the Magistrate’s Office, Sessions Court judges, and Criminal Court judges all contribute to the conversation as we look for ways to serve the community through the criminal justice system. The combined knowledge, experience, and areas of expertise have allowed us to develop better procedures than the judges could have developed alone. The continuance of this collaborative approach will yield positive results for all those involved in criminal justice for years to come. The issues addressed during these meetings are often difficult and always important. Therefore, to ease the stress we make it a point to end each of these meetings on a positive note. Sometimes the ending would just be a funny story such as the time my neighbor’s cat decided to sneak into my house in the middle of the night and pick a fight with my dogs in the dining room. But, more often than not, we would end with a report of how some decision we made together made the system work just a little better to help the people in our community. We may not be in the palace just yet. But, thanks to the faithful work of everyone involved, we are no longer in the pit.
B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
By: Phil Hampton Founder and CEO, LogicForce Consulting
PRIVACY SETTINGS FOR SMART PHONES Our smartphones hold many secrets about us, from where we have been to what we are watching, how much we are walking or even sleeping. The convenience of smart phones in capturing and analyzing so many intricate details of our lives is the very reason that these devices are a huge threat to our personal privacy, something that Americans normally guard zealously. You wouldn’t think about reading aloud the last 5 instant messages you typed on your phone in a crowded coffee shop or displaying the last 5 photos you took on a public display; but you could be effectively leaving yourself vulnerable to this type of privacy invasion by not paying attention to the privacy settings on your smart phone. With just a little effort, you can protect yourself from unwanted prying eyes accessing your personal data on your smartphone. First and foremost, we highly recommend that you create a PIN or some other method to lock your smartphone when not in use. When you activate the lock screen feature on your phone, you automatically encrypt your phone’s contents. Many phones today will allow you to create a PIN but will also allow you to unlock your phone with a biometric authentication method such as a fingerprint or face ID. We recommend that these features are enabled on your phone as a basic first step. Another step we highly recommend is to enable twofactor authentication (2FA) on any app or website that offers this enhanced authentication method. With 2FA enabled on Gmail, for example, if you try to login to your Gmail account from an unfamiliar location, 2FA kicks in and sends a security code via SMS text to your phone. When you receive the security code, you type it into the requesting app (Gmail, for example) and the app then allows access. 2FA will essentially block access to your personal apps and data if someone tries to login as you on an unknown device. Beyond authentication measures, however, there are still other ways to protect your personal data from more surreptitious access attempts. Most phones, both iPhones and Androids, have a Location Services option in the Settings. Locations services are various systems on your phone that can track your physical location, such as GPS, Bluetooth, and cell tower signals. If you wanted to make your phone completely invisible on the grid (as they say), you could just turn off the Location service. But then how would we ever navigate anywhere again as we are totally dependent on our phone’s GPS and Maps app to get around? Apps like Google Maps, Waze, Uber, and Lyft need to have access to our location to function as we expect them to. Other apps, however, may have access to our location without really needing access. We recommend visiting the Location Services setting on your phone and reviewing all the apps that have access to your location. If an app doesn’t need to know where you
are, you should turn off access. For example, unless you use the Checkin feature on Facebook, there really isn’t a need for the Facebook app to access your location. So, on your iPhone with iOS14, you would go to Settings->Privacy->Location Services (for the iPhone in general, and for each app specifically). Similarly, on an Android phone, you would go to Settings->Privacy>Permission Manager->Location, look for apps that have access to your location, and disable access for all but essential apps. When you open a new app for the first time, it may present you with a number of prompts asking if the app can have access to various services on your phone, such as your location, camera, microphone, contacts, etc. While many quickly answer “Yes” to these prompts thinking that it is necessary for the app to function correctly, we recommend being more picky and only grant access to what is absolutely necessary for the app to work. For example, it makes sense that Facetime or Zoom would request access to your camera; and so, you would grant that access. It doesn’t make sense to us why a retail shopping app would need access to the camera, and so we would be inclined to deny access to that app. Again, these settings for apps that have already been installed can be reviewed and modified in the Privacy settings on your phone. On the iPhone, a couple of privacy enhancements in iOS14 are noteworthy. Under Settings->Privacy->Bluetooth you can see a list of apps that have access to your phone’s Bluetooth signal. As with all location services, there are some valid reasons for some apps to access your Bluetooth signal; but there are probably many apps that are using your Bluetooth signal to communicate to nearby beacons. Privacy hawks would probably tell you to just turn off Bluetooth all the time until you need to use it. Our stance is to leave Bluetooth on but to disable access to Bluetooth on an app by app basis. Another noteworthy new feature in iOS14 is the Precise Location setting. In this version of iOS, when an app requests access to your location, there is an option called Precise that you can toggle on or off. A location dependent app, such as Uber, probably needs access to your “precise location” so the Uber driver can find you to pick you up. Other apps which you may grant access to your location, nonetheless, don’t really need to know your “precise location”. In these instances, we recommend leaving the “precise location” option turned off. While we all give up a little privacy the minute we log on to any connected device, a little due diligence and common sense can limit our exposure on a “need to know” basis and preserve a privacy curtain in the online world.
AROUND THE COMMUNITY By: Timothy W. Conner Presiding Judge Tennessee Workers’ Compensation Appeals Board
ACCESS TO JUSTICE IN TENNESSEE’S WORKERS’ COMPENSATION SYSTEM The Tennessee Supreme Court, like other high courts across the nation, rightly stresses the need to improve access to the legal system for those unable to obtain legal counsel or representation. In December 2008, the Tennessee Supreme Court “made access to justice its number one strategic priority” and formally adopted its “Access to Justice Initiative.”1 Every two years, the Access to Justice Commission produces a Strategic Plan to continually improve its programs.2 Meanwhile, in early 2013, the Tennessee general assembly passed legislation that fundamentally changed Tennessee’s workers’ compensation system. The bill, known as the Workers’ Compensation Reform Act of 2013, was signed into law by then-Governor Bill Haslam in April 2013 and became effective July 1, 2014. The Act removed workers’ compensation cases from Tennessee’s courts of general jurisdiction (primarily circuit and chancery courts) and created two new courts: the Court of Workers’ Compensation Claims and the Workers’ Compensation Appeals Board. Both courts operate under the auspices of the Tennessee Bureau of Workers’ Compensation (“BWC”). The BWC’s Administrator appoints the judges who serve on the Court of Workers’ Compensation Claims, and Tennessee’s Governor appoints the judges who serve on the Workers’ Compensation Appeals Board. Litigants who are aggrieved by the final dispositions of their cases in those courts can appeal their cases to the Tennessee Supreme Court. Since July 1, 2014, the BWC has processed thousands of claims, most of which were resolved prior to litigation. During that time, the number of self-represented employees in Tennessee’s workers’ compensation system increased significantly. There have been anecdotal reports that some injured workers have difficulty finding attorneys willing to take their cases. So, what is the BWC doing to improve access to Tennessee’s workers’ compensation system? The BWC’s response to this critical issue has been robust. Ombudsmen As part of the 2013 Workers’ Compensation Reform Act, the BWC’s administrator was tasked with establishing an ombudsman program “to assist injured or disabled employees, persons claiming death benefits, employers, and other persons in protecting their rights . . . .”3 The assistance of an ombudsman is available “only to those individuals or organizations that are not represented by an attorney.”4 In 2016, the legislature amended the statute to allow ombudsmen who are also licensed attorneys to “provide limited legal advice” to self-represented parties.5 Currently, the BWC employs four non-attorney ombudsmen and two attorney ombudsmen.
In fiscal year 2019-20, the BWC’s non-attorney ombudsmen resolved almost 2,000 disputes in an average of two to three days without the need for formal mediation or litigation. Once a case moves to the litigation stage, self-represented litigants can ask for the assistance of an attorney ombudsman, who can explain workers’ compensation laws and evidence rules and prepare a self-represented litigant for what to expect during a hearing. In fiscal year 2019-20, the BWC’s attorney ombudsmen assisted 118 self-represented litigants.6 Mediation The BWC also offers free mediation services in all workers’ compensation cases. In fact, mediation is required in almost all cases before a dispute can proceed to litigation. The BWC’s mediators are specially trained in workers’ compensation laws and are tasked with resolving as many cases as possible. Among other duties, mediators are responsible for: (1) mediating all disputes; (2) informing all parties of their rights and responsibilities; (3) facilitating the exchange of relevant information; (4) reducing agreements to writing; and (5) certifying disputed issues. This final step is critically important because, except in certain limited circumstances, an issue cannot be presented to a workers’ compensation judge for resolution unless that issue has been certified by the mediator on a dispute certification notice. In fiscal year 2019-20, the BWC’s mediators resolved over 2,700 disputes through mediation. This represented 81.5% of all disputes that were resolved without the need for litigation, all without financial cost to the parties. Technology The BWC’s website has a number of resources to assist unrepresented parties, including FAQ pages for injured workers and employers, written instructions for filing a claim, and a summary of injured workers’ rights. The website also has links to forms used in the claims process, as well as rules governing mediation, litigation, and appeals. Additionally, the BWC maintains a YouTube page with videos explaining claims processes and court procedures. In an exciting new development, the BWC partnered with the Tennessee Alliance for Legal Services, LMU’s Duncan School of Law, and an online platform called LawDroid to develop a “WC Bot,” which is an interactive platform that uses artificial intelligence technology to assist parties in completing necessary workers’ compensation forms such as the Petition for Benefit Determination.7 This same partnership has resulted in the development of one-day legal clinics at the Duncan School of Law, where law students are trained to answer questions for self-represented employees. The first training session occurred on March continued on page 26
A R O U N D T H E C O M M U N I T Y, continued 7, 2020, but later clinics were postponed due to COVID-19 protocols. In the last few years, and especially in the last ten months with the imposition of restrictions necessitated by the COVID-19 pandemic, the BWC has emphasized the use of technology to further improve access to justice. In the months since the Court of Workers’ Compensation Claims allowed telephonic settlement approval hearings, the court has approved almost 5,000 settlements, totaling over $89 million in benefits. Judges have also expanded hearing options for litigants to include telephonic hearings, video conferences, and in-person hearings governed by strict social distancing and mask requirements. In addition, the Court of Workers’ Compensation Claims has a blog called “From the Bench” that summarizes important statutory and case law developments, shows the courts’ calendars, has an FAQ tab, and includes articles written by trial judges on various topics. The Workers’ Compensation Appeals Board has also leveraged technology to maintain court operations. The Appeals Board has used telephonic and video-conferencing technologies to conduct oral arguments in a number of cases, with additional video-conference oral arguments scheduled in early 2021. The Appeals Board’s webpage has links to the rules governing the appeals process, and the Appeals Board added an FAQ page to provide useful information to litigants involved in an appeal. Finally, in conjunction with the trial court, the Appeals Board helped produce an updated guide for self-represented parties, which is available online or in hard copy in English and Spanish. Currently, the Appeals Board is working to update a video that introduces parties to the appellate process, which is also available on the BWC’s website. Access to Courts’ Decisions Orders of the Court of Workers’ Compensation Claims and
opinions issued by the Appeals Board are available from several online sources. In addition to subscription services such as Lexis and Westlaw, all orders and opinions are available for review on the Bureau’s website for free. In addition, all Appeals Board opinions are provided to the Tennessee Bar Association, which summarizes and provides links in its daily email blast, TBA Today. Recently, the BWC partnered with an online platform called Court Listener, which provides free access to all orders and opinions in a searchable format.8 At https://www.courtlistener.com/opinion, the user can choose the jurisdiction and court to be searched, then input whatever key words the user is interested in researching. Access to justice is an issue critical to the legal profession and, under the leadership and guidance of the Tennessee Supreme Court, is an issue being addressed head-on by the BWC and Tennessee’s workers’ compensation courts.
5 6 3 4
Access to Justice, Tennessee State Courts, http://tncourts.gov/programs/accessjustice (last visited December 29, 2020). The most recent Strategic Plan can be found at http://tncourts.gov/sites/default/ files/docs/2020_atjc_strategic_plan .pdf Tenn. Code Ann. § 50-6-216(a). Id. Tenn. Code Ann. § 50-6-216(e)(3). The BWC’s Ombudsman Program can be reached Monday-Friday from 7:00 a.m. – 4:30 p.m. (central time) at 800-332-2667. The WC bot can be accessed at www.help4tn.org under the “Employment” tab. Order and opinions can be accessed directly for free at https://www.courtlistener. com/court/tennworkcompcl/ and https://www.courtlistener.com/court/ tennworkcompapp/.
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
ABANDONING THE RULE OF LAW Count me among the hundreds of millions of people profoundly saddened and outraged by the recent insurrection at the United States Capitol. My heart goes out to the family of Capitol Police Officer Brian Sicknick, who died during the assault. As lawyers, we take a solemn oath to defend the Constitution. Tennessee’s oath begins: “I . . . do solemnly swear or affirm that I will support the Constitution of the United States . . .”1 I am proud that, consistent with this solemn obligation, many attorneys, in Tennessee and elsewhere, have condemned the actions of those who tried to tear down our government. In an email that we have all received, KBA President Cheryl G. Rice wrote that “[t]he Knoxville Bar Association denounces the violence that took place at our nation’s Capitol yesterday. Our sworn obligation as attorneys is to uphold and honor the Constitution and the rule of law . . .” LMU’s Law Dean Matt Lyon penned a heartfelt message in which he recounted his personal experiences on 9-11, when his Washington office was evacuated. He continued, “Our legal system is not perfect. The many inequalities in this country have been laid bare over the past year, no more so than on Wednesday when we saw how easily a mob, incited into violence, was able to defile the heart of our democracy. But we have also seen this year that in our judicial branch, certain central tenets remain strong thanks to lawyers and judges of both political parties. These include: the importance of facts, supported by evidence; the language of our Constitution and state and federal statutes; the value of legal precedent; civil discourse; and robust, non-violent debate and dissent.”2 But while I am inspired by Cheryl and Matt, I am equally dismayed by a few attorneys who seem to have given up on the rule of law. I recently had a troubling exchange on Facebook with one of my former students—not an LMU alum, I’m glad to say. After a number of references to violent revolution, this licensed attorney asked me whether secession is constitutional. I answered “no,” citing Texas v. White, in which the Supreme Court held that secession is “undoubtedly, unlawful, for the acts which it contemplated are, within the express definition of the Constitution, treasonable.”3 The attorney wrote a lengthy reply, which began, “so you’re saying there are no LEGAL means of redress against a tyrannical government.” Well, yes, I was talking about legal means. Of course I was. But before I could remind him of the many legal methods of redress—free speech, peaceful protest, and the ballot box come to mind—this former student of mine wrote: “Hopefully, before the guns are confiscated, there will be enough patriots to rise against the oppression as the founders did. Just like then, there seems to be no other redress available for the kinds
of oppression we’re seeing the beginnings of now. History shows that no empire lasts forever. British, Mongol, Ottoman, Roman...they’re all long gone. Perhaps our time has come too. Sad...” Yes, it is sad. It’s sad to abandon the rule of law. It’s sad to give up on the American Experiment. And it’s entirely inappropriate for an attorney to even hint at support for armed rebellion. Our majoritarian system is flawed—as flawed as the humans who operate it. However, as noted by a great parliamentarian, “[m]any forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried . . .”4 Essential to the democratic process is the willingness to lose— on issues, in court, and in elections. When I’ve lost prominent court cases, I’ve offered a standard response to the press: “We respectfully disagree with the court’s ruling, and we will consider further legal options.” That’s it. If you lose, you lose, especially once you’ve exhausted all your appeals. I’ve also lost a local election. My statement to the press was, essentially, that “the people have spoken, and I respect their decision.” That’s it. That’s how democracy works. When one person, or group, refuses to accept the rule of law, especially when that refusal is violent, well, then, the very foundation of our nation is under attack. And that foundation is worth defending. As my university’s namesake explained in a far more perilous time: “Fellow-citizens, we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us. The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation . . . We—even we here—hold the power, and bear the responsibility . . . We shall nobly save, or meanly lose, the last best hope of earth.”5 The last best hope of earth. That’s something worth defending. And, like Abraham Lincoln, we’ve taken an oath to do so.
3 1 2
Tennessee Rule of Professional Conduct 6 (4). Dean’s Message, January 8, 2021, via email. 74 U.S. 700, 733 (1868), overruled in part on other grounds by Morgan v. United States, 113 U.S. 476 (1885). Winston S. Churchill, debate in the House of Commons, November 11, 1947, available at https://api.parliament.uk/historic-hansard/commons/1947/nov/11/ parliament-bill. Abraham Lincoln, Annual Message to Congress, December 1, 1862, available at: http://www.abrahamlincolnonline.org/lincoln/speeches/congress.htm.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. February 2021
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 firstname.lastname@example.org. LEGAL AID OFFERS CONTRACT ATTORNEY PROGRAM Legal Aid of East Tennessee is recruiting local private attorneys practicing in Knox, Blount, Loudon, and Sevier counties to participate in the Contract Attorney Program (CAP). Attorneys will be paid at the rate of $75.00 per hour for services rendered plus reasonable out of pocket expenses incurred incident to representation. Total billings per case cannot exceed $1000 unless written approval is granted in advance. All cases will be related to the recent Covid-19 pandemic, assigned by Legal Aid, and will be across a wide range of subjects from landlord/tenant cases to Orders of Protection. Legal Aid will be willing to help answer questions and provide guidance. Attorneys representing clients through the CAP program will be covered by LAET’s Professional Liability insurance policy and entitled to receive Continuing Legal Education credits. Interested parties should email Deb House, Director of Development and Compliance at email@example.com. KBA CLASSIFIEDS EXPANDED TO INCLUDE LAW STUDENT INTERNS Reliable help when you need it! Have you ever been short on time and in need of help to reach a deadline? Do you ever wish you could delegate tasks like research and writing so that you could better focus on practicing law? In short, do you need an intern? We want to help! The KBA has updated our Classifieds and added the option to post listings specifically seeking law student interns. We have been working closely with the law schools who have expressed that students are desperate for internships and opportunities to gain experience while in law school. Law students will benefit from this invaluable exposure to the local legal community. Students may post their resumes and signify that they are seeking internships. Attorneys and law firms will have the ability to post intern listings and browse resumes of eager candidates. Click on Public Resources and select “Career Classifieds”
from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource at www.knoxbar.org. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www. knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: • 1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!)and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545. •
Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email firstname.lastname@example.org for inquiries.
Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 8051911.
LONG WINDED By: Jason H. Long London Amburn
COMMON GROUND Life just keeps getting weirder and weirder. Since the last issue of DICTA went to press, coronavirus numbers continue to surge, our nation’s Capitol was put under siege, and the Cleveland Browns won a playoff game. It does not disturb me so much that these nearapocalyptic events are occurring with some frequency. If a higher power has determined that this is the way the world ends, so be it. I am more concerned with how we, as a people, are handling it. A quick glance at a Facebook page or Twitter feed shows people becoming increasingly hostile and polarized on even the most basic issues. I fear speaking out on even the most banal of issues for fear of reprisals from lifelong friends. It shouldn’t be this way. We ought to celebrate what we have in common more than what divides us. With that precept in mind, I thought it worth identifying some things upon which we should all be able to agree. The Rule of Law is a good thing. Let’s start with an easy one. As lawyers, we can all agree on this, right? I’m not debating who is or isn’t following the Rule of Law these days. I simply want to confirm that we all agree, in concept, that the Rule of Law should be followed because I’m no longer sure that everyone believes that. Several years ago, Bill Haltom served as president of the Tennessee Bar Association, and his signature project was to develop and then distribute a video about the importance of the Rule of Law. Truth be told, I thought it was a nice project, but not particularly impactful, as I assumed we all held the Rule of Law sacrosanct. In retrospect, I owe Bill an apology. It is obvious now that constant vigilance is required. It is important to pay attention to details. Again, this is a no brainer for lawyers. We are paid to pay attention to the details our clients so often miss. For example, when booking a venue for an important political rally, to question the legitimacy of a presidential election, it is worth verifying whether you have, in fact, called Four Seasons Hotels and Resorts or a local landscaping company. While the two share a name, there is a critical difference . . . one isn’t a hotel. I love to think Giuliani arranged for the location himself, although I am sure he had an assistant do it. Either way, how did that phone call go? “Hello. Is this the Four Seasons?” “Yes, it is.” “I’m special assistant to Rudy Giuliani. We’re going to have a big event next week detailing the numerous ways in which the democrats perpetrated fraud in this election. Thousands of people will be there. It will be a huge media event. Can you guys host it?” “Sure.” And that must have been the end of the conversation. There was no discussion of parking, ballroom capacity, access points for media, availability of staff who could assist, or any of the other hundreds of details to cover, any one of which would have made it clear that a wrong number had been dialed. Everyone wants the Coronavirus to go away. Even if you believe February 2021
that the pandemic is being blown way out of proportion or that suggested safety measures, like wearing masks, are ineffective, we still all agree that life would be better if we had never heard of the Coronavirus, and we all wish it would go away. Nobody that I know is pro-Coronavirus. When participating in a revolution, dress the part. MAGA hats? Sure, I get it. You want to proudly wear the most recognizable symbol of your movement. Winter toboggan with a pom pom attached to the top? A week ago, I would have said it seemed a little immature for the gravity of the moment. You don’t want to look like Randy from A Christmas Story as you topple the world’s longest-lasting democracy. But that was a week ago, before I saw the photos. I gotta say, it works. That toboggan really pops when you are carrying the speaker’s podium through statuary hall. A bold choice that paid off. On the other hand, a fur-lined Viking helmet, shirtless, with what appears to be pantaloons? Not even the face paint could pull it all together. Ultimately, when engaged in a war to bring down the deep state, furry fetish sex party is probably not the look to go for. Don’t we all wish Elizabeth hadn’t admitted she was from Knoxville? I’m sure you’ve all seen the video by now, but in case you haven’t, let me set the stage: In the immediate aftermath of the assault on the Capitol building, a reporter approaches a woman with tears in her eyes, who is clearly shaken and upset. It turns out she actually set foot inside the Capitol and was immediately hit with mace. That was the end of the “revolution” as she put it. The woman’s name was Elizabeth, and when the reporter asked where she was from, she defiantly said “Knoxville, Tennessee.” Now, I don’t care if you believe Elizabeth is a rioter or a patriot. Either way, it’s not a good look for us Knoxvillians. If you believe she was a rioter and seditionist, then you’d rather not have friends around the world associate her with Knoxville. If you believe her to be a patriot . . . well . . . its clear that she simply wasn’t prepared for her moment of glory. Yves Pons may be superhuman. If you aren’t watching the Tennessee Vols play basketball this season, you are missing perhaps the greatest assemblage of true athletes we’ve ever had. We have 8 or 9 guys who are just tremendous ballplayers in their own right. That makes Yves ability to stand out even more amazing. I swear, at times, when he blocks an opposing player’s shot, he literally appears to fly. Off the court, he is an accomplished ballet dancer, chef, and saxophone player. He has one of the best names in basketball, his nickname is “Air France,” which is pretty cool. He has a great accent and looks like he is constantly posing for the cover of GQ. In short, he is pretty awesome. Common ground appears to be in short supply these days. Maybe we can build on this list and focus on our similarities for awhile. That would be a nice change of pace.
Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney Legal Aid of East Tennessee
ROTATING WEEKLY PHONE CLINICSA NEW PRO BONO OPPORTUNITY I am so excited about a new pro bono opportunity that will be up and running in February. We will be instituting a rotating virtual advice clinic and hope that area attorneys will commit to regular shifts providing telephone advice to area residents. Each Tuesday, an area attorney will commit to a 2-3-hour shift providing advice to clients in their legal area of expertise. Clients will sign up for 30-minute appointments and will understand ahead of time that the call will be limited to advice only and for a period no longer than 30 minutes. By having clients schedule appointments, clients will be able to organize their schedule and an attorney will be able to maximize their effectiveness by serving 4-6 client per volunteer slot. Volunteer attorneys will not be required to take on the client for the duration of their legal problem. We need attorneys with a wide range of legal expertise including family law and child support, estate planning and probate issues, landlord/tenant disputes, and general civil litigation issues. If you are interested in signing up for a shift please email me at CTorney@laet.org.
REPORTING YOUR TIME, IT IS ABOUT MORE THAN CLE
Twice a year we send all our pro bono volunteer attorneys who are directly assisting clients Status Report and Closure Forms. I want to thank all of you who took the time to fill out and return those forms this past December and explain why these records are so important to our mission at Legal Aid of East Tennessee. First, I want to make sure you get the CLE credit you deserve! For every 5 hours of pro bono work you complete, you are entitled to 1 hour of general CLE credit. Even if you do not need or want CLE credit for your time, reporting your time is still incredibly important. Our grantors and funders ask us specifically to track a variety of metrics including the number of area Pro Bono attorney volunteers, the number of hours they completed, and the value for those hours. Having hard numbers helps us provide objective data when we are seeking potential grants and comply with reporting requirements for our current funders. In 2020, our reports indicated a total of 761.83 Hours of service by attorneys in our service area. Although this is an impressive number, I know that the real number of hours is much greater, and I encourage you all to send us in your time reports so we can accurately report how much time and effort our area bar generously donates to the Pro Bono Program. Finally, by filling out the Status and Closure Reports you help us to maintain accurate records. Legal Services Corporation, our primary source of funding, requires us to conduct regular updates for our files and close files in the year that they are completed. By turning in your Closure and Status Reports, you help us to comply with these requirements. Again, I am so grateful to the majority of volunteers who turned in their reports this year, thank you all.
PRO BONO MATTERS: FEATURED CASES
We have recently updated our website and I hope you will check out our Pro Bono Matters section to peruse current case opportunities and look for cases that speak to your interests and area of expertise. Current cases available include: • A Knox county woman in her early 60’s seeking a simple will and power of attorney to help make sure her children aren’t stuck dealing with her estate after she passes. • A Blount county widow seeking help getting a conservatorship to allow her to continue to provide care for her special need’s child. • A single father from Sevier county trying to get conservatorship over his severely handicapped adult son. • A widow who needs help with a probate and life insurance issue in order to manage money left to her sons. If any of these cases appeal to you, please contact me directly at CTorney@laet.org or you can call me at # (865) 251-4951. These cases will also be posted on Pro Bono Matters and I urge you to check the site often as we will post new cases on a regular basis.
YOUR WORK MAKES A DIFFERENCE
Pro Bono Attorneys make a real difference in the lives of area residents struggling to deal with civil legal issues. I want to close by sharing two comments clients returned with their surveys after their cases were closed. “ I am on disability and unable to afford to have my will drawn up. I no longer worry about my modest estate and helping my daughter. I feel grateful I was treated respectfully, no different than a paying client.” “ Please note that [the Pro Bono attorney] was the most patient and respectful gentleman. … thank you for helping me get him!”
TELL ME A STORY By: Cathy Shuck East Tennessee Children’s Hospital
When Nick McCall announced his “retirement” from The Last Word, we at DICTA knew that we could never replace him or his column. But we also knew how important it was to continue to share stories from around our bar. Particularly during the last year, with the physical separation that COVID has forced upon us, we’ve been reminded how important it is for us to be able to connect with our colleagues on a personal level. So, taking our cue from the advice Nick gave in his final column to cherish each other, this month we are launching a continuation of the theme, called “Tell Me a Story.” We invite you to keep sharing your stories: What experiences have been important to you? How did you get where you are today? Who inspired you or helped you along the way? What are the moments in your life that have informed and influenced your legal career? What do you do for fun? Since I volunteered to follow Nick as the curator of this final page, I will go first. People often ask me how I became the General Counsel for one of our region’s most treasured institutions, East Tennessee Children’s Hospital. It was an indirect path that I could not have planned or predicted, involving both good luck and bad luck. When I went to law school nine years after receiving a BA in English, I was looking for a more interesting job. I had worked in human resources and as a policy analyst at the California Medical Association, but still wasn’t sure what I wanted to Do. I went to law school because it seemed like getting a Master’s Degree in Undecided. After law school I clerked for the Ninth Circuit, had a fellowship with the NRDC, and then moved to Tennessee for my husband’s job, where I had the opportunity to clerk for Justice Riley Anderson on the Tennessee Supreme Court. I had done pretty well with my Master’s in Undecided. In early 2006, I became pregnant with my second child. Unfortunately, the pregnancy didn’t go well and on June 10 I gave birth to a 530-gram baby at 24 weeks gestation. Our tiny daughter, Celia June, spent 221 days in Children’s Hospital’s Neonatal Intensive Care Unit (NICU) where she received incredibly skilled and loving care. She became well-known among all of the staff in the NICU for her feisty spirit and love of music. Unfortunately, she was ultimately unable to overcome all of the challenges resulting from her extreme prematurity and she passed away in January 2007. At about the same time, Justice Anderson retired and I left court service to work in private practice, eventually landing at Wimberly Lawson where I practiced employment law—a good fit with my HR background. Then in early 2008, I got a call from Children’s Hospital asking if I would join a new group, the Family Advisory Council. The February 2021
Council is comprised of parents and guardians of current and former patients, and serves as an advisory body to the hospital, bringing the family’s perspective to the table. I was excited about the opportunity to give back to Children’s, and enthusiastically joined the Council. A couple years later, I also volunteered to serve as a community member on the hospital’s Institutional Review Board (IRB), the body that reviews research protocols to ensure they comply with ethical principles. As a member of the IRB I met the hospital’s General Counsel, Bruce Anderson. Bruce always appeared stern during the IRB meetings, and we rarely spoke. If you had asked me, I would have told you that he probably didn’t know my name. In the spring of 2013, Bruce called me seemingly out of the blue and invited me to lunch. He explained that he had recently gotten approval to hire another lawyer. He described what sounded like a fascinating job handling a variety of things for Children’s, including employment law issues. He asked me if I thought he’d be able to fill the job. Absolutely, I replied, and began rattling off a list of people I thought would be good candidates. He listened to me patiently and finally said, “yes, but would you be interested in the job?” I stammered that I would love the job, but that surely he could find many other, more qualified candidates. I had some of the legal experience he was looking for, but there were vast swaths of healthcare law that I knew absolutely nothing about. There were regulations I had surely never heard of, requirements I had no idea about, and the daunting alphabet soup of healthcare acronyms. He smiled. “You can learn all that stuff,” he said. “But you have a heart for the hospital. You can’t learn that.” In July of 2013 I started work as Children’s Hospital’s Assistant General Counsel. As anticipated, there was a lot I didn’t know and much that I had to learn on the fly. Seven years later I am still learning every day. But I am always guided by the memory of my daughter and the knowledge that the work I do, in a small way, supports the care of children and families. In the fall of 2016, Bruce announced his intention to retire, and I was given the opportunity to succeed him as General Counsel. In an act of incredible grace and generosity, Bruce offered to “switch places” with me for the final year of his tenure. We literally traded titles and offices: I became the GC and he was the Assistant. I will always be grateful to Bruce for that transition, and for teaching me the most important leadership lesson: remember to bring your brain, but lead with your heart. That’s my story: now it’s your turn. If you have something to share or suggest, please get in touch. Nick may have given us his Last Word, but let’s keep the stories going.
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