May 2025 DICTA

Appealing: There Must Be 50 Ways to Waive Your Issues . . . Page 7 Schooled in Ethics: Are You a Safety-Sensitive Worker? . . . Page 19

A Monthly Publication of the Knoxville Bar Association | May 2025

FOR NOW:

THE CURRENT IMMIGRATION LANDSCAPE

K N O XVI L L E B A R A S S O C I A T I O N C O N T I N U I N G L E GA L E D U C A T I O N

KNOXVILLE BAR AS S OCIATIO N C O NTINUIN G LE G AL E D UCATION

Upcoming CLE Guide

END-OF-THE-YEAR CLE

DON’T MISS THESE CLE PROGRAMS IN MAY & JUNE!

Like a Wrecking Ball--the Changing Landscape of Immigration Law

Tuesday, May 13, 12-1 p.m. | City County Building, Small Assembly Room Melissa B. Carrasco, Carrasco | Trump, PLLC 1 hour of General CLE

Ensure Your Mediation Thrives: Advice from Seasoned Experts

Tuesday, May 20, 4 - 5 p.m. CLE | 5-6 p.m. Garden Reception | Blount Mansion Visitor Center Moderated by the Hon. Sharon G. Lee, Brock Shipe Klenk Luke D. Durham, Brock Shipe Klenk J. Chad Hatmaker, Woolf, McClane, Bright, Allen & Carpenter, PLLC James H. London, James London Mediations William D. Vines, III, Butler, Vines and Babb, P.L.L.C. 1 hour of General CLE & 1 hour of General CME

New Administration, New Orders: What Lawyers Need to Know About the Newest Executive Orders Tuesday, June 3, 12 - 1 p.m. | Zoom Webinar

Akram Faizer, Lincoln Memorial University - Duncan School of Law 1 hour of General CLE

Mediating Employment Matters: From Settlement Offers, to Attorneys' Fees, to Tax Status Tuesday, June 10, 12-1 p.m. | Zoom Webinar Chris W. McCarty, Lewis Thomason, P.C. Presented by the KBA ADR Section 1 hour of General CLE & 1 hour of CME Earn All Your CLE Credits with KBA On Demand Programming!

KBA On Demand Programs Recently Added: Generating AI-Created Images and Videos for Legal Practice (It’s Simple) Tech Trends and Toys 2025: The Latest Gadgets and Tech for Lawyers and Nonlawyers from CES 2025 (and not everything is AI) Using Technology in Your Litigation Practice: Best Practices to Organize Your Trial Documents Hallucinations, Black Boxes, & Deep Fakes: Managing Risk While Using AI in Your Law Firm AI in Legal Practice: Unlocking Microsoft 365 Copilot & LLMs for Secure and Effective Use Vital Security Practices Every Law Firm Should Adopt Today Essential Tech For Attorneys Who Want Happy Clients, Happy Bottom Line, & a Happy BPR! Cyber Theft - An Ounce of Prevention is Worth a Pound of Cure Courtroom to Coach: Karen Weekly’s Journey to Leading the Lady Vols Criminal Law Rowdy Roundup 2025 And Many More!

KBA members can watch 65+ CLE programs in the On Demand Catalog 24/7 at your convenience! Visit knoxbar.org/ondemand

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Questions? Contact Us

(865) 522-6522 cle@knoxbar.org

May 2025

In This Issue

Officers of the Knoxville Bar Association

May 2025

COVER STORY 16

For Now: The Current Immigration Landscape

CRITICAL FOCUS President Jonathan Cooper

President-Elect Rachel Park Hurt

Treasurer Ursula Bailey

Secretary Catherine E. Shuck

Immediate Past President Carlos A. Yunsan

KBA Board of Governors Courteney M. Barnes-Anderson R. Kim Burnette Melissa B. Carrasco Meagan Collver

Samuel K. Lee T. Mitchell Panter M. Samantha Parris Courtney Epps Read Charles S.J. Sharrett

James T. Snodgrass James R. Stovall C. Scott Taylor Alicia J. Teubert

The Knoxville Bar Association Staff

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President’s Message

You Have No Rights Without Lawyers Who Fight for Them

Appealing

There Must be 50 Ways to Waive Your Issues

Legal Update

The Zone of Danger in Reckless Endangerment

Schooled in Ethics

Are You a Safety-Sensitive Worker?

Management Counsel

“Hey, ChatGPT, How Should I Rule on This Case?”

WISDOM 6

9 Tasha C. Blakney Executive Director

Tammy Sharpe Director of CLE & Section Programming

Bridgette Fly Jason Galvas Membership Coordinator Programs & Communications Coordinator

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

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Tracy Chain LRIS Administrator

Volume 53, Issue 5

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 Tasha Blakney (522-6522).

May 2025

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Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Executive Editor Sherri Alley Parker Bohne Elizabeth B. Ford Joseph G. Jarret F. Regina Koho Matthew R. Lyon Robin McMillan

Managing Editor

Sarah Booher Wade H. Boswell, II Melissa B. Carrasco Summer McMillan Angelia Morie Nystrom Katheryn Murray Ogle Bridget Pyman Cathy Shuck Jimmy Snodgrass Eddy Smith Grant Williamson

Tasha C. Blakney KBA Executive Director

DICTA

24 25 26 27 29 30 31

Judicial Profile

A Family Business: Profiling Hon. Judson Davis, Knox County General Sessions Court

Around the KBA

High School Mock Trial

Legal Mythbreakers

It’s Not Just a Matter of Truth

Legally Weird

The (Un)Successful Search for Sasquatch and….Spousal Support

Three Stars

A Series of Unfortunate Events

Hello My Name Is

Kimberly Riddett

21st Century Lawyer

The Importance of Relationships in a Modern Legal Practice

Well Read

Valley So Low, by Jared Sullivan

Barrister Bites

Empty Nest, Full Plates, and St. Elmo’s Fire

Top Ten List

Top Ten List of B.S. Scenes in Law-Related Movies

Privileged to Be in the Law

The Way My Path Was Paved

Foodie Finds

El Sapito

KBA Volunteerism

So Many Ways to Lend a Hand

Expanding Our Horizons

An Unexpected Ally

Outside My Office Window

The Meaning of Life, Part Two: The Thing That Happened

COMMON GROUND 4 20 23 29

Section Notices/Event Calendar Barrister Bullets Pro Bono Spotlight New Members & Address Changes

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SECTION NOTICES & EVENT CALENDAR

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 865-522-6522 or send an email to membership@knoxbar.org.

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

Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Greg Logue (215-1000), Kevin Newton (588-5111), or Shanna Fuller Veach (545-4284).

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

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (457-5640).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (615-574-6702) or Tim Roberto (691-2777).

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (804-3741), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Blair Kennedy (539-3515) or Laura Wyrick (297-5511).

Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Ron Mills (215-2050) or Mitchell Panter (545-4167).

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

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2023 will automatically be opted-in to the section. If you like to get involved in planning section activities, please contact Section Chairs Dalton Howard (546-0500) or Mari Jasa (546-7770).

Senior Section The Senior Section schedules a luncheon with a guest speaker every quarter. If you have suggestions for future luncheon speakers, please contact Section Chairs Wayne Kline (292-2307) or Sam Rutherford (659-3833).

Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936), Brittany Dykes (214-7869), or Stan Young (209-8034).

Trusts & Estates Section The Trusts & Estates Section features speakers on trust and estate planning topics and offers a forum to discuss key issues in estate practice. If you’d like to get involved or have suggestions for CLE topics or speakers, reach out to Section Chairs Carolyn Gilliam (966-4343) or Stacie Miller (546-7000).

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event calendar May

n2 n6 n7 n 13 n 14 n 14 n 15 n 20 n 21 n 21

Spring Memorial Service Law Office Tech Committee Meeting Wellness Committee Meeting Professionalism Committee Meeting Veterans Legal Clinic Advice Clinic Barristers Monthly Meetup Judicial Committee Meeting CLE Committee Meeting Board of Governors Meeting KBA Past Presidents Dinner

June

n4 n5 n9 n 10 n 11 n 18 n 19 n 25

Wellness Committee Meeting Diversity in the Profession Committee Meeting New Admittee Swearing In Ceremony Professionalism Committee Meeting Barristers Monthly Meetup Knoxville Bar Foundation Meeting Judicial Committee Meeting Board of Governors Meeting

SAVE THE DATES: Past Presidents Dinner May 21, E. Tenn. Historical Society Annual Bench & Bar Reception September 4 Knoxville Convention Center Fall Memorial Service 2025 November 21 Tennessee Supreme Court Ethics Bowl December 5, City County Building Annual Meeting December 12

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

May 2025

PRESIDENT’S MESSAGE By: Jonathan Cooper Knox Defense

YOU HAVE NO RIGHTS WITHOUT LAWYERS WHO FIGHT FOR THEM1 On February 25, 2025, a White House Memorandum directed the U.S. Attorney General to suspend the security clearance of attorney Peter Koski and all attorneys or other employees of the multinational law firm Covington & Burling who assisted former Special Counsel Jack Smith, and to terminate any government engagement and any government contract with that firm.2 On March 6, 2025, the President issued an Executive Order directing the suspension of security clearances of all employees of the law firm Perkins Coie, and further to (1) require government contractors to disclose any business ties with the firm, (2) terminate all government contracts with the firm, (3) examine contracts of entities that do business with the firm, and (4) require government agencies to give guidance for limiting firm access to government buildings.3 The President subsequently issued similar Executive Orders against the firms Paul Weiss,4 Jenner & Block,5 and WilmerHale.6 I do not ever recall reading an Executive Order before, and I was caught off guard by the pettiness and hyperbole of the language. The Orders read like a bill of grievances. To give you a flavor, EO 14230 claims that Perkins Coie conducts “dishonest and dangerous activity” that “undermin[es] democratic elections, the integrity of our courts, and honest law enforcement.”7 Likewise, Paul Weiss is accused of having a role in “undermining the judicial process and in the destruction of bedrock American principles.”8 EO 14246 accuses Jenner & Block of supporting “attacks on women and children.”9 This EO also faults the firm for rehiring an attorney who served as the lead prosecutor in the Mueller investigation of President Trump.

Indeed, by all appearances, it seems that these EOs were issued in retaliation for claimed injury, insult, or political activism.10 That the Orders threaten the viability of these firms is no accident; it is, in fact, the point. They appear meant to intimidate these firms and any firm that may litigate an interest adverse to the White House.

Lest there be any confusion, the President issued a Memorandum directing the Attorney General to seek sanctions against any attorney or law firm who engages in “frivolous, unreasonable, and vexatious litigation against the United States.”11 The Memorandum also ordered the Attorney General to review all litigation against the government for the past 8 years to identify “misconduct that may warrant additional action,” “such as filing frivolous litigation or engaging in fraudulent practices.”12 The EO’s and Memoranda have had immediate results. Paul Weiss accepted terms which included admitting that a former employee engaged in wrongdoing by participating in the hush money prosecution of the President, purging diversity, equity, and inclusion from its employment practices, and agreeing to perform $40 million in pro bono work for causes of mutual interest with the government.13 Multiple other firms including Skadden,14 Wilkie Farr,15 and Milbank16 preemptively accepted similar terms, even though they were not the subject of an Executive Order.

The resulting crisis was predictable. Clients who employed these firms in government contract litigation or transactional work were now represented by disfavored and hamstrung counsel. Moreover, the explicit language of the EOs targeted the government business these clients conducted merely by their association with legal counsel.

Without capitulating, these firms would lose clients. By capitulating, however, the firms would lose clients – those who could 1

May 2025

no longer trust that counsel would stand up for their rights against the government. The firms who challenge these orders will lose attorneys whose clients require government preference, but I suspect that firms who capitulate will lose many more attorneys who lose respect for their firm’s resolve.

Some reading this may agree with the political views enshrined in these Orders. Some may take delight in the comeuppance the firms may be receiving. I ask all lawyers, however, to detach from ideology and consider the chilling effect these retaliatory measures inflict on our legal system and the risk that we could be similarly targeted, even in Knoxville, for litigating a cause adverse to government interests. Any delight felt now by a settling of perceived political scores is subject to an opposite reaction when brought by a different administration. While the orders today might, to some, feel cathartic and even righteous, any attack on the Rule of Law is an attack on our democracy.

Have you ever represented an unpopular client? Have you ever litigated an unpopular legal position? Have you ever sought to enforce a term in a government contract, or have you ever been at odds with a government agency, state or federal? I suspect many of you have.

Some of you, like me, stand daily against the government, representing unpopular clients with unpopular legal positions.

Our clients have no rights against the government if we are afraid to enforce them. These Executive Orders represent a true threat to the independence of lawyers and our ability to zealously represent citizens in our legal system.

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This comes from a hasty note I made of a chat comment by someone I failed to record during the Affinity Bar Coordination Program hosted by the American Bar Association on February 27, 2025. I seek no credit for these valuable words.

February 25, 2025, Memorandum, “Suspension of Security Clearances and Evaluation of Government Contracts,” https://www.whitehouse.gov/presidentialactions/2025/02/suspension-of-security-clearances-and-evaluation-ofgovernment-contracts.

Executive Order 14230, 90 FR 11781 (Mar. 6, 2025).

Executive Order 14237, 90 FR 13039 (Mar. 14, 2025).

Executive Order 14246, 90 FR 13997 (Mar. 25, 2025).

Executive Order 14250, 90 FR 14549 (Mar. 27, 2025).

Executive Order 14230, supra n. 3.

Executive Order 14237, supra n. 4.

Executive Order 14246, supra n. 9.

Mike Scarcella, Why target these law firms? For Trump, it’s personal, Reuters (Mar. 26, 2025) https://www.reuters.com /world/us/why-target-these-law-firms-trumpits-personal-2025-03-26.

March 22, 2025, Memorandum, “Preventing Abuses of the Legal System and the Federal Court,” https://www.whitehouse.gov/presidential-actions/2025/03/ preventing-abuses-of-the-legal-system-and-the-federal-court.

Id. Jasper Ward & Mike Scarcella, Trump withdraws order targeting Paul Weiss, says law firm promised free legal work, REUTERS, https://www.reuters.com/world/us/ trump-withdraws-executive-order-targeting-paul-weiss-law-firm-2025-03-20, March 21, 2025.

Ella Lee, Trump gets $100M deal with Skadden law firm amid pressure campaign, THE HILL, https://thehill.com/homenews/administration/5220137-trump-skadden100-million-pro-bono, March 28, 2025.

Brett Samuels, Trump announces $100M deal with law firm tied to Doug Emhoff, Jan. 6 House panel, The Hill, https://thehill.com/homenews/ administration/5226557-trump-doug-emhoff-law-firm, April 1, 2025.

Lauren Irwin, Trump reaches deal with another major law firm, THE HILL, https:// thehill.com/homenews /administration/5228599-trump-milbank-law-firm-deal, April 2, 2025.

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JUDICIAL PROFILE By: Kent M. Carringer

Arnett, Baker, Draper & Hagood LLP

A FAMILY BUSINESS: PROFILING HON. JUDSON DAVIS, KNOX COUNTY GENERAL SESSIONS COURT Judson ( Judd) Davis was sworn in as Knox County General Sessions Court Judge in 2022, yet his journey to the bench wasn’t straightforward.

In an interview on his way to his daughter’s middle school golf event, Judge Davis stated that he always wanted to start a family business.

Although born into a family with strong legal ties, Judge Davis initially considered careers in real estate or agriculture, even earning a degree in Agricultural Economics. However, life had different plans. Internships and job shadows continually nudged him back to the law, proving that sometimes the family business chooses you, even if it takes a while to realize it.

Judge Davis fondly recalls growing up surrounded by stories from his father, Jimmy Davis, who has been an esteemed attorney in Knoxville for over 40 years. Jimmy Davis’s extensive career provided his son with early insights into the complexities of human behavior and the essential role attorneys play in the community. His father’s commitment to law and justice, combined with his mother’s experiences in juvenile probation and education, instilled in him a profound sense of duty and compassion for others—qualities he brings daily to his courtroom.

His time practicing at Banks and Jones, under the mentorship of Scott Jones, equipped him exceptionally well for the bench. The firm’s diverse practice exposed him to almost every type of case imaginable, and traveling across East Tennessee, he observed and learned from a broad spectrum of judicial styles and philosophies. This experience honed his ability to multitask, stay unflappable, and, importantly, retain a sense of humor in the face of chaos— perfect skills for the rapid-fire nature of General Sessions.

Following his years at Banks and Jones, Judge Davis further enriched his courtroom acumen at the District Attorney’s office, where dayto-day courtroom experience exposed him to Knoxville’s most pressing legal and social challenges. Judge Davis saw firsthand the stark realities of underserved communities and the complex interplay between poverty, mental health, and crime, solidifying his resolve to approach every case with empathy and fairness.

Judge Davis emphasizes civility in his courtroom, believing deeply

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in communication and compassion. He candidly admits that decisions involving housing disputes are among the toughest he faces, especially when innocent people get caught in difficult circumstances. He particularly feels for pro se litigants who, through no fault of their own, find themselves in challenging legal positions without the resources or knowledge to effectively navigate the complexities of the legal system.

One particular area of concern for Judge Davis is the increasing demand for mental health resources in Knox County. He points out the noticeable strain placed on the judicial system following the closure of vital mental health facilities like Lakeshore. The lack of adequate mental health resources has, unfortunately, transformed the court system and local jails into default mental health service providers, a scenario he finds troubling. Judge Davis is encouraged by recent developments, including the new Behavioral Health Center on Western Avenue and private initiatives aimed at expanding mental health care. He advocates passionately for further investment and development in mental health infrastructure, believing strongly that such measures are essential to the overall health and stability of the Knoxville community.

Judge Davis manages to balance the rigors of judicial life with his down-to-earth, family-oriented lifestyle. His daughters, who are growing up quickly and embracing interests ranging from golf to equestrian activities, keep him actively engaged and entertained. Amid all this, he humorously reflects on the quirks of parenthood, noting the unexpected turns life can take, especially when raising two strong-willed and spirited daughters.

When Judge Davis isn’t presiding over General Sessions Court, you’re likely to find him somewhere between teeing off on the golf course, team roping steers, or wrangling cattle on his family’s fifth-generation East Tennessee farm. Raised right here in the rolling hills and valleys of Knox County, Judge Davis isn’t just homegrown; he’s deeply rooted. The judge shares life with his wife, Nikki, and their two daughters, Anna Kate (12) and Sheridan (8). Whether it’s heading out to a middle school golf tournament or cheering on Sheridan’s budding barrel racing ambitions, family activities are front and center for the Davises. Their farm life, complete with cows and horses, keeps everyone busy—and grounded.

Life has a funny way of guiding people down unexpected paths.

Judge Davis jokes that had he been more proficient in math and science, he might have ended up as a dentist—thankfully for Knox County, numbers weren’t his strong suit. Instead, this twist of fate led him to fulfill his desire to join a “family business” in a unique and meaningful way. Through law, he embraced a legacy of service, compassion, and justice passed down from his father, creating his own version of a family enterprise rooted deeply in community values. In this way, the unpredictable aspects of life brought Judge Davis exactly where he was meant to be, serving his hometown with wisdom, patience, and genuine care for the people he encounters every day.

DICTA

May 2025

APPEALING By: Robin McMillan

Co-Author of the upcoming book People Behind the Precedent

THERE MUST BE 50 WAYS TO WAIVE YOUR ISSUES Here are five all-too-common, and avoidable, ways in which issues are waived in a civil appeal. The first involves the failure to timely appeal, the next two, insufficient appellate briefing, and the final two, the failure to take steps at trial.

Failing to timely file a notice of appeal results in waiver of all issues.

Although this mistake is often made by pro se parties, it is sometimes made by attorneys – usually for one of two reasons. First, attorneys occasionally fail to recognize an exception to the final judgment rule wherein an order is deemed immediately appealable despite the fact that other issues in the case remain pending. I discussed some of the more common exceptions to the final judgment rule in last month’s DICTA. Second, attorneys may misconstrue the import of post-trial motions.

The timely filing of the specific motions listed in Tenn. R. App. P. 4 tolls the time for appeal.1 The filing of other post-judgment motions does not.2 When considering whether a post-judgment motion acts as a tolling motion, appellate courts look to its substance and not merely to its title.3 The Tennessee Supreme Court, however, has requested that attorneys utilize the specific motion titles contained in Tenn. R. Civ. P. 59 and Tenn. R. App. P. 4 when filing post-judgment motions to alleviate confusion.4 Confusion can also occur when multiple post-judgment motions are filed. Serial motions will not toll the time for taking an appeal.5 If, however, an order ruling upon a properly filed post-judgment motion makes substantive changes to the previous ruling, a timely filed motion seeking to correct the changes will toll the time for appealing, even if the party filing the new motion filed a previous post-judgment motion.6 Exercise care because a motion seeking to correct an order that does not make substantive changes will be construed as serial. In short, watch for exceptions to the final judgment rule and carefully consider post-judgment motions to avoid waiver.

The next two ways in which issues are waived involve the failure to comply with Tenn. R. App. P. 27, which provides that an appellate brief must contain specific items. Failure to include those items may result in waiver.

An appellate brief must contain a statement of the issues for which review is sought.7 The importance of the statement of the issues cannot be overstated. Failure to include an issue in the statement of issues results in waiver.8 Furthermore, each issue must be set out clearly and individually. Combining multiple issues or merely including a blanket statement of issues will not fulfill the requirement.9 It is not the responsibility of the appellate courts to search the record for errors.10 Properly drafted issues will assist the appellate court and will provide the opposing party the fair notice to which they are entitled.11 Rule 27 also requires that an argument be provided for each issue, which must include citations to the record and the authorities relied upon. Do not list issues within the statement of issues and then provide no argument.12 Furthermore, failing to cite to the record or to relevant authority within your argument can result in waiver.13 The fourth and fifth ways to waive issues involve failure to act during trial. It should be self-evident that the failure to raise an issue at trial results in waiver upon appeal. Nevertheless, attorneys occasionally attempt to raise issues for the first time on appeal.14 Remember, the May 2025

appellate courts are error-correcting courts, not fact-finding courts. 15 Issues need to be presented first to the trial court.

Finally, waiver can result from the failure to preserve excluded evidence. Rule 103 of the Tennessee Rules of Evidence provides that the substance of the evidence and the basis for its admission need either to be “made known to the court” or be “apparent from the context.”16 A prudent attorney will not rely upon the second of these options. While you, opposing counsel, and the trial court have lived with your case for some time, the appellate court will be viewing the case “cold” upon the record, and the substance of the excluded evidence and the basis for its admission may not be as apparent as you may believe. To avoid waiver, make an offer of proof that either places the actual evidence, a stipulation about the content of the evidence, or a summary of the evidence into the record so the appellate court is not left to guess about substance or admissibility.17 1 2 3 4 5

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Tenn. R. App. P. 4(b).

Tenn. R. Civ. P. 59.01.

See, e.g., Tenn. Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455 (Tenn. 1998).

Id. at 455.

See, e.g., Legens v. Lecornu, No. W2013–01800–COA–R3–CV, 2014 WL 2922358, at *9-14 (Tenn. Ct. App. June 26, 2014).

See, e.g., id.

Tenn. R. App. P. 27(a)(4). An appellee raising separate issues must also include a statement of issues. Tenn. R. App. P. 27(b).

See, e.g., Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012).

See, e.g., Frogge v. Joseph, No. M2020-01422-COA-R3-CV, 2022 WL 2197509, at *8 (Tenn. Ct. App. June 20, 2022) (discussing the importance of clearly identified issues).

See, e.g., Donovan v. Hastings, 652 S.W.3d 1, 9 (Tenn. 2022).

See, e.g., id.

See, e.g., Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000) (“an issue is waived where it is simply raised without any argument regarding its merits”).

In re Macedonia Cemetery, No. M2013-02169-COA-R3-CV, 2015 WL 9854420, at *3 (Tenn. Ct. App. Jan. 15, 2015). But see, Dinovo v. Binkley, 706 S.W.3d 334 (Tenn., per curiam order Feb. 20, 2025) (finding failure to repeat in argument citations contained in other sections of brief did not waive issues).

See, e.g., Dye v. Witco Corp., 216 S.W.3d 317, 321 (Tenn. 2007).

See, e.g., McDonough v. McDonough, 499 S.W.3d 401, 405 (Tenn. Ct. App. 2016).

Tenn. R. Evid. 103(a)(2).

See, e.g., Brewster v. Brewster, No. E2023-01240-COA-R3-CV, 2024 WL 4273335, at *11 (Tenn. Ct. App. Sept. 24, 2024) (quoting Hill v. Hill, No. M2006-01792-COAR3-CV, 2008 WL 110101, at *5-6 (Tenn. Ct. App. Jan. 9, 2008)).

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LEGAL UPDATE By: Georgia A. Miller The Davies Law Firm

THE ZONE OF DANGER IN RECKLESS ENDANGERMENT Background In March of this year, the Tennessee Supreme Court decided a case clarifying the meaning of imminent danger of death or serious bodily injury in the reckless endangerment statute.1 The Court reviewed whether evidence showing that the defendant used the slide of a firearm, with the barrel facing away from the driver, to break a car window was sufficient for a conviction of reckless endangerment with a deadly weapon.2 One Sunday afternoon in August 2018, William Rimmel was riding his motorcycle on the interstate.3 Likewise, Bobbie Burke was driving a small sedan in the left lane on the same interstate.4 After attempting to merge, Ms. Burke heard a loud revving from Mr. Rimmel’s motorcycle in the other lane.5 Mr. Rimmel pursued Ms. Burke on his motorcycle, which eventually resulted in Mr. Rimmel shattering the passenger window of Burke’s car, hitting it repeatedly the slide of a loaded handgun.6 Mr. Rimmel never fired the gun, nor pointed it in Ms. Burke’s direction.7 Mr. Rimmel was convicted of attempted aggravated assault and felony reckless endangerment with a handgun.8 The Court of Criminal Appeals affirmed Mr. Rimmel’s convictions, finding that there was sufficient evidence to affirm the reckless endangerment conviction because “[t] here was at least a reasonable probability that Defendant’s loaded gun could have discharged when he used it to break the window of the vehicle occupied by Mrs. Burke[.]”9 The Decision A person commits reckless endangerment when he or she “recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury.”10 Reckless endangerment is generally a Class A misdemeanor; however, when committed with a deadly weapon, it is considered a Class E felony. 11 Mr. Rimmel challenged the sufficiency of the evidence in his reckless endangerment conviction, arguing that the State failed “to prove that his conduct involving the handgun placed Burke in ‘imminent danger.’”12 Rimmel’s argument relied primarily on the Tennessee Supreme Court’s decision in State v. Payne.13 In Payne, the Court reviewed the issue of whether the offense of “reckless endangerment can be committed against the public at large” or whether the State had to identify specific individuals.14 The defendant in that case was convicted for reckless endangerment resulting from his involvement in two police pursuits.15 The Payne Court outlined the meaning of imminent danger, finding that the inclusion of “imminent” in the statute requires the State prove that the person “be placed in a reasonable probability of danger as opposed to a mere possibility of danger,” explaining that the public at large could be considered a person for the purposes of reckless endangerment so long as public at large referred to persons occupying the “zone of danger.”16 The Court defined “zone of danger” to mean the “area in which a reasonable probability exists that the defendant’s conduct would place others in imminent danger of death or serious bodily injury if others were present in that zone or area.”17 Rimmel argued that the Court’s holding in Payne meant that the State failed to present sufficient evidence to establish the essential element of “imminent danger” because using the slide of his gun to shatter the window only created “a mere possibility of danger.”18 Rimmel further contended that reasonable probability meant “more likely than

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not.”19 The State countered that Mr. Rimmel misapplied Payne, arguing that the holding in Payne is limited to “the proposition that the State must prove a specific person was placed in danger.”20 The Court rejected this argument, finding that the Payne Court’s interpretation of the imminence requirement was not limited to the issue addressed in that decision.21 The Court held that the reasonable probability standard that was outlined in Payne also applied to Rimmel because “[t]his understanding aligns with the ordinary meaning of ‘imminent,’ which encompasses both temporal proximity and likelihood of occurrence.”22 However, the Court also rejected Mr. Rimmel’s argument that the reasonable probability standard requires the State to prove that death or serious bodily injury was “more likely than not” to occur, instead finding that a lower standard applies.23 The Court further noted that the reasonable probability standard was comparable to the standard used in a materiality analysis in a Brady analysis.24 The Court further held that although the handgun was loaded and operable, because Mr. Rimmel never fired, nor pointed the firearm towards Ms. Burke, no rational juror could conclude that Ms. Burke was in the “zone of danger.”25 The Court distinguished Mr. Rimmel’s conduct from cases involving defendants pointing a gun at an individual or firing in the individual’s general direction, pointing out that even had the gun misfired, there is no evidence that it would have fired in Ms. Burke’s direction.26 Conclusion Rimmel clarified that the zone of danger analysis is not limited to identifying individuals that are merely close by, but the analysis turns on whether the specific conduct could create the reasonable probability that death or serious bodily injury was imminent as it pertained to the specific victim.

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State v. Rimmel, No. M2022-00794-SC-R11-CD, 2025 Tenn. LEXIS 57 (Tenn. Mar. 6, 2025).

Id. at *1.

Id. at *2-3.

Id. at *3.

Id. Id. at *1.

Id. at *2.

Id. State v. Rimmel, No. M2022-00794-CCA-R3-CD, 2023 Tenn. Crim. App. LEXIS 196, at *18 (Tenn. Crim. App. June 7, 2023).

Tenn. Code Ann. § 39-13-103(a).

Tenn. Code Ann. § 39-13-103(b)(1)-(2).

State v. Rimmel, 2025 Tenn. LEXIS 57, at *18.

State v. Payne, 7 S.W.3d 25 (Tenn. 1999).

Id. at 27.

Id. Id. at 28 (emphasis added).

Id. State v. Rimmel, 2025 Tenn. LEXIS 57, at *20.

Id. at *20.

Id. at *22.

Id. at *18.

Id. at *22.

Id. Id. (citing State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995)).

Id. at *25.

Id.

May 2025

AROUND THE KBA By: Celia Ball Christmas

Christmas Law Group, PLLC

Geran E. Minor

Landry & Azevado Attorneys at Law

Jordan H. Meddings Fisher | Russell PLLC

HIGH SCHOOL MOCK TRIAL COMPETITION The High School Mock Trial Competition occurred during the weekend of February 21-23, 2025. One hundred fifty competitors comprised fourteen teams from eleven high schools representing Tennessee Districts 2, 3, and 4. The competing teams included Annoor, Concord Christian, Farragut, Jefferson County, Knoxville Catholic (Gold), Knoxville Catholic (Green), L & N STEM Academy (L Team), L & N STEM Academy (N Team), Maryville, Paideia, Sevier County (Purple), Sevier County (White), Seymour, and Webb School of Knoxville.

Teams participated in four preliminary rounds. The Knoxville CityCounty Building hosted the competitors, their coaches, friends, and families on February 21st and 22nd. The students competed in the courtrooms that the Knox County Judiciary members generously made available for the event. We extend our gratitude to Judges Deborah Stevens, Bill Ailor, Jerome Melson, Greg McMillan, Hector Sanchez, Steve Sword, Chuck Cerny, Judd Davis, Patricia Hall Long, Andrew Jackson, VI, and Tony Stansberry for permitting us to use their courtrooms and providing the competitors with an enriched and realistic mock trial experience.

During the preliminary rounds, the following competitors stood out among their peers and were recognized for their exceptional mock trial skills: • Isabelle Haggard and Lucy Cowart as the Best Advocates for the Plaintiff; • Alexa Key as the Best Advocate for the Defense; • John Rippetoe and Jackson Manley as the Best Witnesses for the Plaintiff; and • Tim Howell as the Best Witness for the Defense.

After the preliminary rounds concluded, Sevier County (Purple) and Maryville prevailed as the competition frontrunners and advanced to the District Championship held on February 23rd at the Lincoln Memorial University School of Law. The Championship round featured a highly qualified jury comprised of all attorneys. Attorneys Dillon Zinser, Ashley Roberts, and Donna Smith scored the Championship, each of whom evaluated the competitors’ performances as advocates and witnesses during the mock criminal trial. The Honorable Suzanne Bauknight presided over the Championship as Sevier County (Purple) advocated for the Prosecution and Maryville advocated for the Defendant.

Sevier County (Purple) triumphed as the District Champions. Both Sevier County (Purple) and Maryville earned a spot to compete in the State Mock Trial Tournament which took place on March 21st and 22nd in Nashville.

Without our roster of dedicated volunteers, it would have been impossible to make this great event a reality. Thank you, again, to the judges, attorneys, and law students who served as presiding judges, scoring judges, and bailiffs, and to those who were willing to lend a May 2025

helping hand whenever the need arose.

We likewise thank Judicial Clerk Esther Roberts and the staff of the Public Building Authority for their assistance in arranging and securing the Knoxville City-County Building facilities; Hesper Capps, Andrew McRee, and Lincoln Memorial University’s School of Law for hosting the Championship round; and Tasha Blakney, Bridgette Fly, and the KBA Staff for all the support they provided us over the past several months as we all worked to ensure a smoothly run competition. We are genuinely privileged to boast such an involved and supportive bar association.

The impact this event has every year on our student competitors cannot be overstated. Countless students, parents, and teachers shared their immense gratitude that so many of our association members would sacrifice time from their weekend to help these students grow and learn. Ultimately, this competition has undoubtedly helped shape these students’ futures, whether they choose to pursue law or not. However, for at least one student who spoke with us, this competition inspired her to pursue a career in law. I suspect we may be welcoming a few of these competitors to our bar association one day. We thank you for another successful year, which could not have been possible without your generous support.

Attorney Volunteers Hon. Suzanne Bauknight Hon. Tyler Caviness Hannah Clyde Jason Collver Meagan Collver Andrew Firkins Emily Horton Alexandra Jones Hon. Greg McMillan Holly Nehls Nate Ogle Kaitlyn Sell Mike Stanuszek Alaina Tolbert Zachary Tolbert

Cashauna Lattimore Courtney Barnes-Anderson David Eldridge Dillon Zinser Donna Smith D.T. Christmas Emily Vowell Emily Cala Ethan Young Isaac Westling Jaclyn Hardin James Snodgrass Jon Fromke Kayla Long Kendal Walker

Law Student Volunteers Austin Gergen Kenedi Hargrove Christy Urquieta Cortes Michelle Khonsari Jacob Cherry Scott Mew

Bridget Pyman Weslen Lakin Bailey Harned Taylor Monnig Ashley Roberts Shannon Taylor Amelia Hamilton Nick Armes Kimberly Riddett Bethany Wilson Kelli Holmes Natalie Tankersley Luis Urrea Maria Melendez

Steven Boothby Kane Mathis Miles Burnham

University of Tennessee Undergraduate Mock Trial Riya Golden Presley Richards Jerimiah Buckley Zadie Fiveash Carson McHale Livia Odoi Emily Kitch Jayden Hasting Rebecca Diaz

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LEGAL MYTHBREAKERS By: Brad Fraser

Leitner Williams Dooley Napolitan, PLLC

Stefanie Bowen

Leitner Williams Dooley Napolitan, PLLC

IT’S NOT JUST A MATTER OF TRUTH Nearly everyone we know likes the music of William Martin Joel, a/k/a Billy Joel. We all know the standards: Piano Man, Just the Way You Are, the epic Scenes from an Italian Restaurant, and the list goes on.

Other than his divorces, there are few connections between Joel and the law. He does have that cool courtroom scene at the opening of the Keeping the Faith video in which he tells the court, “You know, Judge, they say justice is blind. I sure hope it ain’t deaf.”1 Then he leads into the song.

We could also make a strained attempt to parlay this segment of A Matter of Trust2 to apply in the courtroom: It took a lot for you to not lose your faith in this world But I can’t offer you proof But you’re gonna face a moment of truth It’s hard when you’re always afraid You just recover when another belief is betrayed So break my heart, if you must It’s a matter of trust The law submits that if you do not offer proof, on appeal you will certainly face a moment of truth. When appealing a ruling that excludes evidence, Tennessee Rule of Evidence 103 initially requires that the error affect a substantial right of a party. Additionally, the substance of the evidence and the specific evidentiary basis supporting admission must have been made known to the court by offer or “w[as] apparent from the context.”3 An erroneous exclusion of evidence requires reversal only if the evidence would have affected the outcome of the trial had it been admitted.4 A reviewing court cannot easily make such a determination without knowing what the excluded evidence would have been.5 Rather than assuming that the basis for admission is “apparent,” a clear appellate record cannot be a matter of trust. A party challenging the exclusion should offer proof—lest you face a moment of truth on appeal.

An offer of proof must contain the substance of the evidence and the specific basis supporting the admission of evidence.6 How might one make an offer of proof ? You might offer proof through actual testimony outside the jury’s presence. You could also ask opposing counsel to stipulate to the content of the excluded evidence. You might mark an exhibit for identification. Others have chosen to present an oral or written summary of the evidence for the record.7 But if you choose to trust the record without a formal offer of proof, beware. The risk, if you do not make an offer of proof after evidence is excluded, is that the appellate court will not consider the issue of exclusion on appeal.8 As the Supreme Court of Tennessee has stated “. . . if a fact is not in the appellate record, it did not happen.”9 “Parties cannot

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speculate their way into appellate relief. . . .”10 A successful use of an offer of proof came in a will contest, where a defendant, the illegitimate son of the decedent, sought to have a purported will declared invalid on the ground of forgery.11 The jury found that the will was a forgery.12 The plaintiff appealed the exclusion of certain testimony offered as rebuttal evidence, explaining why markings might have appeared on the document.

While the witness was on the stand, before counsel elicited the testimony, the Court asked the jury to step out of the room.13 Then, counsel demonstrated the questions, on the record, he would ask the witness if the jury was present.14 He used the witness to authenticate certain documents, and the Court reviewed the documents in real time as the witness identified them.15 The witness responded to counsel’s questions for the Court to hear.

Ultimately, the Court ruled that the testimony was inadmissible as it was hearsay and also not “rebuttal” testimony.16 The jury returned, and the evidence was not offered.

The Court of Appeals reviewed the entire proposed line of questions, potential exhibits, and responses from the witness from the thorough offer of proof. The Court concluded that the evidence was not hearsay and was, in fact, proper rebuttal.17 But without the offer of proof—removing the jury and demonstrating the proposed testimony and documentary evidence—the Court of Appeals could not have made the determination that excluding the evidence was improper. The offer of proof was critical in the reversal and remand of the case.

So, in the end, the truth might not really matter. It’s not a matter of trust. It’s a matter of proof. And if you do at least make some offer of proof, you may face a moment of truth on appeal.

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It actually is cool. See https://youtu.be/ph7oZnBH05s.

Billy Joel, A Matter of Trust, on The Bridge (RCA 1986).

Tenn. R. Evid. 103.

Pankow v. Mitchell, 737 S.W.2d 293, 298 (Tenn. Ct. App. 1987).

Stacker v. Louisville & N. R.R. Co., 106 Tenn. 450, 452, 61 S.W. 766 (1901); Davis v.

Hall, 920 S.W.2d 213, 218 (Tenn. Ct. App. 1995).

Tenn. R. Evid. 103(a)(2).

Neil P. Cohen, et al., Tennessee Law of Evidence § 103.4, at 20 (3d ed. 1995).

See, e.g. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001); Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct. App. 1997); Shepherd v. Perkins Builders, 968 S.W.2d 832, 833-34 (Tenn. Ct. App. 1997).

State v. Hamilton, No. W2023-01127-CCAR3-CD, 2024 WL 4130757, at *3 (Tenn.

Crim. App. Sept. 10, 2024).

Id. citing Alley v. State, 882 S.W.2d 810, 815 (Tenn. Crim. App. 1994).

Coates v. Thompson, 666 S.W.2d 69 (Tenn. Ct. App. 1983).

Id. at 74.

Id. Id. at 74-75.

Id. Id. at 75.

Id.

May 2025

May 2025

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LEGALLY WEIRD By: Lisa J. Hall

Hodges, Doughty & Carson, PLLC

THE (UN)SUCCESSFUL SEARCH FOR SASQUATCH AND….

SPOUSAL SUPPORT When a divorce case1 reads more like a personal injury case and includes multiple Sasquatch-finding excursions, it is probably going to fit right in to the “Legally Weird” column.

Allan Finnbogason (“Husband”) (referenced in the opinion as “Claimant”) and Eva Norseman (“Wife”) (referenced in the opinion as “Respondent”) were married in 2000 in British Columbia, shortly after Husband sustained serious injuries due to an explosion that occurred while he was helping a friend fix his truck. Husband received just under $200,000 in a tort lawsuit and used about half of that to fund an illegal marijuana (this is apparently spelled “marihuana” in British Columbia) grow operation. Unfortunately, the operation was shut down by the police before he could even get the first crop out, and all of his equipment was seized and forfeited.

Throughout the marriage, Wife worked. As the Court stated, Husband’s “evidence suggests that there have been reasonably frequent ‘hiatuses’ [from work] in his adult working life.” But he did some work in construction, trucking, retail, and he operated his own pilot car business from 2014 – 2016.

The parties bought a house and put it in Wife’s name. Husband said this was because he was older than she was and in bad health, and the house would belong to her in the end. Wife said it was likely because he wanted to appear “asset-free” to evade child support payments to the mother of his only child. Said only child testified at trial that her mother pursued Husband for years in the Provincial Court and registered with the Family Maintenance Enforcement Program.

In January 2016, Husband had a slip and fall accident on some stairs outside a hotel in Sayward, BC, during one of his many expeditions in search of Sasquatch, “of whose existence he claims to be certain.” He sustained several soft tissue injuries, a fractured left ankle, and fractured vertebrae. He applied for and received a federal disability pension. He also filed a tort claim, which was settled at mediation for $350,000 in June 2019. The parties used part of this money to purchase a second home, which they rented out.

The next year, the parties parted ways. If you ask Husband, this was because he had always planned to move to Vancouver Island, and Wife did not want to move there. If you ask Wife, this was because, one weekend in August 2020, Husband took his ex-girlfriend on a camping trip together on Vancouver Island, on another Sasquatch-finding excursion. Wife promptly ended the marriage by text message.

Husband moved into the rental home after his “fateful camping weekend,” and took on one renter, but after that, did not find a replacement. He said the only person he would want to share a residence with was Wife, and tenants were “noisy and interfered with his privacy.”

As such, Wife continued to pay all of the bills for both homes. The rental home ultimately went into foreclosure. The court commented that the “monthly mortgage payment was only $400 per month and for almost three years the claimant could have got more than three times that amount by renting the suite.”

The court divided the parties’ marital property and then addressed Husband/Claimant’s claim for spousal support. The Court stated, “No

12

one, other than the claimant himself, has suggested that he is totally and permanently incapacitated…In addition to his tractor re-building activities, the claimant continues to enjoy camping, fishing, hunting, riding “quad” motorcycles, and exploring remote areas of BC in search of Sasquatch.” One has to assume that the Sasquatch excursions in remote areas involved navigating terrain that would be difficult for a totally disabled person. Regarding the tractor re-building, Husband testified about his newfound “hobby” of buying tractors and fixing them up for resale, typically doubling his money each time. “None of this income has found its way onto his annual tax returns.” The Court also noted that he “testified with some pride that while at high school he was designated a ‘gifted’ student, and he made it clear that he rates his own intellectual abilities to be far above average.” The Court found that “claimant is, in fact, capable of remunerative work in any physically undemanding job that is suited to his high intelligence, and he has an obligation, in my view long-neglected, to get on with being maximally self-sufficient.”

The Court found that Husband was capable of earning at least $42,000 per year at a “bare minimum,” and Wife earned $56,000 per year.

The Court awarded Husband zero dollars of spousal support.

I am not sure if this story leaves you with a feeling of emptiness and sadness on behalf of Husband, but in my diligent research investigating this story, I found this photo which has been posted on Husband’s Facebook page:

Since everything on social media is accurate, one can only assume that the rental home was saved from foreclosure and turned into a lovely bed and breakfast, and Sasquatch came to check on Husband on Christmas. Rumor has it that they have a new and exciting exclusive collaboration which will allow Husband to lead private excursions in search of Sasquatch. Husband has agreed to keep a safe distance from Sasquatch, and Sasquatch will allow brief glimpses of himself from time to time. Sasquatch offered to scout out some good remote areas for a future marihuana-growing operation, but it is my understanding that marihuana use is now legal in British Columbia, which would cut into the profit margin. Of course, the bed and breakfast is jointly owned by the ex-girlfriend and Sasquatch, to avoid detection by the Family Maintenance Enforcement Program.

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Finnbogason v. Norseman, 2025 BCSC 66, British Columbia Supreme Court.

May 2025

THREE STARS By: Melissa B. Carrasco Carrasco Trump, PLLC

A SERIES OF UNFORTUNATE EVENTS Memphis in the summer is hot. With highs in the 90’s, lows in the 70’s, and humidity at the “I just can’t” level, it feels like the sun is mad at you every time you step outside.1 But, around mid-November, Memphis starts to get a bit more reasonable, and one might even say it is downright pleasant enough to sit outside on a porch.2 The duplex on 213 North Avalon Street had a lovely, second-floor porch, perfect for sitting.3 The house was built in 1922,4 so the railing around the porch was 25 ¾ inches high, rather than the 36-inch railings that would be required by today’s building codes.5 Three friends signed a lease for the duplex in August, and when the weather finally cooled in November, they had a party.6 At oral argument, both sides conceded that the party on November 11, 2017, was not the first party on that porch.7 They had at least 4 prior parties with no issues. Plaintiff ’s counsel, Mr. W. Bryan Smith, also made the point that the tenants knew the height of the railing was an issue.

They bought chairs for the porch and told people that they couldn’t be out on the porch unless they were sitting. They put plants on the railing to keep people from sitting on it.8 And, there was another issue with the porch. The door to the porch opened outward, in the narrow part of the porch. So when the door opened, there were only 17 inches between the door and the railing. A person standing by the door would have to step back to get out of the way when the door opened.9 That is what happened to Jeffrey Tebeau.

He arrived at the party with his friend, Cory Elder, and hung out on the second-story porch for about 45 minutes. He was seated the entire time. He received a phone call, went inside, downstairs, outside underneath the porch, and then back upstairs and outside on the porch.

After a few minutes, Mr. Elder got up to leave. While he was walking toward the door, Mr. Tebeau hugged him from behind. When Mr. Elder pulled the screen door to open it, Mr. Tebeau stepped back to give Mr. Elder more room. His right foot and leg contacted the railing, and he started to fall. His hand was still on Mr. Elder’s shoulder, and so, both Mr. Tebeau and Mr. Elder fell over the railing—eleven feet onto the concrete sidewalk below.10 Mr. Tebeau’s injuries put him in the ICU, required multiple surgeries, and cost hundreds of thousands of dollars in medical expenses.11 None of the three tenants saw the accident. One had gone to bed.

The other two had gone out to dinner.12 But, given all of the things that they did to keep people from being close to the railing, there did not seem to be much of a question of foreseeability.

When defense attorney Abigail Brigance took the podium before Judges Armstrong, Clement, and McGee, she had been licensed to practice law for only a few months. In fact, she was still in law school when the trial court granted the tenants summary judgment on the May 2025

grounds that they lacked control over the premises and that the height of the rail was an open and obvious danger.13 She also had laryngitis the day of oral argument.14 But, she took the podium any way, apologized for her voice, and then proceeded to answer every one of the Judge’s questions.15 The issue, as they saw it, was foreseeability—not whether it was possible that an accident could happen but, “whether the defendants reasonably knew or should have known of the probability of an occurrence such as the one which cause[d] the plaintiff ’s injuries.”16 In other words, could the tenants have reasonably foreseen that Mr. Tebeau would follow Mr. Elder to the door, hug him from behind, stay behind him when he opened the door (rather than move to the side), step back, contact the railing, fall over it, and continue holding onto Mr. Elder, dragging him over the rail?

The Court of Appeals determined the answer was no. The events that night were “‘such a radical departure from reasonable conduct under the circumstances that [the Tenants] could not have reasonably foreseen’ such conduct and the resulting consequences.17” Significantly, because the lack of foreseeability was not the basis for the trial court’s decision granting summary judgment, it likely was not foreseeable that the Court of Appeals would focus its questions on this issue. But they did, and the attorneys who stood at the podium rose to the challenge of the three stars.

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National Weather Service, Memphis August Climate, https://www.weather.gov/meg/ climatememaug, last visited Apr. 6, 2025.

National Weather Service, Memphis November Climate, https://www.weather.gov/ meg/climatememnov, last visited Apr. 6, 2025.

Apartments.com, 213 N. Avalon Street, Unit 213, https://www.apartments. com/213-n-avalon-st-memphis-tn/1083184/, last visited Apr. 6, 2025.

City-Data.com, 213 N. Avalon Street, https://www.city-data.com/shelby-county/A/ Avalon-2.html, last visited Apr. 6, 2025.

Jeffrey Tebeau v. Millerwood Invs., LLC, et al., No. W2024-00642-COA-R3-CV, p.

2 (Tenn. Ct. App. Mar. 28, 2025); Jeffrey Tebeau v. Millerwood Invs., LLC, et al., No. W2024-00642-COA-R3-CV, (Tenn. Ct. App. Feb. 11, 2025) (Recording of Oral Argument, 1:30 p.m.), available at https://www.tncourts.gov/courts/court-appeals/ arguments/2025/02/11/jeffrey-tebeau-v-millerwood-investments-llc-et-al.

Tebeau, No. W2024-00642-COA-R3-CV, p. 2.

Tebeau, No. W2024-00642-COA-R3-CV (Recording of Oral Argument), supra n. 5.

Id. Tebeau, No. W2024-00642-COA-R3-CV, p. 5.

Id. at pp. 6-7; Tebeau, No. W2024-00642-COA-R3-CV (Recording of Oral Argument), supra n. 5.

Tebeau, No. W2024-00642-COA-R3-CV (Recording of Oral Argument), supra n. 5.

Id. Tebeau, No. W2024-00642-COA-R3-CV, p. 3.

Id. Id. Tebeau, No. W2024-00642-COA-R3-CV, p. 6.

Id. at p. 8 (quoting Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994).

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HELLO MY NAME IS By: Bridget J. Pyman Arnett | Baker

KIMBERLY RIDDETT This month’s Hello My Name Is column features Kimberly Riddett, a Staff Attorney with Legal Aid of East Tennessee. Kim’s practice spans a range of civil matters including eviction defense, orders of protection, benefits, and family law.

A 2024 graduate of the University of Tennessee College of Law, she entered law school with a clear purpose: to pursue a career in public interest advocacy.

Her undergraduate studies in Law, Justice, and Society at Lipscomb University laid the groundwork for her commitment to serving vulnerable communities.

Kim currently serves as Co-Chair of the KBA Barristers Access to Justice Committee, where she continues to advance her dedication to equity and access within the legal system. Her responses reflect a thoughtful and grounded perspective shaped by a wide range of life experiences from early childhood in Milan to walks around Knoxville with her rescue dog, Teddy Bear. Through it all, she approaches her work and her community with clarity, compassion, and a sincere belief in the role lawyers play in delivering meaningful change.

Why did you decide to go to law school?

Becoming a lawyer was not my first career choice. As a kid I wanted to grow up to be Steve Irwin. I was absolutely obsessed with him and absolutely adored animals. Though my initial dream of moving to Australia to work at his zoo didn’t pan out, I do think in a roundabout way Steve Irwin led me to law school. People sometimes forget the famous ‘Crocodile Hunter’ was a huge advocate for the protection of animals. He taught me what it meant to be an advocate. The first interest I ever had in law was related to the protection of wildlife and that interest (eventually) led me to pursue law as a career. I went to law school with the intention of pursuing public interest work, because I wanted to be an advocate, and I wanted to find a career that would let me do that.

was lucky enough to actually have the opportunity to study abroad while I was in college and chose to do so in Florence, Italy. Before you ask, I’m not fluent in Italian, but I definitely wish I was! I was able to take Italian classes when I studied abroad and learned just enough to get by while living there. I hope to one day be able to go back to Milan with my family and visit the neighborhood that we lived in.

Tell me about your family.

My partner moved with me from Nashville to Knoxville so that I could attend law school at UT. After we moved here, she actually got a job working at the KBA. If you’re reading this article, there’s a good chance that you’ve received numerous emails from her. She’s our very own Bridgette Fly! We have two incredibly spoiled pets. We have a small scruff of a dog named Teddy Bear and a lanky, little cat named Martin.

Teddy was a foster failure that I adopted during the height of quarantine.

We got Martin from a friend who unintentionally rescued a pregnant cat and unexpectedly needed to find homes for kittens quickly.

How do you practice self-care?

One of the ways that I practice self-care is by finding time to be outside, especially on nice sunny days. I always use my dog as an excuse to go on walks and just spend time outside in the sunshine. I also tend to listen to music or audiobooks while we walk, which creates a nice break in my day where I can just focus on enjoying that small moment.

Have you traveled or lived internationally?

When I was a little kid my family moved to Milan, Italy, for a few years. I started school there and have always had incredibly fond memories of living there. I

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May 2025

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May 2025

DICTA

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FOR NOW:

THE CURRENT IMMIGRATION LANDSCAPE “In times of rapid change, experience could be your worst enemy.”1 2 Unless you have been living under a rock—a really big rock where you can’t get cell service or DoorDash—you already know that implementing changes to U.S. immigration policy and practice was a central part of President Trump’s campaign platform.3 Thus, it should come as no surprise that the Trump administration lost no time implementing the changes they promised and more. The purpose of this article is to provide an overview of many of these changes to immigration law or policy and the pending legal challenges to many of them. So, take a deep breath, grab your favorite beverage and comfort food (contact Sarah Booher and Angelia Nystrom if you need recipe ideas), and settle in.

With the Stroke of a Pen On January 20, 2025, President Trump issued 9 executive orders, 1 memorandum, and 2 Presidential proclamations that implicate immigration policy or alter the immigration legal landscape.4 EO 14160 got most of the press – and rightfully so. It prohibited all federal departments and agencies from issuing any documents (i.e. unrestricted social security cards and passports) or accepting any state-issued documents (i.e. birth certificates) recognizing the U.S. citizenship or any person (1) born after February 20, 2025, (2) whose biological father was not a U.S. citizen or resident AND (3) whose biological mother was not at least a permanent resident.5 In other words, it ordered federal agencies not to recognize the citizenship of individuals who were born in the U.S. based on the status of their biological parents.

Within 24 hours, multiple lawsuits were filed. On January 23, 2025, a temporary restraining order was issued by the U.S. District Court for the Western District of Washington, and on February 6, 2025, the Court issued a nationwide preliminary injunction stopping its implementation.6 This particular case, Washington, et al. v. Trump, et al. has made it through several appeals, and the government’s motion for partial stay of the injunction is currently pending before the Supreme Court.7 Although EO 14160 took center stage, the other Executive Orders, Memorandum, and Proclamations form the basis for many of the federal government’s immigration-related actions in the first few months of the Trump presidency. Keep reading.

Resurrection of the Alien Registration Act and the Alien Enemies Act Among other things, EO 14159, Protecting the American People Against Invasion, ordered the Secretary of Homeland Security, the Secretary of State, and the Attorney General to “take all appropriate action to” inform all “previously unregistered aliens” of the requirement under 8 U.S.C. §§ 1301-1306 to register with the federal government and to make enforcement of the civil and criminal penalties for failure to

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register a priority.8 Wait, there was a requirement? Glad you asked.

In 1940, while the rest of the world was at war and the U.S. was seeing an influx of immigrants, Congress enacted the Alien Registration Act (ARA).9 It required all non-citizens in the U.S. over the age of 14 to register with the federal government, get fingerprinted, and update the government if they changed addresses.10 The penalty for willfully failing to register was a fine of no more than $1,000 or imprisonment for up to 6 months.11 In 1952, the Immigration and Nationality Act incorporated the ARA, and there it has resided, mostly without incident.12 In fact, LEXIS tells us that Section 1306 (the penalties section) has been cited only 138 times, and this author found record of only one conviction under Section 1306 – in 1997 – of an immigration lawyer who allegedly aided and abetted non-citizens in filing fraudulent applications for permanent residency.13 Maybe there are others, but for a 73-year-old statute, 138 citations isn’t a lot of action.

Most likely, that is because enforcement has not been a priority for any federal administration until 2025, but the ARA is back, and enforcement is now a priority. Why? Individuals who are permanent residents or who are in the U.S. under a visa or other status have already registered when they filed their applications.

They only have a duty to update their address with the federal government within 10 days of moving. This is nothing new.14 What is new is the emphasis on enforcement—particularly by issuing criminal charges. Individuals who are in the U.S. without registering are now subject to being charged with a crime, which may make them ineligible for any visa or other immigration benefits.

And since removal of individuals charged with a crime is also a priority, enforcement of the ARA provides the authority to detain such individuals. Thus, EO 14159 also directed the Department of Homeland Security to detain in a detention facility those who have been charged with violation of U.S. immigration law and then stopped all funding to organizations that provided legal services to individuals in the immigration court system and in detention centers.15 The ARA is back (and is now the subject of litigation16).

The Alien Enemies Act (AEA) is also making a comeback. Since it was enacted in 1918, this statute has authorized the President to decide (1) whether a non-citizen should be taken into custody, (2) whether the non-citizen should be required to post a bond if he/she wishes to stay in the U.S., and (3) whether to remove such non-citizens from the U.S.17 But, there are a few caveats. The AEA can be invoked, (1) when there is declaration of war between the U.S. and a foreign nation or government, or when there is an invasion or “predatory incursion,” whether actual or threatened, by any foreign nation or government and (2) the President makes public proclamation of the event.”18 If this occurs, then all citizens of the hostile nation or government over the age of 14 are subject to

DICTA

May 2025

COVER STORY By: Melissa B. Carrasco Carrasco Trump, PLLC

being arrested, detained, and removed from the U.S. as “alien enemies” without any hearing or other due process.19 Proclamations 10886 and 10888 and EO 14157 did exactly that.

The Proclamations declared a national emergency and a foreign invasion at the U.S. southern border, and EO 14157 ordered the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to designate cartels and other “transnational organizations” as Foreign Terrorist Organizations such that any of their members could immediately be apprehended, detained, and removed without any hearing. This has been the subject of substantial litigation, and on April 7, 2025, the U.S. Supreme Court lifted a set of injunctions which prohibited the administration from removing noncitizens who had been designated members of a Venezuelan gang, ruling that the detainees had to challenge their detention in Texas, where they were detained, rather than in Washington D.C., where suit was filed.20 Out with the Not-So-Old In late 2022 and early 2023, the United States Citizenship and Immigration Services (USCIS) under the Biden administration began implementing a humanitarian parole program for citizens of Cuba, Haiti, Nicaragua, and Venezuela.21 Under the CHNV Parole Program, citizens of these countries who had a U.S. sponsor could apply for parole, and once granted, could live and work in the U.S. for up to two years and, if eligible, apply for a visa or other immigration benefits that would enable them to remain in the U.S. longer. Approved parents could bring their minor children.22 Under this program, approximately 532,000 individuals entered the U.S. between January 1, 2023, and January 20, 2025,23 which is when EO 14165 instructed the Secretary of Homeland Security to terminate it,24 which is precisely what Secretary Noem did on March 25, 2025.25 The termination was to be effective on April 24, 2025,26 giving parole recipients less than 30 days to leave the U.S. and leaving their employers scrambling to comply with the revocation of work authorization.27 Currently, the termination of the CHNV Parole Program is the subject of litigation, and a decision on an application for preliminary injunction is expected in early April 2025.28 The Fate of the Immigration Court System Those who do not practice immigration law are often surprised to learn that there is an entirely separate court system that handles the cases of individuals detained by immigration authorities or in removal proceedings.29 It is part of the Department of Justice, under the Executive Office of Immigration Review with its own set of Judges who are DOJ employees, prosecutors (attorneys from the Office of the Principal Legal Advisor, a department within ICE), rules of procedure, and appeals process.30 Although removal proceedings are considered civil administrative proceedings, the immigration judge has the authority to order a person’s detention or release (often with a bond), to order a person’s removal from the U.S., and to grant certain kinds of relief, such as application for asylum or permanent residency.31 Since January 2025, numerous changes to the immigration court system have occurred. Most of these changes have been to rescind policies implemented by the Biden administration and restore policies implemented by the first Trump administration.

For example, on January 31, 2025, EOIR Acting Director Owens rescinded a 2023 policy which permitted Immigration Courts to appoint independent Child Advocates for children who are in immigration court proceedings without the benefit of a parent to appear in Immigration May 2025

Court and make recommendations regarding the best interest of the child.32 Instead, a 2019 policy was reinstated which prohibits Child Advocates from appearing in Immigration Court and prohibits immigration judges from considering filings that a child advocate might make on behalf of the child.33 Similarly, on February 6, 2025, Director Owens rescinded a 2023 policy which required immigration judges to ensure that the court provided language interpretation in the non-citizen’s preferred language or languages, if the language is not in English.34 The most notable change was the rescission of Policy Memorandum 23-01, which prohibited Department of Homeland Security officials from carrying out enforcement actions (i.e. taking individuals into custody) in or near the immigration courts.35 Now, DHS officers can and are taking individuals into custody when they appear for their Immigration Court hearings, ICE check-ins, or even their USCIS interview on an application for residency or another type of visa, and any family member or friend who also attends is at risk of being taken into custody unless they have documentation of their immigration status.36 For now, this is the landscape. Tomorrow, it will change.

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DICTA

Quote attributed to J. Paul Getty, founder of Getty Oil, and noted art collector and philanthropist. See Goodreads, https://www.goodreads.com/quotes/646502in-times-of-rapid-change-experience-could-be-your-worst, last visited April 6, 2025; see also Philanthropy Roundtable, J. Paul Getty, https://www. philanthropyroundtable.org/hall-of-fame/j-paul-getty/, last visited April 6, 2025.

AUTHOR’S NOTE: This article was finalized on April 7, 2025, based on the information available at the time. By the time this article is distributed, significant changes may have occurred which may render the content obsolete or inaccurate.

See Laurence Benenson and Nicci Mattey, Trump’s First 100 Days: Potential Immigration Actions https://immigrationforum.org/article/trumps-first-100-dayspotential-immigration-actions/ (National Immigration Forum, Jan. 14, 2025) (collecting quotations from the Trump campaign); see also Transcript, Donald J. Trump Speech, Republican National Convention (July 18, 2024), available at https:// www.scrible.com/app/pdf-viewer/#docUid=72IO0C0LH006036034S3G9BS0848IG8 2&entryId=1163360220.

Exec. Order No. 14148, Initial Rescissions of Harmful Executive Orders & Actions, Fed. Reg. Vol. 90, No. 17, 8237 (Jan. 28, 2025); Exec. Order No.14160, Protecting the Meaning and Value of American Citizenship, Fed. Reg. Vol. 90, No. 18, 8449 (Jan. 29, 2025); Exec. Order No. 14159, Protecting the American People Against Invasion, Fed. Reg. Vol. 90, No. 18, 8443 (Jan. 29, 2025); Exec. Order 14165, Securing our Borders, Fed. Reg. Vol. 90, No. 19, 8467 (Jan. 30, 2025); Exec. Order 14161, Protecting the United States from Foreign Terrorists & Other National Security and Public Safety Threats, Fed. Reg. Vol. 90, No. 19, 8451 (Jan. 30, 2025); Exec. Order 14157, Designating Cartels & Other Orgs. as Foreign Terrorist Orgs. & Specially Designated Global Terrorists, Fed. Reg. Vol. 90, No. 18, 8439 (Jan. 29, 2025); Exec. Order 14167, Clarifying the Military’s Role in Protecting the Territorial Integrity of the U.S., Fed. Reg. Vol. 90, No. 19, 8613 (Jan. 30, 2025); Exec. Order 14163, Realigning the U.S. Refugee Admissions Program, Fed. Reg. Vol. 90, No. 19, 8459 (Jan. 30, 2025); Exec. Order 14150, America First Policy Directive to the Secretary of State, Fed. Reg. Vol. 90, No. 18, 8337 (Jan. 29, 2025); Memorandum of January 29, 2025, America First Trade Policy, Fed. Reg. Vo. 90, No. 19, 8471 (Jan. 20, 2025); Presidential Proclamation 10886, Declaring a National Emergency at the Southern Border of the United States, Fed. Reg. Vol. 90, No. 18, 8327 (Jan. 29, 2025); Presidential Proclamation 10888, Guaranteeing the States Protection Against Invasion, Fed. Reg. Vol. 90, No. 18, 8333 (Jan. 29, 2025).

See Exec. Order 14160, supra, n. 4.

See New Hampshire Indonesian Community Support, et al. v. Donald J. Trump, et al., Case No. 1:25-cv-38 (D. N.H. Jan. 20, 2025); New Jersey v. Donald J. Trump, et al., No. 1:25-cv-10139 (D. MA, Jan. 21, 2025); Washington, et al. v. Donald J. Trump, et al., Case 2:25-cv-00127 (W.D. Wash. Jan. 21, 2025) (Doc. 1, Doc. 43, Doc. 114).

Trump, et al. v. Washington, et al., No. 24A (U.S. Mar. 13, 2025).

Exec. Order 14159, supra n. 4.

See Act of June 28, 1940, c. 439, 54 Stat. 670.

Id. Id. Ironically, the first case to construe the Alien Registration Act struck down a similar Pennsylvania law which required non-citizens to register annually with the

continued on page 20

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21ST CENTURY LAWYER By: Emily C. Harfouche Bradley Arant Boult Cummings LLP

THE IMPORTANCE OF RELATIONSHIPS IN A MODERN LEGAL PRACTICE As a 21st-century lawyer with an old soul, I often find myself balancing modern innovation with timeless values. Growing up, certain principles were instilled in me that continue to shape the way I practice law. Chief among them is the importance of relationships.

In today’s fast-paced, tech-driven world, it’s easy to feel like we need to constantly keep up with the latest tools, platforms, and strategies just to stay relevant. Artificial intelligence, automation, and legal tech are evolving faster than ever. Every time we open LinkedIn or scroll through a legal newsletter, we’re hit with advice on how to market ourselves more effectively, grow our client base, and distinguish our practice.

There are countless consultants and business coaches helping lawyers create online brands and use social media to drive referrals. These tools can be incredibly useful—and many attorneys have used them to build impressive platforms.

But while embracing modern technology can enhance a legal practice, I believe that relationships are what truly sustain one. Some of the most successful lawyers I know didn’t build their careers by mastering every new platform. They built them by building trust—with clients, with colleagues, with their communities.

From a young age, my father used to say, “Be careful how you treat people—you never know when you’ll run into them again.” Over time, I realized that advice wasn’t just about being polite. It was about understanding the long-term value of human connection. Whether you’re trying to attract new clients, find a mentor, or even just navigate your day-to-day practice, who you know—and how you treat them—matters.

Relationships often create unexpected opportunities. For example, you might be trying to learn a new skill and remember a colleague who recently took a course on the topic. Instead of spending hours trying to teach yourself, you reach out to them and get practical advice from someone you trust. Or maybe years ago you made a positive impression on a classmate who now runs a successful business—and they come to you for legal advice. These aren’t just lucky breaks. They’re the natural result of treating people well and staying connected.

In practice, we see this dynamic play out all the time. As a transactional attorney, I focus on corporate, real estate, and finance matters. But clients are rarely one-dimensional. Their needs often extend into areas like employment law, estate planning, or mergers and acquisitions. When I have trusted colleagues in those practice areas, I can confidently refer my clients to someone I know will take care of them. That kind of collaboration not only benefits the client, but it also strengthens professional relationships—and often leads to referrals in return.

This is relationship-based networking at its best. It’s not about aggressively marketing yourself or collecting business cards. It’s about doing good work, being a team player, and staying engaged with your peers.

It’s also about how you treat your existing clients. It can be easy to focus only on the legal work—drafting documents, responding to emails, and moving transactions forward. But if you’re not also making the effort to connect with your clients on a personal level, you’re missing a major opportunity. Clients remember when you take the time to learn about their interests, anticipate their needs, or show kindness during a stressful

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process. These are the things that turn a one-time client into a long-term relationship.

Recently, I worked on a transaction where I knew the client was heading out of town. Instead of waiting until the last minute, I prepared the documents early so they could review and sign without disrupting their plans. It wasn’t a big gesture—but it showed that I was paying attention. Small things like that build trust. They show your clients that they’re not just a file or a line item on your to-do list.

The legal profession is competitive, but it’s also interconnected.

Our circles may be wider now—thanks to digital platforms and remote work—but they’re still circles. Word travels. The way you treat people, the way you show up in your practice, and the relationships you build will always speak louder than your LinkedIn bio or firm website.

So, as we continue to adopt new tools and strategies, let’s not forget the value of the old-school fundamentals. Relationships—built on trust, kindness, professionalism, and follow-through—are still the foundation of a meaningful and sustainable legal career.

Technology will continue to change the way we work. But no matter how the tools evolve, the people behind the practice are what matter most.

DICTA

LEGAL SERVICES CORPORATION Notice of Grant Funds Available for Calendar Year 2026 The Legal Services Corporation (LSC) announces the availability of grant funds to provide civil legal services to eligible clients during calendar year 2026. In accordance with LSC’s multiyear funding policy, grants are available for only specified service areas. The list of service areas (and their descriptions) where grant opportunities are open are available at https://www.lsc.gov/grants/basic-fieldgrant/lsc-service-areas/2026-service-areas-subjectcompetition. The Request for Proposals (RFP), which includes instructions for preparing the grant proposal, will be published at https://www.lsc.gov/grants-granteeresources/our-grant-programs/basic-field-grant on or around April 15, 2025. Applicants must file a PreApplication and the grant application through GrantEase: LSC’s grants management system.

Please visit https://www.lsc.gov/grants/basic-field-grant for filing dates, applicant eligibility, submission requirements, and updates regarding the LSC grants process. Please email inquiries pertaining to the LSC grants process to LSCGrants@lsc.gov.

May 2025

SCHOOLED IN ETHICS By: Paula Schaefer

Art Stolnitz Distinguished Professor of Law University of Tennessee College of Law

ARE YOU A SAFETY-SENSITIVE WORKER? In my February 2025 Schooled in Ethics column I discussed the Department of Justice (DOJ) letter finding that the Tennessee Lawyers Assistance Program (TLAP) and the Tennessee Board of Law Examiners (TBLE) violated the Americans with Disabilities Act by subjecting bar applicants to burdensome investigations and conditions of admission based on a disability.1 The DOJ investigation concerned the conditional admission of two Tennessee bar applicants. In conditional admission, an attorney who might have otherwise been found unfit because of recent conduct can be conditionally admitted if conditions are put in place to ensure the conduct does not recur.

Because of DICTA’s publication schedule, I submitted that column on January 12, 2025. Several significant events happened in the days and weeks that followed. First, on January 16, 2025, the Tennessee Supreme Court issued a statement saying that it strongly disagrees with the DOJ’s findings of discrimination in violation of the ADA. The Court’s statement provides, “Both TBLE and TLAP follow well-established administrative processes that are designed to avoid discrimination against any applicant.”2 Then—unrelated to the Tennessee matter, but likely impacting it—on January 22, 2025, the DOJ ordered its civil rights division not to pursue new litigation or settlements.3 Finally, on February 3, 2025, the American Bar Association (ABA) approved a new Model Rule on Conditional Admission.4 The Rule and accompanying Report were sponsored and prepared by the Commission on Lawyer Assistance Programs (CoLAP). The Model Rule—which is not law but can be adopted in whole or in part by a state—contemplates that LAPs will have a key role in determining terms of conditional admission and being a monitoring authority for a conditionally admitted attorney.5 TLAP already plays that role in Tennessee’s bar admission process.

Tennessee Supreme Court Rules provide that as part of the character and fitness investigation, the TBLE can refer an applicant to TLAP for an evaluation of fitness and for recommendations about monitoring for purposes of conditional admission.6 So how does TLAP evaluate attorney fitness for purposes of conditional admission? Although Tennessee—like many states—does not provide a detailed definition of attorney “fitness” in its court rules,7 there are limits on how bar admission officials can interpret the term.8 Fitness determinations cannot be made in an arbitrary or discriminatory manner9 and fitness requirements must have a rational connection to fitness to practice law.10 Any requirement must comply with the ADA, which prohibits a public entity discriminating on the basis of a disability.11 Under the ADA, substance use disorders (SUD) and mental health conditions are disabilities.12 In the context of attorney licensing, the ADA prohibits both the denial of a license and the imposition of unnecessary burdens to obtain a license on the basis of an applicant’s disability, including stereotypes about what a bar applicant with a disability can do.13 The 2025 Model Rule contains some helpful guidance in this regard, emphasizing the importance of states complying with the ADA and considering an applicant’s recent conduct—and not diagnosis or condition—for a suggested period of only five years.14 Curiously (to me, at least), the Model Rule’s Commentary contains a single, abstruse reference to the American Society of Addiction Medicine (ASAM).

The Model Rule’s Commentary provides, “A resource of Admissions May 2025

Authorities relating to such best practices [for setting terms of conditional admission to support attorney fitness] is the [4th edition of The ASAM Criteria].”15 This seemingly innocuous ASAM reference caught my attention because I have been puzzled by TLAP’s reliance on ASAM for the proposition that lawyers are “safety-sensitive” workers.16 As a long-time professional responsibility teacher and scholar, I am unaware of any state that labels lawyers as “safety-sensitive.” Tennessee does not.17 But The ASAM Criteria does.

While recognizing that it has no regulatory authority,18 The ASAM Criteria asserts that lawyers are members of a safety-sensitive profession, just like pilots, commercial truck drivers, and nuclear powerplant workers.19 Acknowledging that “many” safety-sensitive industries are governed by legislation and regulations that clearly define standards for alcohol and drug use,20 The ASAM Criteria lumps lawyers into this group despite no comparable regulation of the legal profession. ASAM uses its own definition of safety-sensitive: “industries [that] have a responsibility to the public.”21 Putting this label on lawyers is not without consequence. The ASAM Criteria repeatedly focuses on the need to protect the public from a worker with an SUD, regardless of its impact on their work.22 ASAM urges clinicians to consider the “perceived” and “potential” safety risk of a worker with an SUD and notes that the workplace is often the last place where the worker exhibits symptoms.23 ASAM is skeptical of the use of FDA-approved medication to treat opioid use disorder (MOUD) in a safety-sensitive population, noting that the FAA prohibits its use in commercial pilots and that LAPs should be consulted about its use in lawyers.24 In a disconcerting moment of transparency about its views on the ADA, The ASAM Criteria states that treatment facilities focused on safety-sensitive workers are better equipped than other facilities to resist concerns “per the ADA” to protect individual rights instead of protecting the public.25 ASAM suggests that the ADA’s concern for protecting personal rights improperly “increase[es] pressure on treatment providers to justify return-to-work recommendations or restrictions that may be perceived as discriminatory.”26 The influence of ASAM’s views is evident in D.S.’s case—which was part of the DOJ’s investigation in Tennessee.27 TLAP sent D.S. for assessments at two TLAP-approved facilities focused on safetysensitive workers. Both opined that D.S. should be prohibited from taking MOUD.28 When asked by D.S. to reconsider its recommendation, the first facility refused; it stated, “We believe that a professional who wishes to take controlled medications should make a choice between the medications and the profession.”29 The second facility opined that despite D.S.’s decade-long successful use of a MOUD without legal, educational, or occupational consequences, he is “not fit for the practice of law, which is a safety-sensitive position” and that he should undergo abstinencebased treatment.30 These recommendations are not based on the Court’s regulation of the legal profession in Tennessee. They reflect the doctrine of ASAM. The DOJ found that TLAP and TBLE’s enforcement of these recommendations—as part of D.S.’s bar admission—violate the ADA.31 It is concerning that under current Tennessee Supreme Court Rules, there is no effective way for the Court or even the TBLE to exercise oversight and review of TLAP’s recommendations. If an applicant agrees continued on page 28

DICTA

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BARRISTERS MONTHLY MEETING Plan now to attend the Barristers monthly meeting on Wednesday, May 14, starting at 5:15 pm at the outdoor patio at The Firefly at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. Register by clicking May 14 on the event calendar at www.knoxbar.org.

VETERANS LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on May 10, 2023. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

DIVERSITY COMMITTEE COLLECTS DONATIONS FOR SCHOLARSHIP FUND The Barristers Diversity Committee has created a scholarship fund to help with travel and lodging costs for diverse students who are invited to attend preview days hosted by the law schools. Members are asked

to make a donation to help ensure that one student, who may not otherwise be able to afford to visit a law school in Knoxville prior to their enrollment, is able to attend a preview day. Your donation would help alleviate one of the barriers preventing diverse students from being able to visit campuses in Knoxville and see all that its law schools and the Knoxville Bar have to offer. If you have questions, please reach out to Mariel Bough (mariel.bough@verasafe.com) or Grant Williamson (gwilliamson@bradley.com) for more information on how your donation will be used, or for more ways to get involved with the Information on how to donate online can be found on the KBA website on the Barristers Diversity Committee page.

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

We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at (865) 3819084 or Darrius Dixon at (865) 546-4646 with any questions and/or about volunteering.

C O V E R S T O R Y , continued from page 17

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state, pay an annual $1.00 registration fee, carry a registration card at all times, and show the card whenever demanded by the police, finding its requirements were overly invasive of the personal liberties of non-citizens. See Hines v.

Davidowitz, 312 U.S. 52 (1940). The Supreme Court noted that the purpose of the ARA was to obtain information necessary to maintaining national security but “to do so in such a way as to protect the personal liberties of law-abiding aliens . . . and to leave them free from the possibility of inquisitorial practices and police surveillance that might not only affect our international relations but might also generate the very disloyalty which the law has intended guarding against.” Id. at 74.

See 8 U.S.C. § 1301-1306.

See Hanna v. U.S., 559 F. App’x. 75 (2nd Cir. Ct. App. 2014); see also In re Hanna, 725 N.Y.S.2d 26 (N.Y. Ct. App. 2001).

See USCIS Form AR-11, which is the current form used to update a non-citizen’s U.S. address, https://www.uscis.gov/ar-11.

See Exec. Order 14159, supra n. 4, §§9-10, 19.

See Coalition for Human Immigrant Rights v. U.S. Dept. of Homeland Security, No. 1:25-cv-00943 (D. D.C. Mar. 31, 2025).

See 50 U.S.C. §1.

See 50 U.S.C. §21.

Id. See Trump v. J.G.G., et al, 604 U.S. _____ (2025), No. 24A931 (Apr. 7, 2025).

See USCIS News Release, DHS Implements New Processes for Cubans, Haitians, and Nicaraguans and Eliminates Cap for Venezuelans (Jan. 6, 2023), https://www. uscis.gov/newsroom/alerts/dhs-implements-new-processes-for-cubans-haitiansand-nicaraguans-and-eliminates-cap-for-venezuelans.

Id.; see also Yael Schacher, Setting the Record Straight on CHNV, Refugees International, (Mar. 28, 2025), https://www.refugeesinternational.org/perspectivesand-commentaries/setting-the-record-straight-on-chnv, last visited Apr. 7, 2025.

Id. Exec. Order 14165, supra n. 4.

90 Fed. Reg. 13611 (Mar. 25, 2025).

Id. Ian R. McDonald, Navigating the Termination of CHNV Parole, Nat’l L. Rev. (Apr. 1, 2025), https://natlawreview.com/article/navigating-termination-chnv-paroleprograms-insights-i-9-reverification-and-ina, last visited Apr. 7, 2025.

See Doe v. Noem, No. 1:25-cv-10496 (D. Mass. Feb. 28, 2025).

See generally, Department of Homeland Security, Immigration Court, https://portal. ice.gov/immigration-guide/court, last visited Apr. 7, 2025.

See National Immigration Forum, Immigration Courts and Immigration Judges Fact Sheet, available at https://immigrationforum.org/wp-content/uploads/2019/04/ Immigration-Courts-fact-sheet.pdf.

EOIR, Immigration Court Practice Manual, Chapter 1, https://www.justice.gov/eoir/ reference-materials/ic/chapter-1/4.

See EOIR Policy Memorandum 25-14; Director’s Memorandum 23-03; EOIR Policy Memorandum 20-03.

EOIR Policy Memorandum 20-03.

See EOIR Policy Memorandum 25-20; Director’s Memorandum 23-02.

See EOIR Policy Memorandum 23-01; see also EOIR Policy Memorandum 25-06.

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DICTA

See U.S. Immigration & Customs Enforcement, DHS Directive: Enforcement Actions in or Near Protected Areas (Jan. 20, 2025), available at https://www.ice.gov/aboutice/ero/protected-areas; see also Ariana Baio, ICE Agents are Arresting Migrants Showing up for their Immigration Hearings and Readying them for Deportation, The Independent (Feb. 18, 2025), https://www.the-independent.com/news/world/ americas/ice-arrest-immigration-hearings-court-b2700382.html.

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May 2025

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Jimmy Snodgrass Kramer Rayson LLP

“HEY CHATGPT, HOW SHOULD I RULE ON THIS CASE?” AI has been the legal buzzword of the past year and has been impossible to ignore. There have been many DICTA articles published about how to decide whether to implement AI in your practice, as well as the pitfalls of the use of this technology (such as reviewing court filings where the use of AI software resulted in “hallucinated” cases). Any commentator on this technology has been clear—AI will soon affect all of our practice areas. The question that has not been answered, at least to my knowledge, is how courts and judges will potentially implement the use of AI. Most instructions from courts have cautioned against its use; for example, several judges have required a certification about the use of generative AI in court filings. However, two recent decisions have implemented AI in their analysis of what is common knowledge and the ordinary meaning of contract language.

In Niya Ross v. United States,1 the District of Columbia Court of Appeals addressed an appeal of a conviction for animal cruelty. The Court summarized the issue on review as: “Leaving a dog in a car on a hot day is always inadvisable. But is it always criminal?”2 The appellant, Ms. Ross, left her dog in a car parked in the shade of a tree in September 2023, with the windows lowered a couple of inches, for over an hour.

After a bench trial, she was convicted of animal cruelty; however, the Government did not present evidence about the temperature within the car or the specific symptoms of the dog, Cinnamon. On appeal, the Government responded that it is “common knowledge” that a dog would suffer in the conditions in Ms. Ross’s car. The D.C. Court of Appeals reversed the conviction, finding that common knowledge was not sufficient.

Now, before you ask why on earth I am writing about a D.C. Court of Appeals animal cruelty opinion, the dissenting opinion asked ChatGPT “Is it harmful to leave a dog in a car, with the windows down a few inches, for an hour and twenty minutes when it’s 98 degrees outside?”3 The dissenting opinion utilized the response received from ChatGPT to compare the analysis from several previous cases on the circumstances that establish animal cruelty. The majority and dissent both harbored doubts about whether ChatGPT “is a good proxy for what is, and what isn’t, common knowledge,” with even the dissent stating, “it is definitely not.”4 A concurring opinion also warned against the pitfalls of tools like ChatGPT, which can be best summarized as “if it is free, you are the product,” while also commenting on the potential for AI tools to alleviate “the strain on increasingly overburdened courts.”5 Here, the concurring opinion commented that the use of ChatGPT could expose which judges are involved on a panel or their process in writing an opinion, before that information is available to the public.6 The D.C. Court of Appeals in Ross cited a concurring opinion from the U.S. Court of Appeals for the Eleventh Circuit in Snell v.

United Specialty Ins. Co.7 In Snell, a landscaper sought a declaratory judgment that the insurer had a duty to defend and indemnify him under a CGL insurance policy. On appeal to the Eleventh Circuit, the issue was an interpretation of whether doing site work necessary to install a

trampoline would qualify as “landscaping” under the applicable policy.

Judge Newsom’s concurring opinion is one of the more unusual, “even for me” as he noted, judicial opinions I have read in a while.8 In this opinion, Judge Newsom made “a modest proposal . . . which I suspect many will reflexively condemn as heresy”— to consider how the use of “AI-powered large language models like . . . ChatGPT . . . might–might– inform the interpretative analysis” of the “ordinary meaning” of a word.9 As Judge Newsom wrote, “Is it absurd to think that ChatGPT might be able to shed some light on what the term ‘landscaping’ means?” and his initial answer was “Yes, Kevin, that is positively absurd.”10 However, the concurring opinion proceeded to explore the strengths and weaknesses of using AI-powered large language models (“LLMs”) to interpret the ordinary meaning of words, as well as provide a few ideas of how these tools can be used by both judges and lawyers. Strengths were noted as “LLMs train on ordinary-language inputs,” such “LLMs can ‘understand’ context,” that “LLMs are accessible,” and “LLM research is relatively transparent.”11 Weaknesses were noted that LLMs can “hallucinate,” that they may not fully account for underrepresented populations, and that they could be manipulated and reverseengineered.12 Ultimately, Judge Newsom’s concurring opinion is a surprisingly honest and self-deprecating opinion that is easy to read, in addition to questioning how both lawyers and judges should implement AI.13 For anyone who is hesitant about learning more about AI (like my grandmother who referred to any movie or TV show she didn’t like as science fiction), it provides helpful insight. Judge Newsom stresses that such technology can be used for limited contexts, so long as the user is educated on its strengths and weaknesses. The opinion ends by highlighting a key issue: “AI is here to stay. Now, it seems to me, is the time to figure out how to use it profitably and responsibly.”14 1 2 3 4 5 6 7 8 9 10 11 12 13

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331 A.3d 220 (D.C. Ct. App. 2025), Id. at 221.

Id. at 236 (Deahl, J., dissenting).

Id. at 236, n.4.

Id. at 230 (Howard, J., concurring).

Id. at 231.

102 F.4th 1208 (11th Cir. 2024) (Newsom, J., concurring).

Id. at 1221, n.1.

Id. at 1221.

Id. at 1222.

Id. at 1226–28.

Id. at 1230–31.

This is from someone who admittedly spends more time on Volquest than reading Eleventh Circuit cases. As another example of the candid language used, when reviewing photographs of the work performed, Judge Newsom stated “I’m not particularly proud of it, but I’ll confess that the photos affected the way I thought about the case. Nothing in them really struck me as particularly ‘landscaping’-y.

The problem, of course, was that I couldn’t articulate why. And visceral, gut-instinct decisionmaking has always given me the willies—I definitely didn’t want to be that guy.” Id. at 1223.

Id. at 1234.

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 Jimmy Snodgrass at jsnodgrass@kramer-rayson.com.

May 2025

DICTA

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WELL READ By: Wade Boswell

Tennessee Department of Human Services

VALLEY SO LOW: ONE LAWYER’S FIGHT FOR JUSTICE IN THE WAKE OF AMERICA’S GREAT COAL CATASTROPHE, BY JARED SULLIVAN The Kingston coal ash spill’s legal saga began soon after the 2008 disaster and did not conclude until 2023. Having kept track of the cases during their early years, they fell off my radar as time progressed and the litigation inched along. Once they were resolved, I was left with many questions on how the case was handled, the interplay of the attorneys involved, the effects upon the injured workers, and the ultimate amount the plaintiffs received. The coal ash cases are probably the biggest cases with the most parties in the United States District Court for the Eastern District Tennessee in Knoxville since the Butcher banking collapse in the early 1980’s.

The protagonist attorney who brought these lawsuits against the Tennessee Valley Authority (TVA), the defendant in the property damages lawsuit, and Jacobs Engineering ( Jacobs), the defendant in the personal injury lawsuits, is Knoxville’s own Jim Scott.1 While there were other attorneys who filed cases for property damage, Jim is one of the only attorneys who filed personal injury claims against Jacobs for the clean-up workers and their families. The book chronicles the impact of the environmental disaster upon the clean-up workers, their families, their lawyers, their illnesses, their fight, and their faith that they would hold power to account.

The book is divided into three sections broken down by years: 20082013; 2013-2017; and 2017-2023. These divisions reflect the different periods of the lawsuits. The property damage cases, the personal injury claim filings and discovery, and the trials. The book opens on the morning of December 22, 2008, at the home of Ansol and Janie Clark. Ansol was one of the first people to see the devastation caused by the coal ash spill when the sun rose that morning. Though there are many coal ash cleanup workers and families who suffered, the Clark family’s experience stands as a representative for what many of the workers and families went through.

Their experience and that of Billy and Lena Isley will stick with the reader.

The focus is not just on the legal aspects of the lawsuits but also on the personal lives of the attorneys and a handful of clean-up workers, drawing the reader into the backstories of those involved. Jim truly cares about his clients, and, lacking the professional detachment that allows him to dedicate himself to their cause, Jim carries their burdens as his own. In so doing, we see the toll this takes. His devotion to these cases took most of his time, leaving little time to share with his family, leading to not unsurprising negative effects. We see Jim go through a divorce, custody disputes, a DUI charge, a mini-stroke, and near fatal septic shock.

But through it all, Jim remains steadfastly dedicated to his clients.

For Ansol and Janie Clark, we follow their love story from its beginning until its end, one of unreserved dedication to one another.

Their love story was endearing, but for Janie, their story was bookended by similar tragedies. When Janie was two and a half, her early life was affected by the failure of a slate dam that severely injured her

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grandmother and killed two of her aunts. And, when Janie was 13, her father died from exposure to soot and exhaust from the train yard where he worked. Little did Janie know that these events foreshadowed her later life, where a dam breach caused the release of toxins that would eventually kill her beloved husband.

When he was building the personal injury cases, Jim realized that he needed help, as he could not take on Jacobs alone. Jim built his team with fellow local attorneys John Dupree, Keith Stewart, and Tyler Roper.2 This team of attorneys performed well, especially considering the discovery document dump from Jacobs’ attorneys, the ethically questionable tactics of an attorney with Covington & Burling LLP, Kurt Hamrock,3 who was taken to task before U.S. Magistrate Judge Guyton, and the fire that made 713 Market Street uninhabitable. Though Jim had strengthened the legal team, additional attorneys were needed. Jim brought in Jeff Friedman from Birmingham and Gary Davis from Asheville, who Jim had met through the property damage cases. This six-lawyer team was the first ever in the United States to convince a federal jury that coal ash could sicken a person. Though liability had been established, the damages trial loomed in the distance.

With Jim’s health issues and the non-Knoxville attorneys’ inability to move to Knoxville for at least a year to pursue damages, Knoxville attorney Greg Coleman was brought in to carry the case over the finish line.

From a legal perspective, this is a David v. Goliath fight for justice.

It provides insight into all that goes on in a set of trials of this magnitude.

From a client perspective, this decade-long personal injury fight was an uphill battle, with the whole legal system stacked against the workers.

The book begs the question of whether large entities with vast resources only look at the bottom line and not to the damage they could cause, essentially, have they become, “Too Big to Care”?

The book ends as it began, with the Clark family. Ansol and Janie’s long-awaited trip to the beach so Janie could see the ocean for the first time. Ansol was only there in spirit, as it was there that Janie would spread his ashes into the water.

1

2

3

DICTA

Jim Scott and I were law school classmates. For nearly six years during these coal ash lawsuits, my wife was Jim’s administrative assistant. She did not return the author’s calls and did not contribute to this book.

Prior to leaving private practice, these three attorneys were my colleagues.

The author accurately describes them and precisely conveys their demeanors.

Nonetheless, in defense of my friend, Keith has a well-developed vocabulary and can speak without cussing or using crass colloquialisms, though that ability was only displayed in an exchange with Judge Varlan.

Interestingly, according to Kurt Hamrock’s LinkedIn page, his departure from Covington took place within the next few weeks after the hearing before U.S. Magistrate Judge Guyton. https://www.linkedin.com/in/kurt-hamrock-2b88ba1/ (last accessed April 13, 2025).

May 2025

PRO BONO SPOTLIGHT By: Clint Wren Legal Aid of East Tennessee

YOUR CHANCE TO CHANGE LIVES AT CLINICS Readers of this portion of DICTA have heard it before: pro bono work offers attorneys the chance to give back to their communities by providing free legal services to those unable to afford representation.

However, I would like to share a few of the social, health, and well-being benefits that come with this giving back. That’s right; pro bono allows you to get something out of giving to others!

Refreshing Your Perspective Most of us entered the profession – at least in part – with the hope they would make a positive impact. Some of us entered the profession because it turns out that our dad was right and that the English Literature degree we got really doesn’t pan out to a lucrative career. Either way, the grind of working with clients in difficult situations, figuring out billable hours, and fighting through the legal system pushes optimism into disillusionment if we do not carefully guard our perspective.

Pro bono work is a fresh set of professional opportunities with the chance to rekindle that hope that got us into this field. Although I ask that you report your hours so we can give you credit for your volunteer work, it is evident that the time spent with pro bono clients or in clinics feels different. There is a sense of contributing to something outside of the usual work bubble, and with that, there is a chance that you can break out of a slump and renew your passion. Alternatively, even if your perspective isn’t radically renewed, you can enjoy some coffee and mingle with law students, peers, and me.

Diversifying Legal Experience and Combating Burnout Monotony is a part of a highly detailed and fact-based profession.

No matter where you use your license, there is going to be a part of your day that is rote and repeated week after week. It’s unavoidable, and it leads to burnout. I know I have felt that I have taken and worked the same case dozens and hundreds of times because the matter is in the same area of law.

For some much-needed variety, consider pro bono work! I have the materials, education, and clients in need of services just outside of your usual cases. Want to try a conservatorship? An agreed adoption?

Name change? While these needs are probably quicker and less intensive than your usual day-to-day, they are a huge help to the client and an opportunity for you to expand your practice.

Learning a new area of law will not prevent a certain level of mundanity, but it sure can keep it from growing to a distaste and dissatisfaction with your career. Reach out if you are interested in learning a new area of civil practice. I have no doubt I can find someone with a need in that area.

Enhancing Social Connections and Professional Belonging Law can be isolating. Combine this with a high-pressure environment, demands of your clients, and time-sensitive work to push an attorney into what feels like a crushing corner. I am sure that you remember the constant – and almost oppressive – push at law school to attend mixers, moot courts, and other social clubs. There is a reason for this. The potential for feeling cut off and alone is just as present on this side of the bar exam.

Take some time out of the bubble we all find ourselves in and attend one of the clinics noted below. There, you can speak with attorneys both inside and outside of your usual practice circles, students in need of mentorship, and clients that deeply appreciate you giving your time so that they have hope for a brighter future.

Improving Mental Health Through Altruism As it turns out, altruism is shown to improve physical and mental health outcomes. I read this in an article on the internet, so you can trust me wholeheartedly there. I can’t say that I promise a robust physical regimen at any of the clinics below, but I suppose you could walk laps in the Community Law Office’s gym in between client sessions.

More realistically, I recommend giving your time for the sake of your mental health. Renewing passion for your work and getting out of your bubble is great and all, but taking care of yourself so that you can care for others is a central reason for my work in this field. It is why I push others so hard to be involved.

Both in and out of your role as an attorney, others rely on you. You have duties and responsibilities that keep yourself and others safe, healthy, and loved. You cannot do this optimally, if at all, if you are not taking care of yourself mentally.

Personally, I can say that nothing is better for my mentality than serving others. I cannot fix the world or save the planet, but the difference I make by giving my time and effort can make a world’s worth of difference to someone. I could not care for my children, love my spouse, or enjoy my hobbies as thoroughly and fully if I did not take time to give back some of what has been given to me.

I have bothered, and will continue to bother, many of you because I have experienced the difference that happens when you make a difference for others. We are surrounded by a cynical, trying world. Pushing back using your knowledge, skills, and time is by no means a small victory that pushes you forward elsewhere. I, and many of the volunteers that work with us, will always tell you that it is at least worth the shot.

Upcoming Clinic Opportunities

Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available. • To sign up, please use the form on the KBA Website or email cwren@laet.org.

• Wednesdays, June 11, August 13, October 8, and December 10 Noon – 2:00 PM Virtual Name Change Clinic: Via Zoom with specific dates to be announced soon. Contact cwren@laet.org if you are interested in participating.

Debt Relief Clinic: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. • To sign up, please email cwren@laet.org. • Saturdays June 28, September 13, November 15 9AM – Noon.

Lincoln Memorial University Duncan School of Law’s Estate Planning Clinic: At 601 W Summit Hill Dr. Contact cwren@laet.org if you are interested in participating.

May 2025

DICTA

23

BARRISTER BITES By: Angelia Nystrom East Tennessee Foundation

EMPTY NEST, FULL PLATES, AND ST. ELMO’S FIRE One of the lesser-known perks of becoming empty nesters—aside from always being able to find my phone charger and no longer finding rogue shoes and clothes and hand weights with my bare feet in the middle of the night—is the newfound ability to make spontaneous travel decisions without consulting a school calendar, swim practice or meet schedule, or someone else’s feelings about car rides longer than 20 minutes with the parents.

A couple of weeks ago, Hugh and I decided to take a road trip to Indianapolis to watch the Vols play in the Sweet 16 and Elite 8. This was a total whim. We love the Vols. We love to travel. And both of us had a weekend free of commitments. Neither of us had ever been to Indy, and the only thing we really knew about it was that basketball would be involved. That, and seeing the Brickyard and maybe some Indy cars. (For the record, the track and museum were closed.)

As we embarked on the eight-hour drive— most of which were spent navigating road construction zones and me telling Hugh to get into the left lane and drive faster—I did what any responsible co-pilot would do: I became a Google-certified Indianapolis expert. I read aloud every fun fact I could find: Indy is a transportation hub! It’s a cultural center! It’s a sports mecca! By mile 300, I was basically the Ken Burns of midwestern trivia.

What I did not uncover in my research, however, was the city’s food scene. Turns out, Indianapolis is positively brimming with high-end steakhouses. Who knew? (Not Google, apparently.)

After watching the Vols dismantle Kentucky—sweet, sweet victory—Hugh posted our smiling faces with the scoreboard in the background on Facebook. Within minutes, a chorus of friends near and far chimed in with a singular message: “GO TO ST. ELMO STEAK HOUSE.” When the Internet speaks with one voice, you listen.

St. Elmo Steak House is Indianapolis’s oldest restaurant, founded in 1902 and aged to perfection—like its ribeyes. From the moment we stepped inside, it felt like we had walked into a time capsule that smelled faintly of mahogany and cigar smoke. The bar alone, which was crafted in Chicago and shipped over specifically for the restaurant, looked like it belonged in a museum—or a very classy gangster movie.

Every detail screamed, “You are about to spend more on one dinner than you did on first semester UT parking tickets for Trace—and it will be worth it.”

The menu is a minimalist masterpiece. It is one page long. That’s it.

Straightforward and simple.

There’s only one appetizer: the world-famous shrimp cocktail.

Everyone—and I mean everyone—told us to order it. So, we did, thankfully warned about what would come next.

Picture this: four jumbo shrimp casually lounging around a metal cup and covered with cocktail sauce, looking innocent. Then you take a bite, and BAM! Your sinuses throw a parade. Your eyes water. It’s not cocktail sauce—it’s a nasal cleanse. And yes, there’s so much horseradish in it that it’s... crunchy. CRUNCHY. I’ve never feared a condiment before. Now I live with a healthy respect. We found St. Elmo’s fire.

After the horseradish rodeo, we skipped the salads and dove straight into the main event.

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Hugh ordered the dry-aged, 18 oz. prime ribeye, which arrived on a sizzling plate like it had just been released from culinary heaven. It had a perfect crust—he described it as a “caramelized landscape of flavor.”

He declared it the best steak he’s ever had—high praise considering the volume of steaks that he has devoured over the years. He also ate all of it and didn’t share one bite. I’m not bitter. I’m just... writing it down publicly for the record.

He ordered béarnaise sauce (his favorite), too, but didn’t touch it.

“Didn’t need it,” he said. He paired the steak with a loaded baked potato that was approximately the size of our cat and topped with enough cheese and sour cream to make a Wisconsinite weep.

I went with the cold-water lobster tail. It was 9 oz of perfectly cooked, meaty, buttery bliss. I also ordered the onion rings, which turned out to be more like onion straws—golden, crispy, and wholly addictive.

Thankfully, I exercised a little self-control and did not eat them all.

And then there was Kyle—our server. Polished, knowledgeable, intuitive. The kind of person who could probably run the Pentagon but has instead chosen to bring steak to the people. He’d only been there five months but carried himself like a seasoned maître d’ in a tuxedoed BBC drama. He told us that many of the servers at St. Elmo make a career out of it. I can understand why.

We were too full for dessert—though the menu tempted us with cheesecake, chocolate cake, and crème brûlée. In the words of Nancy Reagan, we had to “just say ‘no.’”

As we left, we wandered past a wall of photos—celebs and dignitaries who’d dined before us. Hugh froze in his tracks. There, smiling back from the wall, was his old fraternity brother and pledge trainer, James Denton—aka Mike Delfino from Desperate Housewives.

Empty nesting has its perks. We miss Trace, of course (and even asked if he wanted to go with us). But we also now have the freedom to hop in the car, drive to a new city, cheer for our team, and accidentally stumble into culinary greatness.

We’ll be back to St. Elmo. For the dessert. For the steak. For the shrimp cocktail that doubles as a nasal decongestant.

Mostly, though, for the joy of discovering that in the empty nest chapter... the menu is wide open.

DICTA

May 2025

TOP TEN By: Jason Long Lewis Thomason, PC

TOP TEN LIST OF B.S. SCENES IN LAW-RELATED MOVIES For those who know me, you know that I am a movie buff. I particularly like movies involving lawyers: drama, comedy, thriller, it doesn’t matter. While I have written, on many occasions, about particular movies, scenes, and characters I love, not all is rosy for a jurisprudential cinephile. More often than not, I watch these movies wondering if anyone was brought in to consult on the films. Sometimes, we are asked to suspend disbelief a little too far in the name of good story telling.

With that in mind, I give you my Top Ten List of B.S. Scenes in LawRelated Movies.

10. Fake News. Do you know how to tell that the Scopes Monkey Trial was a fake publicity stunt? Under no circumstances in a real trial would the defense counsel be permitted to call the prosecuting attorney as a witness, and yet, that is exactly what happens in Inherit the Wind. I understand it happened in the real trial too.

9. Confidential. In The Firm, Hal Holbrook’s character mockingly criticizes Mitch McDeere (played with typical Tom Cruise intensity) for receiving only the second highest score on the bar exam. Never mind the implausible storyline of a young lawyer compelled to work for the mob, I sit on our Board of Law Examiners and can say with assurance that the likelihood of Holbrook, or anyone else, knowing the rank of bar exam applicants is . . . well, it would just never happen.

8. Evidence class? Trial practice? Overrated. I get that a client has the right to choose their own representation, but I’m pretty sure the judge would have at least called a timeout and had some serious off-the-record discussions before letting a defendant in a murder trial fire her renowned defense lawyer in favor of a first-year law student working under the supervision of Luke Wilson in Legally Blonde.

7. C’mon, really? In her heyday, Marlene Dietrich was one of the most glamorous women in the world. Are we supposed to believe that a barrister as intelligent and observant as Sir Wilfrid Roberts (played brilliantly by Charles Laughton) cannot recognize her in a disguise that consists of nothing more that some ragged clothes and a cockney accent in Witness for the Prosecution? Give director Billy Wilder credit for being bold. The entire film hinges on the audience not recognizing the famous actress in disguise. Truth be told, I didn’t pick up on it during my first viewing, but then again, I’m not Charles Laughton.

6. Procedure Schmacedure. In Primal Fear, Richard Gere fails to plead not guilty by reason of insanity. Why? I get that I’m not a criminal defense lawyer. Still, there must be a procedure to change your plea when new facts come to light, like the fact that your client tried to kill your psychologist in the middle of a psychotic break. That has to be good cause. Right? Instead, Gere goes with the hairbrained scheme of goading his client on the stand into flipping into his other personality.

May 2025

Of course, it works, because . . . Hollywood.

5. I want that on ASCII!! This one is very subtle, but it has always bothered me. After the verdict in To Kill a Mockingbird, as we see Atticus getting ready to leave the courtroom, he walks over to the court reporter and says something with great emphasis, even jamming his finger, as if he is angry. What could he possibly be saying? I get it. He is disappointed. He didn’t want to lose. He cares for his suffering client.

He cares for the Rule of Law. Still, he saw this verdict coming a mile away. Everyone did. It could not have suddenly enraged such a levelheaded man as Atticus. Why take it out on the court reporter?

4. Surprise! I love The Verdict. Paul Newman and James Mason are outstanding in this gritty and gripping legal drama about a struggling plaintiff ’s lawyer taking a stand against a big defense firm and its wellheeled hospital client. So well-heeled that I refuse to believe for a second that the admitting nurse, called at the end of the trial, and who has the damning testimony, had never been interviewed or deposed prior.

3. Talk about surprise. How is the prosecution in My Cousin Vinny permitted to bring in a surprise expert witness on less than 24-hours’ notice? It’s not like new evidence was found that suddenly required expert evaluation. This guy is an automotive expert who is assessing the physical evidence gathered at the scene of the crime on day one. For that matter, how is this trial taking place in what appears to be a week after the murder occurred? Justice is swift.

2. Ah, Sorkin. I love you, Aaron Sorkin. You can inspire and provoke with the stroke of a pen. Still, you need to stop thinking you are a lawyer.

At the end of Social Network, Mark Zuckerberg is left in the conference room with Rashida Jones, who plays a young associate at the firm representing him. As she explains to him why he should settle the case, she tells him that she has been practicing for less than three years and that she is an expert in voir dire. Nope. Don’t believe it. In fact, I doubt you’ve ever seen a live jury. A runner-up finish for this movie is the number of times lawyers question their own clients in deposition.

1. Sorkin, Sorkin, Sorkin. I have said it before, and I’ll say it again, there is no way 3 attorneys could run through 6 boxes of black pens and 6 boxes of red pens in 2 weeks doing trial prep. That’s at least 144 pens.

Yet that is exactly what Sorkin would have you believe in a Few Good Men when Tom Cruise is ordering office supplies from Demi Moore (credit to my wife who pointed out this absurdity on our 47th viewing of the film, and now I can’t stop thinking about it). This movie is also rife with soliloquys delivered to the jury that are disguised as questions that an opposing lawyer would never allow. I think Tom Cruise makes about six different closing arguments during the course of this trial.

See you at the movies.

DICTA

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PRIVILEGED TO BE IN THE LAW By: John Brock Brock Shipe Klenk PLC

THE WAY MY PATH WAS PAVED A career in the law was the last thing my parents would have expected. At least, not on the right side of the law. I was not a good student. By second grade, I could barely read. I had no interest in school, other than recess, lunch, and a certain redhead named Cherry. Nothing made sense. Fractions? Sentence diagrams? Even holding a pencil the correct way was a challenge.

For example, one day we were given an outline of a football helmet to color. My classmates filled theirs with pictures of all kinds – scenes from their family vacations and such. The teacher rewarded their work by hanging them on the wall. I had drawn a Dallas Cowboys blue star on mine and called it a day, only to receive a “U” for “Unsatisfactory.” Apparently, the assignment was to completely fill the picture with colors, but either I hadn’t been listening, or I just didn’t understand why anyone would put a picture of the beach on a football helmet. In any event, I remember being embarrassed and wanting to somehow earn my teacher’s respect.

My parents eventually learned that I had an eye disorder similar to dyslexia. I then became the kid with an eyepatch and thick glasses, but at least the playing field was beginning to level out. I was behind, and it would be a long time before things started to click for me in school, but I began to read – a lot – and fell in love with learning.

I also loved being around people. I think I had learned to fake my way through a lot of my early challenges by picking up social queues, but I was fascinated by people and all their particular differences and talents.

I loved being in clubs and on teams and organizing events. It’s where I thrived.

Looking back, it seems obvious now that these early interests would make a law career – and in particular, representing organizations of all types – a natural fit for me. At the time, however, that was not something any guidance counselor would have suggested.

My father, an insurance salesman, had some lawyer clients, and he would tell us about them at home. There was Foster D. Arnett, the founding partner of Arnett, Draper & Hagood, a World War II veteran and a brilliant litigator with a baritone voice. My father would say, “He may look small, but put any ten men against him, and he’ll whip them all!”

My father also greatly admired the late Bernie Bernstein, the founder of Bernstein, Stair & McAdams. My father would say Bernie was the best attorney, businessman, and citizen he knew.

They and others like them were spoken of reverently, and I knew that, at least in my father’s opinion, they were smart people who were important to our community. I decided that whatever lawyers do, I wanted to be one.

It was a stretch goal from where I started, but I found help along the way. One of the first lawyers who took an interest in me was Jim Clayton, the well-known founder of Clayton Homes. I was friends with Jim’s

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daughter, and he encouraged me to get a legal education to best prepare me for any business I decided to pursue. Years later, Jim would hire me to help sell his company to Berkshire Hathaway.

In high school, I put on my suit and showed up, unannounced, at Bob English’s office. I told Bob that I was a friend of his nephew, Sam, and that I wanted to work for him. I didn’t get a job, but I got an entire afternoon of Bob’s time, during which he educated me on what it takes to be successful in both law and life.

Charlie Wagner, whom I had known from the church I attended, got me a job at his firm, Wagner, Myers & Sanger, and later strong-armed UT Law’s Dean Wirtz into admitting me. Charlie has been a wise and generous mentor throughout. Also from that firm, Doug Campbell became a de facto big brother, answering my questions about his practice and even (foolishly) co-signing my apartment lease.

Robin Askew taught a session of my Business Transactions class in law school and encouraged me to pursue a career in transactions and real estate law.

(Later, she would threaten to kick my client’s you-know-what if he didn’t shut up.)

Mark Williams gave me a job during my first year of law school. I don’t think 1L’s were supposed to have jobs then, but I desperately needed the money. Mark became, and remains, a great friend.

There were many others who gave me advice, encouragement, jobs, inspiration, and friendship as I strove to break into this profession. I am forever grateful. They helped me understand that only the best work, the highest ethical standards, and the most effective communication would cut it.

The great lawyers I have known care deeply for their clients and community. Clients become dear friends, and our city is made better by their tireless work on civic boards, nonprofits, pro bono projects, and service to the KBA, local schools, and places of worship. They’re exceptional advocates and trusted and reliable workers for the common good. I seek to meet those standards every day.

Not long ago, while on vacation, I took a call from a client who, it turns out, was in crisis. His business had been a victim of the recent flooding in North Carolina, and it was taking a heavy toll on his health, mentally and physically. We talked about the legalities, but we also talked for a long time about family, faith, and the difference between the right thing to do as a business and the right thing to do as a husband and father. I don’t know if that call helped, but after all the years of serving as his attorney, we’ve become great friends, and it hurt me to hear him hurting. I felt honored that he would call me at that time, and despite all the years of struggling, I was able to be in that place at that time, just like I was taught.

For that, and for many other examples like that, I feel privileged to be in the law.

DICTA

May 2025

FOODIE FINDS: THE BEST OF KNOXVILLE FOOD TRUCKS By: Parker Bohne LMU Duncan School of Law J.D. Candidate, 2026

EL SAPITO El Sapito food truck has only been on the Knoxville scene for about a year now but has already begun building a reputation for its authentic Mexican meals and family-first mindset. The name, which means “little toad” in Spanish, is a symbol of a leap of faith, a new chapter, and a dream born from hardship.

Run by husband-and-wife duo Jesús and Amy Vargas, El Sapito puts family first. Their 18-year-old daughter and 11-year-old son are often involved in the food truck’s operations, as well. Customers see a truck serving authentic Mexican dishes, but the story behind the scenes is one of courage, resilience, and the pursuit of something more meaningful.

Originally from Mexico, Jesús came to the United States what feels like a lifetime ago. With nearly three decades of his life spent in the restaurant industry, Jesús’s journey began in a kitchen, washing dishes.

Over the years, he moved up to various chef positions, gaining experience and honing his skills. But the long hours and non-stop grind of the restaurant world meant he was constantly working. He and Amy never got to see each other, and it began to wear down the family.

Amy, who had a career in the medical field, received a life-altering medical diagnosis in 2019. Despite this news, she and Jesús continued working. But the long hours of work and emotional and physical toll of Amy’s diagnosis weighed heavily on their family. They realized they couldn’t keep going like this. They were exhausted, and the effects of that exhaustion were felt by their marriage and their children.

Jesús has always dreamed of opening his own restaurant, but with the high risks involved, they chose to start smaller: a food truck. Even that came with fear and uncertainty. At first, Jesús asked his previous job for weekends off, but when they would not accommodate the request, Jesús and Amy knew they had to go all-in. But with the help of prayer and knowing they were in it together, the two embarked on the journey that would become El Sapito.

Now, nearly a year later, El Sapito is rolling strong. It hasn’t always been easy—as Amy described it, “It’s not all butterflies and rainbows.”

Winter was especially hard with fewer customers and colder days. But for the Vargases, every struggle has been worth it. The family went from never being together to always being together. Though an adjustment at first, working side-by-side has brought them closer.

For Amy and Jesús, being closer to family has been one of the greatest parts of the experience. But they also find great joy in watching people taste Jesús’ authentic Mexican cooking and reading reviews from those they serve.

The couple also hopes the exposure to Mexican culture will also inspire change in the hearts of some. For Amy, one of the hardest parts of growing El Sapito is going to small towns, where patrons will praise Jesús’s cooking, but Amy will see their Facebook posts later calling for deportations. Still, Amy and Jesús have found a community—an extended family—in their regular customers.

As for the future, Jesús still dreams of opening a brick-and-mortar restaurant. But for now, the food truck life offers flexibility, family time, and a renewed sense of purpose for Amy and Jesús. What began as a leap of faith is now a thriving food truck bringing family and authentic Mexican food to the streets of Knoxville.

May 2025

So, next time you’re around town and see a white truck with a green frog in a sombrero, stop by. Or check out El Sapito on Facebook and Instagram to follow the Vargases’ story and to find out where they’ll be next.

DICTA

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S C H O O L E D I N E T H I C S , continued from page 19 to TLAP monitoring, he or she can be conditionally admitted as an administrative matter with no TBLE review or hearing.32 Conversely, if an applicant refuses to comply with TLAP recommendations, the TBLE will not issue a license. This was D.S.’s situation for over two years as he refused to agree to TLAP’s terms.33 The TBLE’s formal denial of a license on character and fitness grounds prohibits an applicant reapplying for three years,34 which may be why D.S. withdrew his initial application rather than face a denial.35 It is also noteworthy that the Tennessee Supreme Court’s review of an admission denial is discretionary.36 This system results in the vast majority of bar applicants accepting TLAP’s conditional admission terms—even when an applicant believes the terms violate the ADA. This is what C.B. did before filing a complaint with the DOJ.37 To refuse TLAP’s terms and have a TBLE hearing (as D.S. did) will cost the applicant months or even years as a licensed attorney and money spent on counsel for a hearing that has no guarantee of success or even Supreme Court review if unsuccessful. This framework is the reason there is no case law in Tennessee concerning the appropriateness of conditional admission.

TLAP has already announced that the 2025 Model Rule’s single reference to The ASAM Criteria amounts to an endorsement of ASAM’s approach and supports the conclusion that TLAP—because it follows the ASAM approach—is ADA compliant.38 But this is incorrect. Even if Tennessee adopts the language from the ABA’s new Conditional Admission Model Rule, that does not mean the rule complies with the ADA or insulates TLAP from a legal challenge based on the ADA.39 The inclusion of The ASAM Criteria in the commentary to the Conditional Admission Model Rule does not change the protections of the ADA for lawyers.

Are you a safety-sensitive worker? That is the question. The issue does not just impact bar applicants. It impacts all members of the Tennessee bar. This is not a question that should be left to ASAM or TLAP. The answer will have continuing consequences for the regulation of the legal profession in this state, including future claims of ADA violations.

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Letter from U.S. Dept. of Justice, U.S. Attorney for the Middle District of Tennessee, to John B. Coke, Esq., General Counsel, Legal Services & Judicial Development, Tennessee Supreme Court (Dec. 17, 2024), https://www.justice.gov/crt/case/ tennessee-board-law-examiners [hereinafter DOJ Letter].

Tennessee Supreme Court Addresses Discrimination Findings from DOJ, (Jan. 16, 2025), https://www.tncourts.gov/press/2025/01/16/tennessee-supreme-courtaddresses-discrimination-findings-doj Sarah N. Lynch, US Justice Department Freezes Its Civil Rights Litigation, Reuters. com, (Jan. 22, 2025), https://www.reuters.com/world/us/us-justice-dept-asks-civilrights-division-halt-biden-era-litigation-washington-2025-01-22/.

ABA Resolution 608, Conditional Admission Model Rule and Report, 1 (Feb. 3, 2025), https://www.americanbar.org/content/dam/aba/directories/policy/midyear2025/608-midyear-2025.pdf. [hereinafter “2025 ABA Model Rule” and “2025 ABA Report”].

2025 ABA Model Rule, supra note 4, at 4, 6; 2025 ABA Report, supra note 4, at 1 (stating that licensing authorities should seek LAP input on the terms of an applicant’s conditional admission).

Tenn. Sup. Ct. R. 7, §§ 6.04(d) (noting that fitness investigation can include referral to TLAP under Rule 33.05(E)(3) for an evaluation and recommendation from TLAP, including any recommendation regarding monitoring by TLAP); 10.05(c) (stating that conditions of admission should be based on clinical evaluations); 10.05(f) (noting that the conditional admission monitoring authority is normally TLAP).

Tenn. Sup. Ct. R. 7, § 6.01 (providing that admission is denied if the BLE has “reasonable doubt as to that applicant’s reputation, character, honesty, respect for the rights of others, fitness to practice law, and adherence to and obedience to [federal and state laws and constitutions] and concludes that such applicant is not likely to adhere to the duties and standards of conduct imposed on attorneys in this State”).

Konigsberg v. State Bar of California, 353 U.S. 252, 263 (1957) (explaining that vague standard of character and fitness can be “easily adapted to fit personal views and predilections,” making it “a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.”).

Id. at 273.

Schware v. Bd. of Bar Exam’rs. of New Mexico, 353 U.S. 232, 239 (1957).

42 U.S.C. § 12132; 28 C.F.R. § 35.130(a).

42 U.S.C. § 12102(1)(A); 28 C.F.R. § 108(b)(2).

See, e.g., Ellen S. v. Florida Bd. of Bar Exam’rs., 859 F. Supp. 1489, 1494 (S.D.

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Fla. 1994); In re Underwood, No. BAR-93-21, 1993 WL 649283, at *2 (Me. Dec. 7, 1993).

2025 ABA Rule, supra note 4, at 3; 2025 ABA Report, supra note 4, at 1-3 (noting that conditional admission must align with the ADA and explaining that principal updates to the rule include focusing on conduct rather than diagnosis or condition, updating the definition of recent conduct to the prior five years, clarifying that conditions should be narrowly tailored and that the cost should be reasonable to the applicant).

2025 ABA Rule, supra note 4, at 3. See also 2025 ABA Report, supra note 4, at 4 (after referencing complaints that have been made about the conditional admission system, the Report states that the ASAM Criteria addresses some of these issues in Chapter 23 which addresses “medical framework for best practices” in monitoring and treatment for legal professionals).

See, e.g., J.E. “Buddy” Stockwell, The New ‘ASAM Criteria 4th Edition’: Today’s Blueprint for Addiction Treatment, Tenn. B. J., Vol. 60, No. 2 (March/April 2024), https://www.tba.org/?pg=TennesseeBarJournal&pubAction=viewIssue&pubIssueID =39349&pubIssueItemID=231669; Hon. Michael E. Spitzer, et al., TLAP Clinical Best Practices Recent Developments for Judges, 15 (June 15, 2022), https://www. tncourts.gov/sites/default/files/docs/tlap__optum_-_session_handout.pdf.

Tennessee rules governing attorney licensing, professional conduct, and discipline do not define lawyers as safety-sensitive workers. Tenn. Sup. Ct. R. 7, 8, 9. The only statutory definition of “safety-sensitive positions” in Tennessee does not encompass law practice or lawyers. Tenn. Code Ann. § 50-9-103(16)(A)-(B). See also Tenn. Code Ann. § 50-9-103(16)(A)-(B) (describing drug-free workplace programs and safetysensitive positions but making no reference to lawyers).

American Society of Addiction Medicine, The ASAM Criteria 3, 40 (4th ed. 2023) [hereinafter ASAM Criteria].

Id. at 515-16.

Id. at 515 (“Many safety-sensitive industries have established legislation or regulations that clearly outline standards to which their workers are held with respect to alcohol and drug use.”).

Id. at 515.

See, e.g., ASAM Criteria, supra note 18, at 515 (describing safety-sensitive industries as those that ensure that any “potential impairment” among their workers “would not compromise public safety”); 518 (asserting that level of care recommendations for safety-sensitive workers are aimed at “minimizing risks to the public while promoting best outcomes for the individual.”); 521 (describing monitoring—including by CoLAP—as essential to caring for safety-sensitive workers with SUD); 523 (asserting that removing safety-sensitive workers from duty is needed to shield the public from “the potential dangers created by substance use and impairment in the workplace” and stating that residential treatment tends to be the de facto initial treatment for most safety sensitive workers with an SUD).

Id. at 522.

Id. at 525.

Id. at 523.

Id. DOJ Letter, supra note 1, at 3-5.

Id. Id. at 4.

Id. at 5.

Id. at 8-10.

Tenn. Sup. Ct. R. 7, § 10.05(b)(2).

DOJ Letter, supra note 1, at 3-5.

Tenn. Sup. Ct. R. 7, § 9.07.

DOJ Letter, supra note 1, at 5.

Tenn. Sup. Ct. R. 7, § 14.01.

DOJ Letter, supra note 1, at 6-7.

On the FAQ page of its website, TLAP has added the statement: “ABA Adopts New Model Rule on Conditional Admission and Endorses ASAM Criteria.” On that FAQ page, TLAP announces the ABA’s adoption of the rule in February 2025 and declares, “The great news for TLAP . . . is that TLAP is (and was) already fully compliant with this new Rule. Thus, TLAP’s services are ADA compliant.” TLAP then lists all of the ABA sections and commissions the rule was distributed to and concludes, “The result is an ADA-compliant Model Rule, co-sponsored by the ABA Disability Rights Commission.” The FAQ page further notes, “Also, and of critical importance, the Rule now specifically recognizes that clinical best practices for LAPs and monitoring lawyers are provided by the American Society of Addiction Medicine (ASAM)” and that this inclusion “soundly rejects” assertions that TLAP’s assessments and monitoring are unduly burdensome. TLAP Frequently Asked Questions, https://tlap.org/faqs/.

For example, a number of states have declined to adopt ABA Model Rule of Professional Conduct 8.4(g) out of concern that the rule violates the First Amendment. Moreover, even if a state adopts a rule based on the ABA’s Model Rule 8.4(g), a lawyer could still challenge the enforcement of that rule by arguing that it violates the First Amendment. See generally, Kim Colby, ABA Model Rule 8.4(g) Cannot Survive the Supreme Court’s Recent Decisions in NIFLA and Matal, The Federalist Society (Aug. 24, 2018) https://fedsoc.org/commentary/fedsocblog/abamodel-rule-8-4-g-cannot-survive-the-supreme-court-s-recent-decisions-in-niflaand-matal.

May 2025

KBA VOLUNTEERISM By: Miranda Goodwin

Malia & Goodwin

SO MANY WAYS TO LEND A HAND Many KBA members are making a meaningful impact in our community through volunteer efforts. This column highlights not only the ongoing contributions of our members with the Volunteer Ministry breakfast but also through expanded opportunities to engage with community programs such as CareCuts and Grow Free Tennessee.

Lincoln Memorial University’s Commitment to Service The Duncan School of Law has been committed to helping the Volunteer Breakfast Committee for the past several years. They are happy not only to sponsor the breakfast, but they also send their senior administrators to cook and serve the meal for the guests of the volunteer ministry. When Dean Lyon was asked about the university’s commitment to service, he said, “We emphasize to our students that as lawyers, they will be expected to be leaders in their community. LMU seeks to educate servant leaders who are empathetic and self-aware, lead with integrity, exhibit resilience, and hold themselves and others to the highest standards of excellence.” Our committee greatly appreciates their continued support!

Additional Volunteer Opportunities CareCuts of Knoxville: CareCuts is a non-profit organization powered entirely by volunteers, providing haircuts, hospitality, and essentials to individuals experiencing homelessness. Volunteers (including hair professionals, salon owners, and support staff ) work together to provide not just physical care but also emotional support, helping people move forward from homelessness with dignity. The organization is currently seeking donations of powdered Gatorade, paper towels, ramen noodles, protein bars, and other essential items.

Grow Free Tennessee - Family Table Program: Grow Free Tennessee, part of the Community Coalition Against Human Trafficking, works to end human trafficking through awareness, training, and support for survivors. Through the organization’s Family Table

program, volunteers can provide a warm meal to individuals staying at the organization’s safe house. Volunteering with Grow Free Tennessee helps empower those on the path to healing and restoration, supporting survivors as they rebuild their lives.

For both of these programs, the Volunteer Breakfast Committee is available to assist with logistics via sponsorship, whether shopping for and delivering items needed for CareCuts or preparing and delivering meals for the Family Table program, offering members the opportunity to get involved if the time commitment to prepare or deliver items or meals isn’t feasible. We are asking for monetary donations so the committee can help both of these wonderful programs.

Get Involved. Volunteering is a powerful way to serve others, and our community benefits when we come together for causes like these.

Whether it’s through regular efforts like the Volunteer Breakfast Committee or new initiatives like CareCuts and Grow Free Tennessee’s Family Table Program, there are many opportunities to make a difference.

We encourage you to consider how you can get involved and help make our community stronger. To get involved or learn more, please contact the co-chairs of the Volunteer Breakfast Committee, Bridget Pyman at bpyman@arnettbaker.com and Miranda Goodwin at mirandagoodwin@ gmail.com.

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records: Melissa B. Carrasco BPR #: 029094 Carrasco | Trump, PLLC P.O. Box 7404 Knoxville, TN 37921 Ph: (865) 371-8588 melissa@ctlegaladvisors.com

Geran Minor BPR #: 042530 Landry & Azevedo 859 Ebenezer Road Knoxville, TN 37923-5907 Ph: (865) 851-7050 geran@lalawknoxville.com

S. Dawn Coppock BPR #: 012606 2101 Doane Lane Strawberry Plains, TN 37871-1510 Ph: (865) 933-8173 dawn@dawncoppock.com

Victoria Ungos BPR #: 041876 120 Suburan Rd., Suite 203 Knoxville, TN 37923 Ph: (615) 785-1783 victoria.ungos@lmunet.edu

WELCOME NEW MEMBERS

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

NEW ATTORNEYS Zachary R. Tolbert Montpelier & Associates, P.C.

NEW LAW STUDENT MEMBERS

Elizabeth A. Martin BPR #: 030670 Diverse Concepts 7100B Kingston Pike Knoxville, TN 37919-5709 Ph: (865) 584-4245 bmartin@dclfood.com

May 2025

Ashlyn D. Friel Peyton Kwalwasser Ashley N. Singleton

DICTA

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EXPANDING OUR HORIZONS By: Christina V. Magráns-Tillery City of Knoxville Law Department

AN UNEXPECTED ALLY As the attorney representing the City departments that handle development, land use, and construction, you can imagine that I am often surrounded by men during most of my daily work activities. The men I work with most frequently embody so many qualities I admire. They pay attention to details, and they are hard-working, direct, confident, and solution-oriented. However, I never expected one to stand up for me a few years ago when I was faced with an incredibly sexist remark.

Let me set the stage before going into this story. I had spent the prior evening working on an answer to a very contentious and very technical lawsuit. I can tell you that I probably banged my head into a table several times while drafting it. I was up quite late working toward a swiftly approaching deadline. Admittedly, I knew that my patience and energy the next day were not going to set any Guinness world records – but it was nothing a couple of cups of coffee would not fix.

I sat down at the table with all of the men from various City departments. We were ready to meet with a developer about a new project, and we would help answer any questions he had so that he could make the best application possible for permits. He sauntered in and began to present his project. As is typical, City staff members began to ask questions and give him information he would need to avoid issues later: “Make sure to note that the setback here is 15 feet.” “You will need to consider these other materials for fire safety.” “You may need to get an easement here for this part of the building.” You get the idea.

I had noted that one of the dimensions might require a variance, and I wanted to let him know this before he submitted his application.

To preface my question, I started off by saying something like, “I have not had time to look at this in great detail yet, but…” That was all I was able to say before he chimed in with a remark that shattered my poker face (ok, my RBF, if I am being honest). He cut me off and said, “Oh, was that because you were on the pole too late last night?” with a tone dripping in condescension and with one of the slimiest, lascivious smiles you can conjure in your mind.

The pole? No, sir. Did he say that? Really?

Let me say that I always anticipate that I will be asked if I am the court reporter at depositions. Thanks to some fancy anti-aging moisturizers, an attorney at a clinic asked me what year I will graduate.

Some attorneys and court staff re-introduce themselves to me every time I meet them and ask if I am an attorney. These are the comments I expect to hear and situations I expect. Ones that I have clever retorts and devastating quips prepared for on a moment’s notice. But I will say that I never expected to hear a stripper joke. Here it was, staring me in the face.

I remember all eyes in the room immediately turning on me.

Luckily, one of the men I work with jumped in before I managed to dive across the table at him and pick up multiple assault charges. I will never forget how skillfully he handled this moment. He said something like, “Huh. Before I let Christina respond, I just wanted to ask you if you really thought that was an appropriate thing to say to my attorney.” The way he said “my attorney” made me realize that all of these men respected me, valued my presence and input, and considered me one of their

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own. They were not going to sit around while a member of their team was insulted. I looked at him with new appreciation and pride. I never expected this response to such an overt sexualized comment from my team of male builders, planners, and inspectors. Just like that, all the eyes shifted back to the developer like spectators of a tennis match from hell.

The developer then turned several shades of tomato red while stuttering, trying to explain why his slimy joke was funny. Needless to say, he floundered over the next two minutes in the most satisfying space of awkwardness I had ever experienced. He felt the judgment from everyone else in the room. I remember hearing my department folks shuffling their feet, looking down, and sucking their breath through their teeth. As my husband would say, “Put some ice on that burn!” Yes, I was the only woman in the room that day, but I had allies who were ready to stand up for me. And boy did my department leader put that developer in his place!

That is my point. Stand up to attacks. Be an ally. Empower a voice.

Demand better. Fight injustice no matter if it is in small moments of a microaggression or an overt insult. We should all be in this together. Our profession and our calling to justice demand it.

DICTA

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May 2025

OUTSIDE MY OFFICE WINDOW By: Robbie Pryor

Pryor, Priest & Harber

THE MEANING OF LIFE, PART 2: THE THING THAT HAPPENED The 3x5 index card said, “How do I do this?” It fell from the journal when I picked it up last month to review for this column.

Today, my journals, notebooks, and legal files are full of her index cards. The cards were not supposed to display my writing. They should have been covered with units of measurement and ingredients in her elegant hand, years of recipes to hand down to the children. In the week after her death, I found the box of completed recipe cards and a large number of blank cards. Like so many other things, the idea of additional boxes of cards, leading to love-tended meals, evaporated on that unseasonably warm October day. I kept the recipes for Shelby, our baby girl. She is now 28 and has the cherished box with her in Richland, Washington. However, I kept the blank cards for me. All of them.

As arrangements for her burial were made, I sat in the floor and wondered why she bought so many index cards. It was just who she was.

If she was going to fill up boxes of recipes over the next 40 years, she might as well get all of the cards at the same time. That’s the kind of thing I would say to her - “Do you think they are going to stop making index cards?” If only she’d lived long enough to see a Costco. In the early days after the thing that happened, I carried several cards in my pocket every day. I often stopped and jotted down things to put in the journal - memories of her that I feared might fade, challenges to myself, or the name of a book someone suggested. What I wrote on the early cards is heartbreaking. They depict a man in crisis - broken, scared and alone. Over time the cards became grocery lists, story ideas, notes to stick in the kids’ lunches or backpacks. They evolved further into basketball plays, cross-examination ideas, speeches, and lectures to my Trial Practice class. I have one in my checkbook (google “checkbook” if you’re under 35). It is tattered and folded, the corners bent, and reads…”find what excites you about tomorrow…today.” I don’t know when I wrote it over the past two and half decades or even where the quote came from, but I see it once a month. More than what I eventually wrote on any card, the blank cards, in and of themselves, have always been a comfort.

They are Cheryl’s cards. The act of reaching for one over the years was, at first, a cry and a lifeline. They became a smile that fueled a skip in my step, but always something to brighten my day. If you can believe it, I’m still reaching for her cards. Yes, that is how many damn cards she bought.

I don’t reach as often as I used to. The cards have diminished in number as has my reliance on the emotional rush, but reaching is still an act that feels like a playful nudge from a friend. In the process of writing this column I have discovered there are less than 30 cards left. It snuck up on me. A bit of a panic ensued. After all, I was the kid who couldn’t let go of his stuffed animals and often assigned personality to inanimate objects.

Age, maturity, and education can’t kill that! What am I to do when the cards run out?

If you have lived as long as I have (56 years), you’ve had a thing that happened - a loss, a trauma, or an injustice. If you haven’t, it is coming.

McCarthy’s Suttree said, “…there are no absolutes in human misery and May 2025

things can always get worse,” but once the thing happens, many don’t try to understand why or fail to discover what to do with it. Failure to run straight into it is simply a missed opportunity. The path to understanding comes with a price. Stoics suggest it absurd to complain about natural events, but Epictetus never had to tell a four-year-old her mother wasn’t coming home. Even C.S. Lewis, in the aftermath of his wife’s death, questioned the efficacy of his own faith in A Grief Observed. “…But don’t come talking to me about the consolation of religion or I’ll suspect that you don’t understand.” In the last quarter of a century, I’ve studied and I’ve written, to myself in journals and to others in letters and columns/blogs, about grieving. I’ve run to the edge with head-first dives into books, interviews, podcasts, documentaries, and Ted Talks. In the early days I spoke to other widows and widowers and even a famous hospice nurse/author, all in an effort to understand. I’ve continued to study it in the wild. Like Jane Goodall and her chimpanzees, I’m in the habitat of grief and loss every day. Clients file into my office, each one broken by loss or physical injuries. If you think we only discuss law and recompense, you are mistaken.

Tears, hand-holding, and hugs are followed by philosophy, religion, and contemplation of “How do we do this?” It’s the only way I can manage.

On days I am faced with the death of a child, I may want to throw in the towel. Then there are others when I’ve been fooled into thinking I’m an expert on the matter, an important actor in the healing of a client and myself. Actor Rob Delaney (who lost a child to cancer) said, loss “makes me want to make you understand.” My clients and I are unfortunate students placed into a sad class where we are tasked with working through the universe’s most feared subject - death. In this long process an undeniable truth about life has been revealed…

The longing and grief from the thing that happened to you is the route to the true vitality of being alive; the wound, the only path to the gift. To experience the pinnacle of human existence, you must come to accept, appreciate, and even love the thing you wished had never happened.

In next month’s column I’ll offer the evidence for my statement (and many of my sources) and examples of its application. No one’s path can be the same, but mine is empirical evidence of the truth.

As for the cards…

DICTA

Dear Shelby and Andy, Enclosed are the last of your mother’s index cards. They belong with you. Like each day of your precious lives, they are limited in number and deserving of being filled, corner to corner, with your love and joy.

Love, Dad

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Prsrt Std US POSTAGE

PAID

P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 3 9 6