Judicial Profile: From the Broadcast Booth to the Supreme Court: Justice Kyle Hixson’s Journey of Service . . . Page 10 Legal Update: When the Jury Does its Own Homework . . . Page 11
A Publication of the Knoxville Bar Association | November/December 2026
MEDICAL BATTERY CLAIMS IN TENNESSEE
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November/December 2026
In This Issue
Officers of the Knoxville Bar Association
November/December 2026
COVER STORY 16
Medical Battery Claims in Tennessee
CRITICAL FOCUS President Rachel Park Hurt
President-Elect Ursula Bailey
Treasurer Catherine E. Shuck
Secretary M. Samantha Parris
Immediate Past President Jonathan D. Cooper
KBA Board of Governors Courteney M. Barnes-Anderson R. Kim Burnette Melissa B. Carrasco Meagan Collver
Joshua D. Hedrick Allison Jackson Matthew R. Lyon James R. Stovall
C. Scott Taylor Alicia J. Teubert Shannon van Tol Isaac W. Westling
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The Knoxville Bar Association Staff
President’s Message
525,600 Minutes
Appealing
The Right Stuff: Part Two
Legal Update
When the Jury Does Its Own Homework
Schooled in Ethics
Who Can I Prosecute and Why?
Management Counsel
Harassment and Retaliation Explained Over a Beer
WISDOM 6 9 10 Tasha C. Blakney Executive Director
Tammy Sharpe Director of CLE & Section Programming
Bridgette Fly Membership Coordinator
Alyx White Programs & Communications Coordinator
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Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 www.knoxbar.org Tracy Chain LRIS Director
Jason Galvas LRIS Assistant
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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).
November/December 2026
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Volume 54, Issue 8
DICTA is a bi-monthly publication by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.
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Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Executive Editor Executive Editor Executive Editor Sherri Alley Parker Bohne Elizabeth B. Ford Joseph G. Jarret F. Regina Koho Matthew R. Lyon Robin McMillan
Managing Editor
Sarah M. 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
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Around the Bar
KBA Barristers Celebrate Constitution Day at Knox County Schools
Legal Mythbreakers
Same As It Ever Was
Judicial Profile
From the Broadcast Booth to the Supreme Court: Justice Kyle Hixson’s Journey of Service
Of Local Lore and Lawyers
About an Ulu
Three Stars
Ghosts of Civ. Pro. Past
Hello My Name Is
Jacob King
Legally Weird
Private Equity’s Foray into Law
KBA Volunteerism
The Volunteer Spirit: Highlighting Attorney Dedication to Philanthropy: John Winemiller
Foodie Finds
Sherry’s German Street Food
21st Century Lawyer
Lawyering Without Sight
Privileged to Be in the Law
It Is a Privilege For This Mountain Girl To Be a Lawyer
How to Thrive
The Long Game: Building Consistency in Law and Life
Barrister Bites
In Defense of Appetizers for Dinner
Well Read
Looking Back to Lead Forward: Lessons for Lawyers from Heroic Leadership
Outside My Office Window
By Some Stroke of Luck
COMMON GROUND 23 28
Pro Bono Spotlight Address Changes/New Members
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PRESIDENT’S MESSAGE By: Rachel Park Hurt Arnett Baker Draper & Hagood, LLP
525,600 MINUTES This is my last President’s Message, which I am writing on October 1 because of the publication schedule. So, while I have exactly 72 days left in my presidency, I wanted to talk about my 525,600 minutes as President in a way that is truly meaningful to me—numbers and data. I like statistics and objective information, so here is some objective data about the 2026 KBA year. 2,089 – The current number of KBA members. We continue to grow as an organization at a time when many organizations are struggling to retain members. The KBA is engaged with the University of Tennessee Winston College of Law and Lincoln Memorial University Duncan School of Law, recruiting members in law school in hopes that they remain members when they join the Knoxville Bar. The growth of the KBA is vital to the success of the KBA. 934 – The current number of emails I have received in my capacity as KBA president. If you sent me an email, I hope I responded. The time commitment as president was unexpected. The joy that I received from this truly unexpected opportunity cannot be calculated. 637 – The number of members who have attended at least one of our 40 CLEs and 58 other events this year. I would love this number to be more. By the end of the year, we estimate that more than half of members will have attended at least one CLE or event. The KBA provides excellent CLE opportunities, and I know because I attended about 15 of them this year. The KBA has excellent opportunities for fellowship, engagement, networking, and fun. If you are not attending these events, you are missing out. 112 – The number of volunteers who make up the Board of Governors, the Committee and Section chairs, the Barristers’ Executive Committee, and the Barristers’ Committee Chairs. The amount of work that the KBA does in this community is really impressive. Our 29 Committees and Sections—including the new Real Estate Committee added this year—are making a positive difference in the lives of lawyers, judges, and the greater Knoxville Community. To the Committee and Sections Chairs, the Board of Governors, and the Barristers’ Board and Committee chairs: Thank you for volunteering, thank you for your time, and thank you for making a difference. 450+ – Total number of people who attended the Law Day Luncheon and Bench and Bar Celebration. If the KBA was a high school, these two events would be our version of Homecoming and Spring Formal. These are important events that celebrate the Rule of Law and the impact that lawyers have in the daily lives of all Americans (the Law Day Luncheon) and the strong relationship that the KBA has with the Tennessee Supreme Court and local judges in all levels of the judiciary. To the 28 judges/justices who attended this year’s Bench and Bar, I genuinely say thank you. And to former Attorney General Alberto Gonzales, our speaker at this year’s Law Day Luncheon, thank November/December 2026
you for your time, your public service, your engaging discourse, and your quick wit. 154 – The total number of people who attended this year’s membership event – a Knoxville Smokies game at Covenant Health Park. This year’s membership event was a celebration of 250 years of America and a celebration of America’s favorite pastime. It was hot; I was sweating; but it was a fun night with great food, fellowship, and fireworks. 55(ish) – While an estimate, this is the number of events I attended this year. These events include Board of Governors meetings, where I see brilliant attorneys giving their time and talents to make the KBA the great organization that it is. I have attended about 15 CLEs and participated in several. Each of these CLE opportunities was an opportunity to learn, network, and engage with the greater bar. I hope you took the opportunity to attend any of these CLEs or will view some online before the end of the year. I have spoken at both law schools and in the community. I attended several clinics, seeing the direct impact that KBA members can have in the community. I attended as many Committee/Section meetings as I could, observing the dedicated and passionate discourse that occurs all in the spirit of doing good deeds on behalf of the KBA. I certainly had fun, fellowship, and, usually, free drinks! 9 – The number of pounds I have gained eating lunches/dinners/ appetizers and having drinks (coffee and “other”) while engaging with members of the KBA in as many ways as possible. While the extra pounds is less than desirable, having engaged with members of the KBA at the Past Presidents Dinner, the Barristers Summer party, and all the events including all ages in between, I know that the future of the KBA is bright and that the tradition of the KBA is strong. At the Past Presidents’ Dinner, Wayne Kramer, Reggie Keaton, and Jason Long shared meaningful and engaging stories about their respective time as KBA president. It was impossible to leave that event without feeling proud to be a member of this great organization. At the Barristers’ Summer Party and the few monthly Barristers meetings I have attended, I have seen the engagement, commitment, and energy of our next generation of Bar leaders. 3 – My jersey number in college, but also the people I need to thank. My husband – who supported me throughout this year unconditionally. I am a better person because you are my husband. My daughter – who is amazing in all ways and only complained a little when I was not home for dinner or able to make it to a volleyball game. And my son – who is also amazing in all ways and never once complained about my busy schedule. He simply wanted to know that what I was doing was important. It was! Thank you for this amazing honor. Thank you for your support through the good and bad of this year. Thank you for these 525,600 minutes.
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AROUND THE BAR By: Samuel R. Rule
Patrick, Beard, Schulman & Jacoway, P.C.
KBA BARRISTERS CELEBRATE CONSTITUTION DAY AT KNOX COUNTY SCHOOLS
FOURTH GRADERS CELEBRATE WITH LOCAL ATTORNEYS AND JUDGES “Hey, do you know about the U.S.A.? Do you know about the government? Can you tell me about the Constitution? Hey, learn about the U.S.A. In 1787, I’m told our founding fathers did agree to write a list of principles for keepin’ people free. The U.S.A. was just startin’ out. A whole brand-new country. And so our people spelled it out the things that we should be. And they put those principles down on paper and called it the Constitution, and it’s been helping us run our country ever since then. The first part of the Constitution is called the preamble and tells what those founding fathers set out to do.1
This year, our KBA Barristers continued the annual tradition of meeting with fourth graders from various Knox County Schools to celebrate Constitution Day. The program is held over two separate days, with visits taking place on two consecutive Fridays. The goal of the program is to give students an opportunity to learn about the Constitution from the people who work in the legal system every day, while also giving our local attorneys and judges a chance to interact with some of our youngest citizens. The first day––Friday, September 18––our volunteer lawyers went to Christenberry Elementary School and South Knoxville Elementary School for a brief presentation and activity with the students. For the activity, the students elected a President (at South Knoxville Elementary, this was a female President, so I was happy to be a part of history). The students then elected a legislature consisting of three classmates. Finally, the President appointed three judges. With that, the students had created their own government ready to rule the Fourth Grade. The legislative branch passed a new bill that cancelled recess and
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substituted additional math work for an extra hour every day. The President––apparently persuaded by the legislative branch and special interests, such as the KBA Barristers who lobbied for her election–– signed the legislature’s bill into law. The law of the land was essentially NO RECESS, MORE MATH. The students were outraged, and many of them immediately sought reprieve in the judiciary. I’m not convinced their outrage satisfied the requirements of Rule 12, but that issue was not raised. The court took a long time in its deliberations but ultimately ruled that the new law was unconstitutional and needed to be thrown out. The dissenting judge, of course, disagreed. The scathing dissent brought me back to reading Scalia in law school. The activity was a great way to demonstrate the separation of powers for the students. The legislative branch can certainly pass a law, and the President can veto or sign it into law. And ultimately, the judiciary could still determine that the law violated the Constitution. The checks and balances of our government were on full display in this activity. After the activity, the students asked the attorneys many questions. Great questions, actually. The questions ranged from “What do you find most rewarding about being an attorney?” and “What is your favorite type of case to work on?” all the way to “Why do you always have to wear those clothes?” and “Why does your hair look like that?” This year also involved an intense explanation that the role of a transactional business attorney rarely involves solving crimes. As you can see, some questions were serious and some were funny, but the students were largely engaged during the Q&A
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part of the visits. After the first day with the attorneys, the students took a deep dive into their curriculum with a focus on the Constitution. They learned about the Preamble, studied the specifics of the three branches of government, and prepared a short presentation for local judges to visit the classroom the next week. The students at South Knoxville Elementary even made a large poster of the Preamble. The classroom work gave the students an opportunity to take what they had learned and build on it throughout the following week. The next Friday, September 25, our KBA Barristers returned to the schools with some of our local judges. Judge Tyler Caviness went to Christenberry Elementary, and Judge Deborah Stevens and Judge Jerome
Melson joined the South Knoxville Elementary team. The presentations from the students involved creative posters and a grand rendition of School House Rock’s “The Preamble”—which was yelled loud and proud. A few students even huddled up before the performance, and I could overhear them saying, “We need to lock in––they are real judges.” After the performances, the students summarized the activity from the week before for the judges. I think many of them were still shocked that the legislature had passed such a burdensome bill, and even more shocked that the President signed the bill into law (don’t be surprised if her name does not appear on the ballot next election after losing touch with her base). The judges helped walk the students through the judiciary’s role in our system. The best part was the students getting a chance to interact with the judges. The judges answered all sorts of questions. I wish I had the confidence to ask some of the questions that fourth graders ask. The students were knowledgeable, respectful, and appreciative of the judges’ time. They certainly recognized how unique an opportunity this was. This program would not have been possible without the help from our KBA volunteers and local judges. Special thanks to the Honorable Tyler Caviness, the Honorable Deborah Stevens, and the Honorable Jerome Melson for taking time away from their busy schedules to meet with local fourth graders, watch their presentations, and answer their questions. The enthusiasm of both the students and the judges made this event so meaningful.
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The Preamble, Schoolhouse Rock (1975).
’Tis The SeasonTo Be Grateful We wish you a joyous Holiday Season and a prosperous New Year. George B. Gilliam Vice President Client Administration
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APPEALING By: Robin McMillan
Career Clerk to the Honorable Cynthia R. Wyrick, United States Magistrate Judge
THE RIGHT STUFF: PART TWO In my last column, I began a discussion of Rule 27 of the Tennessee Rules of Appellate Procedure. Remember, Rule 27 provides that a brief must contain certain things in a specific order. Let’s pick up where we left off. Dem Bones Subsection (5) of Rule 27(a) requires that an appellant’s brief contain a statement of the case.1 What is this? Think of it as the scaffolding or outline of how the suit commenced, proceeded, and concluded in the trial court as told through the court filings. This section must set forth briefly three things: 1) “the nature of the case,” 2) “the course of proceedings,” and 3) “disposition in the court below.”2 I suggest that the operative word here is ‘briefly.’ While this section should remain bare bones, avoid simply listing the court filings - unless your objective is to put the reader to sleep. Instead, write a few paragraphs that include pertinent details. But keep the sentences short and sweet. For instance, say something like: Plaintiff filed her complaint against defendant on April 2, 2025, raising claims for X, Y, and Z. Defendant filed a motion to dismiss, which the trial court denied by Order entered on June 23, 2025. Defendant then filed an answer raising A and B as a defense. After engaging in discovery, the parties unsuccessfully attempted to mediate. Defendant then filed a motion for summary judgment asserting C, D, and E. The trial court granted summary judgment finding L and M. Plaintiff filed a notice of appeal to this Court on September 5, 2026. A few critical dates act as anchors and can establish timeliness of actions. Including dates for every document, however, can drag down the sentences and be distracting. If the issues raised on appeal hinge upon specific dates, then include them. If dates are superfluous, omit them. Keep this section succinct. Think scaffolding or skeleton and save the fleshing out of details for the coming sections. Do not feel you must include every detail, or even every document, filed in the trial court. Omit those that will be irrelevant on appeal. For instance, if all defendants timely filed answers to the complaint and no issue is being raised as to timeliness, it is not necessary for you to include details about the specific date on which each of multiple defendants filed an answer. Rather, simply state that all defendants timely answered the complaint, and move on. Include information about the final disposition. Make it easy for the court to spot jurisdiction.
Men Argue, Nature Acts5 Now we get to the meat of the brief – the argument required by subsection (7). One would think that this section would pose the least difficulty for attorneys, yet it is not uncommon for attorneys to make fatal mistakes here. The cases I cite involve attorneys, not pro se parties. This section requires two specific things: 1) a concise statement of the applicable standard of review, and 2) the argument itself. The argument must include the contentions, the reasons why relief is required, references to the record, and appropriate citations to legal authority.6 Issues may be waived if the argument is insufficient, perfunctory, or appears only in a footnote.7 Failing to cite to the record8 or to authority can also be fatal.9 Additionally, ensure that your argument section exactly matches your statement of the issues.10 The court may find issues waived if it cannot match the issues presented to the arguments. So, Tell Me What You Want - What You Really, Really Want11 Finally, subsection (8) requires a short conclusion, which must request the relief being sought.12 This section should be brief and to the point. Specifically ask for a result – affirm, reverse, remand, etc. Do not leave it to the court to guess at the outcome you seek.
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Tenn. R. App. P. 27(a)(5). Id. I’m not suggesting that you tell the story to a child. The facts behind most lawsuits would make suitable bedtime stories only if you are one of the brothers Grimm. But focusing on thinking about the facts as a story can help you decide which facts to include and how to best arrange them. Tenn. R. App. P. 27(a)(6). Voltaire. Tenn. R. App. P. 27(a)(7). Donovan v. Hastings, 652 S.W.3d 1 (Tenn. 2022); Charles v. McQueen, 693 S.W.3d 262, 273 (Tenn. 2024). Lovlace v. Copley, 418 S.W.3d 1, 33 n.17 (Tenn. 2013). Forbess v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011) (finding waiver for failure to cite to any authority other than statute); Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn.Ct. App.2006) (“The failure. . . to cite to any authority or to construct an argument regarding [a] position on appeal constitutes waiver of that issue.”). Hodge v. Craig, 382 S.W.3d 325, 336-37 (Tenn. 2012). While the Hodge Court did address some issues, it found that other issues had not properly been raised and discussed the shortcomings in Ms. Hodge’s statement of issues and argument. Wannabe, by The Spice Girls, album Spice (1996). Tenn. R. App. P. 27(a)(8).
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Just the Facts, Ma’am Now that you have the scaffolding, move on to the statement of facts required by subsection (6) of Rule 27(a). This is where you tell your client’s story and flesh out details. Think about this section as if you were telling a bedtime story to a child.3 Remember to include here any facts that will appear in the argument. If a fact is not in this section, it should not appear within the
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argument. Additionally, you must include citations to the record showing where each fact appears.4 While it is possible to arrange facts in any fashion, experimenting with avant garde storytelling, e.g., starting at the end and working chronologically backwards, is probably not a good choice. For an appellate brief, a sequential arrangement of facts usually works best. But you may wish to consider arranging the facts slightly differently so that the story is conveyed from your client’s perspective. For instance, start when your client entered the scene rather than when the ‘bad’ action began. Then you can loop back and fill in details about previous events. Don’t be afraid to experiment a bit if it assists in highlighting your client’s position. But do keep in mind that the goal is not to achieve the most award-winning, experimental, or artistic result with your storytelling. Rather, focus on conveying your client’s story in a way that can be quickly understood.
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LEGAL MYTHBREAKERS By: Brad Fraser
Leitner, Williams, Dooley & Napolitan
Stefanie Bowen
Leitner, Williams, Dooley & Napolitan
SAME AS IT EVER WAS In 1980, David Byrne took the stage in an oversized suit as part of the Talking Heads. The video for “Once in a Lifetime” is an iconic piece of the 1980s and early MTV.1 If you recall our last article, this video also aired on MTV’s initial day of programming, airing as video 64. Like most Talking Heads songs, the video is eccentric, but the song itself is meaningful. It is a song about the disorienting realization that the scenery of your life may shift without your knowledge. Living life on autopilot may lead you to wake up and ask yourself, “Well, how did I get here?” But the most striking part of the song is that this progression of time is a steady march—the same as it ever was. If you ask us, the law operates on much the same beat. Sometimes the scene is surreal. We flip through the digital pages of the Tennessee Code Annotated, and the statutes we use feel like fresh, modern creations. But if you look beneath the surface, you quickly realize the law is operating precisely on Byrne’s wavelength. The statutory water may be flowing underground, but it is moving along the same historic channels. Historically in Tennessee, statutes that changed or limited the common law (derogation) were required to be strictly construed. Over time, statutes began to be considered more “remedial” and not in derogation of the common law. But that was not always the case. Consider Tennessee Code Annotated § 23-3-105, the statutory bedrock of the attorney-client privilege. The statute, current through the 2026 legislative season, was originally enacted in 1821. Some believe Tennessee was the first state in the Union to codify the attorney-client privilege.2 Future president James K. Polk, as Clerk of the Senate, signed the statute.3 While it stands firmly on the books as an act of the General Assembly, it creates no new landscape; it merely affirms a centuries-old rule we hold sacred. When we shield our client communications from disclosure, we are invoking a rule that has governed our profession since the time of Elizabeth I. It is a protective barrier that operates like water flowing underground—quiet, powerful, and essential to navigating the subterranean depths of modern litigation. You might ask yourself, Well, how did I get here? For practitioners, the answer lies not in a sudden burst of nineteenth-century legislative brilliance, or a future President of the United States, but in the steady accumulation of judicial precedent that prioritized the sanctity of the profession long before the first volume of the Tennessee Code Annotated was ever bound. The statute, however, hints at what once was by using the language of old, still: No attorney, solicitor or counselor shall be permitted, in giving testimony against a client or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person during the pendency of the suit, before or afterward, to the person’s injury. The statute may seem like a modern instrument, but the confidentiality it guarantees between an attorney and a client is, at its November/December 2026
heart, the same as it ever was. More recently, if you consider 2012 recent (and we do), some of the most fundamental tort law concepts became statutory law in Tennessee. And you may find yourself on another person’s real property without actual or implied permission. And you may ask yourself, “Well, how did I get here?” But if you had the requisite intent to enter that property, Tennessee common law and Tennessee Code Annotated section 29-34-208(a)(2) would call you a trespasser. The Tennessee Supreme Court has held that “every entry upon the soil of another, in the absence of lawful authority, without the owner’s license [permission], is a trespass.”4 The Tennessee General Assembly codified the definition in 2021 with Tennessee Code Annotated section 29-34-208(a)(2), which states that a trespasser is “a person who enters or remains on the real property of another without actual or implied permission, or a person who engages in conduct that constitutes a criminal trespass offense under §§ 39-14-405–39-14407.” Same as it ever was. The 2012 enactment went on to incorporate and preserve other common law rules regarding the duty of care owed to trespassers and permissible defenses. The statute makes clear that the common law approach remains constant. Possessors of real property—whether owners, lessees, or lawful occupants—owe no general duty of care to a trespasser to maintain safe premises or to warn them of potential hazards. Under section 29-34-208, possessors face no legal liability for any injuries sustained by a trespasser, unless the injury is caused by the possessor’s willful, intentional, or gross and wanton misconduct. The common law also provided for an escape hatch for some trespassers, colloquially known as the “attractive nuisance exception.” The legislature did not forget. Section 29-34-208(c) addresses child trespassers, codifying potential liability for possessors of real property when a child trespasser is injured or killed by a condition on the land in some situations. The statute gives a multi-factor standard in clear form, following common law attractive nuisance principles. If a possessor of land maintains an artificial, dangerous condition that they knew or should have known posed a risk to children, the children were likely to trespass, the risk was not apparent due to youth, the utility and burden of elimination were outweighed by the risk, and the possessor failed to use reasonable care, there is potential liability. Same as it ever was. So, Once in a Lifetime a band comes along and breaks many conventional rules of music, yet still thrives. These folks Found a Job and thrived after they appeared on MTV. I guess they decided This Must Be the Place. They kept living their Wild Wild Life and making music and videos which were Burning Down the House. Far from a Road to Nowhere, whether you like them or not, you still sing along when you hear them. 1 2 3 4
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Talking Heads, Once in a Lifetime, Remain In Light (Sire Records 1980). Todd Presnell, published in his Privilege Place column for Today’s General Counsel, p.42 (Summer 2020 issue). Id. Norvell v. Gray’s Les, 31 Tenn. 96, 103 (1851).
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JUDICIAL PROFILE By: Katie Ogle Burks & Ogle
FROM THE BROADCAST BOOTH TO THE SUPREME COURT: JUSTICE KYLE HIXSON’S JOURNEY OF SERVICE For most young boys growing up in East Tennessee, dreams of wearing orange and calling the action for the Tennessee Volunteers might seem like a pretty good career plan. For Tennessee Supreme Court Justice Kyle A. Hixson, that dream was once very much a reality. But somewhere between the baseball diamond and a college history classroom, Hixson discovered a different calling—one that would ultimately take him from a small country grocery store in Crossville to the highest court in Tennessee. And while his career path may have changed, one thing certainly has not: his blood still runs deep orange. Hixson’s story begins in Crossville, Tennessee, where he grew up working in the small country grocery store operated by his father. As a first-generation college student with no lawyers in his immediate family, a legal career was hardly a foregone conclusion. In fact, it wasn’t even on his radar. “Growing up in a rural area like Crossville was a blessing for me,” Hixson recalls, reflecting fondly on the people he met and the stories he heard in his father’s store. Those early experiences undoubtedly helped shape the approachable, thoughtful perspective he brings to the bench today. At the University of Tennessee, Hixson initially pursued his passion for broadcasting, eventually serving as a color commentator for Tennessee baseball on the Vol Network from 2005 through 2011. But despite his love of play-byplay broadcasting, he began questioning whether the profession was the right long-term fit. Then, one morning in history class, clarity struck. “I need to go to law school, and I want to be a prosecutor.” With that realization, a future Supreme Court justice found his direction. Hixson’s love of language, originally the driving force behind his broadcasting ambitions, translated naturally into the practice of law. He discovered that the ability to communicate, persuade, and tell a compelling story was just as important in a courtroom as it was behind a microphone. His legal career began in the Knox County District Attorney General’s Office under then-District Attorney Randy Nichols. There, he benefited from the guidance of an impressive group of Knoxville legal professionals, including Nichols, John Gill, the late Bill Crabtree, Charme Allen, and Leslie Nassios. Hixson speaks about these mentors with genuine affection and a healthy dose of humor, particularly when describing Allen’s role in transforming him from a novice law clerk into a capable prosecutor. He credits Nassios with teaching him not merely how to try a case,
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but how to think about one—a distinction that would prove invaluable throughout his judicial career. Although appointment to the Tennessee Supreme Court is an extraordinary professional accomplishment, Hixson is quick to reject the notion that such success belongs to any one individual. “I would never be in this position without the support of these people and so many others that I’ve been blessed to work with through the years.” His professional journey also included service in the Tennessee Attorney General’s Office, where he developed an unexpected appreciation for legal research and writing. Once convinced that his future belonged exclusively in the courtroom, Hixson discovered that written advocacy could be every bit as fulfilling as presenting a case to a jury. That discovery helped pave the way for a judicial career spanning the trial bench, the intermediate appellate court, and ultimately the Tennessee Supreme Court. Taking the trial bench at just 36 years old, Hixson brought considerable prosecutorial experience and a recognition that the responsibility of a judge extends far beyond managing a docket. He emphasizes that prosecutors, like judges, have a duty to follow the law regardless of whether the outcome favors the State. Now serving on Tennessee’s highest court, Hixson appreciates the importance of different professional backgrounds and perspectives among his colleagues. His transition from criminal matters to a docket
encompassing civil, family, juvenile, and other areas of law has also given him an opportunity to enjoy a longstanding joke from his civillaw colleagues: criminal judges are responsible for two volumes of the Tennessee Code, while civil judges handle the rest. Hixson assures us he has kept track of everyone who has made that observation. Beneath the humor, however, is a serious appreciation for collegiality, intellectual humility, and the collective responsibility of the judiciary. Indeed, when Governor Bill Lee asked during his Supreme Court continued on page 25
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LEGAL UPDATE By: T. Mitchell Panter
Associate General Counsel University of Tennessee
WHEN THE JURY DOES ITS OWN HOMEWORK:
THE TENNESSEE SUPREME COURT’S DECISION IN COLLIER V. ROUSSIS On July 31, 2026, the Tennessee Supreme Court resolved a question that had produced conflicting standards in the lower courts for decades: what must a civil litigant show to obtain a new trial when the jury is exposed to extraneous information during deliberations? 1 Writing for a unanimous Court, Chief Justice Bivins adopted a two-part, burdenshifting framework borrowed from Tennessee’s modern criminal precedent. In doing so, the Court abrogated nineteenth-century civil authority and overruled a line of Court of Appeals decisions that had imposed a heightened-proof standard on the party challenging the verdict. Background The case arose from a healthcare liability action. In June 2009, the plaintiff went into labor, tested positive for a strep infection, and was given ampicillin. Unfortunately, she suffered an anaphylactic reaction to the medication. Her treating physician took several steps to address the reaction but decided not to administer epinephrine. The plaintiff ’s son was born hours later with severe brain injuries, which the family attributed to the plaintiff ’s anaphylaxis. On her son’s behalf, the plaintiff sued her obstetrician and his practice (among others), alleging that the failure to administer epinephrine fell below the standard of care. The litigation was, to say the least, protracted. The first trial occurred in 2015 and ended in a defense verdict. The Court of Appeals vacated that judgment in 2017 based on improperly admitted, undisclosed testimony and remanded for a new trial. At the 2019 retrial, the central dispute was again whether the obstetrician negligently declined to administer epinephrine. Both sides’ experts testified extensively about weighing the drug’s risks and benefits during pregnancy. The second jury also returned a defense verdict. After the verdict, plaintiff ’s counsel learned that a juror—against the trial court’s instructions—went home during an adjournment but while deliberations were ongoing, examined the warning label on an EpiPen, and reported to the other jurors that (a) the label cautioned against use during pregnancy and (b) epinephrine should be used only when the benefit justified the risk to the fetus. The plaintiff moved for a new trial, supported by two juror affidavits describing the incident. The trial court initially granted a new trial but later reversed course after concluding that the plaintiff failed to prove by clear and convincing evidence that the EpiPen information affected the jury’s verdict. The Court of Appeals reversed, holding that the trial court incorrectly imposed a heightened burden of proof on the plaintiff and that using the burden-shifting approach adopted in criminal cases, prejudice was presumed and unrebutted. The Supreme Court granted review. The Holding The Court held that a burden-shifting framework used in similar scenarios in criminal cases also governs civil claims, grounding the analysis in the constitutional right—shared by civil and criminal litigants alike—to have contested facts decided by an unbiased and impartial jury November/December 2026
that considers only evidence tested through the adversarial process. Part one – the challenger’s initial burden. The party challenging the verdict must prove by a preponderance of the evidence that the jury was exposed to information that was both (a) extraneous and (b) material. “Extraneous” means information that came from outside the trial and was not subjected to the adversarial process, and “material” means information having some logical connection to the facts or legal issues in the case. A successful showing triggers a rebuttable presumption of prejudice. The Court expressly rejected the heightened burden of proof employed in the trial court (i.e., clear and convincing evidence), overruling Mayo v. Shine,2 Whiteside v. Hedge,3 and State v. Booker4 to the extent they suggested a heightened standard. Part two – rebutting the presumption. Once the presumption arises, the burden shifts to the party defending the verdict to show the exposure was harmless – specifically, that there is no reasonable possibility that the information altered the verdict. The Court adopted the harmless-error standard from its criminal decisions in Adams5 and Walsh,6 reasoning that because the error implicates a constitutional right, a less demanding civil standard was not warranted. To structure the harmless-error inquiry, the Court identified five non-exclusive considerations: (1) the nature and content of the information, including how important the issue was, whether the content was cumulative of trial evidence, and whether it was inflammatory; (2) the number of jurors exposed; (3) the manner and timing of the exposure; (4) the extent to which the jury discussed it; and (5) the strength of the evidence supporting the verdict. No single factor is dispositive. An objective inquiry. In perhaps its most consequential refinement, the Court held that the rebuttal analysis is objective – focusing on the likely effect of the information on a reasonable jury, not the subjective effect on the actual jurors who decided the case, overruling the contrary suggestion in State v. Adams that the question should be assessed “in light of the specific jurors.”7 The Disposition Because the trial court decided the motion without the benefit of this framework, the Court vacated the Court of Appeals’ judgment and remanded for the trial court to apply the correct framework in the first instance. The Court expressed no view on whether the Plaintiff is entitled to a new trial and noted that she may reassert this and other pretermitted issues on remand. Given the case’s age, the Court urged expeditious proceedings, and as of this article, the parties are in the initial briefing stages in Circuit Court on all issues preserved for remand. 1 2 3 4 5 6 7
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Collier ex rel. Chayce C. v. Roussis, 2026 WL 2207688, ___ S.W.3d ___ (Tenn. July 31, 2026). Mayo v. Shine, 392 S.W.3d 61 (Tenn. Ct. App. 2012). Whiteside v. Hedge, 2005 Tenn. App. LEXIS 312 (Tenn. Ct. App. May 26, 2005). State v. Booker, 656 S.W.3d 49 (Tenn. 2022). State v. Adams, 405 S.W.3d 641 (Tenn. 2013). Walsh v. State, 166 S.W.3d 641 (Tenn. 2005). State v. Adams, 405 S.W.3d at 654, n.7.
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OF LOCAL LORE AND LAWYERS By: Joe Jarret, J.D., Ph.D. University of Tennessee
ABOUT AN ULU Introduction: On a recent visit to Alaska, Amanda and I spent a bit of our time checking out the various souvenir shops that offered boundless trinkets and Alaskan memorabilia. Although the various shops offered a variety of t-shirts, hats, etc., we noticed that all the shops sold Ulu knives, the unique and versatile cutting tool that holds significant importance in the cultures of various Indigenous peoples, particularly those from the Alaskan and Arctic regions. The ones in souvenir shops varied in price and ranged from plastic ones for children to ornate ones made with real or imitation bone or elk antlers, ranging in prices from $20 to over $1,000. We passed on such a purchase, failing to see the allure. However, one day, while searching for some glue to repair a suitcase, we went into a small town hardware store that catered to locals, and as such, was void of tourist trinkets. While Amanda searched for the glue, I was admiring an impressive hunting and utility knife collection in a glass case. It was then I noticed several Ulus in various sizes. Unlike the ones we saw in the tourist shops, these were no-nonsense affairs with razor sharp blades and sturdy wood handles. As I leaned in to get a closer look, I heard a voice from behind the counter say, “Those are tools, not toys.” Her name was Amka. She explained that, in the Tlingit language, “my name means ‘one with a friendly spirit.’ You’re standing in Lingít Aaní—the land of the Tlingit people” she added. The word Tlingit, we learned, means “People of the Tides.” About a People: A visit to the Museum of Wrangell provided us with an indepth history of the Tlingit people. We learned that the Tlingit are an Indigenous nation native to the temperate rainforests and fjords of Southeast Alaska. Archaeological and linguistic evidence documents their complex maritime culture and presence in the region for thousands of years. Traditionally, Tlingit society is deeply rooted in a matrilineal1 clan system, an intricate trading network, and a profound spiritual connection to the land and sea. Southeast Alaska provided an idyllic setting and contained abundant local resources for the Tlingit. The forests supplied shelter, game, and wild berries while the ocean was a storehouse of fish and sea mammals. In contrast to interior peoples of North America, who frequently struggled just to survive, the Tlingits spent relatively little time harvesting and storing foodstuffs and supplies and could instead become traders and artisans. About an Ulu: Amka called for a colleague to take her place and asked Amanda
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and me to follow her to the back of the store. There, in the kitchen, were a series of Ulu knives in various sizes hanging from hooks, and one large one on the counter amidst various root vegetables. “We’re having stew for dinner,” she said. She then picked up the Ulu and began deftly slicing, dicing, and chopping the veggies. The term “Ulu”2 she explained, translates to “woman’s knife” in the Tlingit language, highlighting its traditional association with female users in many Indigenous communities. She explained that in the old days, the men would do the hunting, and the women the skinning. She then proudly showed us the Ulu charm on her necklace and the petite Ulu tattoo on her wrist. According to the Wrangell Museum, archaeological evidence suggests that the earliest forms of the Ulu knife date back to around 2500 BCE. These ancient tools were crafted from readily available materials such as slate, bone, and ivory, reflecting the ingenuity of Alaskan Indigenous Peoples in utilizing their environment. The Ulu knife’s curved blade, we learned, is perfectly suited for cutting through tough whale and seal skins and flesh, making it an ideal instrument for filleting fish and butchering meat. We likewise learned that the Ulu knife’s ergonomic center and its unique half-moon blade and centered overhead handle, allow users to apply downward pressure directly using your palm and arm weight. This design significantly reduces wrist, hand, and shoulder strain, making it highly accessible for users with arthritis or limited hand mobility. Amka noted, “We were creating tools with ergonomic designs before ergonomics was cool!” Conclusion: The design of the Ulu knife has evolved significantly over the millennia. Early versions often featured a blade made from stone, with handles constructed from wood or animal bone. As metalworking techniques spread through trade and interaction with other cultures, the blades began to be forged from copper, iron, and eventually steel. This transition to metal enhanced the durability and sharpness of the Ulu knife, solidifying its role as an indispensable tool. And, as you might have imagined, I brought home a working Ulu, which has become an indispensable tool in our kitchen. It has since been joined by two more. Amka was right: Her people were champions of ergonomics before ergonmics was cool! 1
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Matrilineal in this context refers to a kinship or social system where descent, inheritance, family lineage, and titles are traced exclusively through the female line. In these societies, children belong to their mother’s descent group, and property is typically passed from mother to daughter. Uluit in the Tlingit language.
November/December 2026
THREE STARS By: Melissa B. Carrasco Carrasco Trump, PLLC
GHOSTS OF CIV. PRO. PAST Tuesday, September 29, 2026, was a busy day across the globe. For lovers of the beautiful game, the Premier League found Manchester City guilty of 114 of the 115 charges of violating the League’s financial rules (especially the League’s spending limits).1 In Australia, OpenAI released a statement called, “How we will do better for Australia” in response to a report that some of its AI models “accessed Australian government websites in ways they were not authorized to.”2 That wording must have been focused grouped. In the U.S., the White House hosted a summit of tech leaders where they all signed a “morally binding” agreement that will protect the world from the potential risks of AI.3 Also, the White House renamed AI to “Super Intelligence” (SI).4 Try to keep up. And here in Knoxville, almost everyone was trying to forget the last minute of the Texas game.5 Thus, it would be completely understandable if you missed the September 29, 2026, opinion of the Court of Appeals, in the very interesting case of Delester Quarles v. John Doe A and John Doe B.6 It has a little bit of everything: a mysterious Nissan Altima, a hit-and-run, multiple John Does, clever procedural moves that would make Professor Paine proud, and accusations of impertinence. It all started with an encounter at the non-descript intersection of Mill Branch Road and Raines Road in Memphis. Mr. Quarles stopped at the traffic signal, and before he could blink, he was rear-ended by a Nissan Altima. And, in a sheer fit of audacity (this is not the impertinent part), the driver drove off, leaving Mr. Quarles with a damaged vehicle and needing medical treatment to his neck, back, hip, shoulders, and knee.7 Mr. Quarles did not know the color of the Altima that hit him, couldn’t identify the model year, didn’t see a license plate, and most definitely couldn’t identify the driver. But he did have uninsured motorist insurance coverage.8 So, with one day to spare on the statute of limitations, Mr. Quarles filed suit against “John Doe A” and “John Doe B.”9 Incidentally, the concept of using fictitious names in lawsuits goes all the way back to ancient Rome when a creditor could sue Numerius Negidius (“he who refuses to pay”) if the identity of the actual debtor wasn’t known or they didn’t want to disclose it.10 This practice made its way to medieval England where two people who claimed to own the same piece of land could initiate an action for ejectment under the style “John Doe v. Richard Roe.”11 The idea was that, if you kept the disputing parties’ names out of the style of the case, then everyone could focus on the real question—who owned the land—rather than making it super personal.12 That particular concept—keeping lawsuits from becoming super personal—seems to have not survived the Middle Ages. But, apparently, John Doe and Richard Roe did. In Tennessee, they first popped up in 1833 as an illustration in what Justice Nathan Green Sr. described as the “very lucid and able argument” by attorney D. Craighead as to what date a judgment lien attaches to real property.13 It wasn’t until 1872 that John Doe surfaced as an actual party to a lawsuit14—albeit a party whose identity was not known—and that is the role Mr. Doe has played in the 790 subsequent Tennessee cases that Lexis Nexis says mentions his name. A century and a half later, in 2023, John Doe A and his twin John Doe B found themselves being sued by Mr. Quarles. The General Assembly made him do it. Since Mr. Quarles couldn’t identify either November/December 2026
the Nissan Altima that hit him or the driver, the only way Mr. Quarles could recover for his injuries under the Uninsured Motor Vehicle (UMV) statute was to sue Mr. Doe A (the presumptive driver) and Mr. Doe B for good measure.15 Mr. Quarles also served the uninsured motorist carrier, and for the next two years, they litigated this case.16 Then, in 2025, someone noticed that the court had never issued summonses for either Mr. Doe, and no one had ever attempted service on either Mr. Doe.17 This was concerning because under the UMV statute, when the identity of the owner or operator of the vehicle is unknown, “the insured . . . shall issue a John Doe warrant against the unknown owner or operator in order to come within the coverage of the owner’s uninsured motorist policy.”18 The statute also says that service of process has to be issued to the motorist’s last known address (which begs all sorts of questions), and service has to be returned by the sheriff marked “Not to be found in my county” or something to that effect.19 Neither of those preconditions happened, so Mr. Quarles and his legal team invoked the spirit of Professor Paine, Tenn. R. Civ. P. 41.01, and the Tennessee Savings Statute.20 The day after the mistake was identified, they filed a Notice of Voluntary Nonsuit, and within two weeks, they re-filed suit and this time, the clerk issued summons to John Doe A and John Doe B.21 The carrier was served, and they were back to litigating. Civ. Pro. saved the day. However, the defense team also showed up for Civ. Pro. and had some procedural moves of their own. With a Rule 12.02(6) Motion, they dusted off Tenn. R. Civ. P. 3 and 4, arguing that, because service wasn’t issued within one year of the commencement of the 2023 lawsuit, the one-year statute of limitations wasn’t tolled, and the Saving Statute could not reinstate an expired claim.22 At the end of the day, that is the argument that prevailed. The summons and service requirements under the uninsured motorist statue exist within the parameters of Tenn. R. Civ. P. 3 and 4.23 Thus, to recover under the statute, a lawsuit must be filed within 1 year of the accident, a John Doe summons must be issued within 1 year of filing the complaint, and service on John Doe must be attempted within 90 days of issuance. (Also, don’t forget to serve the insurance carrier.)24 If these steps are not complete, the statute of limitations isn’t tolled, and the Saving Statute cannot save the claim. Unfortunately for Mr. Quarles, his claim expired one year after an unidentifiable Nissan Altima rear-ended him, and his case confirms that the ghosts of Civ. Pro. past are still alive and well. 1 2 3 4
5 6 7
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Premier League Statement: Manchester City FC (Sept. 29, 2026), available at https://www.premierleague.com/en/news/4727779/premier-league-statementmanchester-city-fc. OpenAI, How We Will do Better for Australia (Sept. 28, 2026), https://openai.com/ index/how-we-will-do-better-for-australia, last visited Oct. 7, 2026. Osmond Chia, Three Takeaways from Trump’s ‘Super Intelligence’ Summit, BBC (Sept. 30, 2026), https://www.bbc.com/news/articles/cme30dz5vkzko. The White House, Fact Sheet: President Donald J. Trump Inaugurates the Era of Super Intelligence (Sept. 29, 2026), available at https://www.whitehouse.gov/ fact-sheets/2026/09/fact-sheet-president-donald-j-trump-inaugurates-the-era-ofsuper-intelligence/. No citation is necessary. Delester Quarles v. John Doe, et al., No. W2025-01252-COA-R3-CV, 2026 Tenn. App. LEXIS 562 (Tenn. Ct. App. Sept. 29, 2026). Id. at *1-2.
continued on page 26
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HELLO MY NAME IS By: Bridget J. Pyman
Arnett Baker Draper & Hagood, LLP
JACOB KING This month’s Hello My Name Is column features Jacob King, an Associate Attorney with Arnett, Baker, Draper & Hagood, LLP, where his practice includes civil litigation, insurance defense, business law, local government and municipal law, and railroad law. Jacob earned his undergraduate degree in Economics, with a minor in Philosophy, from the University of Tennessee, and his J.D. from the University of Tennessee Winston College of Law in 2026. He is a member of the Knoxville Bar Association and the Tennessee Bar Association. A Knoxville native who grew up in Farragut, Jacob joined the firm following his graduation this year. His responses offer a newcomer’s candid view of the profession. He urges law students to seek out discomfort rather than avoid it, describes a direct, well-established approach to wellness, and explains why he chose to build his career in Knoxville. If you could give a new law student one piece of advice, what would it be? Stay out of your “comfort zone.” When I started law school, it was an intimidating and foreign experience, or what I like to call being out of my comfort zone. My comfort zone is the place where things feel familiar and I feel in control. That pit in your stomach when you are stressed and anxious? That is being out of your comfort zone. But that is where some of the best things happen and where we grow. Consistently doing hard things hones our skills and makes us better students and lawyers. Eventually, what once felt uncomfortable no longer does, and we have created a new comfort zone. So chase that feeling. Make it a habit. Will you make mistakes in law school? Yes. Will you have an awkward interview? Yes. Will long reading and writing assignments be difficult? Yes. But do not let these things stop you. If you never try, you will never get better, and you may never experience the things that make law school worth it in the end. And do not chase that feeling only in law school. Chase it in your everyday life as well. You never know when one small act of courage will help you achieve that goal you have been pursuing or make that impactful connection you have been needing. How do you practice self-care? Diet, exercise, and making time for something I love. Self-care is easy to neglect in our profession, especially when balancing a law practice with family life. Fortunately, Knoxville’s legal community is a supportive one, and events like the Healthy Bar Challenge this past October are a great way to build healthy habits. For me, habits are the key. Cooking healthy meals and exercising regularly can feel like chores but making them routine makes self-care much easier. I meal prep every Sunday, so I have healthy, high-protein meals ready for the week. I also work out a few times each week. Being consistent is what makes exercise a habit and allows the benefits to build over time. If
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I exercise at least a couple of times a week, it makes a big difference not only for my physical health but my mental health as well. Finally, I try to do something I enjoy at least once a day, whether that is reading a few pages of a book or spending time on a hobby unrelated to law. Otherwise, I feel like I am not living my life to the fullest. What is your favorite way to stay active? I love weightlifting. Unlike running or other cardio, it does not require long stretches of endurance. If you put in maximum effort, each set can be short and still make an impact. Weightlifting also strikes me as analogous to the practice of law. Some people may be more naturally gifted than others, but both take years to master, and each session makes you a little better, stronger, or more experienced. As a new associate, I see the practice of law the same way: it is a process of building experience over time and growing into the lawyer you want to be. Beyond the physical benefits, I think the mental benefits of weightlifting are often overlooked. Completing something difficult is rewarding, but the lasting boost in self-confidence has been the greatest benefit for me. I feel like my selfesteem is much higher, and I feel much more comfortable in my own skin. Why did you decide to stay in Knoxville? Knoxville has always been my home, and I have yet to find a reason to leave. I was born in Knoxville and grew up in Farragut. As a Knoxville native, I have enjoyed watching the city grow and develop so much in recent years. Though it has become a bit overcrowded and I-40 traffic is the worst it has ever been, I cannot help but appreciate the recognition Knoxville has received. Part of its appeal is that it has kept a smaller community feel. Knoxville’s legal community is a welcoming one, and its attorneys place real value on family and work-life balance. For me, those qualities make Knoxville the ideal place to build both a career and a life.
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November/December 2026
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November/December 2026
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MEDICAL BATTERY CLAIMS IN TENNESSEE Prior to the 2011 amendments that produced the current Tennessee Health Care Liability Act (the Act), there were significant distinctions between a medical malpractice action and a medical battery action. A medical malpractice case was based upon negligence, while a medical battery was considered an intentional tort. Since the Act took effect, cases have worked their way through the trial court and appellate system, with results generally confirming that the Act is a broad statute requiring compliance with specific procedural steps. The predecessor to the 2011 legislation was the Tennessee Medical Malpractice Act, which did not apply to medical battery claims.1 Our Tennessee Supreme Court noted that battery and malpractice are distinct theories of liability.2 Our current statutory language has blurred the procedural significance of the previous distinction between the frequently termed “medical malpractice claim” and a “medical battery claim.” A medical battery action hinges on whether the patient knew the provider was going to perform a particular procedure and, if so, whether the patient authorized it.3 A negative response to either of these two inquiries will generally define a medical battery claim. Assuming the lack of an emergency, a physician who performs an unauthorized procedure is liable for the consequential injuries, regardless of whether the injuries resulted from negligence.4 This most commonly occurs when a medical professional performs a procedure the patient was unaware the doctor was going to perform, or the procedure was performed on a part of the body other than the part explained to the patient.5 The very words “medical battery” conjure up thoughts of frightening surgical or physician office mishaps. Take the British surgeon who burned his initials into two patients’ livers during transplants.6 These actions led to guilty pleas to two counts of “assault by beating,” which is more intriguing than our relatively bland “battery” terminology. The doctor was sentenced to a £10,000 fine and 120 hours of unpaid work and was later struck from the medical register.7 While frightening and darkly entertaining, typical cases are less clear and not likely to grab headlines. Understanding medical battery claims and their current status can be helpful to legal
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practitioners, particularly in the health care field. Historically, expert medical proof was not required in a medical battery, and the Tennessee Supreme Court held as much.8 Of course, proving the extent of an injury resulting from a battery, such as permanency, impairment, medical expenses, etc. would require medical proof, just as in a personal injury automobile accident. However, the ability to proceed with an action against a health care provider, without standard-of-care testimony, simplified such matters over typical medical negligence cases. That distinction has now been overtaken by the Act’s current definition. In Cooper v. Mandy, our Supreme Court held that medical battery and intentional misrepresentation claims against health care providers fall within the Act’s definition of a “health care liability action,” making them subject to its procedural requirements “regardless of the theory of liability on which the action is based.”9 A recent decision from the Middle Section of the Tennessee Court of Appeals analyzed medical battery through the lens of theAct. In the case of Clark v. Maikis,10 the plaintiff brought a lawsuit against her physician based on allegations that the physician performed an unauthorized endometrial biopsy during a physical exam. The physician indicated she was going to check for cancer and advised the plaintiff that she might feel a pinch. The plaintiff claimed to have suffered excruciating pain and felt violated. It is undisputed that the plaintiff did not give pre-suit notice.11 The trial court dismissed the complaint with prejudice as time barred. The Court of Appeals affirmed the dismissal for lack of pre-suit notice, which also cost the plaintiff the 120-day extension under § 29-26-121(c). But because the proper sanction for a notice failure is dismissal without prejudice, and untimeliness did not clearly and unequivocally appear on the face of the complaint, the court modified the dismissal to one without prejudice.12 A biopsy is unquestionably a health care service, and even the allegations concerning consent, the device used, and the availability of anesthesia related to the provision of health care services.13 The Act defines a “health care liability action” as “any civil action . . . alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services
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November/December 2026
COVER STORY By: Weldon Patterson & Grant Mitchell Butler, Vines & Babb, PLLC
to a person, regardless of the theory of liability on which the action is based.”14 Our Supreme Court has held that all civil actions meeting this definition must comply with the procedural requirements of the Act, no matter what theory of liability is alleged in the complaint.15 Though our Supreme Court has previously made clear that expert testimony is not necessary to resolve the determinative issues in a medical battery action, we are now faced with controlling authority mandating compliance with theAct. Notably, the Clark v. Maikis court did not hold that the elements of a medical battery claim have changed or that such a claim now requires expert testimony. However, the Act requires the filing of a Certificate of Good Faith with a complaint in certain actions.16 The statute provides that, “In any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff ’s counsel shall file a certificate of good faith with the complaint. If the certificate is not filed with the complaint, the complaint shall be dismissed . . . .”17 The statute goes on to identify the Certificate of Good Faith as confirming that the plaintiff ’s counsel has consulted with one or more experts who have signed a written statement indicating a good faith basis for maintaining an action against each defendant.18 The reference to § 29-26-115 is important because it affirmatively states that the claimant has the burden of proving the recognized standard of acceptable professional practice, a deviation from the same, and proximately related injuries.19 Critically, however, the certificate requirement is triggered only when expert testimony is required, and our Supreme Court has held that no certificate of good faith must be filed where a claim can be resolved without expert proof.20 Read together, Blanchard, Cooper, and Clark suggest that a plaintiff asserting a pure medical battery claim must comply with the Act’s pre-suit notice requirement but may need no certificate of good faith at all. The Act’s breadth has limits, as not every claim against a provider in a medical setting qualifies. For example, the Court of Appeals was unable to conclude that allegations that hospital staff beat a patient in the emergency department were related to the provision of health care services, and it has held that the alleged rape of an unconscious hospital patient bore no relationship to the provision of health care services.21
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
See Liver Surgeon Simon Bramhall Marked Initials on Patients, BBC News (Dec. 13, 2017), https://www.bbc.com/news/uk-42344180. Id.; see Liver-branding Surgeon Simon Bramhall Struck Off Medical Register, BBC News (Jan. 11, 2022), https://www.bbc.com/news/uk-englandbirmingham-59954321. Blanchard, 975 S.W.2d at 524. Cooper, 639 S.W.3d at 34-35. Clark v. Maikis, No. M2025-01540-COA-R3-CV, 2026 Tenn. App. LEXIS 235, 2026 WL 1459650 (Tenn. Ct. App. May 22, 2026). Id. at *10; see Tenn. Code Ann. § 29-26-101 et seq. Clark, 2026 Tenn. App. LEXIS 235, at *10-13; Foster v. Chiles, 467 S.W.3d 911, 916 (Tenn. 2015). Clark, 2026 Tenn. App. LEXIS 235, at *9. Tenn. Code Ann. § 29-26-101(a)(1). Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015). Tenn. Code Ann. § 29-26-122. Tenn. Code Ann. § 29-26-122(a) (emphasis added). Id. Tenn. Code Ann. § 29-26-115(a). Jackson v. Burrell, 602 S.W.3d 340, 342, 346 (Tenn. 2020); see also Cooper, 639 S.W.3d at 37 n.14; Blanchard, 975 S.W.2d at 524. Lacy v. Vanderbilt Univ. Med. Ctr., No. M2016-02014-COA-R3-CV, 2017 Tenn. App. LEXIS 827, 2017 WL 6273316, at *8 (Tenn. Ct. App. May 4, 2017); Cordell v. Cleveland Tenn. Hosp., LLC, 544 S.W.3d 331, 338 (Tenn. Ct. App. 2017).
Conclusion Does Clark v. Maikis bring Tennessee medical battery claims to the realm of becoming procedurally indistinguishable from ordinary health care liability actions? Procedurally, battery claims are ordinary health care liability actions as to pre-suit notice under the Act. Substantively, however, the elements and the lack of the requirement of expert proof, at least in cases within the common knowledge of laypersons, survive, so these actions likely never require a certificate of good faith. As Tennessee courts continue to churn out opinions, the Act’s reach is proving broader than many originally realized. 1 2 3 4 5
Cooper v. Mandy, 639 S.W.3d 29, 35 (Tenn. 2022); Cardwell v. Bechtol, 724 S.W.2d 739, 751 (Tenn. 1987). Cardwell, 724 S.W.2d at 751. Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998). Ray v. Scheibert, 484 S.W.2d 63, 71 (Tenn. Ct. App. 1972). Ashe v. Radiation Oncology Associates, 9 S.W.3d 119, 121 (Tenn. 1999).
November/December 2026
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LEGALLY WEIRD By: Wade H. Boswell II
Tennessee Department of Human Services
PRIVATE EQUITY’S FORAY INTO LAW For more than a century, Tennessee has prohibited corporations from engaging in the practice of law.1 In a profession that counsels people on how to comply with the letter of the law while taking a liberal view of the spirit of the law, it is interesting that is has taken this long for private equity to venture into the legal field. Maybe lawyers of yore knew it wasn’t in the legal field’s best interest to mingle with outside business interests? The legal field is now seeing the rise of management services organizations (MSOs). To comply with RPC 5.4, MSOs allow nonlawyer entities to enter the legal field. The MSO takes over all non-legal functions of a law firm, leaving the attorneys to practice law. The law firms then pay the MSO for its services. As RPC 5.4 prohibits sharing fees, the MSO can be paid by a flat monthly or annual fee, cost-plus pricing where the firm reimburses the MSO for actual operating expenses plus a predetermined margin, and tiered fees based on headcount or case volume. The fee must reflect fair market value.2 Private equity is not coming to every firm. Only the ones that will make them money. The current focus of private equity money is personal injury firms, which have a largely recession-proof business model, and corporate-focused firms.3 Holland and Knight LLP is the current leader in legal field MSOs, having closed more than two billion dollars of law firm MSO transactions this year.4 Though technically separate, an MSO can influence the law firm’s practice, especially when law firm partners are also partners in the MSO. While this implicates RPC 5.4’s prohibition against nonlawyers involvement in the practice of law, it also raises the specter of noncompete clauses, which violates RPC 5.6. While law firms still cannot restrict an attorney’s ability to practice, the same does not hold true for MSOs. Per Holland and Knight’s Trisha Rich, “It can help with retention. If an equity partner at a law firm has equity in the law firm, they can leave whenever they want. If they have equity in the MSO, the MSO has more latitude around, for example, non-competes, and tying lawyers up that way.”5 The spirit of RPC 5.6 is in peril. MSOs don’t stop with toeing the line on RPC 5.4 and 5.6. They have found another questionable path to earning fees. Enter Attorney Atticus Wegman.6 His parents admired To Kill a Mockingbird to the point that they named their son after Atticus Finch. Wegman went all in on his Atticus persona, naming his son Atticus Jr., his daughter Scout, and, presumably, having a chiffarobe in every bedroom. Wegman is a personal injury attorney in Orange County, California, practicing at his eponymously named firm, “Atticus Injury Law.” Wegman attempted to register his firm name, but it was denied because ATTICUS had already been registered for legal services by Atticus Labs, Inc. in 2019.7 Atticus founder Sam Byker, while at Stanford for his JD/MBA, concluded that “millions of Americans eligible for disability and other government benefits never obtained them because navigating the legal system required finding a lawyer.” As an administrative judge, I have some issues with that conclusion, but I’ll go with that premise for this article. In 2023, the Stanford Graduate School of Business published
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Byker’s paper where he describes Atticus as an effort to solve the accessto-justice problem for those needing assistance through “a marketplace connecting people in crisis with lawyers.” In order to get around the rule prohibiting a law firm from raising capital from non-lawyers, Atticus formed two entities: Atticus Labs Inc., which holds the company’s employees, intellectual property, and technology; and, Atticus Law P.C., which is the professional entity “through which legal services are offered. Investors fund Atticus Labs rather than the law firm itself.” Byker’s paper describes his business model. Atticus Labs’ digital platform screens prospective clients before connecting them with lawyers or paralegals employed by Atticus Law. The clients are either referred to outside law firms or directed to free resources. Nearly half of the prospective clients are referred to private attorneys, with Atticus Labs, in successful cases, collecting a 25% referral fee from the attorney’s fee. “By 2021, according to the Stanford paper, Atticus was helping about 400 clients each month, generating nearly $5 million in annualized revenue, and had raised millions of dollars from venture capital firms.” To keep its brand from being diluted, Atticus Labs sent a ceaseand-desist letter to Wegman over his use of “Atticus Injury Law.” As Wegman’s whole persona is wrapped up in his Atticus identity, he was taken aback by the letter. Atticus Labs even made a reasonable offer: just add your last name so that it is “Atticus Wegman Injury Law.” As the namesake of the most revered fictional lawyer, Wegman couldn’t just fold. Proceeding under the theory that the best defense is a good offense, Wegman filed suit to have Atticus Labs’ trademark invalidated. 8 Wegman argues that under trademark law, the trademark owner is required to maintain quality control over the services provided under its mark. As Atticus Labs owns the intellectual property, it owns and controls the ATTICUS trademark and licenses it to Atticus Law. The result being, Atticus Labs is required to maintain quality control over Atticus Law’s legal services, breaking the wall between the entities and violating RPC 5.4. Wegman also argues that Atticus Labs is acting primarily as an uncertified lawyer referral service, as it refers out all cases and cannot show a single case handled by Atticus Law. Wegman seeks cancellation of the ATTICUS trademark alleging fraud on the U.S. Patent and Trademark Office, false advertising, unfair competition, and violations of California’s lawyer referral statutes. Wegman rightfully believes that Atticus Labs’ business model “could fundamentally change the economics of legal practice by allowing venture-backed companies to dominate client acquisition while traditional firms become increasingly dependent on referral platforms.” Wegman is not just fighting for the ability to use his first name as he chooses, he is also standing up for a legal field free from the controlling hand of private equity. May his efforts be a bulwark against this intrusion. 1 2
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Grocers’ Merchants’ Bureau v. Gray, 6 Tenn. Civ. App. 87 (1915) What is a Law Firm MSO? A CFO’s Guide to Management Services Organizations, CSUITEFP, https://csuitefinancialpartners.com/blog/what-is-a-law-firm-mso/. Last
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SCHOOLED IN ETHICS By: Judy M. Cornett
University of Tennessee Winston College of Law
WHO CAN I PROSECUTE AND WHY? According to Justice Robert H. Jackson, “The prosecutor has more control over life, liberty, and reputation than any other person in America.”1 About two decades ago, I participated in a CLE program with the late, great Bill Crabtree, longtime Knox County Deputy District Attorney. He introduced his presentation this way: “I’m here to talk about prosecutorial ethics. This will be a short presentation.” Those in the room laughed heartily, as always, at Bill’s dry wit. Bill was right that prosecutorial ethics is a brief subject in the sense that there is only one Rule of Professional Conduct that relates exclusively to prosecutors, Rule 3.8.2 The very first provision of the Rule provides, “The prosecutor in a criminal case: (a) shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; . . .” Within the scope of charges supported by probable cause lies a universe of discretionary decisions, as recognized by the Tennessee Supreme Court: “District attorneys general, under our form of government, are vested with wide discretionary authority in the prosecution of criminal cases.” 3 As the phrase “prosecutorial discretion” implies, prosecutors are not required to prosecute every charge that they know is supported by probable cause—they just cannot prosecute any that they know is not. Comment [1] to the Rule states, “A prosecutor has the responsibility of a minister of justice whose duty is to seek justice rather than merely to advocate for the State’s victory at any given cost. . .. A knowing disregard of obligations or a systematic abuse of prosecutorial discretion could constitute a violation of RPC 8.4.”4 The prohibition on prosecuting a charge without probable cause has lately been in the news in connection with the botched renovation of the Lincoln Monument Reflecting Pool in Washington, D.C.5 After ex-Olympian David Hearn was observed reaching into the pool and handling a piece of the deteriorating pool lining, the U.S. Attorney for the District of Columbia, Jeanne Pirro, charged him with “one count of property destruction, which carries a maximum prison sentence of 10 years.”6 However, several weeks later, after receiving evidence that the damage was caused by the construction company that renovated the pool, Pirro moved to dismiss the charge without prejudice. Although the presiding judge granted the motion to dismiss, he ordered the charge dismissed with prejudice. Although the judge’s decision was not grounded in the rules of ethics,7 the court’s reasoning is instructive because it recognizes one way in which a prosecutor’s adherence to Rule 3.8(a) could be put to the test.8 In assessing the potential harm to the defendant from a dismissal without prejudice, the court noted a series of public statements by President Trump about the dismissal: “Although the prosecutors assigned to this case have deemed it meritless, the President of the United States has repeatedly disparaged them and pressured them to change course.”9 The court noted that Trump’s criticism of the dismissal was in part politically motivated, quoting his description of the defendant: “the ‘gentleman’ involved is a big player in ActBlue, a disgraceful fundraising SCAM.”10 Ultimately, the court concluded that the risk to the defendant November/December 2026
outweighed the government’s interest in a revived prosecution: [W]hile the prosecutors admit that the evidence indicates that he committed no crime, the President’s statements create a risk that Mr. Hearn will be prosecuted nonetheless, either because the current United States Attorney and her assistants will eventually yield to his public pressure campaign or because the President will replace them with prosecutors more likely to carry out his wishes.11 Thus, the court’s apprehension that a future prosecutor would give in to personal or political pressure led the court to bar any re-prosecution.12 Potential Presidential interference with the future prosecutor’s charging decision also raises the specter of interference with the “independent prosecutorial function,” which has been recognized by the Tennessee Supreme Court.13 In fact, this specter accounts for the qualified immunity granted to prosecutors because exposing prosecutors to liability “would create the possibility that the prosecutor would shade his or her decisions instead of exercising independence of judgment required by the public trust.”14 Unlike U.S. Attorneys, Tennessee District Attorneys General are elected. Thus, they might be subject to public pressure but are not subject to the kind of direct personal pressure that led to the Hearn dismissal. No matter the source of potential pressure, however, prosecutors’ power, discretion, and independence are always subject to the ethical duty not to prosecute without probable cause. 1
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Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Jud. Soc’y 18 (1940), 31 J. Crim. L. 3 (1940) (address at Conference of United States Attorneys, Washington, D.C., April 1, 1940), available at https://www.roberthjackson.org/speech-andwriting/the-federal-prosecutor/. Of course, prosecutors are subject to the other Rules of Professional Conduct, and there are other sources that provide guidance on the prosecutor’s ethical duties. E.g., ABA Criminal Justice Standards for the Prosecution Function (4th ed. 2017). State v. Pruitt, 415 S.W.3d 180, 216 (Tenn. 2013). Tenn. R. Prof. Conduct 8.4(d) provides, “It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” The history of the case is recounted in the Order entered in United States v. Hearn, Case No. 2026 CF2 010237 (D.C. Super. Ct. Oct. 1, 2026), available at https://www. democracydefendersfund.org/wp-content/uploads/2026/10/100126_DDF-OrderDavey-Hearn.pdf. Michael Kunzelman, Judge Permanently Dismisses Trump Administration’s Case Charging Ex-Olympian with Reflecting Pool Vandalism, PBS News (Oct. 1, 2026), available at https://www.pbs.org/newshour/politics/judge-permanently-dismissestrump-administrations-case-charging-ex-olympian-with-reflecting-pool-vandalism The decision was based upon D.C. Super. Ct. Crim. R. 48 (a)(2). Because the Hearn case arose in the District of Columbia, the ethical considerations arising there are obviously merely analogous to considerations that might arise under the Tennessee rules. United States v. Hearn, No. 2026 CF2 010237, at 20. Id. at 7 (quoting President Donald J. Trump, Truth Social post (Aug. 7, 2026)). The court identified ActBlue as “a digital fundraising platform for Democratic candidates which helps raise money for Democrats running for office at all levels. ActBlue: About Us, ACTBLUE (2026), https://www.actblue.com/about/.” Id. at 20 n.20. Id. at 20. For an analysis of several examples of “frivolous” prosecutions, see Yuri R. Linetsky, A Rule 11 for Prosecutors, 87 Tenn. L. Rev. 1 (2019). State v. Pruitt, 415 S.W.3d at 216. Bryant-Bruce v. State, 2005 WL 2384696, at *7 (Tenn. Ct. App. Sept. 27, 2005) (citing inter alia Imbler v. Pachtman, 424 U.S. 409 (1976)).
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KBA VOLUNTEERISM By: Emma Grace Estabrooks Miranda E. Goodwin Malia & Goodwin
THE VOLUNTEER SPIRIT: HIGHLIGHTING ATTORNEY DEDICATION TO PHILANTHROPY When we picture volunteering, we often think of soup kitchens, coat drives, or—for attorneys—pro bono legal aid and outreach. But service goes far beyond these traditional roles. Often, the most impactful way attorneys can give back is by applying their unique skills to the passions and communities closest to their hearts. This article highlights local attorneys who have found innovative ways to serve Knoxville. The Volunteer Breakfast committee is proud to highlight John Winemiller, a partner at Merchant and Gould, P.C. Mr. Winemiller’s professional history began in the music world by studying music history and theory. He received a Master’s degree and PhD from the University of Chicago before he began teaching as a professor. John commented that the “through line” from his work in the art world to his work as an attorney was his area of study and interest – the intersection between early copyright law in the 18th century and how composers handled the use of preexistent material in their own work. When John and his husband, RJ, moved to Knoxville, John began his legal career in earnest by entering the University of Tennessee’s law school. John has shown an unwavering commitment to participating in civics ever since he moved to Knoxville. Even before law school, he was engaged with the local community through participating on boards committed to preserving and cultivating art within Knoxville, such as the Performing Arts & Lectures Series and A1 Lab Arts. Even as John began practicing law, he stayed connected to Knoxville’s art world by serving in roles on boards like the Knoxville Symphony Orchestra, The Actor’s Coop, and Big Ears Music Festival. For John, Knoxville’s rich artistic community made all the difference. He credits the local arts culture with transforming his idea of Knoxville from just his residence into his true home, explaining: Knoxville is now made up of so many people - not just the people born and raised here, but a huge number of people who moved here by choice…and, like me, found themselves falling in love with the mountains, their homes, and staying. The creative talent moving to this city has brought tremendous energy, in a really uncommon, disproportionate way for a city of its size. It is so cool to see and give back to Knoxville. John is still an active member of art initiatives on a national scale.
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He helps Knoxville reach world recognition through his work with the Big Ears Music Festival, where he is the immediate past chair and currently serves on the board: “Big Ears is an amazing way to get involved in Knoxville and show off Knoxville. It fits right into the footprint of Knoxville, where people from all fifty states and about 20 countries come together, boosting Knoxville’s civics and arts.” He also is heavily involved in his role on The Newberry Consort, a Chicago-based nonprofit committed to bringing historically informed performances to the public. Through his involvement with Big Ears and the Newberry Consort, John consistently demonstrates a deep dedication to fostering art and education in the community. Indeed, John’s dedication to the Knoxville community does not stop at his dedication to the arts. Reflecting on his time at Leadership Knoxville, he shared a sentiment he heard from Jim Haslam at one of their gatherings: “When you have enjoyed success in your community, you need to pay the rent - and paying the rent is giving back to the community, to give time and service of all sorts. And not only that, but pay it forward - we have an obligation, a duty, to help our community.” John then emphasized how this obligation extends to the legal world. “As attorneys, we are called to pro bono services. Pro bono is about unmet legal needs. And we have a parallel obligation to the community - to meet unmet community needs.” John has implemented his sentiment regarding community needs by dedicating much of his time to social justice and policy issues. Specifically, he was appointed by Mayor Rogero to the Knoxville Community Development Corporation’s board, where he has served as commissioner and chair. He has also served on the board of directors for Positively Living and the Tennessee Justice Center. After we spoke to John, it became clear that his commitment to diversity in the legal world is perhaps the paramount community need that he is committed to. Not only does he serve in roles committed to diversity both in the Knoxville Bar Association and Tennessee Bar Association, but he demonstrates that he means what he says about the importance of diversity by trying to cultivate it in his very own firm. John serves as the Chief Diversity Officer for Merchant and Gould, where he is committed to “making a space where attorneys can be their authentic selves, and then, in turn, do their very best work for our clients.” Indeed, Merchant and Gould boasts an almost perfect retention rate over the last decade, which in part John credits to the firm’s participation in national diversity initiatives, keeping internal goals, and encouraging innovation both in practice and policy within the firm. John Winemiller models what it means to give back with humility and purpose. From championing Knoxville’s thriving arts scene to working with organizations like KCDC and the Tennessee Justice Center, he puts his legal skills to work for his community. In his own office, he drives meaningful change as Chief Diversity Officer—showing how personal passion and professional expertise can shape a more vibrant, inclusive city. He is an example to us all of how we can use our skills as attorneys and interests as residents to make Knoxville a better, more welcoming place.
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MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Jimmy Snodgrass Bass, Berry & Sims
HARASSMENT AND RETALIATION EXPLAINED OVER A BEER It’s a Thursday after a long day at work and you make plans to catch up with a friend who works in marketing, or insurance, or supply chain management.1 You’re hoping to talk about anything but work, until they lean in and say, “My boss is harassing me, can I sue?” You ask a couple more questions, and they keep mentioning “harassing” behavior. It’s likely that even non-employment lawyers have found themselves in this situation. The honest answer is “maybe, but probably not for the reasons you think.” As you know, the gap between the everyday meaning of “harassment” and the legal meaning of “harassment” can be difficult to convey to clients. Here are the three questions likely brought up in this situation, answered the way I would at the bar (and enough Sixth Circuit authority when necessary). “My boss is yelling at me and mean to the team, surely that’s harassment.” This friend (seeking the benefit of free legal advice) usually follows up with, “He’s awful to everyone. Isn’t that a hostile work environment?” Usually, no. A hostile work environment claim requires conduct that is (1) unwelcome, (2) based on a protected trait, and (3) “sufficiently severe or pervasive to alter the conditions of employment.”2 Courts look at the totality of the circumstances: frequency, severity, whether the conduct was physically threatening or humiliating, whether the conduct was offensive, and whether it interfered with work. In a quotation memorized by every employment law defense counsel, Title VII is not “a general civility code,” and it does not reach “the ordinary tribulations of the workplace.”3 Additionally, there are differing standards depending whether the alleged harasser is a supervisor or coworker. That leaves three common misconceptions to correct: a mean boss is not an illegal boss; one offhand remark rarely meets the standard; and “bullying,” unless it is tied to a protected characteristic (such as race, sex, or age), is not actionable under Title VII. “I complained about my boss. Am I protected now?” Retaliation claims are the most frequently filed issue before the EEOC, and they start with the concept of protected activity. Title VII protects employees who “oppose” an unlawful practice or who “participate” in an investigation or proceeding. If the complaint does not involve a discriminatory practice, or an objectively reasonable good faith belief that the practice is unlawful,4 any retaliation claim fails no matter how bad the employer’s timing looks. The Sixth Circuit reads “opposition” generously. In EEOC v. New Breed Logistics, a supervisor at a Memphis warehouse repeatedly made sexually suggestive comments to several temporary workers. They told him directly to stop, and they were later fired. The employer argued that objecting to the harasser himself, rather than to HR, was not protected. The Sixth Circuit disagreed. A demand that a supervisor stop harassing is opposition, as Title VII “does not specify to whom protected activity must be directed.”5 While there are no magic words needed, the Sixth Circuit has set limits. Simply claiming “discrimination,” particularly where the accusation is vague or “came out of left field,” does not qualify November/December 2026
as protected activity.6 The dividing line is straightforward. “My boss is unfair, plays favorites and yells” is a workplace gripe. “My boss treats the women on our team differently” or “He keeps touching me, and I told him to stop” is protected. The employee doesn’t have to use legal terms, but the complaint must reasonably signal discrimination tied to a protected characteristic, made in good faith. It is important to note, however, that an employee could also engage in protected activity under the National Labor Relations Act by raising complaints about the terms and conditions of employment, such as work rules or safety. “My boss gives me anxiety. Can I ask to work for someone else?” Your friend is showing no sign of dropping the question. “Being around him stresses me out so much I can’t function. If I have anxiety, don’t they have to accommodate me?” The Sixth Circuit addressed nearly this question in Tinsley v. Caterpillar Financial Services Corporation.7 The employee attributed her stress and related PTSD symptoms to her supervisor and asked to be assigned to a new supervisor or be allowed to take medical leave. The court rejected the claim, reasoning that because her impairments were tied only to one supervisor, the employee was unable to show that her impairments limited her ability to “perform a class of jobs or broad range of jobs.” Even when a disability exists, the accommodation must be reasonable, and the Sixth Circuit has long held that employers need not transfer employees away from supervisors/coworkers due to personality clashes.8 Employers should still engage in the interactive process. Accommodations such as schedule changes, leave, or remote check-ins may be reasonable for a diagnosed anxiety condition, even though “a new boss” is not. Last Call So, what do you tell your friend? If they believe they are being treated unfairly at work, they should review the company handbook and determine whether to raise a complaint. If stress is affecting their health, they should see a doctor and consider if they need an accommodation. For management counsel, the lesson runs the other way: train managers that a complaint made directly to them can be protected activity, investigate complaints promptly, and evaluate accommodation requests on their merits. The law here is narrower than the barstool version, but it still applies, and the cases tend to turn on what was said, to whom, and when. 1 2 3 4 5 6 7 8
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While I may still not know exactly what this means, I do know UT would make the playoffs in supply chain. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Graf v. Morristown-Hamblen Hosp. Ass’n, 155 F.4th 578, 589 (6th Cir. 2025). 783 F.3d 1057 (6th Cir. 2015). See Crawford v. Chipotle Mexican Grill, Inc., 773 F. App’x 822, 828 (6th Cir. 2019). 766 F. App’x 337 (6th Cir. 2019). See Hrdlicka v. Gen. Motors, LLC, 63 F.4th 555, 568 (6th Cir. 2023).
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FOODIE FINDS: THE BEST OF KNOXVILLE FOOD TRUCKS By: Parker Bohne Lewis Thomason, P.C.
SHERRY’S GERMAN STREET FOOD Bratwurst, Bavarian pretzels, goulash—and, if you’re lucky, maybe even a serving of Pretzel Rum Bread Pudding. Sherry’s German Street Food brings a little taste of Germany to Knoxville, and the story behind the truck is just as personal as the food coming out of its window. The idea grew out of Sherry’s husband’s German heritage and the dishes that became a part of their family over the years. What started as appreciation for those comforting, nostalgic flavors eventually turned into an opportunity to share them with others. With encouragement from family and friends, Sherry took the plunge and started the truck as a onewoman operation. It wasn’t a career path she had mapped out years in advance. Instead, Sherry says life simply shifted. She found herself wanting to spend more time feeding people, connecting with her community, and creating something that belonged entirely to her. A food truck ended up being the perfect way to do all three. There is also something about street food itself that appeals to her. It is casual, immediate, and meant to be enjoyed wherever you happen to be. Running the truck gives Sherry the freedom to experiment with specials, meet the people eating her food, and bring the menu directly to events and communities around Knoxville. She is even working on another way to share her love of German food: a pretzel baking class, which she hopes to begin offering in the future. However, doing all of that by herself means wearing just about every hat imaginable. Sherry handles the cooking, marketing, logistics, and customer service herself. She has also had to master some skills that have very little to do with making a good bratwurst like learning to drive the trailer. Add the inevitable mechanical problem with a trailer or tow vehicle, and owning a food truck can quickly become an exercise in improvisation, she says. When something goes wrong, Sherry has learned to adapt and keep the business moving. The one-woman approach is part of the truck’s charm. Sherry describes what she offers as homemade food with a personal touch and “a little sass.” The menu focuses on German comfort food, something that sets Sherry’s truck apart from many other options in Knoxville’s food truck scene. You’ll find classics like bratwursts, Bavarian pretzels, and goulash, but Sherry is not afraid to have some fun with the menu either. Seasonal treats have included Pretzel Rum Bread Pudding and Spaghetti Eis. That mix of familiar and unexpected is intentional. Sherry loves the warmth and nostalgia associated with German cooking, but she also enjoys introducing those flavors to people who may not have grown up
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with them. Her take on German street food keeps things comforting without feeling overly traditional or formal. Sherry’s German Street Food does not have a permanent spot yet, so part of the fun is catching the truck as it moves around Knoxville and surrounding cities. Sherry is always looking for locations where she can reach both people who already love German food and those willing to venture outside their usual order—and she welcomes suggestions from the community. For now, the easiest way to find Sherry is through the Sherry’s German Street Food Facebook page or the truck’s website (https://sherrysgermanstreetfood. com/) where she posts her weekly schedule and menu updates.
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Adrienne Anderson and Shannon van Tol are pleased to announce that
Zachary W. Arnold has joined
ANDERSON & VAN TOL PLLC
Commercial Litigation • Construction Law Business Transactions • Contracts Real Estate • Employment Law Mediation and Arbitration 800 S. Gay Street, Suite 1505, Knoxville, TN 37929 (865) 249-8011 Email addresses: aanderson@andersonvantol.com; svantol@andersonvantol.com; zarnold@andersonvantol.com November/December 2026
PRO BONO SPOTLIGHT By: Rebecca Spicer-Keller LAET Pro Bono Coordinating Attorney
LEGAL AID OF EAST TENNESSEE’S 2026 PRO BONO NIGHT CELEBRATION Legal Aid of East Tennessee (LAET) is excited to honor outstanding volunteers and community partners at its Pro Bono Night on November 12, 2026, at The Standard in Knoxville. The evening will bring together attorneys, law students, judges, community organizations, and supporters to celebrate the impact of pro bono legal services that help ensure access to justice for people across East Tennessee. Pro bono work plays a vital role in closing the gap between the need for civil legal assistance and the resources available to meet it. For individuals and families facing a legal problem without the means to hire an attorney, volunteer service can provide clarity, stability, and a path forward. Pro Bono Night recognizes the people and institutions that devote their talents, time, and influence to that work. This year’s honorees represent several essential parts of the pro bono community: a law student beginning a career grounded in service, a law firm committed to giving back, a community partner expanding access to help, attorneys who have distinguished themselves through volunteer advocacy, and a judge whose lasting contributions have earned a place in the organization’s Hall of Fame. 2026 Award Recipients Estafania Urdaneta will receive the Pro Bono Law Student of the Year award. The honor recognizes the importance of cultivating a commitment to service early in a legal career. Law students who volunteer contribute valuable energy and perspective while building the practical skills and professional values that will shape their future work. Urdaneta’s recognition reflects the promise of a new generation prepared to carry the tradition of pro bono service forward. Clark and Washington will be recognized as Pro Bono Law Firm of the Year. Law firms can multiply the impact of individual volunteers by creating a culture in which service is encouraged, supported, and sustained. This award celebrates an organizational commitment to using legal knowledge and professional resources for the benefit of neighbors who might otherwise face critical civil legal matters alone. The KBA Access to Justice Committee will receive the Pro Bono Community Partner of the Year award. LAET’s Pro Bono Project depends on strong partnerships that connect people with services, coordinate volunteers, and build broader awareness of unmet legal needs. By recognizing a community partner, LAET highlights the collaborative network required to make access to justice more than an aspiration. Patrick Noel and Cathy Warmbrod will share recognition as Pro Bono Attorneys of the Year. The joint honor acknowledges the direct, personal commitment at the heart of volunteer legal service. Pro bono attorneys listen, advise and advocate, often helping clients navigate highstakes problems that affect their homes, finances, safety, or families. Their
work demonstrates how professional skill, when offered generously, can make a profound difference in another person’s life. Judge Chuck Cerny will be inducted into the Hall of Fame. This distinction recognizes a legacy of service and an enduring contribution to the ideals that sustain pro bono work. Hall of Fame recognition looks beyond a single year, honoring the lasting example set by leaders whose commitment strengthens the legal community and inspires others to serve. Each award reflects a necessary role in the pursuit of access to justice. Students gain an early understanding of the barriers many clients face. Firms create the structure and encouragement that allow lawyers to consistently volunteer. Community partners help residents find the right doors to walk through. Individual attorneys transform training into practical assistance, while longtime leaders model the integrity and persistence necessary to sustain the work over decades. The 2026 honorees illustrate how a durable system of service is built. A Celebration with a Continuing Purpose While the awards spotlight exceptional service, the event also honors the dedication of every volunteer and partner who contributed in 2026. It also offers an opportunity to look ahead to new pro bono initiatives in 2027. Civil legal problems can disrupt daily life for people across the state, and a lawyer’s guidance may help someone understand their options, meet a deadline, protect important rights or reach a fair resolution. Every volunteer hour expands LAET’s capacity and strengthens the community. The setting at The Standard will provide a fitting backdrop for an evening focused on connection and gratitude. Every successful pro bono effort is supported by referrals, mentorship, administration, collaboration, and the trust of clients who seek help during difficult moments. The celebration is also a chance for attendees to consider what comes next. A single evening cannot resolve the region’s unmet civil legal needs, but it can strengthen the relationships and shared commitment required to address them. Pro Bono Night helps maintain momentum for the year ahead by gathering those who support the mission to reflect on prior years of service and share ideas on how we can move forward. If you would like to join us for the celebration, you can scan the QR code to purchase your tickets.
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. Signup via the KBA website. Wednesday, December 9 Noon – 2:00 PM Faith and Justice Clinic: In person at Lake Forest Presbyterian Church, 714 Lake Forest Drive, Knoxville. Signup via the KBA website. Saturday, November 14 9AM – Noon. Debt Relief Clinic: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Signup via the KBA website. Saturday, November 14 9AM – Noon. November/December 2026
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21ST CENTURY LAWYER By: Joshua P. Smith Carrasco Trump, PLLC
LAWYERING WITHOUT SIGHT Imagine going to bed one night with 20/20 vision and waking up completely blind the next morning. How would you continue doing your work, earn a living, support yourself or your family, and challenge the assumptions others make about blindness? What would you do when people repeatedly told you that blindness would prevent you from earning a living, supporting yourself or others, or building the life you wanted? For me, those questions are not hypothetical. I was 25 years old when I lost my sight, bringing the career I was building as a juvenile corrections officer to an abrupt end. The Americans with Disabilities Act of 1990 marked its thirty-sixth anniversary this past July.1 As a civil rights law, the ADA does more than express a general commitment to equality. It prohibits discrimination against qualified individuals with disabilities and requires reasonable accommodations when those accommodations do not impose an undue hardship.2 A qualified individual must still be able to perform the essential functions of a position, with or without an accommodation.3 The twenty-first-century lawyer is not defined by any one tool but by the ability to choose the right tool and adapt when it falls short. Accessible technology enabled me to pursue college, to complete law school, and to enter the legal profession. Today, I rely on a range of tools to serve clients and keep their matters moving. When one option falls short, there are often others to choose from. My primary tool is Job Access With Speech, commonly known as JAWS, a screen reader that converts text displayed on my computer into synthesized speech. It gives me access to many of the same functions other lawyers use every day, including checking email, drafting pleadings, conducting legal research, and preparing filings. Outside of work, I use the same technology for ordinary things such as watching Netflix and scrolling Facebook. When JAWS cannot read a document properly, I turn to other tools. Kurzweil 1000 attempts to convert scanned or inaccessible documents into text that my screen reader can recognize. The results vary. Sometimes it produces a nearly perfect document. Other times, it captures only part of the information or produces no converted text at all. For printed materials, I also use the LyriQ Reader, which photographs the page and reads the text aloud. Simply having access to assistive technology is not enough. During college, I was under the mistaken assumption that Kurzweil was a screen reader. It is not. JAWS allows me to navigate and use my computer, while Kurzweil converts documents into text that JAWS can read. Assistive tools are rarely interchangeable, and the wrong tool can make a task more difficult rather than more accessible. That experience taught me the importance of knowing what a tool actually does, regardless of what someone else may claim it can do. When visual interpretation is needed, I may use Aira, a service that connects me with a trained agent through my phone or smart glasses. I provide the directions, and the agent supplies the visual information needed to complete the task. An agent may help verify information in a document, read handwritten material, describe an inaccessible screen, or assist me with navigation.
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My iPhone and iPad are other tools that I use to serve others. These devices come with a host of built-in accessibility features, including VoiceOver, another screen reader that allows a blind user to navigate the devices and complete many of the same tasks as a sighted user. I use them to scan documents, take notes, communicate with clients and coworkers, and access information when I am away from my desk. Depending on how a document is formatted, it may present different levels of difficulty. Government forms may be created electronically but still function poorly with screen-reading software. A form may appear complete to a sighted user while giving me very little useful information when read aloud. Fields may be unlabeled, instructions may be announced out of order, or the form may lack the accessibility structure needed for a screen reader to interpret it properly. As a result, I may convert the document through another program, use Aira to identify inaccessible portions, or when necessary, ask a colleague to verify a specific piece of information. The filing deadline does not change because the form presents an accessibility problem, so I have learned to build more than one method into my workflow. Not every useful tool is high-tech. I keep a handheld recorder nearby when I need to capture a phone number or short note quickly, and I use a Braille labeler to identify files and other materials around the office. Neither tool is sophisticated, but both solve practical problems efficiently. Some lawyers may look first at how advanced a tool is or how many features it offers. For me, the value of a tool comes down to whether it is accessible and can get the job done. Sure, I like all the bells and whistles, but at the end of the day, the tool still must accomplish the objective. I navigate the legal profession as a blind lawyer, but the need to adapt is not unique to disability. Every lawyer eventually encounters a system that does not work as expected, a document that will not cooperate, or a problem that requires a different approach. The key is being willing to adapt and determine the best approach to address the problem. Fortunately, we practice in a time when the failure of one system does not have to stop the work. There is often another way to get the job done. When someone underestimates you or tells you that you cannot succeed, use that doubt as motivation to keep moving forward. Today, I am a lawyer, a husband, and the father of a son and daughter. My wife works in Chancery Court, and together we have built the life others once suggested was beyond my reach. The next time you see me out, make sure to say hello and tell me your name. I may not know you are nearby unless you speak, but the more we talk, the more likely I am to learn and remember your voice. 1 2
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Susan K. Donius, From the Archives: A Landmark Moment for Americans with Disabilities, White House (July 26, 2012) (noting that President George H.W. Bush signed the Americans with Disabilities Act into law on July 26, 1990). 42 U.S.C. § 12112 (a) (b) (5) (A). Section 12112 prohibits disability discrimination in employment and specifically treats failure to provide reasonable accommodation to an otherwise qualified individual as discrimination unless the accommodation would impose an undue hardship. 42 U.S.C. § 12111(8). That provision defines a “qualified individual” in terms of the ability, with or without reasonable accommodation, to perform the essential functions of the employment position.
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J U D I C I A L P R O F I L E , continued from page 10 interview what he hoped to change about the Court, Hixson did not arrive with a sweeping reform agenda. Instead, he explained that he first wanted to learn from the justices already serving and understand the institution before presuming to improve it. That humility is particularly meaningful in a profession where confidence is essential but perspective is equally important. Hixson is also enthusiastic about the future of Tennessee’s judicial system, particularly the implementation of a statewide court management and electronic filing platform serving all 95 counties. Although he admits to being somewhat old-fashioned when it comes to technology, he recognizes the tremendous potential for improved access and efficiency. “The pace of technology seems daunting at times. How can a notoriously slow-moving creature such as the law keep pace with the advances that we are seeing on what seems like a daily basis? I try to remember there is nothing new under the sun. In my grandparents’ lifetimes, we went from horseback transportation to walking on the moon. Somehow, the law adapted, and it will continue to do so.” Beyond his judicial responsibilities, Hixson has taught trial practice as an adjunct professor and served on the boards of the Sertoma Center and CASA of East Tennessee. His commitment to public service extends to encouraging younger attorneys to pursue leadership opportunities and to recognize their responsibility for the tone of the profession. His advice to young lawyers is especially timely: attorneys can disagree vigorously and zealously without sacrificing civility or respect. In a world increasingly defined by division, Hixson believes lawyers have a unique opportunity—and obligation—to model something better. “I would hope that every judge—and every lawyer, for that matter— would recognize that the job we are called to do is larger than any one of
us as individuals. All we can do as humans is to work hard and utilize the gifts that God has given to do the best we can do in our given roles.” And for those contemplating judicial service, his message is simple. Don’t wait until you believe you have reached some magical age or professional milestone. Step forward and serve. Of course, even a Supreme Court justice must answer to a higher authority at home. For Hixson, that includes his wife, Rachel, their three daughters, a female dog, and a female cat. He jokes that he and the family’s male cat, Maxwell, share a particularly close bond, largely because they are badly outnumbered. When time permits, he remains a devoted Tennessee baseball fan and fondly recalls attending the Volunteers’ national championship in Omaha with Rachel in 2024. All jokes aside, Justice Hixson adds with sincere humility, “The Big Man has been kinder to me than He ever should have been. Both inside and outside the courtroom, I lead a blessed life.” Justice Hixson’s journey is a reminder that exceptional public service is not defined solely by professional titles or accomplishments, but also by humility, gratitude, mentorship, and an enduring commitment to others. The Knoxville Bar Association is especially appreciative of Justice Hixson’s willingness to share his experiences, reflections, and good humor for this profile. His continued connection to Knoxville’s legal community is a source of pride, and his example offers both encouragement and inspiration to attorneys at every stage of their careers. From a Crossville grocery store to the Tennessee Supreme Court, Justice Kyle Hixson has built a remarkable career—and, fortunately for the rest of us, he has never lost his appreciation for a good story, a good mentor, or a good baseball game.
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PRIVILEGED TO BE IN THE LAW By: Mary D. Miller Miller Law, Mary D. Miller, PLLC
IT IS A PRIVILEGE FOR THIS MOUNTAIN GIRL TO BE A LAWYER I grew up in a small town in the mountains of Western North Carolina. No, really – a really, really small town. Two caution lights, seven miles to the closest grocery store and doctor’s office, 30 minutes to the beer store, and an hour to Asheville. We were so excited when we got a Hardee’s. There were 60 people in my high school senior class. But it was not the typical senior class because we were a college town. (We got that Hardee’s because of the University.) About half of us were “locals” and the other half were “college kids.” So, we had kids from our school going to Georgia Tech, the Naval Academy, the Air Force Academy, and of course, the “Carolina.” And then we had friends who chose not to go to college and did other things. Despite the differences, we were a strong giving community. Recently, when three brothers who we all grew up with passed away in the same week, our community raised enough money to pay for all three funerals. That town is where I learned a true sense of community and service. It is a special place. In the mountain way, our sense of service has always been helping people help themselves. I find it a privilege as a lawyer to help people work their way through complicated problems. As many would tell you, I often get that case or problem which is not the norm – which is complicated and has many tentacles – the cross of bankruptcy and restrictive covenants, the closing of a golf course to be sold off hole by hole, the business that cannot pay the loan back but faces the bank that cannot afford to give the borrower a discount on their loan, the death of a proposed guarantor the night before a loan closes, how incompetence intersects with adverse possession or the ownership of property, what a contractor does when he cannot afford to pay the bank, whether that Uniform Commercial Code financing statement and security agreement really perfect and attach your security interest, and the homeowners’ association that has been sued to make repairs but has no money and no insurance coverage, etc. And this does not begin to cover the types of cases we handle on a pro bono basis. Our privilege is to help people figure out how to overcome these problems. To try to minimize the damage that a new subdivision or a grocery store located on an old, closed golf course could have on people’s homes by putting restrictive covenants down. To figure out how you can restructure a loan to ensure that the bank does not go under, while also allowing the borrower to survive. To figure out how the loan can still be made even though that important guarantor has died. To resolve what to do when someone in your chain of title is competent and when the
defendant can prove that someone is not. To work out a settlement with a lender to enable a contractor to move forward with his business. To try to raise enough money to help that broke HOA pay for repairs and to draft documents that prevent them from getting sued again for the same problem. Sometimes these are the most difficult times of some of these people’s lives even though it may not appear that way to you or me. It is our privilege to work through these problems with them and help solve them. It has also been my privilege as a lawyer to work with other lawyers and women to mentor them. In that small mountain town where I grew up, we did not have a lot of professional working women role models. There was a pediatrician, from Ukraine, Velta Cannon (who ironically started out in Oak Ridge). The rest were teachers interspersed with a few professors from the University. There were no lawyers. So, our most important female role models were Dr. Cannon and some of our teachers. They were strong, smart women who taught us to think for ourselves. In particular, our English and History teachers taught us to argue and to question. (Well, actually, all of our teachers did.) Though not for the first time, in those classes, it became apparent that I liked to argue and that I liked to negotiate. That is where I started to learn that it was a privilege to use these strengths to help people with their problems and to mentor other women in business and the law. Whether teaching a class on contract drafting at the University of Tennessee or a seminar for the Knoxville Bar Association, serving as mentor for the moment, teaching law clerks, or just helping an old friend work through a Uniform Commercial Code or bankruptcy issue, teaching and serving in the legal community is a privilege. And I take great delight in holding seminars for clients and trying to teach my clients things that will help them with their business in the future and prevent mistakes. It is also an honor to be that lawyer whom your client trusts and asks you to review a document to make sure that it is what they need even if you are not representing them in that case. (It is even more fun when you turn out to have given them the right advice in the first place.) It is a privilege to be able to use my legal skill and knowledge to try to help other lawyers, and in particular, women lawyers work through problems. So, it is not only a privilege for this mountain girl to be a lawyer, it is a privilege for this mountain girl to be a lawyer who can mentor others.
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Id. at *2. Id. John A. Lupton, Illinois Supreme Court History: John Doe & Richard Roe, https:// www.illinoiscourts.gov/News/1389/Illinois-Supreme-Court-history-John-Doe-andRichard-Roe/news-detail/, last visited Oct. 7, 2026. Id. Id. For a fascinating podcast on the subject, try listening to Episode 98 of Helen Zaltzman’s The Allusionist, “a Podcast about Language.” Episode 98 is entitled, “Alter Ego,” and you might enjoy it. https://www.illinoiscourts.gov/News/1389/ Illinois-Supreme-Court-history-John-Doe-and-Richard-Roe/news-detail/. See Murfree’s Heirs v. Carmack, 12 Ten. 269. 1833 Tenn. LEXIS 61 (Tenn. March 1833). Of course, the Court ruled against Mr. Craighead’s client, because “lucid and able” is the kinder way of saying “that was ludicrous.”
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See Buck v. Williams & Woods, 57 Tenn. 264, 1872 Tenn. LEXIS 421 (Tenn. Apr. 1872). See Tenn. Code Ann. § 56-7-1206. Quarles, 2026 Tenn. App. LEXIS 562 at * 2. Id. at *3. Tenn. Code Ann. § 56-7-1206(b). Tenn. Code Ann. § 56-7-1206(d). Tenn. Code Ann. § 28-1-105. Quarles, 2026 Tenn. App. LEXIS 562 at *3. Id. at *4. Id. at *12-13. Id. at *15-16.
November/December 2026
HOW TO THRIVE By: Emily Heird
Vantage View Coaching
THE LONG GAME: BUILDING CONSISTENCY IN LAW AND LIFE A legal career is not one marathon. It is several, run back-toback over decades, often without a clear finish line. Sustaining high performance and well-being across that span is difficult. It is also possible, and the professionals who manage it tend to share one trait: consistency. That idea was front of mind last week as I watched Nick Saban on College GameDay. Saban has long defined success as consistency in performance rather than the outcome of any single game. His own career is the proof. Decades of results did not come from one great season. They came from showing up the same way, day after day, and modeling the standard he asked of his players. So, what produces consistency? Sport psychologist Terry Orlick, whose work with Olympic athletes spans decades, found that people who consistently perform close to their potential do three things well. They direct and connect their focus. They channel their emotions in positive directions. And they bounce back from setbacks quickly and efficiently. Here is what each skill looks like in legal practice, drawn from sports psychology research and examples from my client work (details changed to protect confidentiality). Skill One: Direct and Connect Your Focus Orlick makes an observation I return to often: you do not lose your skills from one day to the next. What you lose is the focus that frees you to use them. The attorney who wrote a sharp brief on Monday did not forget how to write by Wednesday. Something pulled her attention off the work. For one client, that something was opposing counsel. An “outrageous” filing would land in his inbox, and the rest of his day would disappear. He reread it, drafted rebuttals in his head, vented to colleagues, and fell behind on the brief actually due that afternoon. The filing took ten minutes to read. His reaction cost him six hours. Elite athletes guard against this with routines. Research on preperformance routines, from golf putts to basketball free throws, links them to steadier performance because they give attention a reliable place to land. We used the Triple R Reset Method to set up a simple reset routine so the client could flush the emotion quickly (similar to becoming angry about a call the ref made) and refocus back on the next task due that afternoon. Of course, focus rarely slips on its own. Usually an emotion pulls it away, which is where the second skill comes in. Skill Two: Channel Your Emotions A personal injury firm owner I worked with checked his firm’s bank account every day. Contingency fee practices have uneven cash flow, and each look sent him into a spiral. A slow week felt like proof the firm was failing. He became tense, fearful, and more controlling with staff, which made him less effective at the work that brings in revenue. We addressed it on two fronts. First, exposure: he moved from checking daily to reviewing the numbers on a set weekly schedule. Fewer looks meant fewer spikes. Second, and more important, we reframed November/December 2026
the money mindset underneath the checking. The old story was scarcity: every dip is a threat. The new story matches how his practice works: cases are a pipeline, and the health of the firm is measured in quarters, not days. Same numbers, different meaning, very different nervous system. That shift reflects a well-supported finding. Research by psychologist Jeremy Jamieson shows that people who interpret the racing heart and adrenaline of stress as fuel, rather than danger, perform better under pressure. The emotion does not have to disappear. It must be pointed somewhere useful. When you notice the slide starting, three moves help in the moment. Lengthen your exhale to settle your physiology. Shift from blame to correction, replacing I can’t believe this with here’s the next step. And talk to yourself factually. One bad week is one bad week, not a verdict on your career. Even with strong focus and emotional control, setbacks will happen. What separates consistent performers is how fast they recover. Skill Three: Bounce Back Quickly and Efficiently Another client, a careful and highly competent lawyer, made one oversight on a scheduling matter that required flying a client in at the last minute. The deadline was met. Nothing was lost. But the near miss sent her into a panic, and for months she worked under a cloud of anxiety that she would make another mistake. Reliving the miss does not make you more careful. It makes you more fearful, which dials up the stress response, and cognitive performance declines. Psychologist Sian Beilock’s research on choking under pressure shows that worry consumes the same working memory we rely on for complex thinking. For a lawyer, rumination is a direct tax on the very skills the job requires. The alternative is a deliberate review at the time you choose. What happened? What system would catch it next time? My client added a second calendar check to her process, which mitigates the risk of a repeat. Self-compassion research, pioneered by Kristin Neff and since extended to elite athletes, supports this approach: people who meet their mistakes with understanding rather than harsh self-criticism recover faster and are more willing to learn from them. Learning quiets the anxious, overthinking mind in a way self-punishment never does. Built in Ordinary Moments None of these skills holds up if you are running on empty. Fatigue and overload make every trigger louder, so sleep and real breaks are part of the plan, not a reward for finishing it. And how you respond in low-stakes moments trains how you respond in high-stakes ones. Every ordinary Tuesday is a rep. That is what Saban modeled for decades. Not perfection, but the same standard, applied day after day. Your career will have its share of outrageous filings, near misses, and lean months. Consistency is showing up as your best self through all of them. That is a skill, and like any skill, it can be trained.
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WELCOME NEW MEMBERS
THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:
NEW ATTORNEY MEMBERS Lara E. Gill L.S. Miller Law PLLC Constance C. Herinkova Pellissippi State Community College Bruce H. Little L.S. Miller Law PLLC
James C. Alexander Dolly Parton Children’s Hospital Katherine Brock Attorney at Law Margaret M. Chesney Cordell Law, LLP
William Taylor McCarty Merchant & Gould, P.C. Emily Threatt Merchant & Gould, P.C. Joel Wetta Knox County Public Defender’s Community Law Office
NEW LEGAL ASSOCIATE MEMBERS Brittany S. Byrd Legal Aid of East Tennessee
Amy Hudson Woolf, McClane, Bright, Allen & Carpenter, PLLC
NEW LAW STUDENT MEMBERS Thomas P. Hyde Noah Jines Audrey J. Jones James Kegley George R. Kinnear Nora Kuhn Christina Lam Gracie M. Lawrence Hannah Ledbetter Carley Leonard Christina Levins Karson E. Lewis Patrick H. Liposky Paige E. Loughmiller Dennis Lucey Addison Luna Daniel J. Lyjorn Latareia S. Maben Matthew A. Marti Caleb M. Massengill Chydera M. Mathis Lanna D. McRae Adylyn G. McWIlliams Landon G. Meadows Logan G. Meadows Dominic Melrose Shiloh Metcalfe Lucas H. Meyers Harper Middleton Annabelle Mitchell Tatianna Montenegro Gabriel A. Moreno Matthew P. Nunnally Micah L. Owens
Alaina Denton Abigail Dowell Brylee N. Downing Olivia Draughon Hunter S. Duncan Emma C. Dwight Anna E. Eason Madison Eger Maleah A. Epley Maggie G. Fahrenbruch Baileigh P. Faris Ben Favino Megan Fielder Nadia R. Fokkens Trinity V. Fox Emma Gann Kori Garnhart Peyton N. Glatfelter Olivia M. Gobeil Brooklyn R. Greenough Catherine Greer Chloe E. Hall Kara L. Halouma Thomas D. Hamm Leah N. Hargis Amelia Hart Alexandra M. Hayashi Luc Heiss Phoenix Herman Mary Grace Hicks Kaila Hill Clay K. Hopland Emalyne M. Hubbard Cody W. Huff
Alison A. Abla Alayna K. Airgood Davis Akard Emma C. Allen Maci G. Allred Daliah Amarshi Miya Anderson Abigail Apple Chanel A. Arnold-Murray Alyssa N. Barnes Jacob A. Barnes Elisha Beason Nilsa Bermudez Courtney Bly Erin E. Bollwerk Cheri C. Bonnell Brett Box Evelyn Breeden Lex H. Breeden Spencer B. Brown Mary Beth Browne Sophie Browning Marali R. Burns Isaac A. Cartmel Bryce C. Champeau Charles E. Clontz, III Christian M. Conner Corey Corlew Dakota Cox-Moilanen Alexander Craig David John W. Crow William H. Davis Micaela A. DeCreamer Michaela DeFrancisco
Address Changes
Please note the following changes in your KBA Attorneys’ Directory and other office records:
J. Franklin Ammons BPR #: 031947 U.S. Attorney’s Office, Eastern District of Tennessee 800 Market Street, Suite 211 Knoxville, TN 37902-2342 Ph: (865) 545-4167 Franklin.Ammons@usdoj.gov
John L. Billings BPR#: 025244 The Law Office of John L. Billings, PLLC 4315 Kingston Pike, Suite 210 Knoxville, TN 37919-2066 Ph: (865) 297-3015 FAX: (865) 558-6924 john@jblawtn.com
Maha M. Ayesh BPR#: 025244 U.T. Winston College of Law 1505 W Cumberland Ave., Suite 302 Knoxville, TN 37916-3199 Ph: (865) 974-1477 mayesh@utk.edu
Dalton T. Howard BPR #: 040274 Milberg, PLLC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929-9726 Ph: (865) 247-0080 dhoward@milberg.com
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Anna Kate Paris Katy Park Faith A. Piser Tara Pleckham Kate E. Raborn Abegail M. Rattler Rylan D. Rawson Ava C. Raymond Jose Antonio Reyes Plata Michael Richardson Rosie Ritchie Brandy Robbins-Horne Maggie Rosenblum Morgan A. Roth Addison E. Scott Rachel A. Scott Kipton T. Shalberg William P. Sitz Tymir M. Smith-Hartzog Francisco J. Soto Courtney Strader Charlie C. Sullivan John W. Sutis Eliana M. Tallant Alexzandria R. Threatt George R. VanDyke Rhiannon von Klar Emma Wadley Isabella Ward Rebekka C. Webb John Wilkes Erin Williams Caleb Matthew Williams-Clark Maximilian J. Yamnicky
Leah W. McClanahan BPR #: 027603 Consolidated Nuclear Security, LLC P.O. Box 2009 Knoxville, TN 37831-2009 Ph: (865) 574-3036 leah.mcclanahan@y12nsc.doe.gov
*New Firm Announcement* Grossman Harbin LLC 905 Locust Street Knoxville, TN 37902 Ph: (865) 325-2131 FAX: (865) 381-0761 Matthew A. Grossman BPR #: 022107 matthew@grossmanharbin.com Rebekah P. Harbin BPR #: 038553 rebekah@grossmanharbin.com
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November/December 2026
BARRISTER BITES By: Angelia Nystrom East Tennessee Foundation
IN DEFENSE OF APPETIZERS FOR DINNER There are certain things about which reasonable minds may differ: whether instant replay has improved football, whether pumpkin spice belongs in everything, or whether it is acceptable to put up your Christmas decorations before Halloween. These are matters upon which decent and reasonable people can disagree. I am prepared to take a much firmer position on another important issue, though: appetizers can absolutely be dinner. In fact, during Fall (and especially football season), I would argue that appetizers may be the preferred dinner. Consider the evidence. Fall has arrived. The temperatures are finally beginning to cooperate. Football is on television four or five days a week. Friends and family are gathering in living rooms, around fire pits, and at tailgates. Nobody wants to sit down to a formal three-course meal when there is a game on—particularly if your team is playing a little too close and you need the freedom to pace around the room questioning the judgment of people who are paid substantially more than you are to coach football. This is where appetizers shine. Appetizers require no seating chart. No one needs to know which fork to use. They can be eaten standing up, sitting down, or hovering anxiously in front of the television. Best of all, appetizers encourage grazing, which is really just dinner stretched over several hours and therefore arguably more efficient. This month, I offer two exhibits in support of my position. Exhibit A: Sheet Pan Nachos. Nachos are nearly perfect food. They are endlessly adaptable, require very little culinary skill and give you an excellent excuse to cover an entire sheet pan with cheese. They can also feed a crowd—or, often in the case of Hugh and me, two people who have badly misjudged their own restraint. The key to good sheet pan nachos is distribution. No one wants to reach the bottom of the pile and discover twelve naked tortilla chips that somehow escaped all contact with cheese. That is not a nacho. That is disappointment on a sheet pan. To make Sheet Pan Nachos, you will need 1tbs olive oil, 1 cup diced yellow onion, 1 Tbsp. minced garlic, 1 lb 80/20 ground beef, 2 Tbsp. chili powder, 1 tsp ground cumin, 1 tsp kosher salt, ½ tsp cayenne pepper, and 1 bag tortilla chips (I prefer unsalted chips). For toppings, you will need shredded cheddar cheese, jalapeno slices, canned black beans (drained and rinsed, although I don’t necessarily add these since I don’t like beans), and chopped tomatoes. Garnishes include chopped fresh cilantro, avocado
slices, and sour cream. To prepare sheet pan nachos, heat oil in a large skillet over medium heat. Add onion and garlic; cook, stirring often, until onion is translucent. Add ground beef, chili powder, cumin, salt, and cayenne pepper to skillet. Cook, stirring often, until beef is well browned, about 6 minutes. Then, preheat oven to 350°. Arrange tortilla chips in an even layer on a large baking sheet lined with parchment or foil. Sprinkle beef mixture evenly over tortilla chips; add toppings, as desired. Bake until the cheese is melted, 5-8 minutes. Garnish with cilantro, avocado, and sour cream. My advice: Spread everything out, be generous with the toppings, and make sure every chip has a fighting chance. Exhibit B: Air-Fried Boursin. If the nachos are your dependable tailgate workhorse, air-fried Boursin is the appetizer that arrives wearing a cashmere sweater and its finest pearls. Boursin is already difficult to improve upon. It is a creamy, garlicky, herby cheese. Frankly, that should be enough. But someone—presumably doing important scientific research—discovered that you could coat it, put it in an air fryer, and make the outside golden and crispy while the inside becomes warm and melted. To prepare, you will need 1 package Garlic and Herb Boursin Cheese, ¼ cup panko breadcrumbs, ¼ cup all-purpose flour, 1 large egg (beaten), ¼ tsp kosher salt, ⅛ tsp black pepper, ¼ tsp Italian seasoning, and avocado or olive oil spray. Begin by creating a breading station: one shallow bowl for the flour, one for the egg, and one for the panko, salt, pepper and Italian seasoning. Coat the Boursin in the flour on all sides, then dip in the beaten egg, and finally in the panko mixture. Be sure to coat all sides and press panko onto cheese to be sure it is adhering. Then, pre-heat air fryer for 5 minutes at 400°. Place the coated Boursin in the air fryer basket. Spray or brush avocado oil or olive oil over the top and sides of the coated Boursin. Air fry for 5 minutes at 390° until browned (usually 5-8 minutes). Remove from the air fryer and serve while warm. Serve it with crackers, toasted baguette slices, or vegetables if you feel the need to create the appearance of nutritional responsibility. If you have any left over, it is also a great topping for steaks or pasta. No matter how you eat it, it is phenomenal. Together, these two recipes make a compelling case for abandoning dinner altogether. Put them on the table, invite some friends over, turn on the game, and call it a meal. I rest my case.
L E G A L L Y W E I R D , continued from page 18 3 4 5 6
visited Oct. 16, 2026. David L. Brown, Drumbeat for Private Equity Investment Grows Louder as PI Power Player Mulls Deal, June 19, 2026. https://www.bestlawfirms.com/articles/privateequity-law-firms-morgan-and-morgan-investment/7985. Last visited Oct. 12, 2026. https://www.linkedin.com/feed/update/urn:li:activity:7500889024673427456/ Ted Theodoropoulos blog/podcast conversation with Josh Porte and Trisha Rich Id. David Houston, Trademark fight over Atticus name tests legal ethics, venture
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funding, Daily Journal, July 30, 2026. https://www.dailyjournal.com/ articles/393353-trademark-fight-over-atticus-name-tests-legal-ethics-venturefunding. Last visited Oct. 12, 2026. Unless otherwise noted, all information regarding Atticus is from this article. https://tmsearch.uspto.gov/search/search-results/88214764. Atticus Injury Law, Atticus Wegman v. Atticus Labs, Inc., Atticus Law P.C., Samuel Byker, et al., 8:26-cv-00362-FWS-ADS (C.D. Cal., filed June 30, 2026).
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WELL READ By: Ian Hennessey
CTI Clinical Trial and Consulting Services
LOOKING BACK TO LEAD FORWARD: LESSONS FOR LAWYERS FROM HEROIC LEADERSHIP If your inbox is like mine, every day seems to bring incessant updates on the rapid changes threatening to reshape our profession. You can take your pick from generative AI, alternative legal service models, and shifting client expectations, just to name a few. The pace of change can feel relentless, and the message is often the same: adapt quickly or risk being left behind. Yet in Heroic Leadership: Best Practices from a 450-Year-Old Company That Changed the World, Chris Lowney offers a surprising perspective. Rather than looking primarily to the future for answers, he looks to the past. Lowney, a former Jesuit seminarian who later became a managing director at J.P. Morgan, examines how the Society of Jesus1 emerged during the sixteenth century amid enormous political, cultural, religious, and technological upheaval. Europe was confronting a rapidly changing world not unlike our own. The Jesuits’ success, Lowney argues, did not stem from possessing superior resources or a rigid organizational structure. Instead, it came from a distinctive approach to developing leaders. The result is a leadership book that feels remarkably relevant to lawyers navigating today’s uncertainty. At the heart of the book is a deceptively simple insight: leadership is not a position; it is a way of life. Lowney sums up the Jesuit approach: “Everyone is a leader, and everyone is leading all the time.” For lawyers, that insight is particularly powerful. We can often associate leadership simply with a title like managing partner, judge, elected official, bar leader, etc. Yet all lawyers exercise influence every day. We counsel clients through difficult decisions, mentor younger attorneys, negotiate complex disputes, volunteer in our communities, and help shape the institutions we serve. Whether we recognize it or not, we are constantly leading. To cultivate that leadership, Lowney identifies four pillars that guided the early Jesuits: self-awareness, ingenuity, heroism, and love. Each offers a useful lesson for today’s legal profession. The first pillar, self-awareness, begins with understanding who we are and what we value. Lawyers spend years mastering substantive law and technical skills, but leadership requires an equally rigorous understanding of ourselves. Effective leaders recognize both their strengths and their limitations. They understand the principles that guide their decisions and continually reflect on whether their actions align with those principles. In a profession where judgment is often our most valuable asset, self-awareness becomes a foundational leadership skill. The second pillar, ingenuity, may be the most immediately relevant to modern lawyers. The Jesuits succeeded because they learned to thrive in changing environments. Lowney describes leaders as individuals who become comfortable in a changing world, remaining anchored by core values while adapting their methods and approaches as circumstances evolve. This concept is reflected in one of the book’s most compelling images: living with “one foot raised.” This image captures a readiness to move, adapt, and respond when conditions change. For lawyers confronting the rise of AI and other disruptive technologies, the lesson is clear. We need not abandon the enduring values of our profession, but we must be willing to rethink how we practice, communicate, learn, and
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serve clients. The third pillar, heroism, is not about dramatic acts but ambitious purpose. Lowney challenges readers to think expansively about the impact they can have on the world around them. Lawyers can draw an important lesson from this idea. A rewarding legal career involves more than billable hours, successful transactions, or favorable verdicts. It includes strengthening institutions, serving communities, contributing to the rule of law, and mentoring others. Simply put, to adapt another Jesuit phrase, it means being a “person for others.” The fourth pillar, love, is perhaps its most distinctive and most challenging message. In professional settings, the word can initially seem out of place. Yet Lowney’s definition has little to do with sentimentality. Instead, he argues that effective leaders are committed to recognizing and developing the potential in others. As he explains, leaders motivated by love seek to “honor and unlock” the gifts and talents they find in themselves and those around them. Lowney frames this principle as choosing “greater love than fear.” That idea ought to resonate deeply within the legal profession. Lawyers are trained to identify risks, anticipate problems, and prepare for adverse outcomes. Those are valuable and necessary skills. But fear can also narrow vision. Fear of failure, fear of change, fear of competition, or fear of uncertainty can lead individuals and organizations to become defensive rather than innovative. By contrast, leaders operating from greater love than fear invest in people and institutions. They mentor younger attorneys rather than viewing them as rivals. They build organizations where colleagues can thrive. They counsel clients with empathy as well as expertise. They create environments characterized by trust, professionalism, and mutual respect. In short, they make those around them better. For lawyers, the insights from the Jesuits are both timeless and timely. As our profession adapts to AI and other transformative and disruptive forces, leadership will depend on more than technical skill or professional accomplishment. It will depend on our character and our values. The lawyers who most effectively guide clients, colleagues, and communities through change will be those who know themselves, remain adaptable, and confidently choose “greater love than fear.” For these reasons, I highly recommend adding Heroic Leadership to your reading list. 1
The Society of Jesus, also known as the Jesuits, is a religious order within the Catholic Church. It was founded in 1540 by St. Ignatius Loyola, a former soldier and wild child. The Jesuits are renowned for their deep intellectual tradition, global missionary work, and establishment of major educational institutions. As a young teenage Methodist boy, I was sent to one such educational institution to be (in the words of my mother) “whipped into shape” after several consecutive years of coasting in school. I am forever in debt to those at Cincinnati St. Xavier High School who changed the trajectory of my life for the better, both academically and spiritually.
DICTA
November/December 2026
OUTSIDE MY OFFICE WINDOW By: Sarah M. Booher
Tennessee Department of Human Services
BY SOME STROKE OF LUCK We were visiting the National Museum of Ireland in Dublin on the afternoon of September 11, 2001. Just ten days earlier, I had joined twenty or so other college juniors from the United States for study abroad with the School for International Training. Toward the end of our museum visit, we noticed a flurry of activity that didn’t exist when we first arrived that morning. The security guards were gathered around their cell phones and portable TVs, speaking quietly but frantically. Finally, one of them reached his arm out to us. “Tell me, are you Americans?” I don’t remember who responded affirmatively, but the look on the guard’s face was one of tremendous sadness. “I regret to tell ye this, but your Twin Towers have just been struck by an airplane. May God bless you all.” As a naive southern girl who had never stepped foot in New York City, I am here to tell you I didn’t have the slightest clue what the Twin Towers were, but I was smart enough to know it didn’t sound good. We instantly fled, a diaspora of bewilderment and terror. Colleen and I stopped at the first tavern we saw. It was a dimly lit establishment rich in cozy but substantial mahogany furniture. Funny how the mind works—that one of my clearest details from that day was how beautiful the bar was. I have no idea how long we sat there, stark still and silent, staring at RTE One’s broadcast of the unfolding events. Hours. It was well past dark when we numbly found our way back to the DART and our host families’ houses. By some stroke of luck, we were there to divide the semester between Dublin and Belfast for the Peace and Conflict Studies program, immersing ourselves in, most simply put for purposes of this article, the Troubles. It was weeks before anyone could get a telephone line back to the United States to hear our families’ voices, but we were okay. We found ourselves surrounded by communities who knew and understood terrorism, loss, and cultural conflict. Who knew what it was like to experience unfathomable tragedy and intoxicating anger, to walk among the rubble while figuring out how to rebuild individually and collectively. But at the same time, we were lucky to also have the opportunity to provide comfort, too. Eighteen Irish citizens were killed in the 9/11 attacks, and at least 1,000 others were of Irish descent—huge numbers for a country the size of South Carolina with a total population of less than 4 million. More recently, I was in the chair on August 25, 2026, when my phone lit up, a flurry of incoming text notifications. J, logical, love of my life, no warning, no punctuation: Dolly died November/December 2026
Pink Pony Club group chat: Dolly died! My niece: DOLLY PARTON DIED Standing On That Bell group chat: DOLLY Parton died Molly: Are you ok????? Mandy: Girl. Have you heard. This is not ok. While we all knew this day would come, we weren’t ready. We were shocked regardless. When people used to comment on how cute and clean my house always was, I’d immediately respond with, “You never know when Jesus or Dolly is going to knock on your door!” Without standing up to do any actual examination and accounting, I can tell you the following Dolly items are fixtures in my home: license plate, Christmas tree ornaments, tee-shirts, framed original artwork, prayer candles, mylar balloons, disposable plates, cake box mixes, dog toys, Little Golden books, coffee table books, stickers, drink coasters, photos with life-size cutouts of her from Tennessee rest areas, photos of local murals of her, and photos of her exhibits at Lipscomb, to name—well—a few. So by some stroke of luck, when the bad news had to eventually come that Dolly—my role model and Appalachian folk hero—had left this world, I was lucky enough to be sitting in a hair salon with a head full of foils, touching up my blond roots. What could be more perfect than that??? I was in, and surrounded by, a community who intimately understood the loss of this cultural icon. Who knew the wonderful gifts she had given this world and her legacy of song, love, and inclusion. As I write this column, I am halfway through The Only Plane in the Sky: An Oral History of 9/11. It is a tremendously well-organized and intentional book, but getting through it is taking some time because, even though we just passed the 25th anniversary of the attacks, I start crying again every time I pick it up. The rescue accounts are incredible. The victims’ stories are devastating. It is the breadth of the human experience, distilled in time and raw in its scale. So as I continue to process this loss but with the benefit of age and stateside perspective, and as we all continue to honor Dolly’s life, body of work, and death, and further as the Thanksgiving holiday is upon us, I cannot help but be grateful. Loss is inevitable, regardless of intent or biology. But, by any stroke of luck, we can see that we are amongst people who fundamentally know, who have already learned the lessons, and who are always ready to take up the torch of building and sustaining community, and we can continue to love.
DICTA
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