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the magazine of the Memphis Bar Association | Volume 43 • Issue 3 • 2026

CONFLICT AND CONFLICT RESOLUTION

THIS ISSUE:

The Legal Reality of Human Cloning By Jennifer A. Brobst

A Memphis Lawyer and the Law of War By Kevin Rardin

In Memoriam: Hon. Jon Phipps McCalla A Farewell from His First Senior Judicial Law Clerk By Maureen Truax Holland

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Volume 43 • Issue 3 • 2026

FEATURES 6

The Legal Reality of Human Cloning BY JENNIFER A. BROBST

AI Without the Panic: A Practical Guide for Memphis Lawyers

Assisted Reproduction in Tennessee: A Practical Guide for Practitioners - Part 3

BY TAURUS BAILEY

BY JANA DAVIS LAMANNA

A Memphis Lawyer and the Law of War BY KEVIN R. RARDIN

28 In Memoriam: Hon. Jon Phipps McCalla

A Farewell from His First Senior Judicial Law Clerk BY MAUREEN TRUAX HOLLAND

Identifying the High-Risk Domestic-Abuse Victim BY JUDGE GREG GILBERT

41 From Crisis to Compromise: Practical Mediation Techniques

for High-Conflict Divorces and Family Law Matters BY SUSAN HINSLEY

47 Abrial’s Law, The Keeping Children Safe from Family Violence Act

Child Safety in Tennessee Custody Litigation BY TAYLOR R. OYAAS AND ABIGAIL D. HALL

Beyond Electronic Shackles: Advocating for Restorative Justice - Part 2 BY WILLIAM DEANDRE FAYNE

COLUMNS 5 President's Column

BY MARLINEE IVERSON

15 Wellness Corner: Closing Arguments in Favor of Fabric BY BARBARA L. DEANS

32 CLC Corner: When a Divorce Is Simple but the Process Isn’t BY CRISTINA ARCE DE BAGAGLIO

45 WTLS Corner: Pro Bono Service: A Key Pillar of Legal Work BY AUSTYN VIOLA

Shelby County Criminal Court Report

Bar Scene

People in the News

2026 MBA Officers

MEMPHIS LAWYER the magazine of the Memphis Bar Association

Memphis Bar Association Publications Committee Audrey Calkins, Chair Terre Fratesi, Vice Chair Nicole M. Grida Maureen Holland Earl W. Houston, II Brittany Neal Anna Vescovo

The Memphis Lawyer is a quarterly publication of the Memphis Bar Association, Inc. with a circulation of 2,000. If you are interested in submitting an article for publication or advertising in an upcoming issue, contact info@memphisbar.org. The MBA reserves the right to reject any advertisement or article submitted for publication.

Lauran Stimac Past President Evans Petree

AWA Representative Faith Watson

Margaret Roney Abigail Sala Amber Shaw Megan Smith Marguerite Stringer Van Turner Emmett Whitwell Kristina Woo

Donald Babineaux Taylor Bachelor Hallie Flanagan Malcolm Futhey, III William Gibbons, Jr. Jack Heflin L. Jehl Geoffrey Lewis Joseph McKinney Charles Mitchell Jerrick Murrell Danielle Rassoul

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Section Representatives Anne Davis Toni Parker Ruchee Patel

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PRESIDENT'S COLUMN BY MARLINEE IVERSON, MBA 2026 PRESIDENT

AI and the Practice of Law: Friend, Foe, or Very Confident Intern?

'll admit it. The first time I used an AI tool to help me think through a legal issue, I felt a little like I was cheating on a law school exam. Surely this wasn't allowed. Surely someone was going to tap me on the shoulder and ask me to put the book away. Of course, no one did. And the more I explored, the more I realized that AI isn't the shortcut I feared. It's a tool, like Westlaw, like a good legal pad, like the associate who Shepardizes everything before you walk into court. The question isn't whether AI belongs in legal practice. It's already there. The question is whether we're going to be intentional about how we use it. As Chief Counsel for Shelby County Government and your MBA President, I think about this from a few different angles. On the government side, real considerations around public records, procurement, and data security make any new technology a careful conversation. On the bar association side, I think about what our members—solo practitioners, partners at large firms, public defenders, transactional attorneys, and everyone in between—actually need to know to practice competently and confidently in this moment. So here's my non-alarmist, non-hype breakdown: The benefits are real. AI can draft, summarize, research, and organize at a speed no human can match. It can help a solo practitioner look like a firm of ten when he or she is a firm of one. It can free up a large firm attorney to focus on judgment and strategy rather than first drafts. For client communication, contract review, and legal research, the efficiency gains are genuinely significant. The risks are also real. AI hallucinates. It makes things up—including case citations—with the same confident tone it uses when it's completely correct. It doesn't know your client. It doesn't know your judge. It doesn't know the local customs that never made it into any written rule. And perhaps most importantly, AI cannot walk into a room. It cannot read the energy of a negotiation, comfort

a grieving client, or build the kind of trust that comes from a handshake and a conversation. The irreplaceable core of this profession has always been human, and that hasn't changed. AI is not a substitute for the professional judgment that our bar license represents. Attorneys who have submitted AI-generated briefs without reviewing them have faced sanctions. That's a non-hypothetical, real risk. The ethical obligations haven't changed, but they apply in new ways. Competence under the Rules of Professional Conduct means staying current with technology. Confidentiality means being thoughtful about what client information you feed into any AI system. Supervision means you are still responsible for everything that goes out under your name. My honest take is that AI is not coming for your job. But a lawyer who knows how to use AI well may have an edge over one who doesn't—and that's a conversation worth having now rather than later. 

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The Legal Reality of Human Cloning BY JENNIFER A. BROBST

he Alabama legislature is considering a bill that would ban human reproductive cloning, the creation of chimeras (human-animal species), and the genetic modification of human skin cells into viable gametes (sperm and oocyte cells).1 Cloning bans are emerging worldwide as well, including a full prohibition by the European Union in 20122 and bans in at least 30 other nations.3 It is good that state legislators in the United States are taking notice, for if we practice avoidance on this particular issue, we may be in for a surprise globally.4 Of course, sometimes it is not clear where innovation will lead and poor preemptive regulation can be worse for the public welfare than no regulation at all. The enterprise of human cloning is no exception. Human reproductive cloning is difficult but scientifically possible, which makes sense, given this century’s developments in pet and livestock cloning— now a quite lucrative industry.5 Some innovators are even creating hybrid animals with modern and extinct Ice Age genomes, such as the “dire wolf ” seen in its full glory as a massive white wolf in Game of Thrones.6 Of course, we have long known that many modern humans already have their fair genetic share of related hominid species, such as ancient Neanderthal or Denisovan DNA,7 which makes sense with thousands of years of coexistence. But “natural” development and evolution is quite a different beast—and far less alarming—than direct human manipulation of the genome of existing species. Human reproductive cloning is basically wholebody cloning, unlike stem cell or therapeutic cloning, which replicates part of a person, such as heart or skin cells. Legally, we have come around to permitting therapeutic human cloning in many states, for it saves lives and performs medical miracles.8 However, we have stopped short of expressly authorizing the cloning of a whole person, let alone encouraging industry to do so. Cloning is nothing like creating the bio-robotic replicants of Blade Runner, or even the Mickey 17 biological printing of humans.9 Human reproductive cloning would involve asexual reproduction, exogenously creating a zygote with 6

transplantation and development in a human womb.10 The individual would grow up to be their own person, with their own experiences and personalities, tragedies and loves.

AVOIDING REGULATION Despite past political efforts, there has never been an international ban on human reproductive cloning. Instead, the United Nations Educational, Scientific and Cultural Organization (UNESCO) issued a nonbinding international declaration in 1997 that human reproductive cloning was “contrary to human dignity.”11 In the United States, there is also no federal ban against human reproductive cloning, although the FDA effectively forestalls the research by failing to give research approval.12 As usual, state law is where the action is in the experimental soup that is our federal system. This legal structure makes us more innovative than many nations, in my view, for we do not require a unified approach until federal preemption swoops in. When the federal government waits, often to the frustration of many, the states tinker with ways of regulating or not regulating cutting-edge or bleeding-edge science and technology.13 To date, no state legislature openly encourages or sanctions human reproductive cloning in the United States, but a few states since the 1990s have statutorily banned the practice,14 most often in the form of criminal

sanctions.15 But most states have left it alone, watching and waiting to see what everyone else is doing. In a nation of innovation and invention, there is a long history of past practices that indicate the public might come around to seeing the benefits of what previously seemed strange or even wrong. In vitro fertilization (IVF), for example, was banned until it wasn’t, a shift which occurred when IVF research on non-human animals managed to produce fewer deformities and miscarriages.16 Animal cloning currently presents the same problem of failed pregnancies,17 but with time the FDA may find that less risk warrants approval of human cloning research.18

REASONS FOR REGULATING State regulation of human reproductive cloning does not follow partisan lines or even geographic sentiments. While Tennessee is in the watch-and-wait phase, our neighbor to the west, Arkansas, has enacted some of the strictest legislation opposing the development of human reproductive cloning.19 California, however, anticipated the commercial value of human cloning, banning, in 1997, the sale of “an ovum, zygote, embryo, or fetus for the purpose of cloning a human being.”20 However, regulation does not necessarily mean strict regulation, especially if the human reproductive cloning industry takes off, which it most likely would. In the United States, the market for reproductive body parts and products is thriving, with the lawful sale of cord blood, gametes (sperm and eggs), breast milk, placentas, and more.21 Commodification of the human body and the right to contract influence state cloning legislation in the United States, which has focused on the rights and risks related to the cloned human for the most part. By contrast, the United Nations issued a Declaration on Human Cloning in 2005, focusing on the “serious medical, physical, psychological and social dangers” with regard to the exploitation of women as gestational surrogates.22 Some scholars argue that public protection receives less attention when assisted reproductive technologies are newly authorized, where the U.S. government opts for a market-driven approach, allowing tort litigation to improve safety after the fact rather than strict FDA pre-approval.23 If I had to bet today on how human cloning regulation

will play out in the United States, I would predict that our existing laws and values will help prevent the oppressive practices of cloning for organ transplant (savior siblings) or human trafficking. However, our government will do little to prevent the disparate impact of expensive new innovations available only to the wealthy who can afford them.24 We should also be concerned about whether the United States is willing to protect the more vulnerable, such as women surrogates, who enable the technology and its research to proceed. We know that medical tourism in the assisted reproductive realm is not a pretty sight. For example, the Indian parliament banned commercial gestational surrogacy in 2021 after impoverished women were willing to be subjected to repeated pregnancy and miscarriage in contracts with foreign buyers—simply to survive.25 I hope that policymakers take the view that the public welfare impact of human reproductive cloning bears distinct risks for differing sectors of society.

A FINAL THOUGHT ON THE UNKNOWN Lawyers know well that policy making engages a degree of fortune telling, as unforeseen factors will arise. Science and technology may also develop without a clear vision for their use, but some matters easily raise a red flag. It is not surprising that the preamble to the Tennessee education bill, which addressed differences of opinion in scientific matters, expressly included human cloning as a subject of controversy.26 More latent are the risks of genetic modification of the unborn—arguably a greater dystopian concern than human cloning, redefining normalcy, disability, and what it is to be human should our genetic code be made to diverge significantly.27 Finally, some policy matters are made more complex by their confluence with other developments, creating unintended effects. Recall that numerous states postDobbs28 have reinforced state constitutional rights to an individual’s reproductive freedom.29 Others, in turn, have championed a right to life from fertilization in the creation of a zygote.30 Arguably, both would protect the right to human reproductive cloning as a means of creating life. Suffice it to say that lawyers in biotech and medical malpractice alike will be busy in the century to come, along with a fair share of civil rights watchdogs.  7

Jennifer A. Brobst is an Associate Professor at the Cecil C. Humphreys School of Law at the University of Memphis. Her upcoming book Humans in Exile: Law, Social Theory, and the Impact of Science and Technology (Cambridge U. Press 2026) is now available for pre-order from the publisher and on Amazon and other international sites.

early state bans on human reproductive cloning in Arkansas, Iowa, Michigan, North Dakota, and South Dakota). 15

For a recent overview, see Brobst, supra note 5.

See Gregory E. Pence, Classic Cases in Medical Ethics: Accounts of Cases That Have Shaped Medical Ethics, with Philosophical, Legal, and Historical Backgrounds 183 (4th ed. 2004) (discussing the risk to human women as surrogates in IVF procedures, including hyperstimulation syndrome caused by the drugs used and the stress on a woman’s body and health from multiple births).

17 1

H.B. 380, 2025 Gen. Assemb., Reg. Sess. (Ala. 2025) (the bill remains active but has not passed).

See Charter of the Fundamental Rights of the European Union, tit. I, art. 3, sec. 2(d), C 326/396 (Oct. 26, 2012).

See UNESCO, Human Cloning: Ethical Issues 12 (2005).

For an excellent short read on the way law and science track each other over time, see Robin Feldman, The Role of Science in Law 197 (2009) (concluding that “science itself lacks the capacity to answer the questions that law must address”).

See Jennifer A. Brobst, Human Reproductive Cloning and the Rights of Women as Gestational Surrogates, 15(1) J. Race, Gender, and Ethnicity ___ (forthcoming 2026); Bianca Bosker, The Clones Are Here: Faster Horses, Superior Cattle, Immortal Pets—the Big Business of Animal Cloning, The Atlantic 38, 39 (July 2025).

See Katie Hunt, Scientists Say They Have Resurrected the Dire Wolf, CNN Science (Apr. 8, 2025), https://www.cnn. com/2025/04/07/science/dire-wolf-de-extinction-cloningcolossal.

This includes myself, with close to 4% Neanderthal DNA according to 23andMe, much to my delight as a former archeology major.

See, e.g., 23 R.I. Gen. Laws Ann. § 23-16.4-1 (West 2026) (affirmatively promoting therapeutic cloning as having “tremendous benefit to patients, and society as a whole”).

The 2022 science fiction book Mickey7 by Edward Ashton was made into a major U.S. film in 2023 under the title Mickey 17.

See, e.g., Cal. Health & Safety Code § 125292.10(m) (West 2026) (defining human reproductive cloning as “the practice of creating or attempting to create a human being by transferring the nucleus from a human cell into an egg cell from which the nucleus has been removed for the purpose of implanting the resulting product in a uterus to initiate a pregnancy”).

Universal Declaration on the Human Genome and Human Rights, art. 11, UNESCO (Nov. 11, 1997) (endorsed by the United Nations in G.A. Res. 53/152 (1998)).

See Stuart L. Nightingale, Letter About Human Cloning, F.D.A. (Oct. 26, 1998); see also David E. Newton, Cloning: A Reference Handbook (2015).

See, e.g., Jennifer A. Brobst, Enhanced Civil Rights in Home Rule Jurisdictions: Newly Emerging UAS/Drone Use Ordinances, 122 W. Va. L. Rev. 741 (2020). See Kerry Macintosh, Illegal Beings 85-87 (2005) (identifying

See Ian Wilmut & Roger Highfield, After Dolly: The Uses and Misuses of Human Cloning 226 (2006) (reporting that

there were 276 failed attempts to clone a sheep before Dolly was created). 18

See U.S. F.D.A., Animal Cloning: A Risk Assessment 329 (2008) (reporting that food derived from cloned livestock or their progeny pose no health risk to humans and do not require warning labels).

See Ark. Code Ann. § 20-16-1002 (West 2026) (criminalizing the performing, attempting, or participating in human cloning, as well as the shipping or transfer of cloned material).

Cal. Health & Safety Code § 24185 (West 2026).

See Kara W. Swanson, Banking on the Body: The Market in Blood, Milk, and Sperm in Modern America 246-47 (2014) (discussing the medical profession’s interest in “therapeutic merchandise”); Kiimberly Mutcherson, The ‘Gift of Life’: Regulating the Sale of Gametes in the United States, in Regulating the body: Autonomy, Control, and the Broken Promise of Equality in American Law 21, 26 (Austin Sarat & Susanna Lee (eds.) 2025) (noting that gamete donor regulation requires screening to avoid sexually transmitted infection but permits the sale for profit).

United Nations Declaration on Human Cloning, A/C.6/59/L.27/Add.1 (Feb. 16, 2005).

See Myrisha S. Lewis, Regulating Conception: Science, Politics, and Reproductive Genetic Innovation 148 (2026).

In 2024, pharmaceutical companies reportedly set the price estimate for gene editing and CRISPR cell therapy at $2.2 million per patient in the U.S. market. See John Rueda, Iñigo de Miguel Beriain, and Lluis Montoliu, Affordable Pricing of CRISPR Treatments is a Pressing Ethical Imperative, 7 The CRISPR J. 220, 221 (2024).

See The Surrogacy (Regulation) Act of 2021 (India) (restricting surrogacy to solely “altruistic” arrangements); see also UN Hum. Rts. Comm’r, Committee on Rights of Child Examines Reports of India Under the Convention and Protocols on Children in Armed Conflict, Sale of Children (June 3, 2014), https://www. ohchr.org/en/press-releases/2014/06/committee-rights-childexamines-reports-india-under-convention-and-protocols.

See Tenn. Code Ann. § 49-6-1030 (West 2026) (also listing, in the historical and statutory notes, that the preamble identified “biological evolution, the chemical origins of life, [and] global warming” to be matters of “disputation”).

See, e.g., Larry G. Locke, The Promise of CRISPR for Human Germline Editing and the Perils of “Playing God,” 3 The CRISPR

J. 27 (2020) (discussing the permanent heritable risks of gene splicing aimed to treat disease and medical conditions with precision); Pramod K. Nayar, Posthumanism 96 (2014) (noting the ongoing research in animal-human “chimeras” since the 1960s, such as the transplant of animal organs into humans to address the human organ shortage). 28

See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (upholding the Mississippi Gestational Age Act curtailing the right to abortion of a fetus before the age of viability, thus abrogating Roe v. Wade).

For example, in 2024, the State of Maryland amended its constitution to add an expansive fundamental right to reproductive freedom. Md. Const. art. 48.

See Tenn. Code Ann. § 39-15-214(a)(5)-(6) (West 2026) (“At conception, a new and genetically distinct human being is formed” with a need for protection of the “fundamental and absolute right of unborn human beings to life, liberty, and all rights protected by the Fourteenth and Ninth amendments to the United States Constitution”).

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AI Without the Panic:

A Practical Guide for Memphis Lawyers BY TAURUS BAILEY – BAILEY & BAILEY, PLLC

very few years, lawyers are told that some new technology is going to change everything. The fax machine was going to create confidentiality problems. Email was going to be dangerous, and so was online banking. Online research was going to make lawyers lazy. Cloud storage was going to be the end of privileged files . . . and so on. Then each of those tools became ordinary. Artificial intelligence is the new frontier. It’s different in scale, but not in the basic lesson: lawyers do not need to panic, and lawyers do not need to be reckless. We need to learn the tool, understand the risks, use good judgment, and stay responsible for our own work. That last point matters. Every lawyer has heard the horror story by now: someone used AI, filed a brief, and the cases were fake. That story is real enough to be taken seriously. In March 2026, the Sixth Circuit addressed false and hallucinated citations in Whiting v. City of Athens, clarifying that even a single fake case can be sanctionable and that lawyers must personally read and verify the legal authorities they include in their filings. 170 F.4th 455, 458 & n.1, 461-62 & n.2 (6th Cir. 2026). Other AI-sanctions cases closer to home include Johnson v. Dunn, 792 F. Supp. 3d 1241 (N.D. Ala. 2025), and Withers v. City of Aberdeen, No. 24-218, 2026 WL 1653484 (N.D. Miss. June 8, 2026). Johnson publicly reprimanded three attorneys for making false statements to the court, disqualified them from further participation in the case, and referred the matter to applicable state bar licensing authorities for disciplinary proceedings. Johnson, 792 F. Supp. 3d at 1246. Withers revoked attorneys’ pro hac vice admission, barred them from appearing in the Northern District of Mississippi for two years, and ordered them to pay a fine. 2026 WL 1653484, at *11. The Withers court also disqualified both parties’ local counsel from participating in the case, required them to pay a fine as well, canceled an upcoming trial, and gave the parties 60 days to obtain new counsel. Id. Judges are taking AI’s fake cases seriously; so should you. But these cautionary tales should not excuse standing still while other industries (medical, finance, etc.) move forward without us. The day of blindly trusting AI-generated 10

citations should be over, but the day of refusing to learn AI because someone else used it badly should be over as well. The better way to think about AI is simple: it is not the lawyer. It is not the judge. It is not the client. It is a tool. Used poorly, it can embarrass you. Used carefully, it can sharpen your work, save time, reduce cost, manage stress, and help you serve clients better.

AI IS ALREADY IN THE LEGAL OFFICE

AI is no longer just a Silicon Valley topic. It is already inside legal research platforms, document-review tools, drafting programs, Microsoft products, and the everyday programs lawyers use. Legal-specific platforms such as Lexis+ AI with Protégé now combine legal research, Practical Guidance, Shepard’s citation validation, and AI-powered drafting, summarizing, and analysis tools. Thomson Reuters’ CoCounsel Legal is built for research, drafting, document analysis, and use across Westlaw, Practical Law, Microsoft 365, and documentmanagement systems. General AI tools such as ChatGPT and Claude can also summarize, draft, organize, and analyze documents, but they must be used with greater care because they are not, by themselves, a substitute for a legal database or a lawyer’s independent judgment . . . but you already knew that. This matters for everyone from the lawyer in a national-level firm to the solo practitioner handling car wrecks, criminal defense, business disputes, and employment matters. Large firms may use AI to manage thousands of documents in a complex transaction. The solo lawyer may use it to organize medical records, draft an initial deposition outline, or improve a demand letter. The underlying principle is the same: AI gives leverage to the lawyer who knows what to ask and how to check the answer.

THE BEST USE OF AI IN BRIEF WRITING

AI can write a rough draft of a legal brief. So can an inexperienced associate. The question is whether the argument is accurate, persuasive, properly supported, and strategically sound, not whether words can be placed on a page. For most lawyers, the safer and more valuable use of AI is not “write my brief.” It is “help me improve this brief.” AI can be excellent as a second set of eyes, especially with a pro-level subscription. It can help proofread, simplify, tighten headings, identify gaps in logic, reorganize a statement of facts, test whether each argument follows from the record, and suggest where the tone is too aggressive, too passive, or too wordy. It can also help check citations and pin cites—but never as the final authority. Lexis+ AI is one of my favorites, and I will always research and read the cases it cites. But I do not shy away from asking the tool to identify every legal proposition in the brief, match it to a citation, and flag any citation that appears not to support the sentence. It will also do a side-by-side argument comparison against opposing counsel’s brief, or simply one of my earlier drafts pointing out the strengths and weaknesses. But when the brief is done, you have to check the answer yourself in Lexis, Westlaw, Bloomberg, Fastcase, or the controlling source. Legal-specific tools with citation validation are improving quickly, but verification remains the lawyer’s job. LexisNexis, for example, describes Lexis+ AI as using Shepards and linked legal sources to reduce citation problems, but that does not eliminate the lawyer’s duty to verify. And those assurances do not mean that the AI’s results are actually accurate.

PROMPTS

Your output depends on your input. “Write me a motion for summary judgment” likely will not yield good results. Instead, a more practical prompt with better results might look like this: Plug in the relevant documents. Tell the tool, “Act as a Tennessee litigator reviewing a draft motion for summary judgment. Our client is the defendant in a Shelby County premises-liability case. Use only the facts and cases I provide below. Do not invent cases. Identify: (1) unsupported factual assertions, (2) legal propositions needing citations, (3) weak or unclear argument headings, (4) likely responses from the plaintiff, and (5) ways to 1

make the argument more concise and persuasive. Ask clarifying questions before assuming missing facts.” You can see the differences in these prompts. The first prompt invites trouble—and because it is a lazy prompt, that means that laziness invites trouble. In contrast, the second prompt gives the AI a role, jurisdiction, task, limits, source restrictions, and output structure. Your prompt will be most thorough and most effective when you are most prepared with your case. Prompting is not magic. Specificity matters. Good prompts include the jurisdiction, the procedural posture, the client’s position, the facts, the standard of review, the source materials, the limits on what the AI may use, and the format you want back. Good prompts also tell the AI what not to do: do not invent facts, do not invent cases, do not assume missing evidence, and do not give a final answer without identifying uncertainty. Even Anthropic’s own legal-summarization guidance emphasizes building strong prompts, deciding what details to extract, setting success criteria, and evaluating the output. See https:// platform.claude.com/docs/en/about-claude/use-caseguides/legal-summarization.

CONFIDENTIALITY COMES FIRST

This rule is not glamorous: do not paste confidential client information into a public AI tool without understanding where that information goes, how it is stored, whether it is used for training, and whether your client or firm has approved that use. The ABA’s Formal Opinion 512 reminds lawyers using generative AI to consider duties of competence, confidentiality, communication, supervision, candor, and reasonable fees. Every firm, even a two-lawyer office, should have a basic AI policy. It does not need to be complicated. It should answer five questions: 1. What tools are approved? 2. What information may be entered? 3. Who reviews AI output? 4. How are citations verified? 5. When must AI use be disclosed to the client or court? That policy is everyday sanity, not just ethics committees. A lawyer should not discover after the fact that an associate, paralegal, investigator, or staff member uploaded privileged materials into an unapproved public tool. Outside the legal profession, one recent survey1 reported that employees fearful of AI admitted

You can download a free copy of the survey here. https://go.writer.com/ai-adoption-enterprise-2026

to sabotaging AI rollouts, including by entering proprietary information into public AI tools or using unapproved tools. Lawyers should learn from that. Fear + no policy = risk.

AI IN TRIAL PREPARATION—AND EVEN DURING TRIAL

Trial lawyers should pay close attention to AI. AI can be useful before trial, during trial, and after each witness leaves the stand. Before trial, AI can help build cross-examination outlines, organize deposition admissions, identify inconsistent statements, create witness-by-witness issue charts, and compare testimony against pleadings, discovery responses, medical records, expert reports, and exhibits. It can generate a clean chart showing the elements of each claim, the proof supporting each element, the proof undermining each element, and the witness or exhibit tied to each point. During trial, AI may become a powerful real-time assistant, particularly when a lawyer has access to live transcription or careful notes. Imagine feeding the direct examination into an approved, secure AI tool and asking: “Create a real-time cross-examination grid. For each key answer, identify the issue, potential impeachment, prior deposition page or exhibit reference if provided, a short follow-up question, and any rebuttal theme for closing.” This output supports the trial lawyer’s instincts instead of replacing them. The lawyer still has to read the witness, sense the jury, protect the record, obey the court’s orders, and decide whether a question is worth asking. But AI can help catch details in real time, especially in document-heavy cases. You should implement obvious guardrails. Do not record, transmit, or upload testimony in violation of a court order, protective order, local rule, sequestration order, or confidentiality obligation. Do not use technology in a way that distracts the jury or irritates the judge. And do not let AI make tactical decisions for you. At trial, judgment still belongs to the lawyer standing at counsel table.

MEDICAL RECORDS, TIMELINES, CHARTS, AND DEMONSTRATIVES

One of the most practical uses of AI is not glamorous at all: organization. Medical records are a perfect example. Personal-injury lawyers, insurance-defense lawyers, medical-malpractice lawyers, workers’ compensation lawyers, and criminal lawyers 12

dealing with injuries all know the problem. Hundreds or thousands of pages of records. Dates are scattered. Providers repeat old histories. Medication lists change. Prior injuries appear in one note and disappear in another. Billing records do not always match treatment notes. AI can help turn that pile into a usable grid. It can create a chronology of treatment, list providers, identify diagnoses, summarize imaging, compare subjective complaints over time, flag gaps in treatment, and build spreadsheets for medical specials. Claude’s PDF tools, for example, analyze text, charts, tables, and visual material in PDFs, which is exactly the kind of organizational work lawyers often need from large record sets. The same is true for demonstratives. AI can help design timelines, exhibit charts, damage summaries, call logs, contract-comparison tables, deposition clip outlines, and even demonstrative video concepts. The lawyer must still make sure the demonstrative is accurate, fair, admissible where necessary, and not misleading. AI should never be used to create fake evidence or blur the line between a demonstrative aid and evidentiary proof. But as a design and organization tool, it can help a lawyer explain complicated facts more clearly.

WHAT THIS MEANS FOR FEES AND COMPETITION AI is also going to change the business of law. That does not mean the billable hour disappears tomorrow. It does mean clients will increasingly question why they should pay premium hourly rates for tasks that technology can now complete faster. In a recent interview, Harvey CEO Winston Weinberg argued that AI will push law firms toward more fixed fees for certain tasks, especially routine or processheavy work such as diligence, while the true value of law firms remains advice and judgment. That sounds right. Clients do not really pay us because we can turn pages. They pay us because we know what matters, what does not, what to do next, what risk is worth taking, and how to persuade another human being. For big firms, AI may help preserve institutional knowledge and improve efficiency across teams. For solos and small firms, it may narrow the resource gap. A solo lawyer with good AI habits can produce better first drafts, better-organized records, cleaner client updates, stronger deposition outlines, and more polished exhibits than ever before. That does not make the solo lawyer a big firm. But it does give the solo lawyer more leverage.

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The key is not to bill clients for inefficiency after technology removes it. Ethical questions around fees will become more important. Put simply, if AI saves ten hours, lawyers should think carefully about what they charge and why. The value may be in the result, the strategy, the experience, and judgment—not merely the minutes spent typing. Attorneys will face the challenge of billing for those things and persuading clients that they should pay for those things.

THE COURTS ARE LEARNING TOO

Judges are not ignoring AI; they are forming new judicial AI consortiums to help the judiciary address AI with practical guidance, collaboration, and awareness. The discussion is not limited to fake citations. Judges are thinking about AI in chambers, AI in the courtroom, deepfakes, expert testimony, AI-generated visuals, security, transparency, and access to justice. That should tell lawyers something. The bench is preparing. Lawyers should prepare as well. One judge in the consortium discussion put the point in practical terms: a judge’s job is not to be first; it is to get it right. That is a good standard for lawyers too. While we do not need to chase every shiny new penny, we do need to understand enough to use helpful tools responsibly and to challenge improper uses by the other side.

A SENSIBLE STARTING POINT

For lawyers who are new to AI, create a master prompt that tells your AI tool to become the right actor to view all future requests through the right perspective. Consider something like, “I am a lawyer with 15 years of experience in medical malpractice. Going forward, act as a senior medical malpractice trial attorney with 30+ years of experience representing plaintiffs and defendants in complex healthcare litigation. Analyze every issue as if the case is headed to trial before a sophisticated judge and jury. Focus on standards of care, causation, damages, medical records, expert testimony, evidentiary issues, and procedural strategy. Identify strengths, weaknesses, missing facts, discovery needs, impeachment opportunities, Daubert/ Frye challenges, summary judgment arguments, and trial themes. Never assume facts not in evidence. Distinguish between speculation and proof. When discussing medical issues, explain how a qualified expert would likely evaluate the facts and identify what additional records, testimony, literature, or testing would be necessary to support or undermine a claim. Draft pleadings, motions, 14

deposition outlines, cross examinations, mediation statements, jury instructions, and trial presentations at the level expected from a nationally recognized medical malpractice litigator. Cite controlling authority whenever possible, identify contrary authority, and provide strategic recommendations that maximize litigation advantage while remaining ethically and legally sound. Be direct, practical, and candid. Do not simply describe the law— apply it to the facts and explain how an experienced trial lawyer would use the law to win the case.” It will learn your needs over time. Do not begin by asking AI to write a dispositive motion from scratch. Start with safer, contained tasks: ask it to proofread a letter for tone and clarity. Ask it to summarize a deposition transcript. Ask it to turn medical records into a chronology. Ask it to create a table of issues for a mediation statement. Ask it to critique your argument headings. Ask it to identify questions a judge might ask at oral argument. Then check the work. If it suggests a better case, review the case as you would if suggested from an associate. Build a sequence of habits you repeat every time: prompt, review, verify, revise, and apply judgment. AI will not make good lawyers obsolete. It will make careless work easier to expose. It will reward lawyers who are precise, curious, ethical, and disciplined. It will punish lawyers who look for shortcuts without safeguards. Memphis lawyers are practical people. We do not need to worship AI, and we do not need to fear it. We need to learn it, test it, supervise it, and use it where it helps our clients. The future of law will still belong to lawyers who can think, counsel, negotiate, cross-examine, write, and persuade. AI simply gives those lawyers a new set of tools—and a new responsibility to use them wisely.  Taurus Bailey has been a partner at Bailey & Bailey Law Firm, PLLC since 2016, where he practices criminal defense (primarily in federal court as a member of the Criminal Justice Act Panel) and personal injury civil litigation. He has also served as a part-time staff attorney for the City of Memphis Division of Legal Affairs practicing municipal tort defense and litigation. He was a Shelby County Public Defender from 2005-2016. He received his B.A. from the University of Tennessee and his J.D. from Nashville School of Law.

Wellness Corner

Closing Arguments in Favor of Fabric BY BARBARA L. DEANS

I grew up in a family where we didn’t have a lot—but here’s the thing: I didn’t know that. My childhood did not feel deprived. It felt orderly. Clothes had rules, categories, and a strictly enforced hierarchy. There were school clothes and church clothes, and under no circumstances could I confuse the two. When I outgrew my school clothes, they were not discarded or replaced—they were demoted to play clothes. Play clothes existed solely so I didn’t ruin the other clothes while climbing trees or doing chores. This system was efficient, practical, and—according to my parents— entirely sufficient. I disagreed. For reasons I still can’t fully explain, I loved clothes. I didn’t just want outfits; I wanted options. I never wanted to wear the same thing twice. I wanted to be stylish, current, and—most importantly—in control of my wardrobe destiny. Unfortunately, my parents did not share my passion. To them, clothing was a necessity, not a recreational activity or creative outlet. Shopping sprees were firmly outside the family budget and even further outside their philosophy. Resigned to these constraints, I turned to the next best thing: dolls. Like many young girls, I loved playing dressup, but I took it several steps further. I scavenged fabric scraps from anywhere I could find them and made outfits for my dolls. As an only child, this was pure indulgence. I could sit for hours designing, sewing, changing costumes, and staging the next imaginary “event.” My mother didn’t sew at all, which makes it even more mysterious that it gripped me so deeply—but it did. And then I had an epiphany. If I couldn’t convince my mother to buy me new clothes, perhaps I could simply make them myself. It was a brilliant plan, except for one small, fatal flaw: I did not have fabric. Or a sewing machine. Or funding of any kind. Enter my quilting aunt. When she learned of my interest, she began boxing up

her leftover scraps and giving them to me. Most of them weren’t usable for clothing, but my dolls were suddenly runway-ready. If there had been a Paris Fashion Week for dolls, we would have dominated. Still, my desire to sew for myself intensified, and my brain went into overdrive trying to solve the fabric problem. Then came the lime green pantsuit. One year, my mother gave me what I can only describe as the most hideous lime green pantsuit known to humankind. I was horrified. But I was not a child who criticized gifts, so I smiled politely and quietly banished it to the back of my closet. Until one day, inspiration (or insanity) struck. There it was, hanging in the shadows like an unsuspecting witness. I knew my idea was dangerous. If my mother discovered I had repurposed that pantsuit, there would be consequences—significant ones. Still, I proceeded. I cut into that fabric with reckless abandon, assuring myself that if questioned, I would attribute everything to my aunt’s scrap stash. Surely my mother would never notice. I was wrong. Her discovery was swift and devastating and felt terminal. I genuinely believed my life might be over. But just as the judge, jury, and executioner (also known as my mother) prepared to deliver my sentence, my father intervened—an extraordinary event in itself. He argued that I had demonstrated determination and creativity, and perhaps they should encourage, rather than punish, those traits. I made my closing argument, passionately explaining that sewing was vital to my soul, that I needed fabric, that I desperately needed a sewing machine, and that I would never again take such drastic measures if they gave me proper resources. Miraculously, I was acquitted. The following weekend, my parents took me to Hancock Fabrics. To say it felt like Disneyland would be an understatement. I wandered the aisles, touching bolts of fabric, imagining what each could become. 15

That moment sealed it. I started sewing around age eleven and never truly stopped. Law school, of course, interrupted things. Who has time to sew when you’re surviving on caffeine and casebooks? But during my third year, I needed a dress for a formal event and couldn’t find anything remotely affordable—or suitable. So I returned to what I knew. I made a gown. It was a hit. And just like that, sewing returned to my life as more than a childhood pastime. For the past twenty years, creating has been my refuge. Sewing is where I process legal arguments, untangle complex issues, and sometimes think about absolutely nothing at all. The rhythm of the machine is calming. The process is grounding. Finishing a project brings a

sense of accomplishment that practicing law—despite its many rewards—does not always provide. In many ways, sewing is my mood stabilizer. Over the years, I’ve created prom dresses for my daughters, wedding gowns, coats, party dresses, and everything in between. I even designed an entire collection of coats and had the joy of presenting them in a fashion show a few years ago (see @BlynnDesigns on Instagram). I always wanted to be a lawyer. Fashion design was never my professional path—but I knew I wanted both in my life. Practicing law can be stressful, emotionally draining, and deeply rewarding, often all at once. Balance isn’t optional in this profession; it’s essential. For some people, the outlet is running, gardening, or extreme sports. For me, it’s fabric, thread, and the occasional allnighter fueled by my own self-imposed deadlines. Practicing law demands your intellect, your empathy, and often your nervous system. Without an outlet— something that exists wholly apart from legal outcomes and demanding clients—it is easy to let the work consume all of you. Wellness in this profession is a form of professional responsibility rather than a luxury. Caring for both mental and physical health creates stamina, clarity, and perspective. You need to serve clients well and still recognize yourself at the end of the day. For me, sewing keeps me grounded, reminds me I am more than my role, and restores the balance that makes longevity in the law possible. This dress—pictured here—is a recent project. The process always begins with deciding what I want to create. Sometimes I’m even motivated by a great pair of shoes. The creative energy I expend in creating clothes energizes me to find solutions to my client’s problems. Tapping into things that bring you joy or invigorate you isn’t about escaping the practice of law; it’s about building a life sturdy enough to hold it.  Barbara Deans has worked at the University of Memphis as an Associate Counsel since 2023. Before that, she worked as an Assistant Public Defender in the Juvenile Defender Unit for the Shelby County Public Defender Office for ten years and as General Counsel for the Memphis Housing Authority for six years. She received her J.D. from Thurgood Marshall School of Law.

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Part I of this series examined whether Tennessee law permits gestational surrogacy, while Part II addressed the negotiation and drafting of the gestational carrier agreement. This section focuses on establishing the intended parents’ legal relationship to the child. Click here for the first part. Click here for the second part.

Assisted Reproduction in Tennessee: A Practical Guide for Practitioners BY JANA DAVIS LAMANNA

Part Three: Making it Official–From the Courts to Vital Records in Tennessee Surrogacy INTRODUCTION

A carefully drafted agreement represents only one part of the process. Counsel must ultimately establish the intended parents’ legal relationship to the child. This article examines how Tennessee practitioners accomplish that objective without a comprehensive surrogacy statute. Practitioners rely on the Tennessee Declaratory Judgment Act, Tenn. Code Ann. § 29-14-101 et seq.; existing parentage, guardianship, adoption, and vital-records statutes; and the limited guidance Tennessee appellate courts have provided. Counsel should address legal parentage well before delivery. When the parties expect the gestational carrier to deliver the child in Tennessee, counsel should seek a Tennessee pre-birth parentage order. Before the parties execute the gestational carrier agreement, counsel should evaluate the source of each gamete, the intended parents’ genetic relationship to the child, the gestational carrier’s marital status, and whether the arrangement will require an interim guardianship and post-birth adoption. The agreement should require all parties to cooperate with each proceeding needed to complete the parentage process. The Tennessee General Assembly has not enacted a comprehensive statutory framework governing gestational surrogacy or a stand-alone statutory procedure for obtaining pre-birth parentage orders. Tennessee practitioners therefore use existing statutes and appellate decisions to establish parentage and then complete the vital-records process.

THE TENNESSEE DECLARATORY JUDGMENT ACT

The Tennessee Declaratory Judgment Act provides the principal procedural vehicle practitioners use to seek 18

a pre-birth parentage order. Tenn. Code Ann. §§ 29-14102(a), (c). The Act authorizes courts of record to declare the parties’ “rights, status, and other legal relations” and gives those declarations the force and effect of a final judgment or decree. Id. §§ 29-14-103 to -104. It also allows a person whose rights or legal status depend on a written contract or statute to ask a court to determine those rights. Id. §§ 29-14-106 to -107. Tennessee Rule of Civil Procedure 57 governs the procedure for declaratory relief and confirms that another “adequate remedy does not necessarily preclude” a declaratory judgment. The Act does not itself create parental rights. Instead, it gives counsel a procedural framework to present the court with the particular facts of an assisted-reproduction arrangement. A petition may identify the gestational carrier agreement, the parties’ pre-conception intent, the source of the sperm and egg, the gestational carrier’s lack of a genetic relationship to the child, and any marital or parentage presumptions that the court must address. By obtaining a ruling before delivery, counsel can resolve legal status and authority before the family reaches the hospital. The Act also requires counsel to identify a proper basis for declaratory relief rather than seek an advisory ruling. For example, in In re Amadi A., the Court of Appeals declined to decide legal maternity because the parties themselves had no actual dispute over who would parent the children. No. W2014-01281-COA-R3-JV, 2015 Tenn. App. LEXIS 251, at *25–26 (Tenn. Ct. App. Apr. 24, 2015). The case does not eliminate Tennessee pre-birth parentage practice; it reminds practitioners to frame the requested relief around concrete legal rights and obligations that require judicial determination.

THE LEGAL FRAMEWORK FOR ESTABLISHING PARENTAGE

In re C.K.G. involved an intended and gestational mother who gave birth to triplets conceived through in vitro fertilization with anonymous donor eggs and the intended father’s sperm. 173 S.W.3d 714 (Tenn. 2005). Although she had no genetic relationship to the children, she intended before conception to become their mother, carried and delivered them, and acted as their mother after birth. See id. at 716. The Tennessee Supreme Court recognized that the State’s existing parentage statutes “generally fail to contemplate dispute over maternity.” Id. at 723. The Court rejected genetics as the exclusive measure of maternity because the anonymous egg donor had relinquished any interest in the eggs and never intended to parent the children. Id. at 727. The Court considered genetics, gestation, pre-conception intent, and the nature of the controversy and concluded that the gestational and intended mother was the children’s legal mother. Id. at 730. The Court expressly limited its holding to the circumstances before it. Id. (“Instead, we limit our holding today to cases where there is no controversy between the gestator and the genetic ‘mother.’”). It did not decide whether Tennessee courts should enforce gestational-carrier agreements generally, and it did not create a universal test for every assistedreproduction case. See id. Still, In re C.K.G. establishes an important principle: Tennessee law does not treat genetics as the sole determinant of maternity in assistedreproduction cases. In re Baby supplies the corresponding limitation on the legal effect of a private surrogacy agreement. 447 S.W.3d 807 (Tenn. 2014). The case involved traditional surrogacy, so the woman who carried the child also provided the egg and shared a genetic relationship with the child. Id. at 812. The Tennessee Supreme Court concluded that Tennessee public policy did not categorically prohibit traditional-surrogacy agreements, but it refused to allow the agreement, standing alone, to terminate the surrogate’s parental rights before birth. Id. at 835. The parties had to use Tennessee’s legal procedures to relinquish or terminate those rights. Id. at 836. Because In re Baby involved a traditional surrogate with a genetic relationship to the child, practitioners should apply its holding narrowly in the gestationalcarrier context. The decision did not characterize routine gestational-carrier arrangements as invalid or inherently contested. Id. at 840. Instead, it established a more limited rule: the agreement can document intent and require cooperation, but it cannot replace any mandatory

judicial or statutory procedure to establish, relinquish, or terminate legal rights that Tennessee law requires. Id. at 836. Two Court of Appeals decisions, In re Adoption of A.F.C. and In re Amadi A., address a different question: who appears on the child’s original birth certificate when a gestational carrier delivers a child conceived with a donor egg and the intended father’s sperm? In re Adoption of A.F.C. held that the gestational carrier must appear as the mother on the original Tennessee certificate of live birth. 491 S.W.3d 316, 319–23 (Tenn. Ct. App. 2014), perm. app. denied, 204 Tenn. LEXIS 985 (Tenn. Nov. 20, 2014). The court emphasized that the identity of the person listed as “mother” on a birth certificate presents a different question from legal maternity. Id. at 317. A birth certificate provides prima facie evidence of the facts it records, but the names on the certificate do not themselves create or terminate parental rights. Id. at 319. For purposes of the original certificate, the court interpreted “mother” to mean the woman who gives birth to the child. In A.F.C., the trial court had already declared the non-genetic intended mother the child’s legal mother, and the Department of Health did not appeal that ruling. Id. The intended mother also completed a post-birth adoption. Id. at 317. The Court of Appeals nevertheless required the original birth certificate to identify the gestational carrier as the mother and recognized that the adoption would support a new birth certificate identifying the intended mother. Id at 321. In re Amadi A. was another donor-egg gestationalcarrier case. In re Amadi A., No. W2014-01281-COAR3-JV, 2015 Tenn. App. LEXIS 251 (Tenn. Ct. App. Apr. 24, 2015). The court reiterated its prior holding from A.F.C. that the gestational carrier belonged on the original birth certificates. Id. at *15. At the same time, it vacated the juvenile court’s legal maternity declaration because the parties presented no actual controversy over who would parent the children. Id. The court also clarified that the Department of Health controls the issuance of vital records but does not decide legal maternity. Id. at *32. Together, A.F.C. and Amadi A. explain an important feature of Tennessee practice: the original birth certificate and legal parentage do not necessarily tell the same story. In a donor-egg case with one genetically related intended parent, the original certificate may identify the gestational carrier even though the parties never intended her to parent the child. Counsel then completes the nongenetic intended parent’s adoption and obtains the new certificate that reflects the completed parentage process. 19

THE TENNESSEE PRE-BIRTH PARENTAGE ORDER

Once the pregnancy reaches the second trimester, counsel should file a declaratory-judgment action seeking a pre-birth parentage order. Filing practices and timing vary among Tennessee jurisdictions, but obtaining the order before delivery allows the family and the hospital to know who will exercise parental authority when the gestational carrier delivers the child. The best practice is to file the petition for a pre-birth order at eighteen weeks of pregnancy. The gestational carrier agreement should require all parties to cooperate with the proceeding by signing pleadings, affidavits, and other documents the court requests. The petition generally identifies the intended parents, the gestational carrier, and when applicable, her spouse; describes the assisted-reproduction arrangement; identifies the source of the sperm and egg; confirms that the gestational carrier did not provide an egg; and asks the court to determine the intended parents’ legal status and any related presumptions. A pre-birth parentage order serves several practical purposes. It establishes the legal status the court recognizes before delivery, gives the hospital direction regarding parental authority, facilitates medical decision-making after birth, and supplies Tennessee Vital Records with a judicial order that can affect the child’s birth record. The General Assembly strengthened that vitalrecords link in 2024: Tenn. Code Ann. § 68-3-203(j) now expressly addresses an “order of parentage” granted on an unborn infant. The statute directs Vital Records to prepare and file the original certificate under the Department’s ordinary laws and rules and then amend that certificate when Vital Records receives the certified parentage order and the required notification. The statute does not create a comprehensive surrogacy procedure, but it expressly recognizes the use of a parentage order entered before birth in Tennessee’s vital-records process.

GENETIC AND NON-GENETIC INTENDED PARENTS

The intended parents’ genetic relationship to the child determines the number of legal steps required to complete the process; it does not make a one-geneticparent case more complicated as a matter of intent or family formation. When both intended parents provide the gametes used to create the embryo and the gestational carrier provides neither, counsel ordinarily seeks a prebirth order establishing both intended parents as the child’s legal parents and then completes the Vital Records 20

process using that order. When only one intended parent has a genetic relationship to the child, counsel follows an additional step after birth. A donor egg may leave the intended mother without a genetic connection, while donor sperm may leave the intended father without one. Although the absence of that genetic connection requires additional legal work and time, it does not create uncertainty about the parties’ intent or require a more difficult parentage analysis. Counsel first obtains the pre-birth order recognizing the genetically related intended parent. After the child’s birth, the non-genetic intended parent completes a postbirth adoption. The adoption gives that parent the same permanent legal parent-child relationship and completes the legal process for the intended family. Counsel should discuss this additional proceeding at the beginning of the representation. The gestational-carrier agreement should require cooperation with the post-birth adoption, and the intended parents should understand that the case will remain open after delivery until counsel obtains the adoption decree and the replacement birth certificate.

INTERIM GUARDIANSHIP

Because the adoption cannot occur until after birth, Tennessee practitioners commonly obtain an interim guardianship for the non-genetic intended parent. The guardianship bridges the period between delivery and completion of the adoption. Tenn. Code Ann. § 34-2101 et seq. supplies Tennessee’s statutory framework for guardianships of minors. Counsel can use that framework to obtain court-recognized authority for the non-genetic intended parent to care for the child immediately after birth while the adoption remains pending. The guardianship also protects the intended family if the genetically related intended parent becomes incapacitated or unavailable before the court finalizes the adoption. It allows the non-genetic intended parent to exercise authority for the child during that limited interim period. The guardianship does not suggest instability in the intended family or a defect in the gestationalcarrier arrangement. It serves as a temporary legal bridge until the adoption establishes the non-genetic intended parent’s permanent status.

POST-BIRTH ADOPTION

The post-birth adoption completes the parentage process for the non-genetic intended parent. The adoption simply supplies the additional judicial proceeding Tennessee practice requires to give the non-genetic intended parent permanent legal status. The practical difference is time and work: counsel must continue the

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representation after birth to complete the adoption and the corresponding vital-records process. Tenn. Code Ann. § 36-1-115 permits an adult to petition the chancery or circuit court for adoption. When the petitioner’s spouse already qualifies as the child’s legal or biological parent, § 36-1-115(c) directs that parent to join as a co-petitioner and treats that joinder as the legal or biological parent’s consent to the spouse’s adoption. In a gestational-carrier arrangement involving one genetic and one non-genetic intended parent, counsel obtains the pre-birth order for the genetically related intended parent and then pursues the post-birth adoption for the non-genetic intended parent. Tenn. Code Ann. § 36-1-121(a) gives the final adoption order its substantive effect: from the date of the order, the law treats the relationship between the adoptive parent and child as a parent-child relationship for all legal consequences and incidents.

BIRTH CERTIFICATES

Tennessee law requires counsel to distinguish the child’s legal parentage from the information that appears on the certificate of live birth. The names on a birth certificate do not themselves create or terminate parental rights, and the person Tennessee lists as “mother” on the original certificate may differ from the person the intended family ultimately recognizes as the child’s permanent legal mother. For example, in the donor-egg arrangements addressed in A.F.C. and Amadi A., the intended father supplied the sperm, an anonymous donor supplied the egg, and the gestational carrier delivered the child. Both courts held that the original certificate had to identify the gestational carrier as the mother because she was the woman who gave birth. See A.F.C., 419 S.W.3d at 319; In re Amadi A, 2015 Tenn. App. LEXIS 251, at *15. A.F.C. also recognized the Department of Health’s position that the intended mother could appear on a new certificate after completing the adoption. A.F.C., 419 S.W.3d at 316.

This rule creates a two-certificate process when one intended parent is genetic and the other must complete a post-birth adoption. In a donor-egg case, for example, the original certificate lists the gestational carrier as the mother and the genetically related intended father as the father. The non-genetic intended mother then completes the adoption. After entry of the adoption order, counsel must submit the certified adoption order, the certificate of adoption, and the required request for a new certificate to Tennessee Vital Records. The Vital Records Act now makes the next step clear. Tenn. Code Ann. § 68-3-310(1) directs the State Registrar to prepare a new Tennessee birth certificate after receipt of the required adoption documents. Sections 68-3-311(a)-(c) require Vital Records to seal the certificate in the original name in its system of record and remove it from the active file when it prepares the new certificate. Section 68-3-312(a), (c)–(d), and (g) require the adoption paperwork to identify the adoptive parent or parents who should appear on the new certificate and directs the State Registrar to issue the new certificate within forty-five days after receiving the required paperwork and fee. The new certificate therefore replaces the original certificate for ordinary use and lists both intended parents. The gestational carrier no longer appears as a parent on the certificate the family uses. Tennessee does not simply erase the first record, however. Sections 68-3-313(a)–(c) require the Department to seal the original certificate and the adoption documents and limit access to that sealed material. The adoption decree establishes the nongenetic intended parent’s permanent legal relationship to the child. The new certificate records the completed legal process. Counsel’s work, therefore, should not end when the court signs the adoption decree; counsel should ensure that Vital Records receives the required documents and issues the replacement certificate identifying both intended parents. 

In practice for over 21 years, Jana Davis Lamanna is experienced in the areas of assisted reproductive technology law, probate administration, probate/trust/estate litigation, divorce/family law, estate planning, guardianship and conservatorship law, and employment law. As the head of Black McLaren’s fertility law group, Ms. Lamanna consults with prospective intended parents and gestational carriers; drafts surrogacy agreements, embryo, egg and sperm donation agreements; and handles the court process to declare the intended parents the legal parents of the child, including obtaining birth certificates and passports for newborns. She works with all persons, including LGBTQ, who seek to form families and also advises clients on safeguarding embryos through estate planning. Ms. Lamanna also leads Black McLaren’s probate administration, probate litigation, and estate planning groups.

A MEMPHIS LAWYER AND THE LAW OF WAR KEVIN R. RARDIN

THE WALK ACROSS THE TARMAC

In mid-October 2007, an Air Force C-17 touched down at Bagram Air Base in Afghanistan in the middle of the night. Once the plane slowed to a stop on the tarmac, its ramp came down. The soldiers in the plane’s hold stood up and grabbed their duffel bags. I grabbed mine, and with the other soldiers, I walked to the rear of the C-17 and then down the ramp onto the tarmac, pulling my two full duffel bags behind me. The plane had been full, but I was not with a unit. I did not know anyone else on the plane. I had flown over from Kuwait on my own. For a time, I stood under the sky, wondering what I had done. I could have been at home. I had left my job as an assistant district attorney at 201 Poplar, where I had worked for 23 years. I had traded the known for the unknown. I had been waiting just over six years since September 11, 2001, for a chance to help as a lawyer and a soldier, and now my turn had arrived. For the next twelve months, I would serve as the legal advisor to a U.S./NATO training mission to the Afghan Army’s 205th Corps and the National Police in Kandahar, Afghanistan’s second-largest city. I was to provide legal advice on such topics as the Uniform Code of Military Justice, the Afghan Military Code, and the law of war. If a subject had to do with the law, the subject was my responsibility. In Memphis, I had spent my career dealing with crimes after they happened. In Afghanistan, part of my job was to help ensure that force remained lawful before it was used. There was no turning back now. I saw some lights ahead, and I started walking toward them. After an overnight stay at Bagram, I joined a convoy to Kabul. From Kabul I flew in an RAF C-130 to Kandahar Airfield, where I took up my job. At that time, Kandahar Province was the epicenter of the Taliban insurgency. There was plenty of work for me.

A LAW OLDER THAN THE WAR In a sense, I was not alone when I arrived in Afghanistan. Over the centuries, soldiers, commanders, lawyers, religious leaders, and governments grappled with

the same issues that I encountered there. Who can we attack? How must we treat prisoners? What do we owe to the wounded? And who must answer when an army crosses the line between lawful force and atrocity? The United States made an important contribution to the codification of the law of war during the Civil War. President Abraham Lincoln needed rules for a large army at war. He commissioned Columbia College Professor Francis Lieber to compile a code to govern the Union army. The result was General Orders No. 100, commonly called the Lieber Code. The Code recognized the concept of military necessity, but it rejected the notion that necessity overrode every restraint. A few years earlier, in 1859, Henri Dunant, a Swiss businessman, saw thousands of wounded soldiers abandoned after the Battle of Solferino. (In this battle, the Franco-Sardinian alliance beat the Austrian army, which led to Italian unification.) The number of wounded men and the lack of an organized system to care for them disturbed him. Dunant helped found the Red Cross movement in 1863 and the first Geneva Convention. From that point forward, care for the wounded enemy increasingly became a legal obligation rather than an act of individual charity. The Hague Conventions turned increasingly from care of the wounded to armies’ own conduct. The Conventions addressed occupation, prisoners, lawful combatants, and the weapons and methods that could be used in battle. They also helped establish that governments and commanders could be held responsible when their forces violated the rules.

WHO MUST ANSWER

The two world wars exposed both the importance and the insufficiency of the existing law. After World War I, greater protections were developed for prisoners of war, but no adequate civilian protection treaty was in place before World War II. The horrors of that war led to two major developments: international criminal accountability at Nuremberg and Tokyo, and the four Geneva Conventions 23

Kevin Rardin in uniform during his deployment.

of 1949. See also Nuremberg Trial Proceedings Vol. 1, available at https://avalon.law.yale.edu/imt/imtconst.asp. The Nuremberg Charter defined war crimes as “violations of the laws or customs of war,” including “murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.” Nuremberg Trial Proceedings Vol. 1, Section II, Art. 6(b). The postwar cases also clarified that responsibility under the law of war could extend to commanders who failed to control their forces. In In re Yamashita, the Supreme Court reviewed the Supreme Court of the Commonwealth of the Philippines’ denial of Japanese General Tomoyuki Yamashita’s petition for writs of habeas corpus and prohibition. 327 U.S. 1, 5 (1946). “Though he had neither personally committed a war crime, nor ordered that war crimes be carried out, he was nevertheless charged for the fact that soldiers under his command had committed war crimes, under the doctrine of command responsibility.” Manila: The Trial of General Tomoyuki Yamashita, available at https://exhibits.stanford.edu/ virtual-tribunals/feature/manila-the-trial-of-generaltomoyuki-yamashita (describing the Japanese troops’ 24

actions as the “Rape of Manila.”). A military commission had charged General Yamashita with violating “the law of war” and committing “brutal atrocities and other high crimes” against Americans and citizens of its dependencies, “particularly the Philippines.” 327 U.S. at 14. The Supreme Court held that the order convening the military commission that had tried him was lawful, the commission was lawfully constituted, General Yamashita was charged “with violation of the law of war,” and that the commission had authority to proceed with trial and “did not violate any military, statutory[,] or constitutional command.” Id. at 25. Yamashita was not charged with personally committing those crimes. See id. at 13-14. The theory was that, as commander, he failed to take appropriate measures within his power to prevent violations of the law of war. The case stands as a landmark in the development of command responsibility. The 1949 Geneva Conventions became the core of the modern law of war. They protect people not taking part in hostilities, including civilians, medical personnel, and aid workers, as well as those no longer able to fight, such as the wounded, sick, shipwrecked, and prisoners of war. The Conventions also require states to prevent or punish grave breaches, reflecting the principle that serious violations of the law of war are crimes, not merely battlefield excesses. The law of war continued to develop after 1949. The 1977 Protocols strengthened protections for civilians and extended the law more fully to conflicts occurring within countries. Today, the law of war rests on treaties, customary international law, military regulations, and command responsibility. Its central principles include military necessity, humanity, distinction, proportionality, and the humane treatment of persons in custody. Under the principle of distinction, parties to a conflict must distinguish between civilians and combatants, and attacks may be directed only against combatants and military objectives. For a military lawyer, these rules are not abstractions. They shape decisions about targeting, detention, treatment of civilians, use of force, and the responsibility of commanders. That is why the law of war mattered in Kandahar, and why it still matters wherever armed force is used.

THE LAW IN KANDAHAR

In Kandahar, the law of war arrived as questions from commanders, requests from Afghan counterparts, reports of detainees in custody, and news of civilians whose lives had been forever changed by the war around them. Some

days were quiet. Others were overwhelming. A few were gut-wrenching. When I was growing up, I thought that I would become a teacher. It took going to Afghanistan for me to become one. I taught the law of war and the Rules of Engagement (ROE) to newly arrived U.S. Armed Forces personnel. What is the difference between the law of war and ROE? The law of war establishes what military forces may lawfully do. ROE are directives issued by military authority. They establish what particular forces are authorized to do during a particular mission. Legal actions may not be authorized, and authorized actions may not be legal. I also helped my Afghan colleagues instruct their soldiers in the law. One presentation became especially difficult. At that time, stories about waterboarding and CIA secret prisons were circulating in Afghanistan. I sensed a certain amount of resistance among the Afghan soldiers to my words about the importance of obeying the law. Then one soldier stood up and asked me why American soldiers did not have to obey the law. The question was fair, but it stopped me for a moment. I was wary of being drawn into a controversy beyond my mission, but I had already decided that I would not justify the unjustifiable. I told him and the others that members of the U.S. armed forces were subject to the law, that those found guilty of violating it would be punished, and that the U.S. Army would uphold the law of war. I meant what I said. I did not teach the law at a safe distance from the war. Rocket attacks regularly featured in life at Kandahar Airfield. One Thanksgiving, while I was at Forward Operating Base Apache in Zabul Province, two mortar rounds landed just outside the walls. Travel also carried dangers of its own. I was fortunate. I attended many ramp ceremonies and memorial services for those who did not. Against that background, a question involving a wounded Afghan suspected to be a member of the Taliban came to me at a morning staff meeting. The Afghan man had been brought into the Canadian military hospital with a gunshot wound to the stomach. My commander asked me to find out what had happened and whether he needed to be sent to the U.S.-Army-run detention center at Bagram once the Afghan man had recovered from his wounds. That is how I came to meet the man I called “my prisoner.”

MY PRISONER

I learned from the Americans who had brought him in for treatment that the Afghan police had turned him over to them. The police had captured the man after a shootout 26

with suspected Taliban near a bridge in Kandahar Province. I then talked with the Canadian military doctors who told me that the Afghan prisoner was stable enough for me to talk with him. I talked to my prisoner in his hospital room. My interpreter hid himself from view behind the door to protect his identity. I stood by the Afghan man’s bed. He looked scared. I told him that I was an American lawyer, and I would not hurt him. He agreed to talk with me. He told me his name and that he was a leader in the Taliban, something similar to a second lieutenant. He had been shot in the fight with the police at the bridge. I was standing by the enemy, and yet he was only a hurt boy, barely a man. My prisoner was a human being, the same as I am. Humane treatment is easy to affirm in a classroom. It means more when the person protected by the rule may have been trying to kill your allies. He had given me enough to make the case for detention. I used my digital camera to take a photo of him for identification purposes. I thanked my prisoner for talking with me, and I thanked my interpreter. When I got back to the office, I messaged the detention facility. The people there accepted my prisoner. When he was well enough for the trip, he was transported to Bagram. I never saw him again. I would like to think he got through the war without inflicting or suffering too much damage.

THE SOLATIUM

I picked him out of the crowd of Afghan civilians waiting to be admitted to the airfield that day. He was tall and slim, with an olive and weathered complexion and black hair and beard flecked with gray. He wore a turban, a banded collar shirt, a vest, loose pants, and sandals. He reminded me of a great gnarled tree that had grown up in rocky soil. I was there because of what he had told one of the soldiers on duty at the gate: he said that U.S. soldiers in a Humvee had killed his sister, and he wanted compensation. After the guards let the Afghan man through the gate, my interpreter and I sat down with him in a nearby building used by the guards. He repeated the account he gave the guards. I remember being struck by his matter-offact tone. I expected anger. I expected at least some display of emotion. I decided later that I was imposing my cultural expectations upon him. Cultural collisions happened sometimes in Afghanistan. First, I told him how sorry I was for the loss of his sister, and that I would do my best to find out what had happened. He had a cell phone. I told him that my

interpreter would call him when I had an answer for him. I talked with my commander. I recommended that he appoint a staff officer to conduct an investigation, and he did so. The commander appointed a U.S. Navy engineer as the investigating officer (IO). With help from a Royal Canadian Mounted Police superintendent who was also on the staff, the IO turned in a thorough report. But the IO could not find any evidence that U.S. forces in Humvees or allied forces in Humvees had been in the area when the incident allegedly occurred. Still, the young woman was dead. No one could say for certain whether she had been killed by American forces. The investigation could not answer that question. Afghanistan was often a place with many questions, but few answers. The woman’s family still mourned, and one morning I found myself carrying an envelope to meet her brother. The envelope held a “solatium,” a payment made to recognize a person’s grief or loss, even when there is no legal obligation to pay damages. It is a gesture of compassion, respect, and goodwill rather than an admission of fault. The United States was not alone in making such payments. Other coalition nations used comparable ex gratia or condolence payment systems in Afghanistan and other modern military operations. My interpreter contacted the Afghan man, telling him to meet us at the Afghan civilian entrance to Kandahar Airfield. I went to the Finance Office and withdrew the specified amount in Afghanis. Then I picked up my interpreter, and we went to the gate. The Afghan came in on the bus later that morning. The three of us sat down in a room. I had practiced what I was going to say, but I lost the words. Ultimately, I said I was sorry for his family’s loss, and the U.S. government was sorry, too. I counted the money into his hand. The sum seemed so small for the life of a human being, even though my commander had approved the maximum amount available under the applicable regulations at the time. How much is a human being’s life worth? Surely, it is more than what I had put into his hand. Impulsively, I opened my wallet and added the money I had to the sum. We shook hands and we went outside. I watched as he went through the gate to wait for the bus.

THE LIGHTS AHEAD

At the end of my year in Afghanistan, I landed and took off from several tarmacs and came home. I returned to 201 Poplar and my civilian job, but I was not the same lawyer, and I was not the same man. In Kandahar, the law of war had ceased to be a collection of conventions,

customs, and protocols. I had seen it in the face of my wounded Taliban prisoner, in the questions of Afghan soldiers who asked whether Americans were also bound by rules, and in the hand of a stoic brother receiving a sum that could never equal the value of his sister’s life. I went to war because it was my duty to go, and I went believing that it was my job to teach the law of war. The war taught me something in return. The law of war matters not because it eliminates the cruelty of war, at least not all of it. War is inherently cruel. Still, the law of war matters because it insists that even in the midst of death and destruction, the enemy remains human, civilian life remains valuable, and those who wield the sword must remain answerable for how they use it. On that first night at Bagram, I saw lights and I started walking toward them. The law of war is one of those lights—not bright enough to end the darkness of war, but bright enough to show where we must go. 

SUGGESTED READING

• Francis Lieber, General Orders No. 100: Instructions for the Government of Armies of the United States in the Field • Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) • The Geneva Conventions of 1949 • Additional Protocols to the Geneva Conventions (1977) • Charter of the International Military Tribunal • In re Yamashita, 327 U.S. 1 (1946) • U.S. Department of Defense, Law of War Manual • U.S. Government Accountability Office, Military Operations: the Department of Defense’s Use of Solatia and Condolence Payments in Iraq and Afghanistan, GAO-07-699 (May 2007)

Kevin Rardin is a retired Memphis lawyer whose career included 33 years as an assistant district attorney and five years as a public defender in Juvenile Court. He also served 21 years in the U.S. Army Reserve Judge Advocate General’s Corps and retired as a lieutenant colonel. In 2007-08, he deployed to Kandahar, Afghanistan, as a command judge advocate and was awarded the Bronze Star Medal for Meritorious Action in a Combat Zone. He is also on the board of the Memphis Council of the Navy League. 27

Memoriam: Hon. Jon Phipps McCalla

A Farewell from His First Senior Judicial Law Clerk BY MAUREEN TRUAX HOLLAND, ESQ.

THE NEWS

“It’s not sounding good,” Cathy writes. What? Oh no. How can this be true? I thought there would be more time. I contact Kate, one of his daughters, and send her a voicemail to play for him. She does. Two days later, another message: “Judge passed away this afternoon.” I feel that shock of permanent loss. Though I knew it was possible, I thought he would write his memoir far before I would write the In Memoriam.

THE BEGINNING

My senior judicial clerkship for Judge McCalla, or as we all called him, just “Judge,” began the same day he was sworn into office in February 1992. He turned 45 that month. I was 29. He was the thirteenth judge for whom I worked. Judge was appointed by President George H.W. Bush and became a federal district judge in the Western District of Tennessee, filling a newly created seat.2 Judge was raised on a farm in rural Tennessee, about twenty miles north of Memphis. I think I got the judicial clerkship in part because we shared similar undergraduate degrees in agricultural resources and economics—an uncommon one, reflecting our rural backgrounds. He went to war in Vietnam and was a combat veteran. He returned from war during a time when his service was not always appreciated by the public. I don’t know how war changed him, as I didn’t know him before it. But the man I knew had a military-style approach to many things. Being on time mattered to him. He was determined, organized, and driven to make a positive difference in the lives of the litigants whose cases were brought before him. Our rural backgrounds, his military precision, my clerkship experience, and our shared instinct for creating systems came together to make chambers run efficiently, allowing Judge to devote his attention to the cases before him.

MILITARY SERVICE

The farm was near Rosemark. He was one of four children, with a twin sister and two brothers. The children grew up working livestock, cattle, and hogs. He said, “You 28

learn early on what you have to do—everyday—and the consequences of not doing it.” His entire eighth grade class was ten boys and four girls, including his twin sister and a first cousin. He edited the school newspaper at Millington Central High and graduated salutatorian. Judge would mention that he served in the military but didn’t talk about the specifics. What I know of those specifics are things he shared in interviews, or things shared by colleagues with whom he felt comfortable enough to tell some stories. Most of his service and experiences remain unsaid. He served with a five-man military assistance team. A profile of him describes his team living and fighting alongside South Vietnamese territorial forces, providing tactical and combat support, including calling in American air support, and pressing into “perilous night activities.” He was awarded the Bronze Star and the Combat Infantryman’s Badge, the latter given only for duty with a unit “engaged in active ground combat.” Years later, he told an interviewer that combat is not “like a movie,” and he counted himself “one of the lucky ones.”3

THE JURIST

Judge’s first week was a blur. Two hundred hard-copy files in varying states of organization were brought to chambers. (Remember, this was 1992, before electronic filing). When parties filed cases and motions, a copy was given to the court as the official record, and a secondary copy went to chambers for the judge to organize, review, and mark up as needed. We built a visual system: in a hard-copy file, it was difficult to see what motions were pending and whether a response had been filed. I had an idea for handling this, so his courtroom clerk and I developed (with Judge’s approval, of course) what we called Christmas. We marked every motion with a red tab; once a response was filed, we marked it with a green tab and placed it directly after the red-tabbed motion. When looking at a file, if we saw red and green tabs together, it was Christmas, and the parties were going to get a present: a decision on the pending motion.

With the help of courtroom staff, a secretary, and judicial clerks, Judge ruled on motions, conducted trials, and issued final opinions. At the end of each term, the outgoing law clerk’s picture was placed on the wall of Judge’s chambers. My picture was first, in the top left corner, followed by each judicial clerk. We became a small legal family of sorts, the kind in which you don’t really know the others when you go to the McCallaWalla reunions, but you share a connection because Judge mentored each of us. I was his Senior Judicial Law Clerk for nearly four years. Once his chambers were up and running well, he moved to one-year clerkships so he could help more new law school graduates elevate their careers with a federal clerkship. His clerks went on to become partners, solo practitioners, federal prosecutors, counsel in Supreme Court litigation, appellate lawyers, clerks to the courts of appeals, adjunct law professors, in-house counsel, and one now sits as a United States Magistrate Judge on the very court from which Judge retired.4

JUDGE’S VOICE I read some of the Judge’s decisions recently, trying to pick out one or more that stood out from the thousands of cases over which he presided. There were patent cases, murder trials, due process claims brought by individuals with disabilities, and discrimination cases. Probably because I am a civil rights employment attorney, I was drawn to a discrimination case, Pollard,5 his decision from a bench trial. As I read each sentence, I could hear Judge’s voice clearly. Judges speak through their orders, as the legal maxim goes, and I was reminded that although Judge has passed, his voice still lives in all of his many orders and rulings. When I read what he wrote about Pollard, that she was “an individual who has been tormented,” and that the maximum award the law then allowed was “insufficient to compensate plaintiff for the psychological damage, pain, and humiliation she has suffered,” I heard his voice. His views of equity, justice, punishment, restitution, due process, fundamental rights, privilege, and freedom are still there in those decisions. His voice is still here. That gave me some solace.

TIME AWAY AND RETURN

Judge’s high standards could make him demanding at times, and not every lawyer enjoyed appearing in his courtroom, but his exacting nature came from a deep commitment to getting the law and the result right. More than two decades ago, Judge took some time away from

the bench, as he had failed to meet his own standards and those of the Court. Judges who raise their voices on occasion or are overly harsh are a reality for most of us who are trial attorneys. I have certainly been yelled at, insulted, chastised, and spoken to in an unprofessional manner by a number of judges over my career. I don’t like it. But it happens. And it also happens that lawyers can file complaints, as some did against Judge. He acknowledged that the complaints were accurate and publicly apologized.6 Those were difficult months for Judge, for his family, and for the Court. I know because I became one of his attorneys, helping with his transition away from the bench and, with the assistance of an attorney from Washington, D.C., petitioning successfully for Judge’s return. No longer was I his judicial clerk; I was his attorney. I took that role to heart. He returned with a greater focus to do better and do more. Judge wasn’t perfect. He could be exacting and challenging. But he had a brilliant legal mind. Law and judicial work were his calling. He loved it. And we benefited not from perfection, but from his continued commitment to becoming a better judge.

GIVING BACK

Building community became part of his renewed focus to do better and do more. He did both. He served on the Rotary Reader Committee; co-chaired the Mentor Committee and later became Counsel/President of the Executive Committee of the Leo Bearman, Sr. American Inn of Court, going on to the Board of Trustees of the American Inns of Court Foundation; volunteered with the Memphis Grizzlies Academy, a partnership with the Memphis City Schools for students who had fallen behind academically; edited an illustrated history of Rosemark and the neighboring farm communities where he was raised, then presented it to the Rotary Club and the West Tennessee Historical Society and signed copies at local libraries; developed a standard set of voir dire questions, designed to eliminate implicit bias, for use in his trials; and remained active at Grace-St. Luke’s Episcopal Church and on the Board of Episcopal Churchmen of Tennessee—doing much of this while serving as Chief Judge of the district.7

DOC

Judge married Mary Mason Rainey on July 26, 1975, the same year he finished his own judicial clerkship and began private practice in Memphis. Doc, as he called Mary, was a physician; she completed residencies in general surgery and otolaryngology, specializing in head and neck surgery. They shared a birthday, February 16, 29

five years apart. They celebrated fifty years of marriage last summer. Together they have two daughters and two granddaughters.8 I remember that Judge would have letters typed to Doc on beautiful stationery, setting out information on upcoming dinners and travel. The letters addressed her formally, Dr. Mary McCalla, and closed with his full signature block. Then, in his own handwriting, he would cross out Dr. Mary McCalla and write Mary, and he would sign Jon. The ritual was a bit formal, but I found it sweet, and I believe that is how he intended it. Doc died on April 9, 2026, just weeks before Judge. Her death was a shock to him and to the family. A great loss.

FAREWELL

Judge was a private person, reserved much of the time. He was formal, always calling me Ms. Holland, never my first name, no matter how many years passed. He always asked me the same question, with a positive inflection: “Are you making money?” “Yes, Judge.” Once I overheard

him say that I was his most successful law clerk due to my work on the marriage equality case.9 I think he knew I was close enough to hear him. It made me smile, because congratulating me on the case directly was not his style; he was more reserved than that. But saying something kind that he knew I could hear, in response to a question, was his style. The voicemail I sent to him to hear before he passed was simple. I told him I was sorry for his loss of Doc. I updated him on my family, my wife, my daughters, and our grandchildren. I wished him strength. I knew I might be saying farewell then, but I chose not to say so. Maybe I was wishing strength to everyone facing the potential of his loss, and to him in his journey of letting go. I will miss him. I will miss hearing him call me Ms. Holland. And yes Judge, I am making money. Not to worry. But mostly, I am grateful, Judge, for all you gave to me and to others. You can rest now, with Doc by your side. Your work is finally done. 

Maureen Truax Holland graduated from Vermont Law School, cum laude. She is licensed to practice law in Tennessee and Vermont state courts, the U.S. District Court for Western Tennessee, and the Fifth and Sixth U.S. Circuit Courts of Appeal. She is also licensed with the U.S. Supreme Court. Following law school Ms. Holland worked as a judicial law clerk for four State of Vermont trial courts. Later, Holland was the first legal counsel to the Vermont Water Resources Board (1990-91), and Interim Executive Officer for the Board (October 1990-May 1991). Once in Memphis, she was the Senior Federal Judicial Law Clerk to the Honorable Jon Phipps McCalla (19921995), held an Associate position in a mid-sized Memphis firm (1995-1997), and, following that, became a member and owner of Holland & Associates, PC. Holland & Associates, PC represents current and former employees with legal problems, including employment discrimination (race, gender/sex, age, disability, national origin, etc. claims), severance agreements, non-compete agreements, breach of contract, and other employment-related issues. She negotiates, litigates, and has appeared before state and Federal Courts and a number of administrative bodies including the Memphis Civil Service Commission, State of Tennessee Civil Service, EEOC, EEOC Federal Sector Mediation and Hearings, AAA Arbitrations, FMCS (Federal) Arbitrations. Holland practices law with an emphasis on problem-solving. This more client-needs focused approach is known as holistic law. She is former Chair of the Memphis Bar Association’s Labor & Employment Law Section and Wellness Committee. Currently, Holland is President of the Tennessee Employment Lawyers Association (TENNELA) and is a board member of the National Employment Lawyer Association. She also serves as a Special Judge in Shelby County’s General Sessions Court (civil) on an as-needed basis. Holland gained notoriety for her involvement in Obergefell v. Hodges, the landmark civil rights case in which the fundamental right to marry was guaranteed to same-sex couples. Holland was a member of the Tennessee plaintiffs’ legal team in Tanco v. Haslam, which was combined at the U.S. Supreme Court as Obergefell.

Cathy Gray, Judge McCalla’s former secretary.

Federal Judicial Center, Biographical Directory of Article III Federal Judges: McCalla, Jon Phipps, https://www.fjc.gov/history/judges/mccallajon-phipps (detailing Judge McCalla’s nomination, confirmation, commission, and career chronology).

Michael W. Higginbotham, Judicial Profile: Chief Judge Jon P. McCalla, FBA Memphis/MidSouth Chapter Newsletter, Vol. 1, Issue 1, at 3–5 (Apr. 2011) (containing information about the farm and family details and for the military assistance team, decorations, and Judge’s quoted

remarks in this section); see also Obituary, Judge Jon Phipps McCalla, The Daily Memphian (May 30, 2026). On the Combat Infantryman Badge standard, see 32 C.F.R. § 578.61 (2002) (requiring duty with an infantry unit “engaged in active ground combat”; “[b]attle participation credit alone is not sufficient”). 4

The Honorable Annie T. Christoff, one of Judge McCalla’s law clerks (2007–2008), was appointed a United States Magistrate Judge for the Western District of Tennessee in 2020.

Pollard v. E.I. DuPont de Nemours, Inc., 16 F. Supp. 2d 913 (W.D. Tenn.

1998). Ruling in this gender discrimination and harassment case, Judge did not view the statutory caps as sufficient “to compensate plaintiff for the psychological damage, pain, and humiliation she has suffered,” and he said so. Id. at 924 n.19. He added: “For the record, however, the Court finds that punitive damages are justified in this case.” Id. He was also bound by then-existing Sixth Circuit case law holding that front pay was capped too. He could not change the statute, but he indicated as clearly as he could, while still being bound by the law, that the facts warranted a greater recovery and remedy, something that would need to be decided by a higher court. It was. The Sixth Circuit affirmed on that question, 213 F.3d 933 (6th Cir. 2000), but the Supreme Court held unanimously that front pay is not subject to the cap. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001) (Justice O’Connor took no part). On remand, Judge found that Pollard was “an individual who has been tormented,” 338 F. Supp. 2d 865, 877 (W.D. Tenn. 2003), and awarded $1,004,374 in front pay and $950,000 in additional compensatory damages. The final judgment totaled $4,303,215. 6

Statement of the Judicial Council of the Sixth Circuit (Aug. 29, 2001), as reported in John Branston, McCalla Put on Leave, Memphis Flyer, Aug. 29, 2001 (reporting that Judge McCalla acknowledged the accuracy and validity of the complaints and publicly apologized to the lawyers he had offended, to the judiciary, and to the bar). Such complaints are resolved through a process with its own rules, procedures, and politics.

Rotary Reader Committee, 2003–2007; Leo Bearman, Sr. American Inn of Court: Co-Chair, Mentor Committee, 2004–2005; Executive Committee, 2005–2006; Counsel/Vice-President, 2006–2008, and

Counsel/President of the Executive Committee through 2010; An Illustrated History of the People and Towns of Northeast Shelby County and South Central Tipton County – Salem, Portersville, Idaville, Kerrville, Armourtown, Bethel, Tipton, Mudville, Macedonia, Gratitude, Barretville, and Rosemark, Tennessee (Historic Archives of Rosemark & Environs 2010), presented to the Millington Rotary Club and the West Tennessee Historical Society in December 2010; voir dire practice documented by 2011; Chief Judge, 2008–2013. See Higginbotham, supra note 3, at 3–5; Jon Phipps McCalla, Justia Legal Professional Directory, https://professionals.justia.com/ profile/jon-phipps-mccalla-1507587 (Inn of Court committee history); Remembering the Honorable Jon Phipps McCalla, U.S. Dist. Ct. W.D. Tenn. (May 18, 2026), https://www.tnwd.uscourts.gov/news/rememberinghonorable-jon-phipps-mccalla; Obituary, Judge Jon Phipps McCalla, The Daily Memphian (May 30, 2026); Federal Judicial Center, supra note 2. 8

Judge is survived by his daughters, Kate McCalla Rickards (Tyler) of Baltimore, Maryland, a clinical psychologist, and Clair McCalla Ward (Rob) of Wilmington, North Carolina, a teacher, and his granddaughters, Ruby Catheryn Ward and Margot McCalla Ward. When I worked for Judge, I remember his daughters coming to chambers; they were near the ages of my own daughters. They are the best parts of their parents in kindness, intelligence, and strength of character. Obituary, Judge Jon Phipps McCalla, The Daily Memphian (May 30, 2026); Obituary, Dr. Mary Rainey McCalla, The Daily Memphian (May 30, 2026). For Judge’s clerkship with the Hon. Bailey Brown (1974–1975), see Federal Judicial Center, supra note 2.

Obergefell v. Hodges, 576 U.S. 644 (2015).

JAMS Tennessee Mediators & Arbitrators Barbara Bennett, Esq.

Hon. Patricia J. Cottrell (Ret.)

William H. Farmer, Esq.

Hon. Bernice Bouie Donald (Ret.)

Highly Skilled Neutrals with Deep Subject Matter Proficiency

Shelby Grubbs, J.D., FCIArb

The way forward jamsadr.com/nashville

When a Divorce Is Simple but the Process Isn’t BY CRISTINA ARCE DE BAGAGLIO

etween 17.8% and 19% of Shelby County residents live at or below the poverty level (U.S. Census Bureau), and over 30% of Memphis residents work but do not earn a living wage. As a result, people who need access to legal assistance often find it just out of reach. The impact that resolving a legal issue can have on a person’s life is immeasurable—emotionally, mentally, and physically. It can mean the difference between making ends meet and slipping back into poverty. For many families, a legal issue does not exist in isolation. It affects housing, employment, financing, relationships, and overall well-being. When people are unable to access the legal system effectively, problems can compound quickly and create barriers that are difficult to overcome. That is where the Community Legal Center (CLC) comes in. The CLC helps working families and individuals overcome legal barriers that threaten their stability and well-being. Founded on the belief that access to justice should not depend on a person’s income, the CLC provides affordable legal services and practical support to help community members protect their rights, resolve legal problems, and move forward with confidence. Some legal matters—like a truly simple uncontested divorce—can be handled without an attorney. The Tennessee Supreme Court has done much to support pro se litigants by adopting forms that can be used in divorce courts across the state. Even so, navigating the process requires more than completing paperwork. The Community Legal Center’s Pro Se Divorce Clinic, located in Room 134 at 140 Adams Avenue, helps individuals pursuing uncontested divorces involving minor children understand the steps from filing their petition to obtaining a Final Divorce Decree. By 32

providing procedural guidance and practical support, the Clinic helps clients navigate a process that can otherwise feel intimidating and confusing. The Clinic’s value lies in helping clients avoid the obstacles that frequently derail self-represented litigants. Filing requirements, parenting plans, court procedures, and hearing preparation can present significant challenges for people unfamiliar with the legal system. Mistakes may lead to delays, additional expenses, or rejected filings. Through education and individualized assistance, the Clinic equips participants to move through the court process more efficiently and with greater confidence, helping families reach resolution and move forward with stability. The results can be life-changing. A finalized divorce can provide stability for parents and children, establish clear custody arrangements for families, and allow families to move forward with certainty. For people who have spent months, or sometimes years, living in legal limbo, completing the process brings a sense of relief that extends far beyond the courtroom. By helping people successfully navigate the legal system, the CLC Pro Se Parents’ Clinic reduces barriers to justice and empowers individuals to resolve issues that directly affect their daily lives. The need for these services continues to grow. Every week, individuals come to the Clinic seeking help because they cannot afford traditional legal representation but still need meaningful access to the courts. They simply need assistance understanding a process that can otherwise feel impossible to navigate alone. The Clinic fills a critical gap for those whose incomes place legal services beyond reach but whose legal needs remain urgent.

The local bar plays an important role in making this work possible. Attorneys frequently encounter prospective clients whose legal matters are straightforward but whose financial circumstances prevent them from retaining counsel. Referring appropriate individuals to the CLC’s Pro Se Divorce Clinic helps ensure that these community members still receive support and resources while preserving access to the court system. Those referrals allow the Clinic to reach individuals who might otherwise abandon their legal claims or attempt to navigate the process without any guidance. As with all of the Community Legal Center’s programs, sustaining the Pro Se Divorce Clinic requires

the investment and support of the legal community. Contributions from law firms and attorneys help ensure that low-income and working families can continue to access meaningful legal assistance. Every referral, volunteer hour, and financial contribution strengthens the Community Legal Center’s ability to help Shelby County residents resolve legal issues, achieve stability, and move forward with dignity. For more information about opportunities to volunteer your time, contact Betsy Prendergast at betsyp@clcmemphis.org. Donations can be made at https://clcmemphis.org/. 

Cristina Arce de Bagaglio is the Director of the Pro Se Parents’ Clinic at the CLC. Born in Puerto Rico, she and her family moved to Memphis when her father was hired on as a pilot at FedEx. In 2004, she graduated magna cum laude from the University of Memphis, double majoring in International Relations and Spanish. She graduated from Ave Maria School of Law in Ann Arbor, Michigan, in 2008, where she served as a translator and student-lawyer in the only pro bono Women and Children’s Immigrant Rights Clinic in Michigan. She has experience in family and employment-based immigration, labor, and employment law. Cristina has been involved in several organizations that support the Memphis community. Before her employment at the CLC, she was a member of the CLC board of directors, serving in several leadership roles. She has also been a longtime volunteer for the Junior League of Memphis and served on the Board of Directors for Latino Memphis. She is also a former member of the Memphis Symphony Orchestra and Rhodes College Master Singers choirs. She believes in the power of community and the responsibility each of us has to make the world a little better.

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IDENTIFYING THE HIGH-RISK DOMESTIC-ABUSE VICTIM BY JUDGE GREG GILBERT

INTRODUCTION

I have been immersed in the domestic-violence court system for more than 25 years, which began as a prosecuting attorney and then changed to my present role as Shelby County Intimate Partner Domestic Violence Court Judge. Exposure to the world of intimate-partner domestic violence makes the cyclical nature of domestic abuse obvious. I commonly (and repeatedly) see the same parties before my court. Serial domestic abusers are often oblivious to the impact their behavior has on the victim, their family, and the broader community. Similarly, domestic-abuse victims often have no real understanding of the danger they potentially face. In fact, in a study of 30 women who survived an attempted homicide by an intimate partner, approximately half had not recognized their lives were in danger.1 In my position, an alleged domestic-violence victim commonly tells me that she is not in harm’s way and that law enforcement and the court system have no business interfering in her relationship. Unfortunately, I have later had the unsettling experience of being tasked with litigating the death of the same victim at the hands of the same alleged abuser. In the domestic-violence world, it seems the eternal quest of law enforcement, medical personnel, victim service providers, prosecutors, and the court system is answering, “How do we identify victims who are at highest risk of death or serious bodily injury?”

LETHALITY ASSESSMENTS The quest for accurate predictors of future domestic violence began in the 1970s and 1980s.2 Domesticviolence risk assessment at this time had several purposes: (1) recognize the high-risk DV offender and set appropriate bond amounts, conditions of release, and supervision both pretrial and post-conviction; (2) formulate effective treatment for DV perpetrators; (3) help victims and service providers prepare safety plans and locate needed services; and (4) educate legal and social service providers about the dynamics of DV and recognize abuse victims who are highest risk of future harm.3 Professor Jacquelyn Campbell of Johns Hopkins School of Nursing conducted the most significant research in the area of DV risk assessment .4 Professor Campbell developed a Danger Assessment (DA) protocol by reviewing hundreds of cases in which an intimate partner had killed women in eleven U.S. cities.5 Dr. Campbell’s research indicated a significant positive correlation between the DA’s evidence-based categories and the level of danger a domestic abuse victim faced.6 Empirically, Dr. Campbell found that her Danger Assessment (DA) accurately predicted 90% of high-risk victims when retroactively applied to actual homicide cases.7

Christina Nicolaidis et al., Could We Have Known? A qualitative Analysis of Data from Women Who Survived an Attempted Homicide by an Intimate Partner, 18 J. Gen. Internal Med. 788 (Oct. 2003). 2 D. Kelly Weisberg, Lethality Assessment: An Impressive Development in Domestic Violence Law in the Past 30 Years, 30 Hastings Women L.J. 211 (2019). 1

Id. at 215 (citing Battered Women Justice Project, Integrating Risk Assessment in Coordinated Community Response, http://www.bwjp.org/our-work/ risk-assessment.html).

Id. at 216. Position Paper: Effectiveness of the Lethality Assessment Program, Maryland Network Against Domestic Violence at 2, available at https://www.mnadv.org/wp-content/uploads/2021/02/LAP-Effectiveness-Position-Paper.pdf. 6 Id. 7 Id. at 2-3. 4 5

Subsequently, the Maryland Network Against Domestic Violence (MNADV), with Professor Campbell’s assistance, developed the Lethality Assessment Program (LAP), a shorter field-applicable instrument of her DA program.8 The LAP is a shorter 11-question protocol adapted for efficient application by first responders on the scene of a domestic-abuse call.9 According to MNADV, “The 11 questions on the Lethality Screen represent the factors most predictive of future homicide in abusive relationships.”10 In application, this LAP is an effective way for law enforcement officers, medical providers, service providers, and the courts to “easily and effectively identify victims of intimate partner violence who are in highest risk of being killed or seriously injured by their intimate partners.”11 Many jurisdictions have adopted the LAP protocol and incorporated it into law enforcement training and application on scene.12 Estimates are that “more than 600 police agencies in 37 states have adopted the LAP program.”13 Recent proposed federal legislation by Rep. Sarah Elreth from Maryland would “create a national training and assistance center to standardize the use of the Lethality Assessment Program.”14 Tennessee Department of Commerce and Insurance (TDCI) trains Tennessee’s law enforcement officers statewide. The TDCI has been training law enforcement on the LAP protocol for several years, and since 2022, Tennessee has required LAP training for all licensed cosmetologists and barbers.15 In my experience, in Shelby County, both the Memphis Police Department and the

Shelby County Sheriff’s Department have been using the LAP protocol for over ten years.

WHAT IS THE LETHALITY ASSESSMENT INSTRUMENT?

The LAP program has two components.16 The first step consists of an 11-question survey, filled out on the scene of a domestic-abuse call, to identify the “high-risk” domestic-abuse victim.17 “High-risk” means increased risk of homicide.18 The eleven questions relate to “categories of risk” that predict future violence based upon an abuser’s past behavior.19 These risk factors include: *owning a gun; *recent separation / estrangement; *threats of harm; *unemployment; *having a child from a previous relationship; *forced sex/rape; *strangulation; *substance/alcohol abuse; *controlling behaviors; *jealousy; *abuse while victim is pregnant; and *stalking.20

EXAMPLE OF A LETHALITY ASSESSMENT FORM

All of the risk factors have been associated with higher risk of homicide. For example, “non-lethal strangulation is an important predictor for future lethal violence among women who are experiencing . . . inter-personal

Id. Id. 10 Id. 11 Id. 12 Ellie Jornlin, Elfreth Legislation Seeks to Reduce Domestic Violence Homicides Nationwide, Capital News Service, Feb. 18, 2026, available at https://cnsmaryland.org/2026/02/18/elfreth-legislation-seeks-to-reduce-domestic-violence-homicides-nationwide/. 13 Id. 14 Id. 15 Tennessee Department of Insurance and Commerce website: http://tn.gov/commerce/;et/training-facilities-staff/training/domesticviolence-investigation1.html; Tenn. Code Ann. § 62-3-110(a)(3). 16 Weisberg, supra note 2, at 6. 17 Id. 18 Id. 19 Id. 20 Position Paper, supra note 9, at 3. 8 9

an advocate on a 24-hour domestic-violence hotline.27 At that time, regardless whether the victim agrees to speak to the advocate, the officer places a call to the hotline in the presence of victim.28 The officer passes on the incident information to the hotline worker, again in presence of the victim.29 The officer then, either passes the victim on to the hotline worker, or if she previously declined, gives the victim an opportunity to reconsider speaking to the advocate.30 If the victim declines a second time, the officer provides the victim with basic safety planning information and completes the case investigation.31 If the victim agrees to speak to the advocate, the hotline worker reiterates the graveness of the situation the victim is facing, engages in a safety planning dialogue, and refers her to applicable services.32 The “low” to “moderate” risk victim, while not connected with the hotline advocate immediately like the “high-risk” victim, still receives information about her relevant risk factors.33 21

violence.” In fact, prior non-lethal strangulation may be the most significant indicator of future homicide.22 The second component of the LAP protocol involves a “warm hand off” to a victim advocate, which connects the victim to appropriate services.23 Efficiency is a chief characteristic of the protocol, with both LAP steps occurring in a matter of minutes on the scene of the emergency call.24 The law enforcement officer has a prescribed procedure to which they must adhere when a “high-risk” victim has been identified.25 The officer first conveys the LAP score to the victim and explains that she is in serious danger.26 The officer then affords the victim an opportunity to speak with

BENEFITS OF LAP PROTOCOL To the casual observer, the LAP is a simple 11question survey. The uninitiated may not understand the significance of the LAP protocol, but the survey results in a myriad of benefits to law enforcement, first responders, medical providers, social service providers, and the judicial system. These benefits flow from the collective impact of the victim’s responses to the survey, the LAP’s administrative procedure, and subsequent collaboration among law enforcement officers, service providers, and courts in analyzing the information. The result is a process founded upon objective risk factors that enable all to identify the victims at the highest risk of homicide or serious bodily injury.

Nancy Glass et al., Non-Fatal Strangulation is an Important Risk Factor for Homicide of Women, 35 J. Emerg. Med. 329 (Oct. 2007). Amanda Kippert, Strangulation is the Highest Predictor of Murder, domesticshelters.org, July 3, 2024, available at https://www. domesticshelters.org/articles/identifying-abuse/strangualtion-is-the-highest-predictor-of-homicide. 23 Position Paper, supra note 9, at 3. 24 Weisberg, supra note 2, at 6. 25 Id. 26 Id. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id. 32 Id. 33 Id. 21 22

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FOR THE VICTIM

Education and support of the DV victim are critical components of the LAP, in part due to the victim’s frequent inaccurate understanding of their perceived danger.34 According to MNADV, participants in a controlled study experienced a statistically significant reduction in the frequency and severity of abuse after application of the LAP protocol when compared to a control group.35 Educating the victim regarding her level of risk and then connecting her to needed services increases her likelihood to engage in protective actions like hiding the abuser’s gun, safety planning, or seeking an order of protection.36 Furthermore, based on the judicial system’s use of the LAP factors in setting bail, an abusive partner was more likely to be held in jail with higher bail, which decreased the victim’s likelihood of future abuse.37 Additionally, participation in the LAP protocol bolstered domestic-abuse victims’ confidence and satisfaction with police response.38 Per MNADV, “the officers[’] concern for the victim, as well as the visible partnership between the officer and advocate, both demonstrate to victims that there are people who care about their situation and are available to help when victims are able to seek services.”39 The LAP also protects children of domestic-abuse victims.40 Dr. Campbell’s longer form DA research accurately predicted whether an intimate partner would kill a child in the home.41 As a result, application of the shorter LAP focuses the victim and service providers on not only the victim’s safety needs, but the needs of her child.42

FOR LAW ENFORCEMENT AGENCIES

The LAP protocol, as an efficient and easy means to identify high risk domestic-abuse victims, has the obvious benefit of directing services to a victim immediately in need. An additional unintended benefit of the LAP protocol has been an improvement in law enforcement investigations.43 “[T]he screening effort spurred the police to strengthen their collection of evidence.”44 In turn, domestic-abuse prosecutions improved, and batterers were more likely to be held accountable.45 When I was a prosecutor, I spent a year embedded at a police precinct. In that capacity, I developed strategies to deal with the biggest drivers of crime in the precinct’s coverage area. I analyzed reoccurring domestic-abuse relationships that generated repeated calls for emergency service. In discussions about these parties, many patrol officers expressed frustration. The officers openly expressed the generalization that “[t]he victim should just leave the abuser!” While this appears to be a rational conclusion, LAP research teaches that the domestic-abuse victim is often not in a position to easily leave the abusive relationship. Furthermore, the victim may honestly not realize the danger she faces. While not supported by scientific research, in my opinion, improved police investigations by LAP-trained officers may be the result of officers setting their personal biases aside. Responding officers change their mental focus from one of personal frustration to an objective analysis of the circumstances. Law enforcement officers put their

Weisberg, supra note 2, at 5 (citing Jacquelyn C. Campbell et al., The Danger Assessment: Validation of a Lethality Risk Assessment Instrument for Intimate Partner Femicide, 24 J. Interpersonal Violence 653, 669 (2009)); Jacquelyn C. Campbell, Helping Women Understand Their Risk in Situations of Intimate Partner Violence, 19 J. Interpersonal Violence 1464, 1464 (2004) (pointing out that only half of 456 women who were killed or almost killed by a husband, boyfriend, ex-husband, or ex-boyfriend accurately perceived their risk of homicide). Note, however, that victims’ perception of the risk of re-assault are considerably more accurate than their perceptions of the potential for homicide. Jacquelyn C. Campbell, Assessing Dangerousness in Domestic Violence Cases: History, Challenges, and Opportunities, 4 Criminology & Pub. Policy 653, 665 (Dec. 2005). 35 Position Paper, supra note 9, at 5. 36 Id. 37 Id. at 5-6. 38 Id. at 6. 39 Weisberg, supra note 2 (citing Maryland Network Against Domestic Violence, Lethality Assessment Program, How LAP Works, see https://vawnet.org/sites/default/files/assets/files/2016-10/MNADV-LAP.pdf). 40 Position Paper, supra note 9, at 3-4. 41 Id. 42 Id. 43 Weisberg, supra note 2, at 7 (citing First Lethality Assessment Program Evaluation Finds Some Positive Results, 21 Nat’l Bull. Domestic Violence Prevention 5 (Apr. 2015)). 44 Id. 45 Id. 34

prejudices aside and focus on investigation and evidence collection.

COLLABORATION OF ALL RESPONDERS

The LAP protocol’s greatest value is collaboration of law enforcement and service providers once the survey is complete and a “high-risk” victim is identified. Until recently, Shelby County served as an excellent model of this collaborative effort. After Memphis Police and Shelby County law enforcement officers ended their shifts, all completed LAP surveys were transferred to our county’s Family Safety Center (FSC). The FSC then identified all “high-risk” victims from the completed LAP forms. The FSC also spearheaded a biweekly Domestic Violence High Risk Review Team (DVHRRT) meeting. The DVHRRT team was comprised of representatives of the Family Safety Center, the District Attorney’s Office, Memphis Police Department, Shelby County Sheriff’s Office, the Health Department and victim service providers, including the YWCA and Kindred Place. They combined efforts to contact each victim regardless of her desire to participate in the prosecution of any criminal case, with the goal of determining what services could improve the alleged victim’s situation. Did she want to pursue an order of protection, in addition to or in lieu of prosecution? If so, FSC would prepare the paperwork, and the Sheriff’s Department would prioritize service of process upon the Respondent/Abuser. If she wished to participate in the legal prosecution of her abuser, her updated and confidential contact information was shared with DVHRTT team members, including the prosecuting attorneys. Did she need alternative housing? The YWCA would take steps to provide housing when available. What about counseling for the victim or any children in the home? A Kindred Place advocate would reach out. In short, a collaborative and orchestrated effort was made to provide any services a victim might need to escape a violent relationship. This inquiry was completely independent of any case pending in the criminal court system. Sadly, this collaboration ended in Spring 2025. The Family Safety Center, with almost no forewarning, shuttered its doors and no longer spearheads the high-risk review team. Shelby County Crime Victims & Rape Crisis Center absorbed the FSC’s caseload, but unfortunately, the CVRCC has not 46 47 48 49 50

resumed the high-risk-review team collaboration. The CVRCC’s workload more than tripled essentially overnight with the loss of the FSC—without a corresponding increase in the Center’s 70% grant-funded budget. This is an issue our County government should address immediately. In short, the LAP process can trigger a robust collaborative effort by law enforcement and victim service providers to address the needs of each “high-risk” victim.

BENEFITS TO COURT SYSTEM How does the LAP protocol impact the court system? Turning back to the problem the court system faces every day, “How does a court seek truth and justice in a scenario where both sides of the problem are such poor reporters of the facts?” The LAP protocol, for judges and magistrates, represents a list of objective risk factors to be analyzed in formulating reasoned and articulatable determinations of several legal issues. Courts use the LAP tool in setting bond—a very important use of the LAP tool. In a domestic-violence case, a court is required to consider the usual statutory factors, as it would in any criminal case.46 The court is generally asked to balance an accused party’s likelihood to appear in court with their general threat to public safety.47 Additionally, in domestic-abuse cases, Tennessee law mandates that the court also determine whether the accused is a continuing “threat to the alleged victim.”48 What is a court to do when an alleged victim testifies at a bond hearing that the accused is not an actual threat of harm? This occurs frequently, often despite the existence of a multiple pending cases or a history of arrests involving the same parties. Can the court simply take the victim at her word? If so, is the court fulfilling its duty to determine the actual level of threat faced by the victim? As previously noted, in one study, almost half of the victims of attempted homicide believed themselves to be in no immediate danger.49 Researchers specifically cautioned, “that one cannot necessarily be reassured by the patient’s own sense of safety.”50 On the other hand, should the court assume the alleged victim lacks insight into her level of danger and then simply assume a high risk of harm? A court can objectively consider the LAP risk factors in any case to assess the risk of harm posed by an alleged abuser. In

See Tenn. Code Ann. §§ 40-11-115–40-11-118. Id. Tenn. Code Ann. § 40-11-150(a). Nicolaidis, supra note 1, at 788-94. Id. 39

fact, Arizona has statutorily mandated that judges consider results of any Lethality Assessment when setting bond on cases involving domestic abuse.51 Tennessee should follow with similar legislation. In domestic-violence cases, judges are encouraged to set appropriate additional bond conditions protect victims. The court has the authority to include conditions like “no contact” directives, orders to vacate the residence, dispossession of firearms, and restrict the use of alcohol and controlled substances.52 The LAP factors can guide the court in this endeavor, particularly regarding specialized requirements of release, such as when to use GPS tracking to enforce a “no contact” order. In 2011, Tennessee law granted courts the discretion to require GPS tracking of domestic-abuse offenders.53 But, in 2024, Tennessee law legislators went a step further, implicitly endorsing the LAP high risk factors, by mandating GPS tracking for all offenders accused of aggravated assault involving the use of a firearm, serious bodily injury, or strangulation.54 Furthermore, the same lethality factors are relevant to post-trial sentencing determinations. After conviction, by analyzing the “high-risk” factors, the sentencing court receives important guidance in deciding the suitability of probation or incarceration for the offender. Should the court focus on the offender’s interests and release him or her into the community with counseling and treatment? Or is incarceration necessary based on the defendant’s actions and history? Courts use the LAP factors as a valuable tool to apply the principles of sentencing and balance the interests of the accused, the victim, and society. If a court’s primary role is to be a fair and neutral arbiter, the LAP protocol gives it tools to accomplish the above listed determinations. The LAP risk factors simultaneously provide the court with the means to follow the law and make reasoned and articulable decisions, which in turn protects the community and instills greater confidence in the court system.

CONCLUSION

While Lethality Assessment Program (LAP) has its benefits, there are limitations. It is not a foolproof predictor of future homicide.55 For example, just because a victim scores as “high-risk” doesn’t mean they will certainly be killed. Conversely, because a victim scores as “low-risk” does not mean he will not be the victim of homicide.56 The LAP is not a precise predictor of homicide, but the presence of multiple of the LAP’s eleven risk factors becomes a “red flag” indicating an abuser’s potential for future harm.57 Domesticabuse “decision makers,” including scene responders, emergency personnel, services providers, and the courts, can then use this information. Beginning with victim education and safety planning on the scene of the offense to courts deciding bond conditions and sentencing, the LAP meets the needs of the victim, society, and the accused in any domestic-abuse case.58 Turning back to our original conundrum, “How do we identify victims who are at highest risk of death or serious bodily injury?” Despite any limitations, the LAP protocol remains an excellent tool for focusing the limited manpower and resources of law enforcement, service providers, and courts toward those domestic-abuse victims in the highest need. 

Judge Gilbert has presided over Shelby County General Sessions Criminal Court Division 10 since September 2022. Division 10 is Shelby County’s legislatively designated “Domestic Violence Court,” and Judge Gilbert presides over 5,000 cases per year. Judge Gilbert also chairs the Domestic Violence Task Force Steering Committee, which helps coordinate response to domestic violence among county-wide stakeholders, including all county law enforcement (city, county, and suburban agencies), court systems (county and suburban), and victim service providers.

Ariz. Rev. Stat. Ann. § 13-3967(b)(5) (2024). Tenn. Code Ann. § 40-11-150(b). 53 Tenn. Code Ann. § 40-11-150, 40-11-152. 54 Tenn. Code Ann. § 40-11-152(b)(2). 55 Weisberg, supra note 2, at 14 (citing Sara Thornton, Police Attempts to Predict Murder and Serious Assaults: Is Early Warning Possible Yet?, 1 Cambridge J. Evid. Based Policy 64, 65 (Aug. 2017) http://link.springer.com/content/pdf/10.1007%2Fs41887-017-0011-1.pdf). False negatives mean that a person is predicted to be less dangerous than he or she actual is. False positives mean that a person is predicted to be more dangerous than he or she actually is. See also D. Alex Heckert & Edward W. Gondolf, Do Multiple Outcomes and Conditional Factors Improve Prediction of Batterer Reassault?, 20 Violence & Victims 3, 4 (2005). 56 Id. 57 Weisberg, supra note 2, at 13. 58 Id. 51 52

From Crisis to Compromise:

Practical Mediation Techniques for High-Conflict Divorces and Family Law Matters BY SUSAN HINSLEY

ach year in February, the Leo Bearman and Memphis ADR Inns of Court have a joint meeting with a presentation by one of the two Inns. In 2025, attorneys and law enforcement involved in the undercover investigation, capture, and prosecution of Craig Petties put on the presentation for the joint meeting. It was like watching a Netflix true crime documentary; it kept everyone engaged.

The next year, 2026, I was on the Memphis ADR Inn of Court team selected to follow that gripping presentation with a lecture on conflict resolution. Being naturally competitive, we decided to start researching hostage negotiating to bring an element of true crime and drama into the presentation. We soon discovered that the term “hostage negotiation” is outdated and that law enforcement uses more nuanced approaches to conflict resolution. “Hostage Negotiation” is now Crisis Negotiation, and a trained Crisis Negotiation Team (“CNT”) handles the negotiations. Crisis Intervention is an effort to prevent escalation by responding to calls involving mental health issues. Specially trained officers on the Crisis Intervention Team handle (“CIT”) these types of calls. With this information, we decided to explore the tools used in training CNT and CIT officers and apply them to mediation and conflict resolution in the civil cases. This article will specifically focus on high-conflict divorces and family-law matters.

INTRODUCTION

High-conflict divorces and other family law conflicts present some of the most challenging environments for attorneys, mediators, and judges alike. Emotions run high, communication breaks down, and parties often become entrenched in rigid positions. Yet despite these obstacles, mediation remains one of the most effective tools for resolving even the most contentious domestic disputes.

The effectiveness of the mediation process depends largely on the mediator’s ability to manage conflict, facilitate communication, and guide parties toward resolution. Drawing from crisis intervention and negotiation principles, mediators can rely on a core set of communication techniques grounded in active listening.

THE ROLE OF COMMUNICATION IN HIGH-CONFLICT RULE 31 MEDIATIONS

In high-conflict divorces, legal issues of parenting time, property division, and financial support are often only part of the dispute. Beneath the surface lie fear, anger, mistrust, and a deep need to be heard. Rule 31 mediators, bound by standards of neutrality and professionalism, are uniquely positioned to address these dynamics without taking sides or imposing outcomes. Mediators facilitate communication in a way that allows both parties to move from rigid positions to underlying interests; mediators do not decide who is right. This facilitation requires intentional use of communication strategies designed to reduce defensiveness and foster understanding.

MINIMAL ENCOURAGERS: ESTABLISHING PRESENCE AND NEUTRALITY

Minimal encouragers (brief verbal or nonverbal cues such as “I see,” “go on,” or nodding) play an important role 41

in high-conflict mediations. When parties are explaining or venting, these cues demonstrate attentiveness without interrupting or signaling agreement. In high-conflict cases, parties often feel ignored or invalidated, either in the relationship or during litigation. Minimal encouragers help counteract that perception, creating an atmosphere where each party can feel heard as they express their concerns without being cut off. Consistent with the concept of neutrality, these techniques allow mediators to remain engaged without appearing to favor one side.

feeling in the moment or how they recall feeling about a past situation. Labeling emotions can significantly reduce tension in the moment and help focus the conversation. Statements such as, “It sounds like this situation has been very frustrating for you,” validate the emotional experience without endorsing the underlying position. When used appropriately, this technique aligns with the mediator’s duty to facilitate communication while maintaining impartiality. It also gives the party an opportunity to reflect and expound on what they are feeling at any given moment in the mediation process.

OPEN-ENDED QUESTIONS: ADVANCING THE GOAL OF PARTY SELF-DETERMINATION

PARAPHRASING: REFRAMING FOR PRODUCTIVE DIALOGUE

A central principle of mediation is self-determination. The idea that parties, not the mediator, control the outcome is critical for both sides to accept any outcomes at mediation. Open-ended questions are critical to advancing this principle. By asking questions such as “What concerns you most about this proposal?” or “How would this arrangement impact your daily routine with the children?”, mediators encourage parties to articulate their interests more clearly. This process not only generates useful information but also empowers participants to engage in problem solving.

Paraphrasing allows mediators to restate a party’s message in neutral, solution-oriented language, which is particularly valuable when discussions become accusatory or inflammatory. For example, “They never prioritize the kids” can be reframed as “You’re concerned about consistency and prioritizing the children’s needs.” This change reduces hostility and clarifies the underlying issue. Under Rule 31, mediators must avoid giving legal advice or advocating for a particular outcome. Paraphrasing provides a way to move the conversation forward without crossing those boundaries.

REFLECTING AND MIRRORING: SUPPORTING UNDERSTANDING WITHOUT JUDGMENT

“I” STATEMENTS: MODELING NONDEFENSIVE COMMUNICATION

Reflecting or mirroring is the technique of repeating key words or phrases. This signals to the speaker that the mediator is actively listening and invested in understanding everything the party is trying to convey. For example, if a party states, “My wife’s proposed parenting plan is impossible,” a mediator might respond, “Impossible?” This technique slows down the conversation and encourages elaboration, while maintaining neutrality. In high-conflict mediations, where parties may be quick to react, mirroring helps create space for thoughtful dialogue.

EMOTIONAL LABELING: ADDRESSING THE REALITY OF CONFLICT

Although mediation focuses on resolving legal disputes, it necessarily involves emotional dynamics. Emotional labeling acknowledges what a party may be 42

High-conflict parties often default to blame-based communication. While mediators cannot control how parties speak, they can model more constructive approaches. “I” statements are a communication tool that helps express feelings and needs without blaming or criticizing another person. A common format is: “I feel [emotion] when [situation] because [reason]. I would like [request].” The mediator can use a parties’ blaming statement such as, “He never tells me if he is going to be late exchanging the children” and restate it as “I feel frustrated and anxious when people are late because I worry about their safety; I would like to know in advance if you are going to be late.” This generally also incorporates emotion labeling and paraphrasing to slow down the blaming and shift to problem solving.

EFFECTIVE PAUSES: MAINTAINING CONTROL OF THE PROCESS Silence can be a powerful tool in mediation. Intentional pauses allow parties to process information, regulate emotions, and consider their responses. In the context of Rule 31 mediation, where maintaining a safe and structured environment is essential, effective use of silence helps prevent escalation. It also reinforces the mediator’s role as a facilitator rather than a participant in the conflict.

SUMMARIZING: REINFORCING PROGRESS AND CLARITY Summarizing is critical to maintaining momentum in high-conflict mediations. By consolidating key points and areas of agreement, the mediator helps ensure that both parties share a common understanding. This is particularly important given Rule 31’s focus on enforceable agreements. Clear summaries lay the groundwork for drafting mediated settlement agreements that accurately reflect the parties’ intentions. Sometimes it is helpful for a party to see the summary on a whiteboard or even a legal pad kept in each room with key points and agreements jotted down. Reminding the parties of even small areas of agreement can be helpful in moving the process forward.

structured yet flexible opportunity to resolve disputes outside the courtroom. Employing these communication techniques can help mediators transform the most contentious cases and personalities. The result is not only increased settlement rates, but more durable, self-determined outcomes. In the end, moving from crisis to compromise results in managing conflict skillfully within the Rule 31 framework, so that parties can move forward with clarity, dignity, and resolution.  Susan Hinsley is a partner at Butler, Sevier, Hinsley & Reid, PLLC. She is a Family Law attorney and Rule 31 Mediator with over 25 years of experience, specializing in divorce, child custody, child support, and post-divorce modifications. As a Rule 31 Listed Family Mediator, she is dedicated to helping individuals navigate family law disputes through mediation. Susan is also trained in collaborative law, a process that gives clients the opportunity to resolve conflict without having to resort to financially and emotionally expensive litigation. Susan is a past member of the Leo Bearman, Sr. American Inn of Court and a current member of the Memphis ADR Inn of Court.

INTEGRATING TECHNIQUES WITHIN THE RULE 31 FRAMEWORK

Effective Rule 31 mediation integrates multiple tools in response to the dynamics of the moment. A mediator may use minimal encouragers and emotional labeling to de-escalate an emotional exchange, followed by openended questions to explore interests, and paraphrasing to reframe the discussion. Throughout the process, the mediator must remain mindful of Rule 31’s core principles: neutrality, voluntariness, confidentiality, and party self-determination. These principles provide both a framework and a boundary, ensuring that the mediator facilitates resolution without imposing it.

CONCLUSION

High-conflict divorces test the limits of traditional dispute resolution, but they also underscore the value of mediation when conducted effectively. Under Tennessee Supreme Court Rule 31, mediation offers parties a

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Pro Bono Service:

A Key Pillar of Legal Work BY AUSTYN VIOLA

ife as a lawyer can feel overwhelming in many instances, and with good reason. We have clients to serve, cases to manage, incomes to earn, and have many other duties to attend to. Amongst all these demands, it can be easy to dismiss Pro Bono work as something we simply do not have the time or attention for. Despite these relatable concerns, Pro Bono work is more accessible now than it has ever been. There are opportunities to serve in simple and meaningful ways. The call of Pro Bono service is not to dedicate all our time to it, but to give back in simple ways to those who need it most. I believe that Pro Bono work is a selfless service that gives us opportunities to enrich the lives of others in powerful ways that only attorneys have access to. The term Pro Bono comes from the Latin phrase “pro bono publico” meaning for the public good.1 This idea is a powerful one. How the term has been applied through history has changed, but we cannot ignore the basic idea that Pro Bono work is for us to render good unto the public.2 Those admitted to the practice of law have the ability to serve the public in ways that others do not. The American Bar Association has the expectation that “When society confers the privilege to practice law on an individual, he or she accepts the responsibility to promote justice and to make justice equally accessible to all people. Thus, all lawyers should aspire to render some legal services without fee or expectation of fee for the good of the public.”3 The ABA does not make Pro Bono work a suggestion but calls it a full-on responsibility. As well, that every aspiring lawyer should be ready to embrace that responsibility. That is not a passive invitation, but a very intentional one. Pro Bono work exists to serve the public. Therefore, those of us who are admitted to the practice of law should take this responsibility as seriously as possible.

Pro Bono work is at the heart of much of what an attorney does. We are in a position where we have the responsibility to advocate for our clients and represent them in a system that is often too complex for them to understand themselves. Perhaps, in a perfect world every person could advocate for themselves without needing to retain counsel. Since we do not live in such a world, the responsibility falls on attorneys to help their clients gain full access to the legal system. Being an advocate for individuals should extend beyond those who can afford attorney services. This is because there is a large population of individuals who need representation but cannot afford it. Legal Services Corporation reports have indicated that access to legal services for low-income individuals leaves much to be desired. In the 2022 Justice Gap report, it was found that 92% of low-income Americans did not receive legal help for their civil issues, and that 74% of low-income households experienced at least one civil legal problem in the previous year.4 It is hard to dispute that there is much work that can be done in helping low-income people access legal systems. The

Pro Bono, Legal Info. Inst., Cornell L. Sch., https://www.law.cornell.edu/wex/pro_bono. See, The History of Lawyer Pro Bono Services, Roger Williams Univ. Sch. of L. (Oct. 18, 2019), https://law.rwu.edu/library/blog/historylawyer-pro-bono-services; Marlene Coir, Pro Bono and Access to Justice in America: A Few Historical Markers, Mich. B.J., Oct. 2011, at 54, https://www.michbar.org/file/journal/pdf/pdf4article1916.pdf. 3 Pro Bono: A Guide and Explanation to Pro Bono Services, Am. Bar Ass’n, https://www.americanbar.org/groups/legal_education/ resources/law-students/pro-bono/. 4 Justice Gap Research, Legal Servs. Corp., https://www.lsc.gov/initiatives/justice-gap-research. 1 2

needs of many low-income individuals cannot wait for tomorrow, and current attorneys are in a special position to give irreplaceable aid to individuals in need. I believe the strongest argument to get involved in Pro Bono work does not come from statistics, nor an ethical responsibility, but rather from a sincere desire to give back to the communities and people around you. Pro Bono service is more than just offering legal services for free. If you view it only as the lack of payment for representation, you’ll likely be dissatisfied with it before you even begin. However, if you view it as an opportunity to connect with communities, learn new skills, and help those who cannot help themselves then there is true satisfaction in this service. You may be surprised how connected you can feel to a client you are serving, or how much compassion you will have for them. You may also feel a great level of satisfaction at giving them something they cannot provide for themselves. Pro Bono service also allows attorneys to explore new areas of law they might not practice directly. Allowing them to learn new legal skills, have a greater breadth of understanding, and explore areas of law they might choose to practice in the future. Picturing Pro Bono work might be daunting at first. We might envision ourselves needing to put many weeks or months into representing a client in court, taking them to hearings, and giving them the time we would give other clients. In reality, many pro bono efforts do not involve long, ongoing, or complex representation. The work can be much more sincere. For example, many individuals simply need a proper Will executed to have peace that

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what they have will be passed on to loved ones. Others might want a Power of Attorney, or a conservatorship filed to ensure themselves, or others, are cared for in their family unit. Some need their help knowing what to file to get their rights legally restored. This type of work can be straightforward and gives people great opportunities and peace in their lives. Pro Bono service is not about working endlessly with no pay, but about giving back something simple to individuals who do not have the means to obtain it themselves. As attorneys, we have the responsibility to help individuals access all their rights under the law. Being willing to provide these services to individuals selflessly lets them know they are seen and cared for, and that they deserve as much access to the law as anyone else. I invite all attorneys to consider incorporating Pro Bono service into their legal work, even if it’s small and simple. For those interested in opportunities, West Tennessee Legal Services offers attorneys many ways to join Pro Bono work. We frequently organize projects and clinics and invite you to contact us if you are interested in joining the work. We believe it can be fulfilling for you, help you build new skills and opportunities, and help anyone give back to the local community around us. Using Pro Bono service to provide essential legal services to those who cannot reach them on their own is one of the best things we can use our position as attorneys for. I believe this kind of selfless work can give us a greater kind of connection that we cannot achieve elsewhere.  Austyn Viola joined West Tennessee Legal Services in 2025 and currently serves as a Pro Bono Staff Attorney for the organization. A graduate of the University of Idaho College of Law, Austyn distinguished himself as a member of the school’s law review while also volunteering in various legal clinics to gain hands-on experience serving the local community. Since joining West Tennessee Legal Services, he has helped empower clients by helping them understand their individual rights and representing them in consumer issues. Driven by a passion for equitable access to justice, Austyn is committed to ensuring that all individuals, no matter their background or situation, are equipped to exercise their legal rights with confidence. Outside of his legal practice, Austyn cherishes time spent with his family and raising his four children. He is also an active and dedicated member of his church community, consistently giving his time in service to others.

Abrial’s Law, The Keeping Children Safe from Family Violence Act: Child Safety in Tennessee Custody Litigation BY TAYLOR R. OYAAS AND ABIGAIL D. HALL

WHAT IS ABRIAL’S LAW? On April 28, 2023, the Tennessee General Assembly enacted Abrial’s Law, The Keeping Children Safe from Family Violence Act, codified at Tenn. Code Ann. §§ 366-701–703. Abrial’s Law applies to all child custody matters. It is aimed at protecting children from abuse and domestic violence. There are two main components of the Act. The first component requires judges who preside over child custody matters to complete continuing legal education and training (CLE) in domestic violence or child abuse courses. The second main component requires trial courts to be certain that a child will not be subject to further abuse or harm in child custody cases involving abuse allegations before restoring parenting time. Under Abrial’s Law, if a parent has engaged in certain conduct, such as physical abuse, sexual abuse, or a pattern of emotional abuse of the other parent, of the child, or of another person living with the child, then trial courts are prohibited from restoring parenting time, unless the court finds that the child will not be subject to further abuse or harm. There are similar requirements before reunification treatment can be ordered and before awarding decisionmaking authority of a child to a parent. See Tenn. Code Ann. § 36-6-703. Notably, in each of these areas, under Abrial’s Law, the trial court is expressly required to file its written findings of fact to support its basis that ensures the future safety of the child.

A MESSAGE FROM THE LEGISLATURE: “PRESENT PRACTICES ARE WORKING POORLY FOR CHILDREN” The enactment of Abrial’s Law is a significant message from the Tennessee General Assembly to trial judges because it essentially enhances or “doubles down” on already existing legislation. For decades, Tenn. Code

Ann. § 36-6-406 has permitted trial courts to restrict and limit parenting time where there has been a finding of physical abuse, sexual abuse, or a pattern of emotional abuse of the other parent, of the child, or of another person living with the child. This statute has been modified over the years to include that the trial court must also determine that the restrictions or limitations imposed are in the child’s best interests. While our legislation has never required a finding of physical abuse to a parent or child to limit or restrict parenting time, over time, it has begun to feel like an unspoken standard of law. In enacting Abrial’s Law, the Tennessee General Assembly stated that “[p]resent practices are working poorly for children, and one of the purposes of this law is to stop using outdated practices that are placing children in jeopardy.” See 2023 Tennessee Laws Pub. Ch. 266 (S.B. 722). Domestic violence and child abuse frequently overlap within the same household and exposure to intimate partner violence significantly increases a child’s risk of maltreatment. Id. The following are some of the legislature’s findings in support of the enactment of Abrial’s Law: • Approximately one in fifteen children in the United States is exposed to domestic violence each year. • Most child abuse in America is perpetrated in the family and by a parent, and intimate partner violence and child abuse overlap in the same families at rates between thirty and sixty percent. A child’s risk of abuse increases after a perpetrator of partner violence separates from a domestic partner, even when the perpetrator has not previously directly abused the child. Children in the United States who have witnessed intimate partner violence are approximately four times more likely to experience 47

direct child maltreatment than children who have not witnessed intimate partner violence. • Child abuse is a major public health issue in the United States. Total lifetime financial costs associated with just one year of confirmed cases of child maltreatment, including child physical abuse, sexual abuse, psychological abuse, and neglect, result in one hundred twenty-four billion dollars in annual costs to the economy of the United States, or approximately one percent of the gross domestic product of the United States. • [W]itnessing domestic violence, which has been shown to interfere with the ability of children to reach developmental milestones and increase the likelihood children will engage in a wide range of harmful behaviors when older, are common examples of situations that create a safety risk for children. See 2023 Tennessee Laws Pub. Ch. 266 (S.B. 722). The General Assembly has signaled an intent to move Tennessee courts away from a reactive application of the law that requires a child to first suffer physical harm or mental anguish before restrictions on parenting time become appropriate.

JUDICIAL TRAINING REQUIREMENTS UNDER TENN. CODE ANN. § 36-6-702

Abrial’s Law creates mandatory continuing education requirements and training for judges presiding over custody matters. Under Tenn. Code Ann. § 36-6-702, judges shall complete at least two (2) hours of training or continuing education courses on domestic violence or child abuse per year or ten (10) hours per five (5) years. The training includes the following topics: (A) Child sexual abuse; (B) Physical abuse; (C) Emotional abuse; (D) Coercive control; (E) Implicit and explicit bias, including biases relating to parents with disabilities; (F) Trauma; (G) Long-term and short-term impacts of domestic violence and child abuse on children;

(H) Victim and perpetrator behavior patterns and relationship dynamics within the cycle of violence; and (I) Any relevant topic addressing the best interest of the victim. See Tenn. Code Ann. § 36-6-702. This training must be provided by a (a) judge, (b) retired judge, or (c) a professional with experience in assisting survivors of domestic violence, child abuse, or child sexual abuse, and the training must rely on evidence-based research by recognized experts in these specific areas. Id. This provision reflects the legislature’s acknowledgment that custody determinations involving allegations of abuse often require courts to assess complex behavioral dynamics extending beyond visible physical injury and that additional training is needed in order for Tennessee trial judges to be appropriately suited to confront these issues.

APPLICATION OF ABRIAL’S LAW UNDER TENN. CODE ANN. § 36-6-703 First and foremost, Abrial’s Law mandates that, when confronted with a matter wherein a court has made findings against a parent or caregiver under Tenn. Code Ann. § 36-6-406(a) or (c)1 or § 37-1-102(b)(27)2, the trial court must first take into account the training received pursuant to Tenn. Code Ann. § 36-6-702. See Tenn. Code Ann. § 36-6-703. Meaning, trial judges are required to rely on the skills and training received with regard to domestic violence and/or child abuse. This mandate ensures that the court is approaching these sensitive matters appropriately and with the skill required to make the appropriate determinations. If the trial court is being confronted with a request to order reunification treatment in order to reestablish a relationship with a parent or caregiver after the court has made a finding against that parent or caregiver under Tenn. Code Ann. § 36-6-406(a) or (c) or § 37-1-102(b) (27), then the trial court is precluded from allowing the reunification treatment between the child and offending parent or caregiver unless the court finds that reunification efforts are in the best interest of the child. See Tenn. Code Ann. § 36-6-703. If the court believes

Tenn. Code Ann. § 36-6-406(c) is triggered if there is a finding that a parent has been convicted of a sexual offense or resides with someone who has been convicted of a sexual offense or was otherwise found to be a sexual offender.

Tenn. Code Ann. § 37-1-102(b)(27) is triggered if there is a finding of “severe child abuse.”

reunification efforts are in the best interest of the child, then the court shall file written findings of fact that are the basis of its conclusions on that issue in the order addressing reunification treatment. Id. In practice, trial courts often see a parent who has committed some act of physical abuse, sexual abuse, or engaged in a pattern of emotional abuse of the other parent, of the child, or of another person living with the child, return to court with a request that the child be ordered to participate in reunification therapy with them. Abrial’s Law would prohibit said reunification therapy unless the trial court makes a specific finding that the reunification counseling is in the best interest of the child. Id. In the event the trial court makes a specific finding that reunification treatment is in the child’s best interest, pursuant to Abrial’s Law, the court cannot cut off contact between the child and the parent who has not had a finding against them under Tenn. Code Ann. § 36-6-406(a) or (c) or § 37-1-102(b)(27). Id. If the trial court is being confronted with a request to make an initial custody or custody modification determination after a court has made findings against a parent or caregiver under Tenn. Code Ann. § 36-6406(a) or (c) or § 37-1-102(b)(27), then the trial court is precluded from allowing parenting time between the child and the offending parent or caregiver unless the court finds that the child will not be subject to further abuse or harm. See Tenn. Code Ann. § 36-6-703. If the court finds that the child will not be subject to further abuse or harm, then the court shall file written findings of fact that are the basis of its conclusions on that issue in the order addressing parenting time. Id. In practice, trial courts often see a parent who has committed some act of physical abuse, sexual abuse, or engaged in a pattern of emotional abuse of the other parent, of the child, or of another person living with the child, return to court with a request that their parenting time be restored. Abrial’s Law would prohibit the restoration of said parenting time unless the trial court makes a specific finding that the child will not be subject to further abuse or harm. Id. If the court is addressing decision-making authority, in a proceeding in which the court has made a finding 3

against a parent under § 36-6-406(a)-(d), then the court shall include in the custody order written findings of fact that are the basis of its conclusions in regard to decisionmaking pursuant to § 36-6-407. See Tenn. Code Ann. § 36-6-703.

APPLYING TENN. CODE ANN. § 36-6406(A) WITH ABRIAL’S LAW Abrial’s Law operates in conjunction with Tenn. Code Ann. § 36-6-406(a), which governs limitations on parenting time. Tenn. Code Ann. § 36-6-406(a): The permanent parenting plan and the mechanism for approval of the permanent parenting plan shall not utilize dispute resolution, and a parent’s residential time as provided in the permanent parenting plan or temporary parenting plan shall be limited if the limitation is found to be in the best interest of the minor child and if the court determines, based upon a prior order or other reliable evidence, that a parent has engaged in any of the following conduct: (1) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting responsibilities; or (2) Physical or sexual abuse or a pattern of emotional abuse of the parent, [or] child [or] of another person living with that child as defined in § 363-601.3 Tenn. Code Ann. § 36-6-406(a) (emphasis added). Only one finding would trigger Tenn. Code Ann. § 366-406(a), and thus, Abrial’s law. See In Re John B., 2020 WL 6075704, at *6–7 (Tenn. Ct. App. Oct. 15, 2020).

ORDERS OF PROTECTION & PRIOR FINDINGS OF ABUSE Because Tenn. Code Ann. § 36-6-406 permits reliance upon a “prior order or other reliable evidence,” a prior Order of Protection containing findings of abuse (which is defined by § 36-3-601) may constitute a qualifying finding sufficient to trigger the protections and procedural requirements of Abrial’s Law.

Physical abuse as defined by 36-3-601: (A) Inflicting, or attempting to inflict, physical injury on an adult or minor by other than accidental means; (B) Placing an adult or minor in fear of, or in, physical harm or physical restraint; (C) Causing malicious damage to the personal property of the abused party; or (D) Intentionally engaging in behavior that amounts to financial abuse.

TAKEAWAYS Abrial’s Law imposes heightened accountability on trial courts when permitting reunification or parenting time after findings of abuse. The statute’s repeated requirements for trial courts to file their written findings may mean that a failure to do so constitutes reversible error. See ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 22 (Tenn. Ct. App. 2005) (“The Court has a duty to construe a statute so that no part will be inoperative, superfluous, void or insignificant,” and “so that no section will destroy another.”). Abrial’s Law also serves to equip the trial court with an extra tool to address these challenging issues. When asked about the implications of Abrial’s Law on Tennessee’s trial courts, Retired Shelby County Juvenile Court Magistrate, Terre Fratesi, who prosecuted and presided over cases involving child abuse for the majority of her career said, “As a judge, it can be difficult to say to a parent, ‘you can’t see your child.’” Abrial’s Law not only gives judges a mandate, but also jurists a powerful tool to say, “Tennessee has a law that says this, this law requires me to do this, therefore my ruling is this, because the law says shall, not may.” The legislation also raises substantial practical questions for litigants and courts alike, including: • What safeguards sufficiently ensure that a child “will not be subject to further abuse or harm”? • When are supervised visitation or graduated parenting schedules appropriate? MBA FALL SOCIAL “GETTING COMFORTABLE IN THE KITCHEN!”

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• What role should expert testimony play in assessing future risk? • How should courts evaluate exposure to intimate partner violence occurring in a parent’s subsequent household? • What rehabilitative measures must an offending parent complete before restoration of parenting time becomes appropriate? We can expect that these questions, and others which are sure to arise, will be answered in time as this body of law continues to develop.  Abigail D. Hall graduated cum laude from the University of Memphis in 2010 and earned her J.D. at the University of Memphis Cecil C. Humphries School of Law in 2014. While in law school, Abigail served as a member of the Moot Court Board, wrote for the Mental Health Law & Policy Journal, and competed with the National Mock Trial Team. She clerked for the Honorable Gina C. Higgins, Circuit Judge in Division Four of Shelby County Circuit Court, in her final year of law school. Abigail is a partner at Butler Sevier Hinsley & Reid, PLLC in Memphis, Tennessee where she represents clients in litigation and settlement of all domestic matters, including divorce, child custody, child support, adoption, and post-divorce matters.

Taylor R. Oyaas is a native Memphian and obtained both her Bachelor’s Degree and Law Degree from the University of Memphis, both with honors. During law school, Taylor served as Research Editor on the Senior Editorial Board of the University of Memphis Law Review, Research Assistant to Professor Andrew J. McClurg, interned for the Honorable Diane K. Vescovo of the U.S. District Court for the Western District of Tennessee, and worked as a student attorney in the Child and Family Litigation Clinic. Taylor is a partner at Mullins, Whitfield, White & Hillis, PLLC. Taylor focuses her practice on family law related matters, but she still enjoys researching all different areas of law where policy can be improved.

Part Two: Beyond Electronic Shackles:

Advocating for Restorative Justice BY WILLIAM DEANDRE FAYNE*

INTRODUCTION

s indicated in part one of this series, domestic violence is a complex and pervasive issue in the United States. Part one, published in Issue 2 this year (read here), provided a comprehensive understanding of what constitutes domestic violence in Tennessee and examined how Tennessee defines the offense. It also explored who qualifies as a domestic violence victim, as well as the classifications of domestic violence offenses. This part discusses the constitutionality of employing GPS monitoring, looking at invasion of privacy, excessive fines, and equal protection concerns. This part will also discuss public policy and the collateral consequences of using GPS monitoring. Additionally, it will examine public policy arguments, including collateral consequences, concerns of GPS monitoring, and whether its use serves as advocacy or as presumptive guilt.

CONSTITUTIONALITY

The use of GPS monitoring is controversial. Arguments supporting the use of these devices focus on the important goals of protecting domestic violence victims and preventing further harm.1 But these interests must take into account the potential constitutional harms to defendants.2 Many arguments against the use of GPS monitoring focus on invasion of privacy, excessive fines, and the Fourteenth Amendment’s Equal Protection Clause.3

A. Invasion of Privacy

The Fourth Amendment offers protections from unreasonable searches and seizures, and the Tennessee Constitution affords these same protections.4 Continuous monitoring and the establishment of exclusion zones may infringe upon a defendant’s reasonable expectation of privacy, a principle established by Katz v. United States.5 Because GPS monitoring is imposed as a condition of bail before probable cause

Prithika Balakrishnan, Mass Surveillance as Racialized Control, 71 UCLA L. Rev. 478, 483 (2024) (noting that GPS surveillance is presented as an alternative to incarceration); Tenn. Advisory Comm’n on Intergovernmental Relations, Improving Victim Safety with Global Positioning System (GPS) Monitoring as a Condition of Release for Defendants Accused of Domestic Violence, Miscellaneous Reports 14, at 1, (2020), https://digitalcommons.memphis.edu/cgi/viewcontent. cgi?article=1013&context=govpubs-tn-advisory-commission-intergovernmental-relations-miscellaneous-reports (noting that the intent of pretrial GPS monitoring for domestic violence defendants is to quickly notify the victim of the defendant’s whereabouts); Amanda Rhodes, Strengthening the Guard: The Use of GPS Surveillance to Enforce Domestic Violence Protection Orders, 2 Tenn. J. Race, Gender & Soc. Just. 129, 136 (2013), https://ir.law.utk.edu/rgsj/vol2/ iss1/6 (noting that the primary purpose of GPS in domestic violence cases is to protect the victim by deterring contact, not to gather evidence).

Id. at 527 (highlighting that GPS surveillance has a myriad of physical and inchoate harms to the physical body, psychological health, and concepts of privacy and freedom.); see generally Samuel R. Wiseman, Pretrial Detention and the Right to be Monitored, 123 Yale L.J. 1344 (2014), https://www.yalelawjournal. org/essay/pretrial-detention-and-the-right-to-be-monitored (exploring privacy concerns related to electronic monitoring).

See generally Mary Ann Scholl, GPS Monitoring May Cause Orwell to Turn in His Grave, But Will It Escape Constitutional Challenges? A Look at GPS Monitoring of Domestic Violence Offenders in Illinois, 43 J. Marshall L. Rev. 845, 854 n.76 (2010), https://repository.law.uic.edu/lawreview/ vol43/iss3/14 (citing Ann H. Crowe et al., American Prob. & Parole Ass’n, Offender Supervision With Electronic Technology 65 (2002), http://www.ncjrs. gov/pdffiles1/nij/grants/197102.pdf, for the proposition that “there are a number of potential constitutional challenges for electronic supervision and although few cases have won upon these challenges, programs implementing the technology should be aware of constitutional amendments that might be challenged, particularly the Fourth, Fifth, Eighth, and Fourteenth Amendments”); see email from Evan Brannon, Metro Monitoring Representative, to William Fayne, 3L University of Missouri. (Jan. 21. 2025) (Jan. 30. 2025) (on file with author) (answering question 5) (stating that “our program does have sometimes excursion zones where clients cannot go and that would be no incursion of that area at any time in general.”). Defendants could also argue that GPS monitoring violates the First Amendment, but courts would likely evaluate cases alleging this violation on a case-by-case basis.

U.S. Const. amend. IV; Tenn. Const. art. I, § 7. Tennessee’s protection against unreasonable searches and seizures is “identical in intent and purpose with the Fourth Amendment” of the federal Constitution. State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quotation omitted).

Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (providing a two-prong test to determine if a search has occurred).

has been formally established, a reasonable person in the defendant’s position—who is presumed innocent— could perceive such surveillance as a violation of his or her expectation of privacy. Jones v. United States further supports this concern. In Jones, the Supreme Court recognized that attaching a GPS device to a vehicle and continuously tracking it violated the defendant’s Fourth Amendment rights.6 The Supreme Court’s recent decision in Chatrie v. United States reinforced this conclusion.7 Under Chatrie, individuals have a reasonable expectation of privacy in their cell phone location information and that law enforcement conducts a Fourth Amendment search when it compels a third-party tech company to disclose that data, even if only for a limited period.8 The Supreme Court reasoned that modern location history creates a detailed record of an individual’s physical movements and rejected the argument that users forfeit their privacy interests merely because the government does not store the information.9 Although the Court remanded the case for Fourth Circuit to determine whether the particular geofence warrant satisfied the Fourth Amendment’s probable cause and particularity requirements, Chatrie confirms that digital location tracking implicates constitutionally protected privacy interests.10 Therefore, by continuously tracking individuals and potentially collecting data beyond what is necessary for the case, GPS monitoring could be excessive and invasive.

Metro, a company in Shelby County, Tennessee,11 uses GPS devices connected by satellite, but it does not provide the exact range for these devices.12 The device always has GPS service because it is connected through the 5G network.13 Metro says that it has a strict policy regarding who can access the defendant’s location.14 According to Metro, only its trained, certified technicians routinely monitor a defendant’s location, although police are “permitted at times” to access that information.15 When asked “Who are all able to access the defendant’s location (does the police department get full access to where they are at all times)?”, Metro responded that it values the privacy of its clients because many have not been proven guilty.16 This response, however, did not explain how Metro protected defendants’ privacy in practice, leaving unclear the circumstances under which law enforcement may access a defendant’s location information or the safeguards governing that access.17 Metro’s automatic system tracks defendants in real time.18 For example, Metro can see if a defendant is driving down a street and determine his or her speed, where and when he or she stops (and for how long), and the route he or she takes.19 This type of real-time monitoring raises significant privacy concerns. While Metro emphasizes its strict access limitations, the detailed real-time tracking information is highly intrusive.20 These details could be an unnecessary invasion of privacy, as the GPS monitoring tracks all movement indiscriminately, regardless of whether the defendant is

United States v. Jones, 565 U.S. 400, 404-05 (2012) (finding that a “search” under the Fourth Amendment occurs when the government physically intrudes on a person’s property to obtain information).

Chatrie v. United States, 146 S. Ct. 2193 (2026).

Id. at 2199.

Id. at 2200-07.

Id. at 2208-17.

Email from Evan Brannon, Metro Monitoring Representative, to William Fayne, 3L University of Missouri. (Jan. 21. 2025) (on file with author). Metro Monitoring, one of five monitoring service providers operating in Memphis, maintains a significant presence in Shelby County General Sessions courtrooms. Id. Metro Monitoring’s GPS monitoring comes across as allowing the defendant to live life as usual just under surveillance. See id. (I sought to understand the collection, storage, and utilization of GPS monitoring data by emailing with representatives from this entity. These conversations revealed important distinctions in how monitoring agencies handle sensitive location data and raised questions about privacy safeguards.).

Id. (answering question 2).

Id.

Id. (answering question 3).

Id.

Id. (answering question 8).

Id. (answering questions 3, 8).

Id.

in an exclusion zone or in an area relevant to the victim’s safety.21 Similarly, this constant real-time tracking raises the same concerns at issue in Katz and Jones. In this context, a Katz analysis would examine whether pretrial defendants have a reasonable expectation of privacy in their movement and location.22 Even though people in public have a lower expectation of privacy, if they are under constant and comprehensive GPS tracking, the collection of their travel and location data over time could violate their subjective reasonable expectation of privacy.23 Katz also requires objective reasonableness— something society is prepared to recognize as reasonable.24 If defendants consent to GPS monitoring as a condition of pretrial release, that consent may diminish their objectively reasonable expectation of privacy. Reverse tagging, a GPS-monitoring approach in which the victim voluntarily carries a GPS-enabled device synchronized with the defendant’s monitoring system so that authorities can detect and respond to intentional or inadvertent encounters between the parties occurring outside traditional exclusion zones, could also implicate defendants’ reasonable expectation of privacy under Katz.25 GPS monitoring often occurs as a pretrial bail condition, meaning that the defendants have not yet been found guilty.26 In addition to Katz, two other cases highlight defendants’ voluntary consent to searches as part of bail conditions: United States v. Scott and Commonwealth v. Norman.27 In Scott, the government charged Scott with drug possession and then released

him on his own recognizance.28 To qualify for release, Scott signed a form agreeing to comply with certain conditions, including a drug test and the search of his home.29 The court required probable cause for a warrantless search of the defendant or his home while on pretrial release, even though the defendant agreed to the search conditions.30 Accordingly, Scott’s reasoning supports the conclusion that a defendant’s agreement to GPS monitoring as a condition of bail should not be viewed as a blanket waiver of Fourth Amendment protections.31 The Ninth Circuit emphasized that a pretrial releasee’s consent-to-search conditions constitute only one factor in the Fourth Amendment reasonableness inquiry and does not itself render a warrantless search constitutional.32 Instead, because pretrial defendants retain the presumption of innocence, the government must still demonstrate that the search satisfies the Fourth Amendment independent of the defendant’s agreement to the condition.33 Applying Scott here, a defendant’s agreement to GPS monitoring as a condition of bail should likewise not be viewed as a blanket waiver of Fourth Amendment protections; rather, courts should separately determine whether the continuous collection of location data constitutes a reasonable search in light of the government’s interests in ensuring the defendant’s appearance in court and protecting victims. Norman involved whether requiring a GPS device as a pretrial release condition violated the Fourth Amendment.34 The defendant’s bail conditions were

Id. at 2, 5, 6.

Katz, 389 U.S. at 361 (Harlan, J., concurring).

Katz, 389 U.S. at 351-52, 361; Jones, 565 U.S. at 430-31 (Alito, J., concurring in the judgment).

Katz, 389 U.S. at 361 (Harlan, J., concurring).

Edna Erez et al., GPS Monitoring Technologies and Domestic Violence, Nat’l Inst. Just., U.S. Dep’t of Just. (June 2012), https://www.ojp.gov/pdffiles1/nij/ grants/238910.pdf, at i.

Email from Evan Brannon, supra note 11 (answering question 3) (indicating that Metro values the “privacy of [their] clients, especially because with our program many haven’t been proven guilty”).

United States v. Scott, 450 F.3d 863, 872-75 (9th Cir. 2006) (holding that warrantless searches imposed as a condition of pretrial release required showing of probable cause, despite the defendant’s pre-release consent, and searches could not be justified under totality of the circumstances); Commonwealth v. Norman, 142 N.E.3d 1, 9-10 (Mass. 2020) (holding that the defendant did not freely and voluntarily consent to the imposition of GPS device as a condition of pretrial release, and because imposition of a GPS device did not advance the bail statute’s permissible goals, it violated Article 14 of the Massachusetts Declaration of Rights, which prohibition against unreasonable searches and seizures).

Scott, 450 F.3d at 865.

Id.

Id. at 875.

Id. at 867-68.

Id.

Id. at 872-75.

Norman, 142 N.E.3d at 331.

to stay out of Boston and wear a GPS monitoring device.35 The court held that the GPS monitoring device was unconstitutional; agreeing to bail conditions that included GPS monitoring did not establish consent because the “coercive quality of the circumstances and the defendant seeking to avoid incarceration by obtaining probation on certain conditions makes voluntary waiver and consent generally inapplicable.”36 Although consent can justify a warrantless search like GPS monitoring, the government bore the burden of proof.37 Norman reinforces that pretrial GPS monitoring cannot be justified solely because a defendant accepted it as a condition of release and underscores that courts must carefully balance the government’s interests against the defendants’ substantial privacy rights.38

B. Excessive Fines

Requiring indigent defendants to pay for their own GPS monitoring as a condition of pretrial release both burdens them with an unjust financial strain and raises a critical constitutional question: does this practice violate the Eighth Amendment’s prohibition against excessive fines, effectively punishing indigent citizens for their inability to pay? 39 To qualify as indigent, a person’s income must be less than 125% of the federal poverty level.40 Based on these federal poverty limits,41 to be

considered indigent, people must earn between $7,530$18,825 per year or $627.50-$1,568.75 per month pretax.42 Tennessee imposes a severe financial burden on indigent defendants in aggravated assault domestic violence cases by mandating use of GPS monitoring system without offering any financial assistance.43 The typical bail for a domestic violence case in Tennessee is between $500-$1,000.44 Several factors can increase the bail amount: the severity of crime, the defendant’s criminal history, the defendant’s risk to the community, and the defendant’s record of failure to appear back in court.45 On top of this bail, Metro Monitoring imposes a $250 setup fee, with daily fees ranging from $10 to $15,46 effectively subjecting indigent defendants to harsh penalties.47 With average pretrial monitoring of 90 days, defendants may face GPS monitoring fees of $900.00 or more.48 Tennessee Public Chapter 406 originally intended courts to use their discretion to impose GPS monitoring in cases involving heightened risk to the victim.49 For example, a defendant with repeated domestic violence charges, such as simple assault charges against the same victim, can pose an even greater ongoing threat than someone facing a first-time aggravated assault charge with no prior record. Tennessee’s Public Chapter

Id. at 331-332.

Id. at 335.

Norman, 142 N.E.3d at 335.

Id. at 339.

Overview of Eighth Amendment, Cruel and Unusual Punishment | Constitution Annotated | congress.gov | Library of Congress, https://constitution. congress.gov/browse/essay/amdt8-1/ALDE_00000258/ (last visited Apr 21, 2025); see also United States v. Polouizzi, 697 F. Supp. 2d 381, 390 (E.D.N.Y. 2010) (“Bail conditions are unconstitutionally excessive if they impose restraints that are more than necessary to achieve the government’s interest—in this case, preventing risk of flight and of danger to society or children.”).

Frequently asked questions, https://www.americanbar.org/groups/legal_services/flh-home/flh-faq/ (last visited Apr 21, 2025) (This may change based on jurisdiction, but it is typical that an indigent person’s income is less than 125 percent of the FPL).

2024 Poverty Guidelines: 48 Contiguous States, available at documents/7240229f28375f54435c5b83a3764cd1/detailed-guidelines-2024.pdf (last visited Apr 23, 2025).

Id. (providing poverty thresholds for the 48 contiguous states and District of Columbia based on household size, with $15,060 representing the baseline single-person household). The applicable threshold increases with household size. Indigency determinations generally consider the total income of the household relative to the poverty guideline for that household size, rather than comparing an individual household member’s income to the one-person guideline..

The Debbie and Marie Domestic Violence Protection Act, ch. 1033, 2024 Tenn. Pub. Acts 1, 2-3.

May Moralde, How Much Is Bail for Domestic Violence? (Feb. 19, 2022), available at https://allnonebail.com/how-much-is-bail-for-domestic-violence/ (last visited June 21, 2026).

https://aspe.hhs.gov/sites/default/files/

Id.

Email from Evan Brannon, Metro Monitoring Representative, to William Fayne, 3L University of Missouri. (Jan. 21. 2025) (on file with author) (answering question 1).

Id.

Tenn. Advisory Comm’n, Improving Victim Safety, supra note 2, at 5.

2011 Tenn. Pub. Acts 828, ch. 406.

1033 amended Tenn. Code Ann. § 40-11-152(h) by removing payment assistance for indigent people’s GPS monitoring, and indigent defendants are not eligible for assistance from the electronic monitoring indigency fund.50 Thus, by eliminating financial assistance while simultaneously mandating GPS monitoring in aggravated assault cases, Tennessee appears to shift the cost of pretrial supervision onto indigent defendants regardless of their ability to pay, which creates a financial burden bearing little relationship to an individualized assessment of either risk or financial capacity.

C. Equal Protection Clause

The Fourteenth Amendment’s Equal Protection Clause states that “[T]o all persons ‘born or naturalized in the U.S.,’ including formerly enslaved people, and provided all citizens with ‘equal protection under the laws,’ extending the provisions of the Bill of Rights to the states.”51 Indigent defendants do not receive equal protection when it comes to GPS monitoring.52 Tennessee mandates the use of GPS devices specifically for aggravated assault cases. Defendants charged with other domestic violence offense are not subject to the same mandatory requirement, but GPS monitoring is discretionary with the trial judge.53 As a result, the statute does not account for the varying levels of risk that a defendant may pose to the victim.54 The disparity in how Tennessee currently enforces GPS monitoring overlooks defendants charged with multiple instances of simple assault and, thus, fails to recognize the cumulative danger repeat offenders pose.55 It neglects

the reality that consistent, escalating violence can be just as dangerous as a single severe incident. While Tennessee may require GPS monitoring to address more serious alleged domestic violence, this selective application raises concerns.56 This policy directly impacts indigent individuals, who may be unable to afford this condition of release and thus may remain detained pending trial.57 Accordingly, tying mandatory GPS monitoring solely to the charged offense, rather than an individualized assessment of risk, creates arbitrary distinctions among defendants while disproportionately burdening indigent individuals who may remain incarcerated solely because they cannot afford a release condition.

PUBLIC POLICY

Typically, in the criminal realm, public policy arguments center on how to protect the victim.58 But defendant-focused public policy discussions are just as important.59 GPS monitoring as a bond condition in domestic violence cases raises public policy concerns, particularly concerning collateral consequences. GPS monitoring can impose an unintended social, economic, and psychological burden on defendants, which further exacerbates inequity.

A. Collateral Consequences

GPS monitoring in domestic violence cases introduces many significant collateral consequences, as it often imposes restrictions on both the victim and the defendant.60 While the practiceaims to enhance the safety of the victim, it potentially infringes on freedoms.61

The Debbie and Marie Domestic Violence Protection Act, ch. 1033, 2024 Tenn. Pub. Acts 3.; but see Tenn. Code Ann. 39-13-102(4) (2024) (requiring courts to assess a $10 electronic monitoring indigency fee to fund the electronic monitoring indigency fund, which previously subsidized monitoring for indigent defendants).

U.S. Const. amend. XIV.

I recognize that courts review a citizen’s financial status under a rational basis review, which requires indigent defendants to prove the lack of rational basis for fee-heavy bond conditions, like GPS monitoring, and sets a low bar to constitutionality.

See Tenn. Code Ann. § 39-13-102(a)(1)(A)(i),(iii), (iv) (2024); see also Tenn. Code Ann. §§ 40-11-150; 40-11-152(b)(2) (2024) (requiring courts to issue a no-contact order and mandate GPS monitoring before releasing defendants on bond in aggravated assault cases.).

Id.

Tenn. Advisory Comm’n, Improving Victim Safety, supra note 2, at 63, appendix H (IPDV (intimate partner domestic violence) suspects, AA/DV (aggravated assault/domestic violence), and SA/DV (simple assault/domestic violence)).

Rhodes, Strengthening the Guard, supra note 2, at 136.

See generally Scholl, GPS Monitoring, supra note 4 at 858-59.

See generally Making Your Home A Shelter: Electronic Monitoring and Victim Re-entry in Domestic Violence Cases, 47 Brit. J. Criminology 100 (2007), available at https://nij.ojp.gov/library/publications/making-your-home-shelter-electronic-monitoring-and-victim-re-entry-domestic

See generally Scholl, GPS Monitoring, supra note 4, at 866 n.163 (citing Diane L. Rosenfield, Cooperative Rights and the Boundaries of Freedom: Protecting the Civil Rights of Endangered Women, 43 Harv. Cr.-C.L. L. Rev. 257, 263 (Winter 2008)). The factors are important because they help protect the victim and assure fundamental fairness in the offender’s court proceedings, as due process requires. See id.

See generally Edna Erez et al., GPS Monitoring Technologies and Domestic Violence, supra note 25, at 144.

Id.

A collateral consequence is a penalty, disability, or disadvantage imposed by law or an administrative agency because of a conviction, but one that was not included in the court’s judgment.62 Collateral consequences include collateral sanctions, which are automatic legal penalties and disqualifications, which are discretionary penalties imposed by agencies or civil courts based on a conviction.63 Collateral consequences create social and economic barriers for individuals reentering society by denying or restricting benefits otherwise available to all Americans.64 Defendants may experience collateral consequences, such as restricted movement that disrupts daily life, and other collateral consequences that can impact their employment, immigration status, firearm rights, voting, public benefits (e.g., food stamps, housing), and access to student loans or financial aid.65 One example of how collateral consequences follow from GPS monitoring is Michael Tafolla, who served 20 years in prison and was released with a GPS monitor as a condition of mandatory supervised release.66 He was approved for limited movement three days a week, four hours each day.67 Despite these constraints, he secured an internship with his university and a full-time job with a temp agency.68 But his parole officer told him “to pick between the internship or the job” when he asked to have his movement hours adjusted to accommodate both.69 Although he eventually received expanded movement hours, Tafolla had to fight for permission to visit his parents (which he did not receive) and time to

buy necessities like soap and clothes.70 Thus, while GPS monitoring can provide further protection for victims, it can lead to logistical burdens.71

B. Concerns

Some experts and researchers in domestic violence question GPS monitoring’s efficacy in keeping victims safe and reducing recidivism during the pretrial period.72 One concern is whether risk assessments accurately identify whether a defendant is dangerous.73 Law enforcement officers ask defendants several questions at the scene, which result in a risk assessment and dangerousness score.74 One judge has observed that “GPS monitoring might provide a false sense of security to victims in that it would stop them from being harm[ed], but there’s little you can do to stop a person bent on harming someone else.”75 Additionally, some defense attorneys and civil liberties organizations are concerned that when used for pretrial release, GPS monitoring is not fair or effective, and they question the technology’s limitations.76 For example, a 2010 Florida study of electronic monitoring, including GPS monitoring, concluded that offenders who were electronically monitored were 31% less likely to experience a “supervision failure,” defined as absconding, technical violations resulting in revocation, or revocation after the commission of a new crime, than those on other forms of community supervision.77 Although this study found that GPS monitoring

American Bar Association, Collateral Consequences of Criminal Convictions: Judicial Bench Book 6 (U.S. Dep’t of Justice, Nat’l Inst. of Justice, Mar. 2018), https://www.ojp.gov/pdffiles1/nij/grants/251583.pdf.

Id.

American Bar Association, Collateral Consequences of Criminal Convictions: Judicial Bench Book 4 (U.S. Dep’t of Justice, Nat’l Inst. of Justice, Mar. 2018), https://www.ojp.gov/pdffiles1/nij/grants/251583.pdf.

Scott Rose, Top 10 common collateral consequences of criminal charges Rose Legal Services (2023), https://www.roselegalservices.com/collateralconsequences-of-criminal-charges/ (last visited Apr 24, 2025).

Allison Frankel Ayomikun Idowu et al., Three People Share How Ankle Monitoring Devices Fail, Harm, and Stigmatize (Sept. 29, 2022), available at https://www. aclu.org/news/criminal-law-reform/ankle-monitoring-devices-fail-harm-and-stigmatize (last visited Apr 24, 2025).

Id.

See generally Edna Erez et al., GPS Monitoring Technologies and Domestic Violence, supra note 25, at 144.

Tenn. Advisory Comm’n, Improving Victim Safety, supra note 2, at 1.

Id. at 24.

Id.

Id. at 16.

Tenn. Advisory Comm’n, Improving Victim Safety, supra note 2, at 16.

William Bales et al., A Quantitative and Qualitative Assessment of Electronic Monitoring 56 (Fl. State Univ., Jan. 2010) available at https://www.ojp.gov/ pdffiles1/nij/grants/230530.pdf; Pretrial Just. Inst., Electronic Monitoring: Proceed With Caution, The Pretrial Blog (Mar. 20, 2018), available at https://www.

reduces recidivism, its focus was on medium- and highrisk felony offenders under community supervision; the 2011 Pretrial Justice Institute survey found that pretrial electronic monitoring did not reduce failure to appear or rearrest.78 Other studies indicate inconclusive benefits of GPS monitoring.

C. Advocacy or Presumptive Guilt?

Pretrial GPS monitoring calls into question whether it is a protective measure to advocate for victims’ safety or whether it inadvertently casts defendants in presumptive guilt before they have been tried in court.79 Pretrial GPS

monitoring could remove or change the presumption of innocence by implicating punitive measures absent full constitutional protections.80Under this statute, Tennessee law includes a threat-assessment exception, but courts cannot impose thebail conditions in Tenn. Code Ann. § 40-11-152 without probable cause.81 Nevertheless, according to a public defender in Shelby County, required GPS monitoring occurs before many defendants’ preliminary hearings.82 Thus, pretrial GPS monitoring pretrial undermines the presumption of innocence because courts treats defendants who have not been convicted as if they are guilty.83 

pretrial.org/electronic-monitoring-proceed-caution. 78

Id.

See generally Tenn. Advisory Comm’n, Improving Victim Safety, supra note 2, at 1, 16 (such as defense attorneys and civil liberties organizations, are also concerned that when used for pretrial release, electronic monitoring, including GPS monitoring, is not a fair and effective tool, and they question the limitations of the technology.); see also Edna Erez et al., GPS Monitoring Technologies and Domestic Violence, supra note 25, at 106 (“Some victims questioned the justice system reasons for instituting GPS programs. They suspected that the technology was designed to protect the justice system from liability, or to show that something was being done, rather than reflecting any genuine interest in increasing the safety or improving the welfare of the victim. This was particularly the case for those who were harassed by the abuser’s proxies while the abuser was on GPS. These victims reported remaining cautious despite knowing that their abuser was on GPS.”).

See generally Balakrishnan, Mass Surveillance, supra note 2, at 478.

Tenn. Code Ann. § 40-11-152 (2024).

Telephone Interview with Shelby County Public Defender (April 1, 2025). In Tennessee, defendants are entitled to a preliminary hearing, for all cases, unless the defendant chooses to waive their right to preliminary hearing. See Tenn. R. Crim. P. 5.1. The hearing takes place within fourteen days if the defendant remains in custody or within thirty days if they are released from custody.

Balakrishnan, Mass Surveillance, supra note 2, at 538 (noting that, absent constitutional restraints, GPS surveillance “will persist for those who contest their guilt, reducing their liberty and dignity in our society, a society which presumes them innocent”).

William “DeAndre” Fayne is a born-and-raised Memphian whose passion for advocacy led him to pursue a career in law. He attended the University of Missouri (Mizzou), where he earned a bachelor's degree in Political Science with minors in Psychology and American Constitutional Democracy. During his undergraduate studies, Fayne developed a commitment to public interest advocacy, beginning his legal experience as an intern with the Boone County Public Defender’s Office in Columbia, Missouri. After completing his undergraduate degree in three years, Fayne earned a one-year master’s degree in Atlantic History and Politics from Mizzou. During his graduate studies, he studied abroad at Corpus Christi College, Oxford, and was later invited to Madrid for the Atlantic Studies Symposium. Fayne then returned to Mizzou to pursue his Juris Doctor, continuing his focus on advocacy. During his 1L summer, he worked as a law clerk with the Shelby County Public Defender’s Office, working in Division 10, the domestic violence unit, where he witnessed firsthand the inequities faced by indigent defendants, particularly regarding the use of GPS monitoring as a condition of bond. While serving on the Journal of Dispute Resolution during his 2L year, Fayne began writing his Comment, Beyond Electronic Shackles: Advocating for Restorative Justice. He later served as Associate Editorin-Chief of the Journal during his 3L year while pursuing publication of his Comment. Fayne graduated from Mizzou with his J.D. on May 16, 2026, and has accepted a position with Watters Wolf Bub Hansmann in St. Louis, where he will begin his legal career following bar admission. Though he is leaving Memphis for now, he says he will always remain a Tiger—even if the colors are black and gold.

Shelby County Criminal Court Report COVERS JURY TRIALS FROM JANUARY 1, 2026 – JUNE 30, 2026 CRIMINAL COURT DIVISION I JUDGE RAY LEPONE

No trials. CRIMINAL COURT DIVISION II JUDGE JENNIFER FITZGERALD

State of Tennessee v. Mack Joy, No. BB9616B Trial from March 30-April 2, 2026 Assistant District Attorneys General: Venecia Patterson and Fredricka Brown Defense counsel: Coco Gill and Glover Wright Charges in Indictment: One count of rape of a child and one count of continuous sexual abuse of child. • Verdict: The jury found the defendant guilty on all counts. • Sentencing: unknown.

CRIMINAL COURT DIVISION III JUDGE JAMES JONES JR.

State of Tennessee v. Robert Holmes and Keshaun Mallet, No. BD1567 Trial from January 20-23, 2026 Assistant District Attorneys General: Chris Lareau and Sam Winnig Defense counsel: Rob Felkner and Jarahi Dowdy Charges in Indictment: • Holmes was charged with one count each of criminal attempt – first degree murder; aggravated assault – acting in concert; criminal attempt – aggravated robbery; and facilitation – criminal attempt – first degree murder. • Mallet was charged with one count each of criminal attempt – first degree murder; aggravated assault – acting in concert; employing a firearm during the commission of a dangerous felony; criminal attempt – aggravated robbery; and convicted felon in possession of a firearm. • Verdict: The jury found the defendants guilty on all counts. • Sentencing: The court sentenced Defendant Robert Holmes to 18 years and Defendant Keshaun Mallet to 25 years.

State of Tennessee v. Courtney Jones, No. BD3320 Trial from March 9-12, 2026 Assistant District Attorneys General: William Wetter and Annika Rush

Defense counsel: Rob Felkner Charges in Indictment: One count of rape and one count of aggravated statutory rape. • Verdict: The jury found the defendant guilty on both counts. • Sentencing: Sentencing is set for September 30, 2026.

State of Tennessee v. Tifanee Wright, No. BD0631 Trial from April 13-17, 2026 Assistant District Attorneys General: Sam Winnig and Cody Tolbert Defense counsel: Joe McClusky Charges in Indictment: One count of second-degree murder. • Verdict: The jury found the defendant guilty. • Sentencing: The court sentenced Wright to 25 years at the Tennessee Department of Corrections at 100%.

State of Tennessee v. Dontavious Curtis, No. BD1081 Trial from June 1-3, 2026 Assistant District Attorneys General: Ravi Lipman and Haden Lawyer Defense counsel: Rob Felkner Charges in Indictment: One count of convicted felon in possession of a firearm. • Verdict: The jury found the defendant not guilty.

State of Tennessee v. Jeffrey Butler, No. BE0488 Trial from June 15-18, 2026 Assistant District Attorneys General: Alex Stephenson and Jack Gould Defense counsel: Glover Wright and Courtney Evans Charges in Indictment: One count of aggravated assault. • Verdict: The jury found the defendant not guilty.

CRIMINAL COURT DIVISION IV JUDGE CAROLYN WADE BLACKETT

State of Tennessee v. Warrick Tennial, No. BD0719 Trial from February 9-13, 2026 Assistant District Attorneys General: JD Hamblen and Brittany Neal Defense counsel: Dewun Settle Charges in Indictment: One count of voluntary manslaughter and one count of employing a firearm during the commission of a dangerous felony. • Verdict: The jury found the defendant guilty of both counts. 59

• Sentencing: The Court sentenced the defendant to 5 years for voluntary manslaughter and 6 years on the employing-afirearm charge, to run consecutively.

State of Tennessee v. Gregory Lee Tanner, No. BC9666 Trial from February 17-21, 2026 Assistant District Attorneys General: Jack Abrams and Dan Buchanan Defense counsel: Lance Chism Charges in Indictment: One count of financial exploitation of an elderly or vulnerable adult over $60,000, one count of identity theft, and one count of abuse of a corpse. • Verdict: The jury found the defendant guilty on all counts. • Sentencing: unknown.

State of Tennessee v. Joshua Gossett, No. BD3346 Trial from March 23-28, 2026 Assistant District Attorneys General: JD Hamblen and Carrie Bush Defense counsel: John Dolan Charges in Indictment: The defendant was charged with 5 counts of first-degree murder; 2 counts of aggravated robbery; 2 counts of aggravated abuse of a vulnerable adult; and 1 count of convicted felon in possession of a firearm. • Verdict: The jury found the defendant guilty on four counts of first-degree murder, two counts of aggravated robbery, one count of aggravated abuse of a vulnerable adult, and one count of being a felon in possession of a firearm. One first-degree murder count and one aggravated abuse of a vulnerable adult count were dismissed noelle prosequi by the State. • Sentencing: The defendant was sentenced to life with the possibility of parole (51 years) on two of the first-degree murder counts (the other two counts merged), 12 years each on both aggravated robbery counts, 12 years on the aggravated abuse of a vulnerable adult count, and 12 years on the felon-in-possession count. All counts will run consecutively for an effective 150-year sentence. •

State of Tennessee v. Edwin Bailey, No. BC1648 Trial from May 18-22, 2026 Assistant District Attorneys General: JD Hamblen and Brittany Neal Defense counsel: Joe McClusky Charges in Indictment: One count of first-degree murder. • Verdict: The jury found the defendant not guilty.

CRIMINAL COURT DIVISION V JUDGE CARLYN ADDISON

State of Tennessee v. Ray Malone, No. BD9187 Trial from February 23-24, 2026 Assistant District Attorneys General: Alicia Walton Defense counsel: Jim Gulley Charges in Indictment: One count of domestic assault. • Verdict: The jury found the defendant not guilty.

State of Tennessee v. Deandre Wilkins, No. BE0716 Trial from March 23-27, 2026 Assistant District Attorneys General: Lessie Rainey and Regina Lucreziano Defense counsel: Keirsten Kucker and Tori Gilooly Charges in Indictment: The defendant was charged with 5 counts of especially aggravated kidnapping; 1 count aggravated assault; and 1 count domestic assault. • Verdict: The jury found the defendant guilty on the aggravated assault and domestic assault counts and not guilty on the 5 counts of especially aggravated kidnapping. • Sentencing: The court sentenced the defendant to 15 years.

State of Tennessee v. Joshua Banks, No. BE1809 Trial May 11-15, 2026 Assistant District Attorneys General: Lessie Rainey and Regina Lucreziano Defense counsel: John Dolan Charges in Indictment: One count of first-degree murder and one counts of Convicted Felon in Possession of a Firearm • Verdict: The jury found the defendant guilty on both counts. • Sentencing: The defendant was sentenced to life without parole on the first-degree murder count and 30 years on the felon in possession of a firearm count.

State of Tennessee v. Luis Espino, No. BD7353 Trial from June 15-19, 2026 Assistant District Attorneys General: William Wetter and Annika Rush Defense counsel: Brandon Hall Charges in Indictment: The defendant was charged with 3 counts of aggravated rape of a child and 6 counts of rape of a child. • Verdict: The jury found the defendant guilty on all counts. • Sentencing: Sentencing is set for September 29, 2026.

CRIMINAL COURT DIVISION VI JUDGE DAVID POOL

No trials.

CRIMINAL COURT DIVISION VII JUDGE LEE COFFEE

CRIMINAL COURT DIVISION VIII JUDGE CHRISTOPHER CRAFT

State of Tennessee v. Courtney Goss, No. BD3040

State of Tennessee v. Herbert Banks, No. BD5175

Trial from February 23-27, 2026 Assistant District Attorneys General: Nicole Germain and Annika Rush Defense counsel: Lauren Paisley

Trial from March 9-12, 2026 Assistant District Attorneys General: Alicia Walton and Mark Bowman Defense counsel: Andrea Prater and Terrance Tatum

Charges in Indictment: Two counts of aggravated rape and one count of especially aggravated kidnapping. • Verdict: The jury found the defendant guilty as to one count of aggravated rape. The jury found the defendant not guilty on the other count of aggravated rape and not guilty on the especially aggravated kidnapping counts. • Sentencing: The defendant was sentenced to 60 years.

Charges in Indictment: One count of domestic-violence assault. • Verdict: The jury found the defendant not guilty.

State of Tennessee v. Kordelro Harris, No. BD6059 Trial from May 4-9, 2026 Assistant District Attorneys General: Monica Timmerman and Jack Gould Defense counsel: Coleman Garrett Charges in Indictment: The defendant was charged with 1 count of voluntary manslaughter; 2 counts of possession of cocaine with intent to manufacture/sell/deliver; 2 counts of possession of marijuana with intent to manufacture/sell/ deliver; employing a firearm during the commission of a dangerous felony; and 2 counts of theft of a firearm less than $2,500. • Verdict: The jury found the defendant guilty on all counts. • Sentencing: The court sentenced the defendant on August 14, 2026 as follows: 12 years at the Tennessee Department of Corrections for voluntary manslaughter at 100%; 11 months 29 days on possession of cocaine (with the 2 counts running concurrently); 2 years at 30% on possession of marijuana with intent to manufacture/sell/deliver (with the 2 counts running concurrently); 6 years at 100% for employing a firearm during the commission of a dangerous felony. All of these sentences will run consecutively.

State of Tennessee v. Demarcus Wooten, No. BB2850 Trial from May 18-22, 2026 Assistant District Attorneys General: Melanie Headley and Bailey Buford Defense counsel: Juni Ganguli Charges in Indictment: One count of first-degree murder and one count of criminal attempt – especially aggravated robbery. • Verdict: The jury hung and did not render a verdict.

State of Tennessee v. Richard Erby, No. BC8476 Trial from June 22-25, 2026 Assistant District Attorneys General: Steve Ragland and Shaun Schielke Defense counsel: Defendant proceeded pro se, and John Dolan served as elbow counsel. Charges in Indictment: 1 count of criminal attempt: firstdegree murder. • Verdict: The jury found the defendant not guilty.

CRIMINAL COURT DIVISION X JUDGE JENNIFER MITCHELL

State of Tennessee v. Whitney Nelson, No. BD0233 Trial from April 27-29, 2026 Assistant District Attorneys General: Jack Abrams and William Walsh Defense counsel: Lee Gerald Charges in Indictment: One count of theft of property over $10,000. • Verdict: The jury found the defendant guilty. • Sentencing: The court sentenced the defendant to 4 years of probation with $23,549.44 in restitution.

State of Tennessee v. Ricky Booker, No. BC6827 Trial from May 18-21, 2026 Assistant District Attorneys General: Alexia Crump and Venecia Patterson Defense counsel: Rob Felkner Charges in Indictment: One count of rape of a child and one count of aggravated sexual battery. • Verdict: The jury found the defendant guilty on both counts. • Sentencing: Sentencing is set for September 28, 2026.

Bar Scene

Bench Bar Downtown Countdown

Criminal Law Section CLE

Bench Bar Downtown Countdown

ADR Section CLE

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Hon. Samuel H. Mays, Jr. Portrait Unveiling

Summer Bar Admissions Ceremony

Professionalism Midyear Seminar

Summer Bar Admissions Ceremony

Real Estate Section CLE

YLD Volunteers at the Second Saturday Legal Advice Clinic

Summer Law Intern Program 2026

Bar Scene Summer Law Intern Program 2026

Summer Law Intern Program 2026

YLD Professional Development Seminar

Summer Law Intern Program 2026

Vivian Pyatt was sworn in as a new Juvenile Court Magistrate. Before joining Juvenile Court, she served as Associate Counsel for the Tennessee Department of Children’s Services, where she represented the Department in dependency and neglect, termination of parental rights, and administrative proceedings and also provided legal guidance on compliance and policy matters. Throughout her career, she has handled a wide range of family- and juvenile-law matters, and she has extensive experience advocating for children’s best interests in complex legal proceedings.

The Tennessee Supreme Court has named J. Scott Griswold Clerk of the Appellate Courts, effective July 1, 2026. Griswold will serve the Supreme Court as well as the Court of Appeals and Court of Criminal Appeals and oversee staff at offices in Jackson, Nashville, and Knoxville. Griswold comes to the appellate courts from Knox County, where he served as Clerk and Master. Before joining the court system, Griswold’s private practice focused on estate planning, administration, and litigation. He also served as a law clerk for the Hon. William M. Barker when he was Chief Justice of the Tennessee Supreme Court.

Jason Kadzban has been appointed as the new Clerk of Court of the United States Bankruptcy Court for the Western District of Tennessee effective June 15, 2026. Mr. Kadzban brings over 20 years of experience in the federal judiciary along with a proven track record of leadership and innovation. As Clerk, Mr. Kadzban will oversee the court’s strategic direction, operations, and continued commitment to delivering exceptional value to customers, employees, and the local bar.

Jennifer Sneed-Perry was sworn in as the Tennessee Bar Association Young Lawyers’ Division president in June 2026. Sneed-Perry has served as president-elect this past year and as a TBA YLD West Tennessee Governor for the prior two years. Sneed-Perry earned her law degree from the University of Memphis Cecil C. Humphreys School of Law and serves as the Director — Legal/Estates for St. Jude Children’s Research Hospital — ALSAC.

Charlotte Knight Griffin took office as TBA president in June 2026. Knight Griffin has been active in the TBA for many years, most recently serving as president-elect, speaker of the House of Delegates, and a member of the Board of Governors. Knight Griffin earned her law degree from the University of Tennessee College of Law (now Winston College of Law). She joined Memphis Light, Gas and Water as a staff attorney in 1978 and was named the manager of legal services in 2000. She retired in April 2023 after 45 years of service.

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