Issuu

Nashville Bar Journal

APRIL 15- VOL 15, NO. 3

Draft Drone Regulations Recognize Unique Nature of UAS and Credit Military Experience James E. Mackler

What We Need to Know to Plan an Estate Today (and Tomorrow) Harlan Dodson and Jillian Mastroianni

LAW DAY REGISTRATION GOLF TOURNAMENT REGISTRATION

Departments

Articles 6 Draft Drone Regulations Recognize Unique Nature of UAS and Credit Military Experience

2 4

James E. Mackler

Fellow Dinner Overview Kay Caudle

10 What We Need to Know to Plan an Estate Today (and Tomorrow)

Communique • Golf Tournament • Arts Immersion • Law Day Luncheon • Memorial Service • Golden Oldie • Upcoming Events

CONTINUING LEGAL EDUCATION

Harlan Dodson and Jillian Mastroianni

CENTER SECTION

14 NBA Veterans Continue to Serve

George C Paine II

16 The Triple “D”: Deposing the Difficult Deponent

(While Also Dealing with a Difficult Attorney) Phillip Byron Jones

100% CLUB MEMBERS Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory Classified Listings

Golden Oldie

Columns

From the President

Identify the individuals in the photo. Be the first to email the correct answer to nikki.gray@ nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue.

Gadget of the Month

Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting

NBA Calendar of Events APRIL 14 - 11:30 AM LAW Board Meeting APRIL 15 - 12 PM NBA Memorial Service Committee Meeting APRIL 16 - 4:45 PM ADR Committee Meeting APRIL 17 - 12 PM Health & Wellness Committee Meeting APRIL 20 - 11:45 AM Probate Committee Meeting

APRIL 21 - 11:30 AM Solo & Small Firm Committee Meeting APRIL 21 - 12 PM Ethics Committee Meeting APRIL 22 - 12 PM Appellate Practice Committee Meeting APRIL 23 - 12 PM NBF Trustees

APRIL 23 - 3:30 PM Finance Committee Meeting APRIL 23 - 4:30 PM Executive Committee Meeting APRIL 29 -11:15 AM Business Law Committee Meeting MAY 1 Law Day Luncheon @ Renaissance Hotel Speaker – Mayor Karl Dean MAY 14th NBA Golf Tournament @ Legends Golf Course

Committee Meetings are held at the NBA Offices unless otherwise noted l o= Special Event l Full Calendar online at www.nashvillebar.org

' A Monthly Publication of the Nashville Bar Association

Edward D. Lanquist, Jr., Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org

Journal Staff:

Nikki Gray, Director of Communications nikki.gray@nashvillebar.org

Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org

Editorial Committee: Kelly L. Frey Kathleen Pohlid Tim Ishii Tracy Kane Everette Parrish Bill Ramsey Rita Roberts-Turner Eleanor Wetzel David Winters Victoria Webb

Nashville Bar Association Staff Monica Mackie Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy. POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219

No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork. All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.

Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org

Nashville Bar Journal - April 2015

From the President Law Day, Magna Carta, and New Nashvillians by:

Edward D. Lanquist, Jr.

On May 1, 2015, the Nashville Bar Association will celebrate Law Day at the Law Day Lunch to be held at the Downtown Renaissance Hotel beginning at 12 pm with the speaker being Mayor Karl Dean. This year’s Law Day theme is the Magna Carta: Symbol of Freedom Under Law. Mayor Dean will speak on the "New Nashvillians" and their importance to Nashville. To demonstrate how these topics intersect, it is important to understand the impact of the Magna Carta on modern America and the first immigrants from England especially as compared to modern Britain. In the United States, the Magna Carta stands for the concept of a written constitution representing freedom under the rule of law. It is the rule of law that not only protects our rights but also our prosperity. By knowing the likely outcomes that are consistent under the rule of law, we can all make choices knowing the likely outcome. Conversely, in Britain, the Magna Carta is much forgotten as illustrated by Prime Minister David Cameron’s lack of in depth knowledge about the document. In Britain, the document is viewed historically as the document resulting from the encounter of King John and the barons of the realm at Runnemede in 1215, in which a vulnerable King John granted the nobility certain rights with no consideration for the rights of the commoners. In America, we view the Magna Carta in the manner set forth in Sir Edward Coke’s version as it relates to common law as set for in his book. In 1607, as Chief Justice of the Common Pleas in England, Coke drew up the Royal Charter granted by King James 1st for the Virginia Company of London, which established the colony in Jamestown, Virginia in that year. This charter declared that “The persons which shall dwell within the colonies shall have all the liberties as if they had been abiding and born within this our realm of England or any other of our dominions.” These “Liberties” appeared in one form or another in the founding charters of several other colonies. From the Virginia charter of 1606 to the Massachusetts Body of Liberties of 1641 to the Constitution, which William Penn wrote for the colony of West New Jersey, and his charters for his own settlement, immigrants were guaranteed that English law back to Magna Carta would follow them to the colonies. Coke’s treatise on the Magna Carta was standard reading material for many of those founding colonies in drafting the rules and laws to govern the first English immigrants to the colonies of North America. About 20,000 British immigrants settled along the coastal colonies by 1640. The governments formed framed bodies of laws resembling the Magna Carta. These early colonial laws and governments formed the foundations for the Constitution, and later the Bill of Rights of the United States of America. Conversely, the Magna Carta became relevant in Britain only one more time in the 1600′s during another battle between subjects and the King, one that would end with the execution of the reigning monarch. When our founding fathers railed against the tyranny of England, the war of independence finally evolved wherein the Magna Carta played a role as “The essential proof of the natural law that attested the rights of the people against the government.” While the teachings of John Locke and the Greek Republic provided the ethereal basis, the Magna Carta provided the precedential support.

2015 NBA BOARD OF DIRECTORS

The Magna Carta is the source of our most fundamental concepts of law. Our founding father’s perceived need for a written constitution stems from the Magna Carta. The United States Supreme Court has cited the Magna Carta in more than one hundred opinions relating to the creation and understanding of due process of law, trial by a jury, speedy trial, and the protection against cruel and unusual punishment. But for those new Americans, the colonies would not have existed. But for the belief and respect held by those new Americans in the Magna Carta, our form of government would likely have looked much different. That government allows us to stand as a beacon of freedom and prosperity to the rest of the world. That beacon was illuminated by the Magana Carta and the recognized need to protect the rule of law. We have the privilege of not only living in that country but also the privilege of living in Nashville. We are the Athens of the South and the It City. We are a city that has decided that we will be collaborative and welcoming. We have decided that rights and prosperity of others must be respected and protected. As a result, people from all over the country and all over the world want to come to Nashville for reasons too numerous to list. Just like the new Americans came to North America, these new Nashvillians come to our great city. These people bring their efforts and creativity and culture because we have decided that our country needs to respect the rights of others so that they may reach their highest. This is all because the new Americans believed in a Magna Carta long forgotten by Britain. n

Edward D. Lanquist, Jr., President Joycelyn Stevenson, President-Elect Dewey Branstetter, First Vice President John C. McLemore, Second Vice President Charles K. Grant, Immediate Past President Ryan D. Levy, Young Lawyers Division President Whitney Haley, Secretary Hon. Joe B. Brown, Treasurer Eric W. Smith, Assistant Treasurer Lela Hollabaugh, General Counsel

Robert C. Bigelow Hon. Joe P. Binkley, Jr. Hon. Sheila D. Calloway Kathryn S. Caudle Margaret M. Huff Hon. William C. Koch, Jr. Irwin J. Kuhn Claudia Levy Hon. Randal S. Mashburn Jeffrey Mobley Andrea P. Perry Erin Palmer Polly Matt Potempa David L. Raybin Sara F. Reynolds Nathan H. Ridley Maria M. Salas Saul Solomon Overton Thompson, III M. Bernadette Welch

NASHVILLE BAR ASSOCIATION

Meeting Space @ the NBA CENTER Each day, we work hard to help people and businesses in our community. The NBA has a wide variety of services and programs that can help lawyers work smarter, stay informed and keep connected with fellow attorneys. From sole practitioners to the largest firms, from legal aid attorneys to those in private practice, the NBA supports all of us so we can better serve our clients and the justice system. The NBA Center is available for you to host meetings, arbitrations, depositions, and other events. Meeting space at the NBA Offices is available at a discounted rate for our members, and half-day sessions are free. The coffee is always warm. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access. Contact Vicki Shoulders at vicki.shoulders@nashvillebar.org and indicate the date, time and meeting room preference. Meeting space is subject to availability.

https://www.facebook.com /NashvilleBarAssociation

@theNashvilleBar

Our Bar Association is much more than just a collection of services. The power of our membership lies in the power of the people. WE are the Bar. And together, we shape the future of the legal profession.

Got an Idea for an NBJ Article? We want to hear about the topics and issues readers think should be covered in the magazine. Send it to nikki.gray@nashvillebar.org Nashville Bar Journal - April 2015

communiqué IS YOUR TEAM REGISTERED YET? The 2015 NBA/NBF Golf Tournament is set for Thursday, May 14, 2015 at the Vanderbilt Legends Club in Franklin, TN. Range balls will be available at Noon with a Shotgun start at 1 PM. We will have a Cookout and Prizes at the conclusion of Play. There will be team prizes and individual contests (longest drive, longest putt, closest to pin, etc.) You can also register online at www.nashvillebar.org Late fees apply after Thursday, May 7, 2015. If you have any questions, you can contact Traci Hollandsworth at the NBA (242-9272 or traci.hollandsworth@nashvillebar.org REGISTRATION ON PAGE 13

presented by THE ARTS & BUSINESS COUNCIL OF GREATER NASHVILLE in partnership with THE NASHVILLE BAR ASSOCIATION YOUNG LAWYERS DIVISION

Do you love live performances, supporting the arts, and enjoying delicious food and drink? We know you do! The 2015 Arts Immersion is a great way to kick off the summer months in style and fun! This Nashville gathering celebrates the intersection of arts and business responsible for the thriving dynamic community we all enjoy today. Not only is this an opportunity to take in local arts, but also a great chance to financially support the services provided by VLPA (Volunteer Lawyers & Professionals for the Arts)! Join us on May 27th as we revel in food, fun, and community at the arts event of the season! WHAT: An intro via immersion to Nashville’s creative community, this summer soirée showcases music, acting, dance, film, visual and performance art from some of our finest local talents. The evening is topped off with a unique silent auction featuring everything from co-writing sessions with top songwriters to enticing offers from local businesses. WHO: Arts Immersion celebrates the convergence of Nashville’s creative and business communities. Attorneys, artists and a plethora of business professionals – a.k.a. – the perfect blend of suits and skinny jeans. WHY: To give a big thank you – both to our city’s creative talent and the professionals that so generously support it. Proceeds from the night benefit Volunteer Lawyers & Professionals for the Arts, a program of the Arts & Business Council. The VLPA program has provided $1 million worth of free legal and business help to over 1,000 low-income artists and 300 nonprofit arts organizations over the past six years. WHEN & WHERE: Wed., May 27th, 2015, 6:00-9:00pm at W.O. Smith School. FOOD/DRINK: Plenty. And did we mention it’s open bar? There will be ample libations, as well as delicious fare from Nashville vendors and restaurants. TICKETS: $40, available at www.abcnashville.org. Patron Packages available. 4

Nashville Bar Journal - April 2015

NBA Annual Memorial Service The Nashville Bar Association's spring Memorial Service will be conducting the service on Thursday, May 21, 2015, at the Downtown Presbyterian Church. The service begins at 11 a.m. with a reception immediately following in Fellowship Hall. A project of the NBA's Historical Committee, the Memorial Service honors the memory of those Nashville lawyers and judges who passed away during the preceding six-month period. Memorial resolutions, recounting the lives and legal careers of the deceased individuals, are prepared and then read at the service by friends and colleagues of the bench and bar. Family members and friends of the deceased are invited to attend.

George Barrett William Bradley Kent Harrell James(Jimmy) Harris, Jr Kenneth Jones, Jr. Tom Kittrell Mike Norton Mac Robinson, Sr. Robert (Bob) Spann Carlton Tarkington Alfred Wehby

-Golden Oldies

Jim Hofstetter correctly identified the individuals in the March 2015 Golden Oldies photo.

Pictured are: Val Sanford and Jack Robinson, Sr REGISTRATION ON PAGE 19

NBA Calendar of Events MAY 1 Law Day Luncheon @ Renaissance Hotel Speaker – Mayor Karl Dean

MAY 27 Arts Immersion @ W.O. Smith School 6-9 PM Benefitting the Volunteer Lawyers & Professionals for the Arts

MAY 14 NBA Golf Tournament @ Legends Golf Course

August 1 Carbolic Smoke Ball @ Sutler Saloon

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MAY 21 NBA Memorial Service @ Downtown Presbyterian Church

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Feature

Draft Drone Regulations Recognize Unique Nature of UAS and Credit Military Experience by:

James E. Mackler

On February 23, 2015, the Federal Aviation Administration published for comment its long awaited proposed rules allowing the operation of small unmanned aircraft systems (sUAS). The rules contain some pleasant surprises for the growing community of potential commercial drone users. They represent an attempt by the FAA to push beyond its comfort zone by promulgating rules that recognize that sUAS do not fit neatly into the currently regulatory environment. They also recognize the value of military experience to the commercial UAS field. The FAA had previously defined small UAS (“drones”) as aircraft weighing less than 55 pounds. (Pub. L. No. 112-95, Sec. 331(6)). The agency has limited the proposed rules to this class of aircraft. It has suggested that it might promulgate additional regulations for a sub-category of “micro-uas” weighing less than 4.4 pounds. The sUAS category (4.4 to 55 pounds) effectively encompasses the vast majority of aircraft currently produced for civilian hobby and commercial use. It allows for either fixed wing or rotary wing aircraft that can carry a variety of payloads, including sophisticated cameras and other sensors, for anywhere from a few minutes to an hour or longer. Most of the proposed rules were anticipated by the UAS community. They are similar to current guidelines for the recreational use of drones. For example, all UAS flights are restricted to daylight only, within sight of the operator, and below 500 feet. These limitations, plus a ban on dropping objects from UAS, quashes some of the more ambitious ventures, such as drone-based delivery services. Other proposed rules are surprising in their apparent leniency. Commercial UAS flights are, with prior permission from Air Traffic Control, permitted in controlled airspace. This means that a 15-pound, eight-rotor blade drone can potentially share the skies with everything from a single engine Cessna to a Boeing 777. 6

Nashville Bar Journal - April 2015

Another area of unexpected leniency has to do with operator certification. UAS pilots (the proposed rule calls them “operators”) need not obtain pilot licenses, nor do they have to pass a flight physical. They need only earn a UAS rating by passing a written exam and be “vetted” by the Transportation Security Administration. The operators will have to re-take the exam every two years. They will not have any flight currency requirements. Finally, though many users and manufacturers had fretted over how they would certify their drones as “airworthy,” the proposed rule replaces the airworthiness certification required for manned aircraft with a much less onerous preflight inspection requirement. The proposed rules regarding operator certification contain an unanticipated nod to veterans. Military and former military pilots would be able to apply for an unmanned aircraft operator certificate with a small UAS rating based on their experience operating aircraft in the United States Armed Forces. More specifically, proposed Section107.75 would allow military or former military UAS operator applicants to take the recurrent test instead of the initial test in order to obtain their license. The FAA specifically notes that the military uses many types and sizes of UAS in combat and non-combat operations, both in the United States and abroad,

and have done so for many years. By allowing military pilots to benefit from their existing experience, the FAA will align the UAS regulations with long-standing special rules for current or former military pilots allowing them to be issued FAA pilot certificates based on their military flight experience and passing a military knowledge check. From my perspective as a former military aviator, commercial pilot and UAS legal advisor, the proposed rules appear to strike a fair balance between the need to promote aviation safety and foster the burgeoning commercial UAS industry. The operator requirements are sufficiently rigorous to ensure that commercial users have some form of background check and some basic aviation knowledge. Moreover, because an operator cannot fly without a certification, he or she has a strong incentive to follow the rules or risk an FAA license suspension or revocation. The daylight-only operation and line-ofsight requirements make sense given that in-flight “sense and avoid” technology is still in its infancy. Until UAS can reliably sense obstacles and avoid other aircraft, these limitations, through frustrating to some users, are necessary to reduce the possibility of catastrophic midair collisions. Hopefully, as the technology develops, the FAA will loosen and remove the line-ofsight restrictions, allowing much more far-ranging and useful commercial opportunities. My biggest concern is with the lack of any airworthiness requirement for the aircraft. While it is obvious that UAS cannot be shoehorned into a manned aircraft manufacture and inspection regime, it seems naïve to think that operation “inspections” are going to ensure that these vehicles are designed to be safe and reliable. It is not terribly difficult to build a basic UAS.

Building a reliable machine is an entirely different matter. All of the operator requirements and operations restrictions can be negated in an instant if the UAS does not respond to operator inputs or is otherwise unreliable. Although a manufacturing standard would be opposed by many manufacturing start-ups, it seems that such a standard is necessary to ensure public safety. One area of concern not addressed by the FAA in the proposed rules is personal privacy. The White House, however, addressed the civil liberties issues associated with drone use in a memorandum released just a few days before the FAA regulations were published. The presidential memorandum is called “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights and Civil Liberties in Domestic Use of Unmanned Aircraft Systems.” Among other directives contained in the memorandum, the president has ordered all federal agencies, prior to deployment of new UAS technology, and at least every 3 years, to examine and update their policies and procedures related to privacy. Agencies that collect information with UAS are directed to ensure that such collection is (1) consistent with an authorized purpose; (2) retained for no longer than necessary; and (3) limited in its dissemination. Agencies that deploy UAS are also told to implement specific policies to protect civil rights and ensure accountability and transparency.

stakeholders, such as those organizations representing competing manned aircraft industries or those not satisfied with the president’s privacy directives, will be more critical. The fact is, however, that drone use is already widespread. The FAA needs to catch up to this reality. The one thing more dangerous than an imperfect regulation is the continued and widespread unregulated operation of UAS in contravention of existing bans.  James E. Mackler is an attorney with Bone McAllester Norton PLLC, where he concentrates his practice in the areas of federal criminal defense, regulatory compliance and civil litigation at the state, federal and military levels. He is the founder of the firm’s UAS focus, the first of its kind in the region, and has become a go-to source for the legalities surrounding their use.

The presidential memorandum can be found at http://www.whitehouse.gov/ the-press-office/2015/02/15/presidentialmemorandum-promoting-economiccompetitiveness-while-safegua. The proposed regulations are available for comment at http://www.regulations.gov/#!do cumentDetail;D=FAA-2015-0150-0017. I anticipate that most budding UAS entrepreneurs will view the FAA proposal favorably and will urge that they be implemented as quickly as possible. Some Nashville Bar Journal - April 2015

Fellows Dinner by:

Kay Caudle

On February 28, 2015, Nashville Bar Foundation celebrated the induction of 46 new Fellows and the presentation of the Bar Foundation’s highest award, the David Rutherford Award, to Aubrey Harwell. The Fellows Dinner, an annual event for more than 15 years, drew a crowd of 216 new and current Fellows, all of whom came out hoping to enjoy a terrific evening of dancing, dining, celebrating, and, of course, bidding, at the Hutton Hotel. By all accounts, no one was disappointed! The party started with cocktails and silent auction, featuring everything from a Gibson Guitar to a jersey signed by each player on the Nashville Predators hockey team to dinners with Justice Jeff Bivins, Justice Bill Koch, and Judge Hamilton (“Kip”) Gayden. Also, on the auction table were dinners at some of Nashville’s best local restaurants, bottles of impeccable wines, and a lesson on how to make the very best cocktails by one of the Patterson House’s renowned bartenders! Not one item went without a bid and several items were still being heavily “fought over” by the time the final call was made. Following cocktails, guests were treated to a dinner featuring braised short ribs with white bean ragout, followed by a wonderful assortment of bite-sized desserts. During the dinner, Nashville Bar Foundation Board of Trustees President, John Tarpley, emceed the evening’s awards presentation, in which he recognized the Foundation’s 2014 Grant Recipients and presented a video that highlighted the success of the Foundation’s newly launched Leadership Forum. The presentation also included the naming of the new Fellows and a moment of silence to remember those Fellows who had passed on since the NBF was established. One of the highlights of the evening was the presentation of the David Rutherford Award to Aubrey Harwell. In his acceptance speech, following an introduction by Judge Frank Clement that was at once touching and funny, Harwell gave an eloquent tribute to previous Rutherford Award recipients, as well as numerous of his colleagues and friends in the Bar, whom he called “giants of our profession.” He recognized the various local judges in the audience, and thanked members of his family and his firm, Neal and Harwell, for their support. He reserved a most special thank you for his assistant, Jenny Lewis, with whom he has worked for 33 years. Last but not least, the other highlight of the evening had to be the show put on by local, award-winning DJ Ron. Ron had lawyers, judges, NBA staff, and guests dancing well into the night with songs such as Purple Rain, Electric Slide, and Low by Flo-Rida. As one Fellow told me later, the fact that she was sore the next day meant it that it was a Very. Good. Party! 

Nashville Bar Journal - April 2015

2015 NEW CLASS OF FELLOWS

Timothy L. Amos John W. Barringer Brandon E. Bass Judge Rachel L. Bell Reba Brown Kent Cochran Brian Cummings Marc O. Dedman Joshua R. Denton Blair Durham Sherie L. Edwards David R. Esquivel Amy J. Everhart Chandra Flint Isaiah Skip Gant Mary-Kathryn Harcombe Hal Hardin Matthew C. Hardin Eric V. Helmers Kyonzte Hughes-Toombs Nicole James Gary M. Kellar Lynn Vo Lawyer Claudia Levy Alexandra T. MacKay Margaret Myers Alistair E. Newbern Marc E. Overlock Chancellor Russell T. Perkins Lisa D. Perlen Clay Petrey Erin Palmer Polly Thomas K. Potter Sara F. Reynolds A. Scott Ross Jennifer S. Rusie Manuel Benjamin Russ Sara E. Sedgwick Andrew J. Tavi David G. Thompson Christopher E. Thorsen Elizabeth G. Tipping Judge Dianne Turner Judge Robert Wedemeyer Eleanor K. Wetzel Tyler C. Yarbro

Event photos are online at www.nashvillebar.org

Nashville Bar Journal - April 2015

What We Need to Know to Plan an Estate Today (and Tomorrow) by:

Harlan Dodson and Jillian Mastroianni

The Rules Have Changed and What Used to Be Right May now be Wrong! With the larger federal exemption of $5,430,000 in 2015 (and scheduled to increase with inflation), the “permanence” of federal portability1, the Tennessee inheritance tax exemption of $5,000,000 in 2015, and the sunset of the Tennessee inheritance tax come 2016, planners have more decisions to consider with clients. In the past, potential transfer tax costs often drove narrow decisions as to the types of planning and the forms of documents needed. For many clients, our current tax planning is to minimize income taxes, rather than transfer taxes. If a married couple with a net worth under $9,000,000 (including well under) comes to us for estate planning, our primary concerns are (1) availability of a disclaimer to take advantage of the Tennessee exemption should both deaths occur in 2015, (2) proper beneficiary designations on retirement accounts, (3) making certain to elect portability on a timely filed Form 706 on the first spouse’s death, and (4) obtaining the best income tax results. Larger exemptions make wills and other planning documents that leave the estate outright to the surviving spouse (a simple “I Love You” will) the usual choice for most clients, where there are no other considerations beyond ensuring that there is not a taxable estate at either death. Where the married couple has a possible concern about federal estate tax or Tennessee inheritance tax, a will that leaves all to the surviving spouse may also contain a provision for a contingent disclaimer that allows the

10 Nashville Bar Journal - April 2015

surviving spouse to use a disclaimer to fund a trust which would use the decedent’s federal estate tax exemption and/or Tennessee inheritance tax exemption through use of a bypass trust and a Tennessee marital gap trust. The contingent disclaimer allows for post-death planning based on the situation with assets and tax laws at that time. Many older wills and will forms are outdated, and indeed may be harmful. Given the larger federal estate tax exemptions, it is important to consider the impact of formula clauses in wills tied to the federal estate tax exemption. A will which leaves the entire amount of the federal estate tax exemption in a bypass trust may considerably overfund that trust. For example, for a couple where the husband had an estate of $3,000,000 and the wife has an estate of $2,000,000, there may be no reason to fund a bypass trust at all. Remember that there is a step up in basis for federal income tax purposes for most assets passing through an estate. The bypass trust was designed to bypass the surviving spouse’s estate. This was a wonderful idea when avoiding transfer taxes was the concern. However, this also bypasses a stepped up basis on those assets at the death of the surviving spouse. A formula clause maximizing the fund-

ing of the bypass trust would not only be unnecessary if timely elected portability would preclude estate taxes at the surviving spouse’s death, but would do harm by eliminating the second step-up in basis. Our new tool, a Tennessee Community Property Trust, provides an excellent vehicle for providing a full step up in community property assets where the surviving spouse may wish to take advantage of the full step up by selling assets after the first spouse’s death. Under Section 1014 of the Internal Revenue Code, where property is held as tenants by the entirety or as tenants in common without right of survivorship, there is a step up in basis upon death only for the share owned by the deceased owner. But, where the property is held as community property, under 1014(b)(6), at the death of the first spouse, both spouses’ interests will be eligible for a stepped up basis to date of death value at the first spouse’s death. New Issues with Filing a Form 706 Parties to a pre- or post-nuptial agreement should agree to permit the use of the deceased spousal unused exclusion (DSUE), and provide for which party pays for the filing of Form 706. Because of the expense of preparing Form 706, and the time required to do so, a decision whether to elect portability needs to be made early in the administration of a decedent’s estate. Anytime there is a surviving spouse, the executor should file Form 706 unless there is a conscious and documented decision not to do so. However, Congress may change the law again, so planners need to consider whether current documents need to be re-drafted to work if portability were repealed or significantly restricted.

Compressed Income Tax Rates for Trusts and Estates Since estates and trusts are at risk of additional income tax above $12,300 of taxable income in any year, planning as to the distribution of income out of the estate or trust to beneficiaries, or otherwise managing assets, should occur as a specific decision at the beginning of the administration of an estate, or, in the case of a trust, at the drafting stage and as a specific decision at least annually thereafter. Gifting With the higher transfer tax exemptions, families have far more flexibility in use of gifting for inter-generational wealth planning. However, with the higher exemptions, it is easy to become careless with filing gift tax returns. Timely and complete filings for gifts above the annual exclusion ($14,000 per donee in 2015) or for split gifts, remain important. But remember, life insurance continues to provide tax-free build up in the policy and income tax free proceeds so for now it continues to furnish protection from the increasing income taxes. Also, be aware that a lifetime gift only carries over the donor’s basis and misses the stepped up basis at the donor’s death.

Harlan Dodson is a partner with Dodson, Parker, Behm & Capparella, PC. He has taught wills and estate planning at the Nashville School of Law for over 30 years and is the editor to West Publishing Company’s Tennessee Practice Series volumes on business formation and estate planning as well as author of Introduction to Estate Planning and Administration in Tennessee. Jillian Mastroianni is an attorney with Dodson, Parker, Behm & Capparella, PC and graduate of Vanderbilt University Law School. (Endnotes) 1 Portability is a procedure that allows the surviving spouse to use any portion of the predeceased spouse’s federal estate or gift tax exemption, but not generation-skipping exemption.

Remember, We’re Still Planning for Humans Regardless of what happens with the exemptions, Tennessee or federal, the human reasons for using trusts—protection from divorce, creditors or health issues, providing professional management, and assuring that a share passes to children—still remain strong reasons to consider the use of trusts in planning. 

Nashville Bar Journal - April 2015

BIL L G A & PH DG ET O IL'S F THE

MONTH

Bluetooth Update

By: Bill Ramsey, Neal & Harwell, PLC and Phillip Hampton, LogicForce Consulting We all are familiar with “Bluetooth.” It is a wireless technology that is used to exchange data over short distances. (For those of you who care, it uses short wavelength radio waves to transmit and receive information.) Bluetooth technology can be irritating (like those people who wear their Bluetooth earpieces in a nice restaurant), or it can be a godsend that enables you to talk “hands free” in your automobile. Bluetooth technology continues to evolve. Bluetooth “mesh” technology will be a key component of the “Internet of Things” movement, which will enable almost every consumer device in your home to be interconnected and then connected to the Internet. This article, however, deals with more mundane things. Bill collects Bluetooth speakers. He has the Jawbone Jambox, the Supertooth Disco, the JBL Charge, the Boom Boom Bluetooth “learning” speaker, the Philips Shoqbox, and many others too numerous to mention. He has found a new favorite, the Creative Labs Sound Blaster Roar. We like our Bluetooth speakers loud, not just for jammin’ at poolside parties, but also to use in a courtroom to replace or supplement poor or nonexistent courtroom audio systems. As its name suggests, the Sound Blaster Roar is very loud. It has a Bass Boost and the “Roar” button, which instantly boosts the loudness of your music (or any other audio going through the speaker). In addition, Sound Blaster Roar is the Swiss Army Knife of Bluetooth speakers. It has the usual items: a hands free microphone, direct audio input, volume buttons, the ability to charge other devices, fastforward buttons, play and pause buttons, etc. However, it has additional features seldom found on Bluetooth audio speakers. It has a microSD slot, which allows you to either playback using music or audio recorded on a microSD drive. You can also record audio on the Sound Blaster Roar and save the recording on a microSD card. You are not stuck with just Bluetooth pairing; you can use onetouch pairing using Near Field Communications (NFC) as well. You can pair two devices to the Sound Blaster Roar at the same time, or you can put the Roar into “free for 12 Nashville Bar Journal - April 2015

all” access, which will allow anyone who grabs the Roar’s attention to attach via Bluetooth. According to the literature provided with the Roar, this is great for parties where you share music with a group of friends who can just take over control of the Sound Blaster Roar and play their own music selections in the music “free for all.” You can also connect the Sound Blaster Roar to a PC or a Mac computer with a USB cable and download the Sound Blaster Control Panel, which will allow you to shape the audio using tools like a graphic equalizer, etc. Finally, the most unusual feature of the Sound Blaster Roar is its ability to “grab attention.” The Sound Blaster Roar has a built-in siren. If people are not paying attention to you, you can arm the siren, press and hold the alarm, and the siren will “go off,” either scaring everyone or making them shut up. Look for a demo of this feature in the upcoming 2015 edition of the Bill and Phil Show (just kidding). Bill has a new favorite Bluetooth speaker, and it is clearly the Creative Lab Sound Blaster Roar ($149.99). Another Bluetooth device we love is the Blu-Toque Dual-Layered Bluetooth Hat by Caseco. This hat looks like a regular stocking cap, but this stylish, knit cap contains a speaker for each ear and a microphone beside the left-side speaker. It connects to your phone or other devices via Bluetooth, and you can listen to music while you are carefree and warm. You can also make and receive phone calls and talk through the built-in microphone. The speakers are amazingly clear and responsive. The built-in microphone also provides a very clear signal for your phone calls. The hat has a range of about 10 meters, so you can leave your phone charging in your car and listen to music or talk on the phone while you are shoveling snow in your driveway. Naturally, this hat is made by folks in Canada where they are used to the cold weather and make the best of it. Finally, you can wash the Blu-Toque by unzipping its inner pouch, removing the speakers, and then throwing it in the washing machine. It also includes an extra pair of speakers—just in case you forget and throw it in the washer. The price of the Blu-Toque is $49.99, and you get free shipping to Canada and the United States. Finally, if you’re not ready to sport the “stylish” Blu-Toque Hat but still want to hear audio from your tablet or smartphone while on the go, Bose’s SoundLink Bluetooth On-Ear wireless headphone would Continued on Page 13 

COMPLETE YOUR 2014 CLE REQUIREMENTS & START YOUR 2015 NEW YEAR WITH QUALITY NBA DISTANCE LEARNING SEMINARS NBA ONLINE CLE = Knowledge When YOU Need It! EON! is the exclusive online support network for the NBA www.eondirect.com

ONLINE CLE

----------------------------------------------------------------------------------------

COURSES INSIDE: -----------------------------------------------------------------------------------

Environmental Law: Green House Gas Regulation and Early Green House Gas Tailpipe Regulation If you have clients that are manufacturers, transportation firms, or other companies that may be subject to federal or state environmental regulations, you will gain valuable information to use in advising your clients. Ray Cross, Senior Counsel at Nissan North America, discusses the origin of emissions regulation, the current emissions regulation, and the case - Mass vs. EPA. 1.0 CLE – General – distance learning

From the bench & bar: DEALING WITH PRO SE LITIGANTS

REGISTER FOR MANY MORE COURSES INCLUDING: ETHICS AND PROFESSIONALISM COURT PRACTICE AND VIEWS FROM THE BENCH MEDIATION FAMILY LAW ESTATE PLANNING PROBATE PRACTICE EMPLOYMENT LAW FEDERAL COURT PRACTICE AND MORE!

TO REGISTER FOR YOUR CHOICE OF ONLINE SEMINARS GO TO: www.nashvillebar.org– CLICK ON THE CLE TAB and ONLINE CLE SEMINARS

COMPLETE YOUR 2014 CLE HOURS & START YOUR 2015 NEW YEAR WITH QUALITY NBA TELEPHONE SEMINARS Noon – 1:00 p.m. Central Time DISTANCE LEARNING CREDIT

April 14 April 15 April 16 April 17 April 21 April 22 April 23 April 24 April 28 April 29 April 30 May 1 May 4 May 5 May 6 May 7 May 8 May 12 n

Homeowner Agreements for Developers & Project Owners Asset Purchase Deals, Part 1 Asset Purchase Deals, Part 2 Ethics & Digital Communications - (Dual) Drafting Settlement Agreements in Litigation Structuring Minority-State & “Class B” Interest in Business Arrangements - Live Replay Fiduciary and Income Tax Issues in Estate Planning, Part 1 - Live Replay Fiduciary and Income Tax Issues in Estate Planning, Part 2 - Live Replay Eminent Domain, Part 1 Eminent Domain, Part 2 Estate Planning for Pre- and Post-Nuptial Agreements - Live Replay Ethics in Employment Law Practice - Live Replay - (Dual) 2015 Fiduciary Litigation Update Drafting Effective Employee Handbooks Ethics, Disqualifications & Sanctions - Live Replay - (Dual) Business Valuation in Transactional Documents: Formulas, Comps & the Market Attorney Ethics & the Use of “Metadata” in Litigation & Transactional Practice - Live Replay Letters of Intent in Transactions – Framing a Deal & Avoiding Liability

PAGE 2

1.0 CLE Hour - General ----------------------------------------------------------------------------------PAGE 3

From the bench & bar: ANATOMY OF AN APPEAL: APPELLATE PRACTICE FOR THE TRIAL LAWYER

3.0 CLE Hours- General ----------------------------------------------------------------------------------PAGE 4

From the bench & bar: 2015 UPDATE ON PRACTICE IN THIRD AND FOURTH CIRCUIT COURTS – HON. PHILLIP R. ROBINSON AND HON. PHILIP E. SMITH 2.0 CLE Hours - General ----------------------------------------------------------------------------------PAGE 5

ETHICAL AND EFFECTIVE MARKETING THROUGH YOUR LAW FIRM WEBSITE

2.0 CLE Hours - dual ----------------------------------------------------------------------------------PAGE 6

FROM THE BENCH: EXPLORING THE NEW WORKERS’ COMPENSATION UNIVERSE - TO BOLDLY GO WHERE NO ONE HAS GONE BEFORE

1.0 CLE Hour - General ----------------------------------------------------------------------------------PAGE 7

movie webcasts - DISTANCE LEARNING CREDIT

----------------------------------------------------------------------------------PAGE 7

PLI live webcasts - LIVE CLE CREDIT

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CLE pass Receive even greater value with your NBA Membership! Go to the NBA website (www.nashvillebar.org) For Full Details and to order your Pass Now!

Nashville Bar Association n Continuing Legal Education n www.nashvillebar.org n 615.242.9272 n

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Lunch & Learn Program

BROWN BAG LUNCH! The lunch and learn seminars will be conducted at the Nashville Bar Association office Conference Center. You are welcome to bring your lunch to the seminar.

APRIL 15, 2015 REGISTRATION - 11:30 a.m. SEMINAR - 12:00 - 1:00 p.m.

From the bench & bar: DEALING WITH PRO SE LITIGANTS

LOCATION: Nashville Bar Association Conference Center 150 4th Ave. N., Suite 1050 Nashville, TN - 615-242-9272

WHO SHOULD ATTEND: Attorneys who litigate civil cases in state and federal courts, and bankruptcy practitioners will benefit from this program.

PARKING: 1. 4th Ave. next to One Nashville Place

OVERVIEW: Many attorneys encounter pro se litigants. These may be either plaintiffs or defendants in civil litigation, or debtors or creditors in bankruptcy cases. How should attorneys deal with pro se litigants? How do judges handle problems with pro se litigants in their courts, and what are their recommendations to attorneys?

(“Garage Full” does not apply to NBA visitors)

2. 4th Ave. across from One Nashville Place 3. Commerce Street 4. Main Library (between 6th & 7th Avenues)

1.0 CLE Hour - General

YOU WILL BENEFIT KNOWING HOW TO DEAL WITH PARTIES WHO:

PRODUCER: LINDA W. KNIGHT

1. Don’t know their rights and obligations or how to present their claims or defenses, introduce evidence, examine witnesses, and other issues. 2. Won’t cooperate, have frivolous cases or are litigious 3. Have mental issues or may be dangerous 4. Are not fluent in English

Gullett, Sanford, Robinson & Martin, PLLC

Registration must be received before or on April 13 to guarantee written materials at the program. No refund or credit will be issued after the early registration deadline; however, a substitute may attend for a registered participant.

AND FIND OUT:

Received before or on APRIL 13: Received after APRIL 13:

CLE EASY PASS HOLDER: Registration must be received before or on APRIL 13 to guarantee seating and written material at the program. Cancellation must be received by 5:00 p.m. on APRIL 13 to retain CLE Easy Pass Hours.

$45 NBA member; $55 Non-NBA member $55 NBA member; $65 Non-NBA member

COMPLETE YOUR 2014 CLE HOURS & START YOUR 2015 NEW YEAR WITH QUALITY NBA TELEPHONE SEMINARS Distance Learning Credit May 13 May 14 May 15 May 18 May 19 May 20 May 21

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2015 FMLA Update Essential Title Examination in Real Estate & Curing Defects Ethics for Estate Planners - (Dual) Ethics of Maintaining Client Confidences in a Digital World - Live Replay - (Dual) Drafting Confidentiality & Nondisclosure Agreements Fiduciary Duties & Liability of Nonprofit/Exempt Organization Directors Attorney Ethics in Transactional & Litigation Negotiations - (Dual) n

Nashville Bar Association n Continuing Legal Education n www.nashvillebar.org n 615.242.9272 n

PASS

FACULTY: HON. KEITH M. LUNDIN Chief Bankruptcy Judge, U. S. Bankruptcy Court, Middle District of Tennessee HON. ELLEN HOBBS LYLE Chancellor, Chancery Court, Davidson County, Part III JOEL A. VALLEJO Buffaloe & Associates, PLC

CLE

1. From judges’ perspectives, how much latitude to allow pro se litigants 2. What can the courts and the bar do to make counsel available to assist on dockets? 3. What has been tried and how well has it worked?

APRIL 16, 2015 REGISTRATION - 1:00 p.m. SEMINAR - 1:30 - 4:50 p.m.

From the bench & bar: ANATOMY OF AN APPEAL APPELLATE PRACTICE FOR THE TRIAL LAWYER

LOCATION: Nashville Bar Association Conference Center 150 4th Ave. N., Suite 1050 Nashville, TN - 615-242-9272

WHO SHOULD ATTEND: Do you want to sharpen your appellate practice skills? Would knowing how to build the best record for your case at the trial level, ways to prepare the best brief, and methods to sharpen your oral argument be a practice boost? Attend this program and hone your appellate practice skills.

PARKING: 1. 4th Ave. next to One Nashville Place

(“Garage Full” does not apply to NBA visitors)

OVERVIEW: The thrill of victory can be the agony of defeat on appeal. Likewise, a loss at trial may be turned into a win on appeal. Learn how to keep your options open and build the best record for appeal. Then, get tips for preparing an effective brief and pointers for making persuasive oral arguments to appellate courts. Also, hear from the panel of appellate judges on the inside workings of the Tennessee appellate courts. Whether you are a newer appellate practitioner, one who needs a refresher course on appellate practice, or would just like to sharpen your appellate practice skills, this seminar will provide you with the strategies and tips for a successful appeal. 1:30 – 2:30 p.m. PRESERVE YOUR ISSUES FOR APPEAL 1. Preparing the record in trial court 2. How to preserve issues for appeal, including methods to balance appeal rights with trying to win your case at trial FACULTY: HON. JOE P. BINKLEY, JR., Davidson County Fifth Circuit Court JOHN C. HAYWORTH, Butler | Snow 2:30 – 2:40 p.m.

2. 4th Ave. across from One Nashville Place 3. Commerce Street 4. Main Library (between 6th & 7th Avenues)

3.0 CLE Hours - General FACILITATOR and PRODUCER: BARBARA D. HOLMES Harwell Howard Hyne Gabbert & Manner, P.C. Registration must be received before or on April 14 to guarantee written materials at the program. No refund or credit will be issued after the early registration deadline; however, a substitute may attend for a registered participant.

BREAK

2:40 – 3:40 p.m. I INSIDE THE COURT: BEHIND AND IN FRONT OF THE BENCH Panel discussion by members of Tennessee’s appellate courts PANEL: HON. JEFFREY S. BIVINS, Tennessee Supreme Court HON. HOLLY M. KIRBY, Tennessee Supreme Court HON. W. NEAL McBRAYER, Tennessee Court of Appeals

CLE

BREAK

CLE EASY PASS HOLDER: Registration must be received before or on APRIL 14 to guarantee seating and written material at the program. Cancellation must be received by 5:00 p.m. on APRIL 14 to retain CLE Easy Pass Hours.

3:50 – 4:50 p.m. POWERS OF PERSUASION 1. Writing an effective appeal brief 2. Know your audience: how to protect your credibility with the court and still build a convincing story from the record 3. Top 10 mistakes that the appellate judge’s law clerk recognizes 4. Effective oral argument FACULTY: CANDI HENRY, Dodson Parker Behm & Capparella, PC(former law clerk to Justice William Koch) JOHN C. HAYWORTH, Butler | Snow

Received before or on APRIL 14: Received after APRIL 14:

PASS

3:40 – 3:50 p.m.

$139 NBA member; $189 Non-NBA member $149 NBA member; $199 Non-NBA member

Nashville Bar Association n Continuing Legal Education n www.nashvillebar.org n 615.242.9272 n

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MAY 14, 2015

FROM THE BENCH: 2015 UPDATE ON PRACTICE IN THIRD AND FOURTH CIRCUIT COURTS – HON. PHILLIP R. ROBINSON AND HON. PHILIP E. SMITH WHO SHOULD ATTEND: Judge Smith and Judge Robinson have recently updated their Chamber Rules and are proposing changes to the Davidson County Local Rules. They will unveil these changes, as well as provide general tips for practicing in the Third and Fourth Circuit Courts. If your practice includes family law, or you plan to include family law in your field of practice, this seminar is for you. OVERVIEW: Judge Smith and Judge Robinson have worked with their staff to update and expand their respective Chamber Rules. In this seminar, the Judges will discuss these updates, along with relevant proposed changes to the Local Rules of Davidson County. This seminar will be an opportunity for attorneys, whether new to this area of practice or more experienced, to hear directly from the judges on how to navigate a case through the Third and Fourth Circuit Courts in a proper, effective and efficient manner.

REGISTRATION - 2:00 p.m. SEMINAR - 2:30 - 4:45 p.m.

LOCATION: Nashville Bar Association Conference Center 150 4th Ave. N., Suite 1050 Nashville, TN - 615-242-9272 PARKING: 1. 4th Ave. next to One Nashville Place

(“Garage Full” does not apply to NBA visitors)

2. 4th Ave. across from One Nashville Place 3. Commerce Street 4. Main Library (between 6th & 7th Avenues)

2.0 CLE Hours - General PRODUCER: IRWIN KUHN Dobbins, Venick, Kuhn & Byassee, PLLC Registration must be received before or on MAY 12 to guarantee written materials

CLE

3:30 – 3:45 p.m. BREAK

gram. Cancellation must be received by 5:00 p.m. on MAY 12 to retain CLE Easy Pass Hours.

3:45 – 4:45 p.m. Revised Chambers Rules and Proposed Changes to Local Rules - Part II: 1. Special master hearings 2. Judicial settlement conferences 3. Contested cases: pre-trial briefs and other pre-trial filings, stipulations and exhibits 4. Q & A FACULTY: HON. PHILLIP R. ROBINSON Judge, Third Circuit Court, Davidson County HON. PHILIP E. SMITH Judge, Fourth Circuit Court, Davidson County TERESA W. OGLESBY Special Master STEPHANIE J. WILLIAMS Special Master COST FOR NEW LAWYERS IN LAW PRACTICE 5 YEARS OR LESS: Received before or on MAY 12: $49 NBA member; $65 Non-NBA member Received after MAY 12: $59 NBA member; $75 Non-NBA member

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COST FOR LAWYERS IN LAW PRACTICE 6 YEARS OR MORE: Received before or on MAY 12: $95 NBA member; $125 Non-NBA member Received after MAY 12: $105 NBA member; $135 Non-NBA member n

Nashville Bar Association n Continuing Legal Education n www.nashvillebar.org n 615.242.9272 n

PASS

2:30 – 3:30 p.m. at the program. No refund or credit will be issued after the early registration deadline; Revised Chambers Rules and Proposed Changes to Local Rules - Part I: however, a substitute may attend for a registered participant. 1. Pre-Trial matters: scheduling orders, continuances and extensions, discovery and motions 2. Temporary Restraining Orders/Show Cause Hearings/Appearance Orders 3. Setting of cases and calculation of trial days: uncontested cases, contested cases and juvenile court appeals 4. Q & A FACULTY: HON. PHILLIP R. ROBINSON Judge, Third Circuit Court, Davidson County CLE EASY PASS HOLDER: HON. PHILIP E. SMITH Registration must be received before or on MAY 12 Judge, Fourth Circuit Court, Davidson County to guarantee seating and written material at the pro-

MAY 19, 2015

ETHICAL AND EFFECTIVE MARKETING THROUGH YOUR LAW FIRM WEBSITE

REGISTRATION - 2:0O p.m. SEMINAR - 2:30 - 4:45 p.m.

WHO SHOULD ATTEND: If you have a legal practice website or are developing a website, then you need to attend this program to find out how to stay compliant within the rules. You will learn valuable essentials about managing your website content and key ethical and effective website requirements.

LOCATION: Nashville Bar Association Conference Center 150 4th Ave. N., Suite 1050 Nashville, TN - 615-242-9272 PARKING: 1. 4th Ave. next to One Nashville Place

(“Garage Full” does not apply to NBA visitors)

WE ENCOURAGE YOU TO REGISTER YOUR FIRM’S WEBSITE MANAGER, ANYONE WHO PARTICIPATES IN SOCIAL MEDIA FOR YOUR FIRM, AND YOUR WEBSITE CONSULTANTS.

2. 4th Ave. across from One Nashville Place 3. Commerce Street 4. Main Library (between 6th & 7th Avenues)

If you are an NBA member, your invited attendees can register at the NBA member rate. Please email or call the CLE Division with the names of those who are registering at your invitation.

PRODUCER: JANE HARRISON, JD WSI Websense

OVERVIEW: A local law office recently experienced an ethical rules problem when the web group they hired created content that clearly misrepresented the firm. The reasoning the web group gave for creating the content was that the firm needed more “umph in their content.” They took documents given to them by the law firm and embellished the actual facts to create what they considered inspiring content.

Registration must be received before or on May 15 to guarantee written materials at the program. No refund or credit will be issued after the early registration deadline; however, a substitute may attend for a registered participant.

2.0 CLE Hours - Dual

Don’t fall into the same trap. Learn from our expert presenters the tools and strategies you need to avoid ethical issues that can be created through your website. Stay up to date on the ethical rules that govern marketing through your website, how digital marketing works, ways to assess the content on your website, and how the 2 year rule – 7.2(b) – can be met through skillful use of analytics.

3:30 – 3:45 p.m.

BREAK

3:45 – 4:45 p.m.

ETHICS & PROFESSIONALISM: RULE 7.2(b): CONTENT POSTED TO THE WEB IS NEVER LOST! 1. Behind the scenes of your website: how you can comply with the 2 year rule 2. Measure twice, cut once: social media can help or hurt you for many years 3. Mobile responsive: What is it and why it is important? 4. Beyond responsive websites: algorithms and the “everflux.”

FACULTY:

Registration must be received before or on MAY 15 to guarantee seating and written material at the program. Cancellation must be received by 5:00 p.m. on MAY 15 to retain CLE Easy Pass Hours.

JANE HARRISON, JD, WSI Websense JANE has been involved in marketing for 20 years, including over 5 of those years in the legal industry. MARYN WILLIAMS, MBA, WSI Websense MARYN has 20 years of experience in marketing management, with more than 10 years in the digital marketing arena.

Received before or on MAY 15: Received after MAY 15:

CLE

ETHICS & PROFESSIONALISM: RULE 5.3: YOU ARE RESPONSIBLE FOR NON-LAWYER ASSISTANTS 1. Everything written on your website is content 2. Everything posted on Social Media is content 3. Search Engine Optimization can be seen AND not seen on your site 4. What is written behind the scenes of your website? CLE EASY PASS HOLDER:

PASS

2:30 – 3:30 p.m.

$95 NBA member; $125 Non-NBA member $105 NBA member; $135 Non-NBA member

Nashville Bar Association n Continuing Legal Education n www.nashvillebar.org n 615.242.9272 n

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Lunch & Learn Program

BROWN BAG LUNCH! The lunch and learn seminars will be conducted at the Nashville Bar Association office Conference Center. You are welcome to bring your lunch to the seminar.

JUNE 16, 2015 REGISTRATION - 11:30 a.m. SEMINAR - 12:00 - 1:00 p.m.

FROM THE BENCH: EXPLORING THE NEW WORKERS’ COMPENSATION UNIVERSE TO BOLDLY GO WHERE NO ONE HAS GONE BEFORE

WHO SHOULD ATTEND? If you are a lawyer, paralegal or claims representative practicing in the area of workers’ compensation law, you will benefit from this seminar.

LOCATION: Nashville Bar Association Conference Center 150 4th Ave. N., Suite 1050 Nashville, TN - 615-242-9272 PARKING: 1. 4th Ave. next to One Nashville Place

(“Garage Full” does not apply to NBA visitors)

OVERVIEW: The Workers’ Compensation Law that applies to injuries occurring after July 1, 2014 introduced new procedures and terminology that the practitioner needs to understand. This seminar will provide the navigating tools and tips to find your way. The discussion will outline the path of a new law claim, from proper procedure for preparing and participating in an Expedited Hearing through the final Compensation Hearing or obtaining settlement approval. Important sections of the Mediation and Hearing Procedures and the Court’s Practice and Procedures will be highlighted.

Essential documents to include in a settlement package Proper use of affidavits in Expedited Hearings Organization of medical records as evidence in Expedited Hearings Appeal of an Expedited Hearing decision Timeframes and deadlines for hearings and appeals Assessment of costs

FACULTY: HON. KENNETH SWITZER Chief Judge, Court of Workers’ Compensation Claims

Received before or on JUNE 12: Received after JUNE 12:

CHECK THE NBA WEBSITE, www.nashvillebar.org

FOR MORE UPCOMING SEMINARS

CL 6 E

1.0 CLE Hour - General PRODUCER: WENDY LONGMIRE Ortale, Kelley, Herbert & Crawford Registration must be received before or on June 12 to guarantee written materials at the program. No refund or credit will be issued after the early registration deadline; however, a substitute may attend for a registered participant.

CLE EASY PASS HOLDER: Registration must be received before or on JUNE 12 to guarantee seating and written material at the program. Cancellation must be received by 5:00 p.m. on JUNE 12 to retain CLE Easy Pass Hours.

PASS

1. 2. 3. 4. 5. 6.

CLE

YOU WILL BENEFIT LEARNING ABOUT:

2. 4th Ave. across from One Nashville Place 3. Commerce Street 4. Main Library (between 6th & 7th Avenues)

$45 NBA member; $55 Non-NBA member $55 NBA member; $65 Non-NBA member

JUNE 18, 2015 Topic: Construction Law 1:30 – 4:50 p.m. CLE: 3.0 CLE – General Producers: BEAU HAMMET The Hammet Law Firm, PLLC JONATHAN “WALLY” IRVIN Lewis, Thomason, King, Krieg & Waldrop, P.C. __________________________________________ JULY 23, 2015 Lunch and Learn Topic: Health Law - The Supreme Court Ruling on the Affordable Care Act Noon – 1:00 p.m. CLE: 1.0 CLE – General Producers: MARC OVERLOCK, Metropolitan Hospital Authority JOHN WILLIAMS, Tune, Entrekin & White, P.C.

JUNE 29 and 30 Co-sponsored with the NBA Young Lawyers Division What to Expect at the Courthouse: Civil, Circuit, Criminal Judges and Chancellors Share Their Views from the Bench 9:00 – 4:50 p.m. 12.0 CLE – both days; 6.0 CLE – each day Producers: GROVER COLLINS Collins Law Firm, PLLC BEN GOLDAMMER Kay, Griffin, Enkema & Colbert, PLLC TAYLOR SUTHERLAND Sutherland & Belk, PLC _____________________________________

Nashville Bar Association n Continuing Legal Education n www.nashvillebar.org n 615.242.9272 n

Put some DRAMA into YOUR CLE with these engaging MOVIE WEBCASTS

Star! Make Your Witness neaJames PRODUCER: PRODUCER:

Facilitated by Katheri

MAY 6, 2015 NOVEMBER 11 11:00 a.m. – 1:30 p.m. CST 2.25 CLE Hours - General- Distance Learning

Produced by the Atlanta Bar Association CLE, the Chief Justice ’s Commission on Professionali sm in Georgia and Impact Media Solutio ns

JUNE 30 AUGUST 19 NOTE TIME: 12:15 p.m. – 1:30 p.m.

COMING! THURGOOD MARSHALL’SRambo Featuring T. Mycael

Winner of the ABA 2005 Silver Gavel

Award

JULY 22 DECEMBER 2

11:00 a.m. – 1:40 p.m. CST 2.50 CLE Hours - Dual- Distance Learning

Clarence Darrow: Crimes, Causes and the Courtroom er Featuring Graham Thatch as Clarence Darrow

APRIL 15 JUNE 24 11:00 a.m. – 2:15 p.m. CST 3.0 CLE – Dual - Distance Learning

1.25 CLE – Dual - Distance Learning

CST

Impeach Justice Douglas! Featuring Graham Thatcher as Justice William O. Douglas

JUNE 17 SEPTEMBER 19 DECEMBER 9 11:00 a.m. – 2:15 p.m. CST 3.0 CLE – Dual - Distance Learning

ON THE HORNS OF A DILEMMA MAY 13 JULY 15 SEPTEMBER 23 1:00 a.m. – Noon CST 1.0 CLE Hours - General Distance Learning

Ben Franklin on Ethics Featuring Christopher Lowell

APRIL 8 JUNE 30 AUGUST 19 11:00 a.m. – Noon CST g 1.0 CLE - Dual - Distance Learnin

The Art of Advocacy What Can Lawyers Learn From

Actors?

Featuring Alan Blumefeld & Kathe

rine James

JUNE 10 OCTOBER 7 DECEMBER 16 11:00 a.m. - 2:30 p.m. CST 3.25 CLE – General- Distance Learnin g

FOR MOVIE WEBCAST DETAILS AND TO REGISTER GO TO: WWW.PERIAKTOS.BIZVISION.COM

BROUGHT TO YOU BY THE NASHVILLE BAR ASSOCIATION CLE AND PERIAKTOS PRODUCTIONS, LLC … the Dramatic Difference in CLE

PLI AND THE NASHVILLE BAR ASSOCIATION BRING YOU LIVE WEBCASTS

The Practicing Law Institute and the Nashville Bar Association are working together to bring PLI’s sophisticated and cutting-edge programs to Tennessee attorneys through live webcasts held in the NBA Conference Center. LIVE CLE CREDIT REGISTER NOW FOR THE FOLLOWING LIVE WEBCASTS Go to the NBA website www.nashvillebar.org and click the Nashville Bar CLE tab for course details and to register. The webcast start times listed below are in Central Standard Time (Nashville) time. June 2, 2015 APPELLATE ADVOCACY – General Credit 1:00 – 4:00 p.m. July 27, 2015 ETHICS FOR DISCOVERY 2015 – Dual Credit 11:00 a.m. – 1:10 p.m. August 6, 2015 WRITING FOR TRANSACTIONAL LAWYERS – General Credit 1:00 – 4:00 p.m. August 11, 2015

THE ATTORNEY-CLIENT PRIVILEGE & INTERNAL INVESTIGATIONS 2015 2:00 – 4:00 p.m.

September 30, 2015

SECURITIES LAW & PRACTICE 2015: HOW THE SEC WORKS 12:30 – 4:00 p.m.

November 4, 2015 ELECTRONIC DISCOVERY IN CRIMINAL INVESTIGATIONS & TRIALS 2015 12:30 – 400 p.m. You can register with PLI through the NBA or PLI websites. Webcasts are listed under the “Nashville Bar CLE” tab on the NBA website. Questions? Contact Christine Seisler at PLI, cseisler@pli.edu (212) 824-5798, or Susan Blair at the Nashville Bar Association, susan.blair@nashvillebar.org (615) 242-9272. n

Nashville Bar Association n Continuing Legal Education n www.nashvillebar.org n 615.242.9272 n

CL 7 E

REGISTRATION

(NBA use only)



CLE EASY PASS

$45

$95

Exp. Date: ______________ Signature: ____________________________

CVV Code (three digit code on the back of card):_________________

Credit Card Billing Address:___________________________________

Credit Card #: ____________________________________________

Total Amount: $____________________________________________

Payment method: 

Go to the NBA website (www.nashvillebar.org) For Full Details and to order your Pass Now!

COLLECT FREE CLE

GET YOUR NBA CLE EASY PASS AND GO!

FAX:________________

EMAIL:_____________________________________

PHONE: ______________

ADDRESS: __________________________________

BPR#: ______________________________________

NAME: _____________________________________

CLE

1. Charge your CLE by fax (255-3026) or phone (242-9272)

1.0

FROM THE BENCH & BAR : NEW WORKERS’ COMPENSATION...

JUNE 12

JUNE 16

REGISTRATION INFORMATION:

2.0 DUAL

MARKETING THROUGH YOUR LAW FIRM WEBSITE

MAY 15

MAY 19

$65 $199

$75 $135 $135 $65

$55 $149

$59 $105 $105 $55

3. Visit our website (www.nashvillebar.org) and register online. See CLE section.

Nashville Bar Association CLE Division 150 Fourth Avenue North Suite 1050 Nashville, TN 37219

2. Detach and Mail Registration with a check to:

$55

$125

$95

COST FOR LAWYERS IN LAW PRACTICE 6 YEARS OR MORE:

$189

$55

$65

$139

$45

$49



COST FOR NEW LAWYERS IN LAW PRACTICE 5 YEARS OR LESS:

2.0

MAY 14

FROM THE BENCH: UPDATE ON THIRD & FOURTH CIRCUIT COURTS

3.0

APRIL 14 FROM THE BENCH & BAR : ANATOMY OF AN APPEAL

APRIL 16

MAY 12

1.0

APRIL 13 FROM THE BENCH & BAR: DEALING WITH PRO SE LITIGANTS

APRIL 15

CLE Regisger Seminar Title CLE Hours CLE EARLY REGISTRATION FEES: REGULAR REGISTRATION FEES: Pg# By: “Live” NBA MEMBERS Non-Member PASS: NBA MEMBERS Non-Member ..................................................................................................................................................

Date:

Continuing Legal Education - REGISTRATION

615.242.9272 n www.nashvillebar.org

NASHVILLE BAR ASSOCIATION

PASS

Bill & Phil's Gadget of the Month: Continued from page 12

be a great solution for you. Bose has been in the business of making superior audio speakers for a long time, but the SoundLink is their first entry in the completely wireless headphone genre. These comfortable headphones are lightweight and feel great on your ears. The sound quality is excellent; however, it stops short of offering the noise-cancelling feature of Bose’s popular wired headphones. We like the fact that you can pair the headphones with two devices simultaneously, so you can listen to audio on your iPad while still connected to your smartphone for incoming voice calls. In addition you can interact with your connected devices for certain actions like changing tracks or answering a call via buttons on the headset itself. The battery life is impressive with up to 15 hours of play time. These headphones are not cheap at $249; but if you don’t want to sacrifice audio quality while cutting the cord to your headphones, we think the Bose SoundLink is one of the best options right now. We’ve given you three new options for enjoying audio from your gadgets cord free. So, go ahead, kick up your heels, enjoy some music, live a little while you embrace new technologies that will enhance your day. 

See you next month, —Bill & Phil

2015 NBA/NBF Golf Tournament

Presented By: Nashville Bar Association & Nashville Bar Foundation Thursday, May 14, 2015 Vanderbilt Legends Club Franklin, TN 12 Noon – Range Balls Available 1PM – Shotgun Start If you have any questions, you can contact Traci Hollandsworth at the NBA (242-9272 or traci.hollandsworth@nashvillebar.org We will have a Cookout and Prizes at the conclusion of Play. There will be team prizes and individual contests (longest drive, longest putt, closest to pin, etc.) Please use the form to register yourself or a team.

NAME: BPR#:

PHONE #:

Entry fees: NBA members on or before May 7: $140.00 per player Non-NBA members on or before May 7: $160.00 per player Price includes greens fee, cart, beverages, snacks, range balls & dinner. Foursome: (please include handicap) 1. _________________________ _____ 2. _________________________ _____ 3. _________________________ _____ 4. _________________________ _____

Charge by Fax (615.630.7050) or email - traci.hollandsworth@nashvillebar.org or Phone (615.242.9272) Card Type:

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Send Check to: Nashville Bar Association 150 4th Avenue, Suite 1050 Nashville, TN 37219 Register Online www.nashvillebar.org

Nashville Bar Journal - April 2015

NBA Veterans Continue to Serve by:

George C Paine II

This is an extraordinary time in our country. We are engaged in an enduring war in the Middle East requiring repeated extended deployments for our soldiers each year. With reduced funding of the military, their ranks are reduced, they have more frequent deployments, and there is horrendous pressure on the families they leave behind. Consequently, one of my projects in retirement has been to help raise money for the benevolence fund of the 5th Special Forces Group (Green Berets) at Ft. Campbell to assist these brave warriors and their families. The Fifth Group’s area of operation includes hot spots frequently seen on our nightly news throughout the Middle East, Persian Gulf, and Horn of Africa, so they are constantly deployed. With all the pressure on them, the chaplain of the 5th Group sadly told me that the divorce rate for Special Forces soldiers is above the national average. Through my contact with the 5th Group, I became aware of a remarkable lawyer, Josie Beets, and a project to address a problem that is extremely important to military personnel and their families – that is, to provide temporary admission to the bar for military spouses who are lawyers stationed in Tennessee and fully accredited elsewhere. Josie is a licensed lawyer and the wife of a JAG officer assigned to 5th Group. As any veteran knows, soldiers are stationed without choice wherever the Army decides to send them and hopefully their spouses and family accompany them. Josie is not permitted to practice law in Tennessee although she is licensed and in good standing with the Louisiana bar. Upon coming to Ft. Campbell her first predicament was to consider the expense of a bar review course and then whether to take the bar exam. When her husband is reassigned this August to another state, she will be faced with the same issue yet again.

14 Nashville Bar Journal - April 2015

The Military Spouse JD Network (MSJDN) was founded by two military spouse attorneys in 2011 to fight for common sense licensing accommodations at the state level that would allow a military spouse the chance to continue her or his legal career while married to a member of the Armed Forces. When Josie came across MSJDN in late 2011, she said it was as if someone had thrown her a life preserver in a stormy sea. She had married her military husband in 2008, and Ft. Campbell was their first reassignment after rural Ft. Polk, LA. Coming to Clarksville, TN, she wondered, “Would she have time to register to take the bar? Should she take a bar review course? Would she ever work again? Why did she go to law school and take on hefty student loans? And how many times in her husband’s career would she have to repeat this?” These questions are unique to military spouse attorneys, 95% of whom are women. Only 34% work full time in a job requiring a law license despite the fact that 80% maintain an active license. Four out of five military spouse attorneys report their spouse’s military service has negatively impacted their legal career. They face a potential average income loss of $33,745 per year compared with their civilian attorney counterparts. Arriving in Tennessee in the summer of 2012, and unemployed, Josie drafted a 50-plus page report outlining the need for military spouse attorney ac-

commodation – noting how eleven other jurisdictions had done so and how Tennessee could join these enlightened states. She reached out to legal leaders to find someone interested in adopting a similar rule in Tennessee but initially had no luck and became discouraged. In August 2014, Josie submitted her report and request to the Tennessee Board of Law Examiners. The proposal was still pending when a group of NBA military veterans learned of the request in January. Needless to say, given their own experiences in the military, an accommodating rule was to them the right thing to do legally and one that was critical to support of military families during this time of war. How better could Tennessee lawyers show their support of our military? On January 26, NBA Veterans Committee member James Mackler sent out an email to our veterans asking them to endorse the proposal pending before the Board of Law Examiners (BLE). Within 48 hours there were 42 positive responses and currently there are 62 veterans on the list including 12 state and federal, current or former judges. NBA military veteran members Bob Tuke, former Judge Lew Conner, former Judge Robert Echols, former NBA president and BLE member Lee Barfield, Frank Grace and I contacted and wrote to the BLE board members, including NBA and BLE members, Chair Julian Bibb and Bill Harbison. Since that time, the NBA has been actively advancing the cause. For example, In February, NBA veterans Martha Boyd and Kathy Pohlid introduced Josie to the board of Lawyers’ Association for Women, who unanimously supported the proposal and sent a letter of support to the BLE on February 23rd. Also in February, I contacted Mike Cody, former Tennessee Attorney General, about support from the Memphis bar; and David Harris, his law partner at Burch, Porter

and Johnson prepared a resolution for submission to the Memphis Bar Association using the NBA member created information. The resolution was adopted unanimously at the MBA board meeting on February 26th. NBA immediate past president and veteran Charles Grant, who has been an indispensable part of the effort, submitted the proposal to the NBA board at its March 3rd meeting and they voted to support the idea and President Ed Lanquist would notify the BLE of their action. Martha Boyd of Baker Donelson put Josie in touch with Meghan Morgan Baker Donelson’s Knoxville office, and veterans are now working to gather support for the proposal in that city, using the materials prepared in Nashville. To say this proposal is critical to the support of our military families is an understatement. Temporary Tennessee licensing for military spouse attorneys means changing military spouse attorneys’ lives for the better, allowing them to practice their chosen profession, maintaining their legal skills, and mitigating the challenges of military family life. The proposed rule would allow for a threeyear temporary admission of a qualified attorney married to an active duty service member. It requires the applicant to have passed at least one bar exam and be in good standing with no disciplinary history in all jurisdictions where they are admitted. The rule also would allow the attorney to extend the admission for additional three-year terms provided they qualify. If the attorney does not qualify for the extension, they must obtain a license under the existing provisions of the Tennessee Board of Law Examiners in order to practice in Tennessee.

Josie is an outstanding example of the importance of this effort. A year ago her husband came home from a deployment to Afghanistan. While he was gone, she solo-parented their two young children, trying to keep their father a presence in their lives, while also navigating a fulltime job and an hour-long commute to Nashville where she is in a non-practicing lawyer position with the Tennessee Bar Association. She does this because she loves being a part of our profession. With the support of the NBA and the Tennessee legal community, we can make it possible for military spouse attorneys to continue their legal careers and, at the same time recognize, and support the service of military families throughout Tennessee. To quote Josie, “The enthusiasm and work to effectuate this rule by veterans of the Nashville Bar Association has been overwhelming. It is deeply appreciated in the home of every military family as a reminder that their sacrifices are acknowledged by the bench and bar of Tennessee. By their actions they are truly saying ‘thank you for your service.’” If any veterans would like their name added to the list of supporters to submit to the Tennessee Supreme Court, please contact James Mackler (jmackler@bonelaw. com) or me (georgepaine2@gmail.com). 

George C Paine II is a retired bankruptcy judge, former NBA board member, and decorated and wounded Army Vietnam veteran.

Nashville Bar Journal - April 2015

The Triple “D”: Deposing the Difficult Deponent (While Also Dealing with a Difficult Attorney) by:

Phillip Byron Jones

This article will address my suggestions for conducting the deposition of a difficult deponent (while also dealing with a difficult attorney). These challenges have recently been enhanced as a result of changes in the Federal Rules of Civil Procedure, which limit the number of depositions an attorney may conduct, as well as the hours allotted for depositions (notwithstanding the complexity of the case). The difficult deponent usually falls within one of the following classifications: • • • •

The Combative Witness The Evasive Witness The Impatient Witness The Demeaning Witness

MANAGING THE DIFFICULT DEPONENT The National Institute of Trial Advocacy (NITA) regularly produces excellent seminars concerning depositions, the applicable Rules, and the basic “do’s” and “don’ts” of depositions. I’ve followed those suggestions for years, and tweaked those tenets with my own personal style. Having done so, I think key considerations to follow include the following: (1) Restraint, (2) Focus, (3) Eye Contact, and (4) Candence. The difficult deponent is more often than not a successful entrepreneur, a corporate manager, or the like. They are accustomed to being the largest personality in the room, and the head of their respective hierarchy of employees and business associates. Thus, restraint is key to success. We must suppress the personal ego and stay on track with the primary objective; namely, obtaining helpful evidence for our clients, rather than wasting time and resources trying to win a battle of wits. Focus, therefore, must be used together with restraint.

16 Nashville Bar Journal - April 2015

When trapped in a conference room where the agenda is controlled by an examining lawyer, certain individuals tend to become extremely difficult. Their discomfort bleeds into difficulty and, if not checked, they can dictate the examining attorney’s approach, thereby thwarting the objective. Simply stated, as the examining attorney, we must exercise restraint; and, in doing so, stay on task by setting aside the human element, which tends to throw off our focus, or otherwise diminishes our effectiveness. Additionally, as advocates for our clients, we are duty bound to protect their interest. Thus, we must remain focused on insuring that the deposition does not become overly personal (or a circus). This part of our role is where eye contact and cadence become important. In contrast, the role of the defending lawyer is extremely limited in a discovery deposition; that is, their role is limited to that of being a guardian in order to insure that the deposition does not cross into privileged information or otherwise become an abusive exercise. The Rules of Civil Procedure and the Rules of Evidence prohibit the defending lawyer from disrupting the process by giving speaking objections or otherwise aiding the witness with comments like, “You may answer that if you know. . .”

In the event that the defending attorney makes “speaking objections” or engages in other disruptive conduct, NITA advocates that the examining attorney stay sharply focused on the witness at all times with direct eye contact and in relatively close proximity. The examining lawyer should be respectful to defending lawyer but, in large part, unaffected by the words or body language of the defending lawyer; using a methodical cadence in his or her approach. This tactic sends a clear message to the witness that the examining lawyer is in charge of the deposition and is unfazed by the efforts of the defending lawyer to disrupt or otherwise to impede the deposition. As an example, and in response to inappropriate objections and/or interruptions by defending counsel, I follow the practice to state the following while never losing eye contact with the witness: “Your counsel’s comments are noted and appreciated, but I need for you to answer my last question; do you wish to have the court reporter read it back to you?” If necessary, repeat this statement over and over during the course of a deposition. You will find that more often than not, the evasive witness then falls in line, and becomes cooperative. Next, avoid the practice of beginning depositions with the following question: “I am going to assume that you understand all of my questions, is that fair?” Instead, take five minutes at the outset of every deposition to lay out solid rules and to have them memorialized on the record via a verbal agreement. To do so, start every deposition with the following questions:

Will you agree that if you do not hear my question that you will ask me to repeat it? Will you agree that if you do not understand my question because it is poorly worded, compounded, etc., that you will ask me to rephrase the question? Will you agree that if you become agitated or physically fatigued to a degree that it might impair your ability to testify accurately, that you will ask for a recess?

So are we in agreement that you will not answer any question unless you heard the question, understood the question and that you are physically and emotionally in a position to answer it accurately?

Is it correct, therefore, that if you answer any question, we will know with certainty that you heard it, understood it, and that you were physically and emotionally able to respond?

The responses to these questions can also be valuable when the deponent later tries to avoid summary judgment by suggesting that his deposition admissions should be disregarded because he did not understand the question. Finally, and at the conclusion of every deposition, end with the following questions: 1.

Have you understood all of my questions today?

Have you answered all of my questions truthfully?

Is it correct, therefore, that I may rely upon your sworn testimony today as a truthful representation of your knowledge?

The court can be directed to these portions of the deposition transcript where the witness made it clear that he would not answer any question that he did not understand, and later acknowledged that he had understood the questions. DEPOSING A DIFFICULT DEPONENT IN CORPORATE LITIGATION For the balance of this article, I want to focus my comments on a hypothetical business case wherein the proverbial “difficult deponent” is a controlling executive in a closely held company. This can be the case in partnership disputes and/or disputes involving closely-held corporations or limited liability companies. To start, Rule 30.01, T.R.C.P., provides that a party may take the deposition of “any person” including a party. Hence, the controlling shareholder can be deposed, whether the individual is a party or simply a person with knowledge. Second, Rule 30.02(6), T.R.C.P., provides a litigant with the right to depose an entity (e.g., a corporation, partnership, limited liability company, etc). Notwithstanding, young lawyers or lawyers with a limited discovery budget oftentimes merge these depositions into one event; namely, they depose a controlling shareholder individually and as a corporate designee in a single setting. While sometimes this is appropriate, more often than not I deem it as a tactical mistake, even when there is no dispute that the controlContinued on Page 18 

Nashville Bar Journal - April 2015

The Triple “D;” Deposing the Difficult Deponent (While Also Dealing with a Difficult Attorney) Continued from page 17

ling shareholder is also the person most knowledgeable on the topics identified in the Rule 30.02 Deposition Notice. Hence, if a lawyer has reason in advance to believe that a particular individual might be a difficult witness, then I think the more savvy approach involves a five-step plan: First Step: Send written discovery to the corporate defendant. Second Step: Depose the corporate defendant, via a Rule 30.02(6) Notice. Third Step: Pause, and analyze the case, having sampled the waters after deposing the corporation via its controlling shareholder, president, etc. Fourth Step: Then send written discovery, focused narrowly on the controlling shareholder’s involvement as an individual litigant. Fifth Step: Depose the controlling shareholder, this time in his individual capacity, having already faced him in the earlier corporate deposition, and already armed with the company’s prior discovery responses and his deposition testimony. This five-step process works well in business litigation and, additionally, it empowers a lawyer when deposing a difficult deponent.

18 Nashville Bar Journal - April 2015

Unfortunately, recent revisions to the Federal Rules of Civil Procedure pose an obstacle to the aforementioned five-step process due to new limitations on discoveryThe new limits on discovery are summarized in the chart below. Depositions: Old Limit: 10 Depositions per party; 7 hours each New Limit 5 Depositions per party; 6 hours each1 These discovery restrictions can create a mammoth problem where a difficult deponent, through evasive testimony, stretches out the length of a deposition. By doing so, the difficult deponent (or their obstructionist attorney) can consume a large portion of the six-hour deposition limit imposed by the revised Federal Rules. To reduce the risk inherent in the revised limitations, it is extremely important to manage a difficult deponent and to avoid allowing opposing counsel to slow down the process, disrupt it, or otherwise impede the deposition. For all of these reasons, it is important to exercise restraint, remain focused (in attention and eye contact), and to follow a methodical cadence. 

Phillip Byron Jones is a partner with the Nashville law firm of Evans, Jones & Reynolds, P.C. where he practices business law and business litigation. He is a Member of the John Marshall, American Inns of Court (Williamson County), a Fellow with the Nashville Bar Foundation and a Member of the American Board of Trial Advocates. He is a 1989 graduate of the University of Louisville School of Law, and a 1985 graduate of Trevecca University. (Endnotes) 1 Fed. R. Civ. P. 30 & 31.

Nashville Bar Journal - April 2015

The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. Members will be listed monthly in the Nashville Bar Journal and will appear in our annual directory. Contact Vicki Shoulders at 615-242-9272 or vicki.shoulders@nashvillebar.org if you have any questions. Thank you for supporting your local bar association!

Bradley Arant Boult Cummings LLP (109) Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (99) Butler Snow LLP (61) Bone McAllester Norton PLLC (39) Neal & Harwell, PLC (33) Sherrard & Roe, PLC (32) Adams and Reese LLP (31) Lewis, Thomason, King, Krieg & Waldrop , P.C. (29) Stites & Harbison, PLLC (29) Gullett, Sanford, Robinson & Martin, PLLC (28) Dickinson Wright PLLC (28) Burr & Forman LLP (23) Ortale, Kelley, Herbert & Crawford (23) Riley Warnock & Jacobson, PLC (20) Frost Brown Todd LLC (20) Leitner, Williams, Dooley & Napolitan, PLLC (18) Cornelius & Collins, LLP (16) Nelson Mullins Riley & Scarborough (16) Patterson Intellectual Property Law, PC (16) Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (15) Branstetter, Stranch & Jennings, PLLC (13) Brewer, Krause, Brooks, Chastain and Burrow, PLLC (13) Hall Booth Smith, P.C. (12) Legal Aid Society of Middle Tennessee and the Cumberlands (12) Smith Cashion & Orr, PLC (12) Spicer Rudstrom, PLLC (11) Parker, Lawrence, Cantrell & Smith (11) Hughes & Coleman (11) Watkins & McNeilly, PLLC (10) Morgan, Akins & Clark, PLLC (10) Dodson Parker Behm & Capparella, P.C. (9) Dollar General Corporation (9) Littler Mendelson, P.C. (9) White & Reasor, PLC (9) Corrections Corporation of America (8) Lassiter, Tidwell & Davis, PLLC (8) Schulman, LeRoy & Bennett, P.C. (8) Jones Hawkins & Farmer, PLC (8) Kay, Griffin, Enkema & Colbert, PLLC (8) Levine, Orr & Geracioti, PLLC (7) Buffaloe & Associates, PLC (7) Taylor, Pigue, Marchetti & Blair PLLC (7) Howard Mobley Hayes & Gontarek, PLLC (6) Evans, Jones & Reynolds, P.C. (6) Hollins, Raybin & Weissman, P.C. (6) Keller, Turner, Ruth, Andrews, Ghanem & Heller, PLLC (6) Leader, Bulso & Nolan, PLC (6) Reno & Cavanaugh PLLC (6)

20 Nashville Bar Journal - April 2015

Law Offices of John Day, P.C. (6) Martin Heller Potempa & Sheppard, PLLC (6) Wiseman Ashworth Law Group, PLC (6) Rogers, Kamm & Shea (6) Kinnard, Clayton & Beveridge (5) Loeb & Loeb, LLP (5) Shackelford, Zumwalt & Hayes, LLP (5) Trauger & Tuke (5) Cheatham, Palermo & Garrett (5) Direct General Corporation (5) Farris Bobango, PLC (5) Haynes, Freeman & Bracey, PLC (5) American General Life Insurance Company (4) Dobbins, Venick, Kuhn & Byassee, PLLC (4) Hale & Hale, PLC (4) Holton & Mayberry, P.C. (4) Prochaska Quinn & Ferraro, P.C. (4) Robinson, Reagan & Young, PLLC (4) Rothschild & Ausbrooks, PLLC (4) Rutherford & DeMarco (4) Tennessee Justice Center (4) Weatherly, McNally & Dixon, PLC (4) Barry Gammons, Attorney at Law (4) Law Offices of Julie Bhattacharya Peak (4) Southern Environmental Law Center (3) Anderson & Reynolds, PLC (3) Cameron Worley, P.C. (3) Cheadle Law (3) Fisher Matthews PLLC (3) Goodman Callahan Blackstone, PLLC (3) Grissim & Hodges (3) Ingram Content Group Inc. (3) Larry R. Williams, PLLC (3) Lieff, Cabraser, Heimann & Bernstein (3) Luna Law Group, PLLC (3) Mudter & Patterson (3) Nashville Electric Service (3) Sarah Cannon Research Institute (3) Shackelford, Bowen, Zumwalt & Hayes, LLP (3) Smythe & Huff (3) Southland Title & Escrow Co., Inc. (3) Cole Law Group (3) Glasgow & Veazey (3) McCarter & Beauchamp, PLLC (3) MTR Family Law, PLLC (3) Video Gaming Technologies, Inc. (3) Hall & Sitler (3) Marlowe Law Offices, PLLC (3) Puryear Law Group (3)

Nashville Bar Journal - April 2015

Disclosure Charles K. Grant, a shareholder in Baker Donelson's Nashville office, has been elected a member of the Firm's board of directors. Grant was elected by Baker Donelson's shareholders to a three-year term. Grant, a member of the Firm's Labor & Employment Department, represents clients in complex employment litigation, including class and collective actions and litigation concerning claims under the Employee Retirement Income Security Act (ERISA) and Family Medical Leave Act (FMLA). His practice also includes business litigation and he has represented numerous clients in mediation and arbitration proceedings across more than a dozen states. A 1991 graduate of Washington and Lee University School of Law, Grant serves as immediate past president of the Nashville Bar Association. In 2014 he served as president, the first African-American to serve as president in the association's history. He also serves as second vice president of the board of directors for the Legal Aid Society of Middle Tennessee and the Cumberlands, and is a past president and former board member of the Napier-Looby Bar Association. Douglas W. Schelling has joined Frost Brown Todd and Intellectual Property Practice Group. Schelling joins approximately 50 other professionals on the IP team, and will focus his practice on counseling and representing clients in matters related to patents, trademarks, domain name disputes, and trade secrets. Joey Hargis has joined Baker Donelson in the Real Estate and Finance Group. Hargis comes to the firm having served as Metro Codes Zoning Examination Chief and Secretary of the Board of Zoning Appeals since 2008. He also previously served on the staff of the Metro Nashville Planning Commission.

22 Nashville Bar Journal - April 2015

\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to light relevant information concerning NBA Members & Staff. n Announcements n Kudos n People on the Move n Firm News n Grant Michael Ford has joined Patterson Intellectual Property Law as an associate. His practice will focus on the protection of inventions relating to electronic and computer technologies. Ford is a 2013 graduate of the Illinois Institute of Technology – Chicago-Kent College of Law, where he was awarded the CALI Excellence for the Future Award in Patent Office Practice. He holds a Bachelor of Science in computer engineering from the University of Tennessee. He is a junior member of the American Intellectual Property Law Association and a member of the Institute of Electrical and Electronics Engineers. William B. Jakes, III, partner in Howell & Fisher, PLLC, has become a Fellow of the American College of Trial Lawyers. Founded in 1950, the College is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15 years trial experience before they can be considered for Fellowship. Joseph K. McKinney, an attorney with Dickinson Wright, McKinney has been selected as a member of The National Black Lawyers: Top 100 and The National Black Lawyers: Top 40 Under 40. These accolades reflect McKinney’s excellence and leadership in the legal profession. Selection is based on a multi-phase process that includes peer nomination combined with third-party research.

Legal Aid Society Kicks Off 2015 Campaign for Equal Justice Legal Aid Society of Middle Tennessee and the Cumberlands kicked off its 2015 Campaign for Equal Justice, Legal Aid Society’s annual fundraising initiative, on Tuesday, March 17 with a luncheon at the Nashville City Club. This year, Legal Aid Society’s goal is to raise $800,000 to support its mission to provide free legal assistance to low-income individuals throughout Middle Tennessee and the Cumberland Plateau. The luncheon sent a message to the community at large: the legacy and important work of Legal Aid Society must live on. This message was affirmed by a keynote panel discussion moderated by Tennessee Supreme Court Chief Justice Sharon Lee and featuring two former Legal Aid Society executive directors: Ashley T. Wiltshire, Jr. and Judge Walter C. Kurtz. Following the panel discussion, Legal Aid Society Executive Director Gary Housepian explained why more than 40 years after its founding, Legal Aid Society continues to draw support. “People want to make an impact. People believe in the clients we serve and represent,” Housepian said. “Doing this type of work and using this gift of the law can really change people’s lives – build their lives stronger, their families stronger and our communities stronger.” The Campaign for Equal Justice is an annual initiative that raises funds for Legal Aid Society, Tennessee’s largest nonprofit law firm. The goal for the 2015 campaign is $800,000 and is led by Margaret Behm, principal attorney at Dodson, Parker, Behm and Capparella, P.C. The kickoff luncheon also celebrated the efforts of law firms, attorneys and community partners in advancing the work of Legal Aid Society, including the 2015 Leadership Cabinet – a group of 50 Nashville law firms and in-house legal departments that have committed to giving $400 per attorney.

Welcome New NBA Members! Elizabeth Bowden Blake Bratcher Martin Heller Potempa & Sheppard, PLLC* Megan Cowden LEXIS-NEXIS

This year’s new Legal Aid Society of Middle Tennessee and the Cumberlands Leadership Cabinet members include: Dobbins, Venick, Kuhn & Byassee, PLLC; Gideon, Cooper, & Essary PLC; Mitch Grissom & Associates; Hale and Hale, PLC; Lindsey + Amonette, PLLC; Nashville Electric Service Legal Department; Pepper & Brothers, PLLC; Prochaska Quinn & Ferraro, P.C.; and White & Reasor, PLC.

2015 NBA Premier Members: Elizabeth A. Alexander Gail Vaughn Ashworth Joe P. Binkley Jr. Jonathan Bobbitt Charles Robert Bone Charles W. Bone Leilani Boulware Jay S. Bowen C. Dewey Branstetter Jr. Joe B. Brown Kenneth Sherman Byrd Kathryn Caudle Mark P. Chalos William T. Cheek III John Ray Clemmons Michael Clemons Dixie W. Cooper Patricia J. Cottrell Virginia Chase Crocker John A. Day Joy Day John Franklin Floyd Grant C. Glassford Charles K. Grant John J. Griffin Jr. William L. Harbison Marian F. Harrison Aubrey B. Harwell Jr. Trey Harwell G. Miller Hogan II Paul T. Housch Margaret M. Huff Michael F. Jameson R. Jan Jennings Jordan S. Keller John D. Kitch William C. Koch Jr.

Irwin J. Kuhn Edward Dodson Lanquist Jr. Thomas W. Lawless Claudia Vettel Levy Randal S. Mashburn Carol L. McCoy Robert G. McDowell Jeffrey Mobley Marlene Eskind Moses Patricia Head Moskal Michael I. Mossman Dean Newton Mattison C. Painter Gregory J. Pease Tracy A. Powell David L. Raybin Jonathan E. Richardson Edgar M. Rothschild III Maria M. Salas Carolyn W. Schott Thomas J. Sherrard III Emily A. Shouse Saul A. Solomon John T. Spragens Michael G. Stewart James Gerard Stranch IV James G. Stranch III Hon. Aleta Arthur Trauger Irwin Bruce Venick Howard H. Vogel Michael J. Wall James L. Weatherly Jr. Peter Weiss Thomas V. White Larry R. Williams Nicholas S. Zeppos

NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs & Services. Contact Vicki Shoulders (615.242.9272, vicki.shoulders@nashvillebar.org) for details.

Miles Martindale Aisha Shenea McWeay Metropolitan Public Defender Emily Morrison Jennifer Smith Tennessee Attorney General Andrew Tharp Butler Snow LLP* * 100% Club

Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions.

March Volunteers:

Chris Hugan Joe Rusnak To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided.

Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing. Nashville Bar Journal - April 2015

Classifieds

office space

Office Space Brentwood Office Space Available: Window office space available in Brentwood, TN (Maryland Farms). Association of general practice attorneys. Convenient to Williamson and Davidson County Courthouses and I-65. Use of spacious conference rooms, kitchen, wi-fi, copier, free parking, small storage all included. Call (615) 376-9800.

Germantown Single office space available for attorney in Germantown neighborhood just north of downtown Nashville. Close to the courts and downtown law firms but without downtown parking fees. Building constructed in 2011. Conference room down the hall and your own parking space in our lot behind the building. (615) 800-8919.

Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550.

Office sharing Office sharing opportunity for attorney with small group of attorneys located at 305 14th Avenue North in Nashville. Convenient to courthouses with free on-site parking. Includes private office, reception area, conference room, library, kitchen, phone/ internet service and administrative support staff. Contact julie.mogan@305lawoffice.com

For Sale or Lease Historic Office Bldg. For Sale or Lease: .8 Acres, corner lot with traffic light. 3400 sq. ft. 12 minutes from Courthouse, ample parking and ample on-site storage. Quick access to Opryland, Airport, hospital, and all interstates. 1215 Gallatin Rd. S. Contact Steve North, 615-860-7644; stevenorth@comcast.net Germantown Office space for rent. Family association of attorneys in general practice. Restored historic house near Bicentennial Mall and the new Sounds stadium in Sulphur Dell. Large office available, and virtual office offered. Shared conference room, kitchen with free onsite parking. Call 615256-6681, ext 3

Would You Put That In Writing? Certified Forensic Document Examiner Handwriting Identification & Analysis Expert Witness – 30 Years of Experience Qualified in Federal, State and Local Courts High Level of Professionalism Strict Rules on Client Confidentiality Delivery Deadline Observed Marty Pearce, CDE, CGA E-mail: martypearce@comcast.net 615-884-0363 or 888-640-1001

THOMAS F. BLOOM, J.D. (Emory 1977) (615) 260-5952; www.bloomappeals.com Retained by attorneys throughout the State for 29 years to draft briefs and/or argue cases in over 400 appeals, State and Federal. Research assistance also available. Quality Guaranteed at reasonable cost. References available upon request.

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24 Nashville Bar Journal - April 2015

Elder Law Practice of Timothy L. Takacs .................................................... Back Cover Thomson Reuters..............Inside Front Cover First Tennessee Bank ................................. 21 IPSCO ............................. Inside Back Cover NBA YLD Race Judicata .......................... 20 NBA Career Center .................................. 24 Thomas F. Bloom, JD ............................... 24

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