Issuu

Nashville Bar Journal FEBRUARY 2011 - VOL 11, NO. 1

There’s an App for That—

But Does Your Client Own It?

Legal Advice for Protecting Mobile Software Apps by:

Gary L. Montle

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

Don’t Forget What Your Mother Taught You Just Because You Are Using a Computer: Tech Etiquette for Lawyers Bill Ramsey and Phillip Hampton

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

Profile: Gregg Ramos Jennifer McMillen

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

Help Wanted

C. Dewees Berry IV

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

Get more out of life with a reverse mortgage This free video from MetLife Bank can show you how. If you’re a home owner age 62 or older a reverse mortgage could give you the financial flexibility you need. And MetLife Bank—a MetLife company— has the expertise to help you get the most from a reverse mortgage. Call today for your free reverse mortgage video and information kit—there’s no obligation. Les Barnhart MetLife Bank Reverse Mortgage Consultant 615-481-3285 www.metlifebank.com ®

All loans are subject to property approval. Certain conditions and fees apply. Mortgage financing provided by MetLife Bank, N.A., Equal Housing Lender. ©2010 METLIFE, INC. R0610110496[exp0511][All States][DC] © 2010 PNTS

12509

What Does That Attorney Look Like Who You Only Communicate With Via Email? Need to find the New Address of an Old Law Parnter? ******************************************* Find Out In The New 2011 NBA Attorney Directory! ------------------------------------------------------------------------• Attorney Listings For All Davidson County & Surrounding Communities ------------------------------------------------------------------------• Over 500 New Member Photos ------------------------------------------------------------------------• Comprehensive Court Listings ------------------------------------------------------------------------• Field of Practice Listings ------------------------------------------------------------------------• Firm Listings ------------------------------------------------------------------------• Listings For All NBA Boards & Officers ------------------------------------------------------------------------• Committee Information ------------------------------------------------------------------------• NBA By-Laws & More -------------------------------------------------------------------------

Order Your 2011 Directory Online Today: www.nashvillebar.org NASHVILLE BAR ASSOCIATION

315 Union Street, Suite 800 Nashville, TN 37201 (615) 242-9272 Fax:(615) 255-3026 www.nashvillebar.org

Nashville Bar Journal A Monthly Publication of the Nashville Bar Association

www.nashvillebar.org

There’s an App for That— But Does Your Client Own It?

Legal Advice for Protecting Mobile Software Apps PAGE 6

Gary L. Montle

Waddey & Patterson, P.C.

Don’t Forget What Your Mother Taught You Just Because You Are Using a Computer: Tech Etiquette for Lawyers PAGE 8

Bill Ramsey and Phillip Hampton

FROM THE PRESIDENT Down to Business PAGE 2

Bob Mendes, MGLAW, PLLC

_______________________________________________ 4 Communiqué • NBA Wins ABA Award • YLD Land Rover Race Judicata • Nominations Sought for Norman Award • Nominees for Liberty Bell Awards Sought • Golden Oldies • Upcoming Events _________________________________________________________ 10

February 15 - 11:30 am Real Estate Committee Meeting February 15 - 12:00 pm Ethics Committee Meeting February 18th and 19th Davidson County Mock Trial Competition

June 9, 2011 NBA Golf Tournament @ Legends September 22, 2011 NBA Free Member Picnic @ Hall of Fame Park

February 25 & 26 1L Minority Job Fair February 26 Race Judicata February 28 - 12:00 pm NALS Meeting April 21, 2011 Law Day Luncheon @ Renaissance Hotel June 4, 2011 Bill Ramsey's Ode to Otha Block Party

Gossett v. Tractor Supply Co., Inc. — Is Summary Judgment Still an Option for Employers?

Joshua J. Sudbury, King & Ballow _________________________________________________________ 12 Bill & Phil’s Gadget of the Month: Our Favorite Gadgets from the Consumer Electronics Show Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting _________________________________________________________

View Full Calendar online at www.nashvillebar.org

-Golden Oldies-

CLE Information - Center Section _________________________________________________________ 14 It's Your Move! _________________________________________________________ 17 RACE JUDICTA REGISTRATION _________________________________________________________ 18 Profile: Gregg Ramos Jennifer McMillen _________________________________________________________ 20 Help Wanted C. Dewees Berry IV, Bass, Berry & Sims PLC _________________________________________________________ 22 Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory _________________________________________________________ 24 Classified Listings _________________________________________________________

----------------------------------------------------------------------------------------------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. ------------------------------------------------------------------------

Nashville Bar Journal A Monthly Publication of the Nashville Bar Association

www.nashvillebar.org

Robert Mendes, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

Eleanor Wetzel, Managing Editor

FROM THE PRESIDENT

by Bob Mendes

Down to Business

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 Nanette Gould Marge Haines Kathleen Henderson Tim Ishii Tracy Kane Rhett Parrish Bill Ramsey Stephanie Reevers Eleanor Wetzel

Nashville Bar Association Staff Gigi Woodruff 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 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 315 Union Street, Suite 800, Nashville, TN 372011401, (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, 315 Union Street, Suite 800, Nashville, TN 37201-1401 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 opionions of the Nashville Bar Association.

Nashville Bar Association 315 Union Street Suite 800 Nashville, TN 37201-1401 615-242-9272 Fax 615-255-3026 www.nashvillebar.org

2 Nashville Bar Journal - February 2011

As I sit down to write this message on New Year's Day, two strands of thoughts occur to me. The first is personal – how dull is my life that I am drafting this before watching football today? The second thought is more on task – despite the bar association's recent significant energy into our upcoming move and related fundraising, life goes on. For the association, "life" is our roughly 2700 members working hard for their clients and our association's programs and committees. One of the best examples of this is the Young Lawyers Division. The YLD starts the year off with a bang holding two of its major events this month: the Davidson County Mock Trial Competition on February 18 and 19, and the Race Judicata 5K/10K at Percy Warner Park on February 26. I encourage lawyers of all ages to participate in these programs. One of the core services of our bar association over the years is to provide a venue for multiple generations of lawyers to work together. Relationships between lawyers at different stages of their careers help us all be better at what we do. If you would like to participate in the Mock Trial Competition, please contact Matt Cox (mcc@iplawgroup.com) or Lauren Paxton Roberts (lauren.roberts@ stites.com). If you want to participate in Race Judicata, you can register online at www.nashvillesports.com, at the "Events" tab. Another of our significant annual events is Law Day. Since May 1 is a Sunday this year, and also the first day of our new lease, we will be celebrating Law Day a few weeks early on April 19. The theme this year is "The Legacy of John Adams, From Boston to Guantanamo." The ABA's web site explains that this is a reference to John Adams's "role in the 1770 Boston Massacre trials, [which] has come to be seen as a lawyerly exemplar of adherence to the rule of law and defense of the rights of the accused, even in cases when advocates may represent unpopular clients and become involved in matters that generate public controversy." At a time when budgets for representing indigent defendants are stretched thin, this is an opportunity for us to honor the rule of law that allows members of our profession to vigorously represent politically unpopular positions. (As an aside, last year's Law Day will be a tough act to follow. Everyone who attended last year certainly knew that the program, "Defending Freedom in the Nashville Sit-in Trials," was special. We recently learned that our program was awarded a 2010 American Bar Association Law Day Outstanding Activity Award. This is a first for the Nashville Bar Association, and it will be awarded at the ABA's Midyear Meeting in Atlanta on February 18. Congratulations to everyone who was involved.) These are just some of the examples of the "life" of our association. For more than a century, the NBA has been a vehicle for lawyers to gather, provide service to the community, and education to each other. I am looking forward to more of the same through the course of 2011. I also would like to update you on the status of our move and the fundraising efforts. First, let me give you some details about the move itself. Construction has started on our 7,620 square feet of new office space. We are close to ordering the furniture, equipment, and technology we need to outfit the space. We

2011 NBA BOARD OF DIRECTORS

are periodically posting photographs showing the progress in the build-out at http://www.nashvillebar.org/ItsYourMove.html. Thanks to the One Nashville Place building, our contractor, architect, NBA staff, and volunteers who are making this happen. By the time you read this, we will have entered the "public" phase of our fundraising. I am happy to report that the initial fundraising through fall 2010 was successful. Before the new year started, we had commitments for more than half of the $475,000 that we seek to raise. Thanks to all who have participated, and all who will participate. Your leadership is appreciated. For more information about joining the effort, please visit http://www.nashvillebar.org/ ItsYourMove.html. If you have any questions or suggestions about the new space or the fundraising efforts, please feel free to give me a call. n

Robert J. Mendes, President John D. Kitch, President-Elect Barbara J. Perutelli, First Vice President John J. Griffin Jr., Second Vice President Alisa C. Peters, Secretary William Robert Pope, Treasurer M. Bernadette Welch, Assistant Treasurer Gareth Aden, General Counsel Rebecca C. Blair Robert E. Boston C. Dawn Deaner Charles K. Grant Barbara D. Holmes Michele M. Johnson Hon. Randy Kennedy Patricia Moskal Tracy Shaw Tom Sherrard Hon. Marietta Shipley Emily A. Shouse Michael D. Sontag John R. Tarpley Mandy Haynes Young

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 - February 2011 3

communiqué

NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE IN

NBA Wins ABA Award Our 2010 Law Day Program, "Defending Freedom in the Nashville Sit-in Trials", was awarded the American Bar Association Law Day Outstanding Activity Award. The program was presented by the Nashville Bar Association, Nashville Bar Foundation and the Napier Lobby Bar Association. This is the first time we have had the honor of receiving this award. The Luncheon was held on June 15, 2010 on the Metro Court House Lawn and a CLE program, " Civil Disobedience and the Rule of Law: The Nashville Sit-ins and Lessons in Courage," followed inside the courthouse. This year, Nashville attorneys commemorated the 50th anniversary of the date on which Nashville's lunch counters were officially desegregated and the dedication of local attorneys who, despite public criticism and opposition, assured that the protestors had access to the justice system. It is a rich legacy of access to justice which has added much to our wonderful city. Thank you and congratulations to everyone who was involved in the planning of the Law Day events! The ABA will honor the 2010 Law Day award recipients at the NABE/NCBP/ NCBF Joint Luncheon on Friday, February 11 in Atlanta.

James Causey Received TBA Special President’s Award for Valor The Dec/Jan issue of the Nashville Bar Journal included an article titled “I Will Not Do That”, which profiled James (Jim) Causey’s integrity and revealed for the first time the investigation into the TBA presidential election. At the Tennessee Bar Association’s 2011 Public Service Luncheon, held on January 22, Causey was honored with a Special President’s Award for Valor, recognized by the TBA for actions following the 1982 TBA election. Due to unexpected circumstances, Causey was unable to attend; thus, Hal Hardin, the author of the NBJ article and TBA General Counsel during the 1982 investigation, accepted the award on Causey’s behalf.

-Golden Oldies-

Ward DeWitt correctly identified the individuals in the Dec/Jan Golden Oldies photo. Pictured are: J.G Lackey, Richard Dance, and C.D Rippy

Don’t Miss this Year’s YLD Land Rover Race Judicata Feb. 26 Mark your calendars and get ready to lace up your running shoes! The Eighth Annual Land Rover Race Judicata is being held on Saturday, February 26 at 8 a.m. in Nashville’s beautiful Percy Warner Park. There will be both a 5K and a 10K race. The Race Judicata committee has chosen two beneficiaries this year: FiftyForward and the Nashville/Davidson County Unmet Needs Committee. Fifty Forward is the leading resource for adults 50+ in Middle Tennessee who seek to live longer, more fulfilling lives. FiftyForward provides educational, wellness, arts, music, and travel programs, as well as independent living assistance and volunteer opportunities. The Unmet Needs Committee is a working committee of Nashville’s Long Term Recovery Committee, and is responsible for coordinating the distribution of resources to flood victims and other victims of disaster who are in need. For questions and information, please contact Becca Brinkley (becca.brinkley@ wallerlaw.com) or Will Parsons (wparsons@rwjplc.com).

4 Nashville Bar Journal - February 2011

NFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION n

Nominees for Liberty Bell Awards Sought Nominations are being sought for the Liberty Bell Award that will be presented during the NBA’s annual Law Day Luncheon during Law Week. This award is given to that person or group (not necessarily lawyers or law related groups) who have promoted better understanding of the rule of law, encouraged greater respect for law and the courts, stimulated a sense of civic responsibility, or contributed to good government. Nominations for the Liberty Bell Award should be directed to Traci Hollandsworth. She may be reached at 242-9272, or email her at traci.hollandsworth@nashvillebar.org.

Past LIBERTY BELL AWARD WINNERS: 1986 Dave Rutherford Bill Willis M. Lee Smith 1987 Connie F. Wright, Teacher James F. Blumstein, Vanderbilt Law School 1988 CASA 1989 Sharon DeBoer Kirk Loggins 1990 Wade Cowan NBA YLD (presented at Annual Banquet) 1991 Lt. Col. Jeff Henry Court Preparation Group 1992 Judith Cannizzaro, Metro Social Studies Coordinator Exchange Club of Nashville

1994 Marshall Albritton

2002 Wally Dietz

1995 Mary Ann Hea Kroger Company

2003 Andrea Conte

1996 Nashville Banner

2004 John Seigenthaler Nashville Conflict Resolution Center

1997 Bradley MacLean Sabin R. Thompson N. Sue Van Sant Palmer Marlinda R. Bruno

2005 Judge George Paine Renewal House

1998 Adinah Robertson

2006 Drake Holliday (posthumously)

1999 Tennessee Justice Center L.A.W. Early Truancy Program

2007 Governor’s Books from Birth Foundation

2000 Senator Douglas Henry NBA Young Lawyers Division

2008 Judge Walter Kurtz

2001 Richard Dinkins Mary Walker

1993 George Rooker

UPCOMING EVENTS: -----------------------------------------------------Napier-Looby Bar Foundation 7th Annual Barristers Banquet & Awards Program Thursday, February 17, 2011 @ Renaissance Hotel Reception at 6:00 p.m. with Dinner and Program to follow at 7:00 -----------------------------------------------------Davidson County High School Mock Trial Competition Friday, February 18 at 4:00 pm and 6:00 pm Saturday, February 18 at 8:30 am, 11:00 am, and 2:30 pm ------------------------------------------------------

2009 Ross Alderman (posthumously) 2010 Joe Johnston

Nominations Sought for Norman Award Nominations are now being sought for the Jack Norman Award that will be presented during the Nashville Bar Association’s Law Day Luncheon during Law Week. The Award is given to a criminal law practitioner, including defense attorneys and judges of courts with criminal jurisdiction, who practice before or serve as judges of courts exercising criminal jurisdiction located in the Metropolitan Nashville area. The award may be given posthumously. The Norman Award must be given to an attorney whose primary practice is in or service pertains to criminal law, demonstrates respect for the rights of all individuals in the criminal justice system, exhibits the trial advocacy skills or judicial skills necessary to the pursuit of justice, demonstrates an abiding respect for the law and legal profession, maintains highest standards of professional integrity and ethical conduct, contributes to the improvement of the legal profession and criminal justice system, including but not limited to the provision of uncompensated or undercompensated representation of the accused. Nominations for the Norman Award should be directed to Traci Hollandsworth. She may be reached at 242-9272, or email her at traci.hollandsworth@ nashvillebar.org.

Past NORMAN AWARD WINNERS: 1996 Jack Norman Sr., (posthumously)

---------------------------------------------------Race Judicata @ Percy Warner Park Saturday, February 26, 2011 Registration on Page 25 --------------------------------------------Law Day Luncheon April 21, 2011 @ Renaissance Hotel --------------------------------------------Bill Ramsey's Ode to Otha Block Party June 4, 2011 --------------------------------------------NBA Golf Tournament @ Legends June 9, 2011 --------------------------------------------NBA Picnic @ Hall of Fame Park Thursday, September 22, 2011 ---------------------------------------------

1997 not presented 1998 (Presented at Annual Banquet) Judge Tom Shriver

2002 not presented 2003 not presented 2004 William M. Leech, Jr. 2005 Judge Randall Wyatt 2006 Hall Hardin

1999 (Presented at Annual Banquet) Seth Walker John Hooker Sr.

2007 not presented

2000 James F. Neal

(posthumously)

2001 Joe P. Binkley Sr.

1996 Charlie Ray

2009 Ross Alderman (posthumously)

2010 Ed Yarbrough

Nashville Bar Journal - February 2011 5

FEATURE

There’s an App for That— But Does Your Client Own It? Legal Advice for Protecting Mobile Software Apps by:

Gary L. Montle

The development of mobile software applications (or “apps”) began as a wave with the introduction of the iPhone in 2007. Apple’s App Store spawned a frenzy of developers each seeking to have their apps distributed for download onto the iPhone (over 300,000 apps currently available)1, and this excitement has carried over to other online marketplaces created by competitors in response to the successes of Apple. More recently, that wave has increased in force to become a veritable tsunami, as the number of potential digital platforms for these apps has exploded. Tablets such as the iPad have broken new ground for potential apps, not the least of which is related to a larger user interface. A significant part of the excitement for developers stems from the openness of these mobile app marketplaces, in that a relatively small amount of effort can generate substantial distribution and success in a short period of time. However, this open environment and the speed in which products can be launched has also led many developers to rush apps to market without taking precautions with regards to intellectual property (IP) that more conventional entrepreneurs might find prudent. This article is intended to provide a basic checklist or primer of common IP pitfalls which developers of mobile software apps may face, and which you may be able to help 6 Nashville Bar Journal - February 2011

them identify in the course of other legal services you are providing. Clearly not all of these points will apply in every case, and for certain issues (such as for example patents) much more detail may be necessary to sufficiently advise a particular client. Be aware of intellectual property your client may run across With the tremendous growth in online commerce it can be difficult to stay on top of what competitors may have already brought to market, or other limitations that may be in place with respect to new developers. However, by identifying and addressing a few key features in steps which you (or your client) will already most likely be performing anyway, you can at least minimize many of the most likely problems that may otherwise come back to bite later. For example, most developers will automatically perform brief online searches for their app name to see if it is already being used in another app, but it is important to also take the extra step of checking trademark databases for registered marks. Any name that is confusingly similar to another app name or a registered mark in the app marketplace, even if it is not exactly the same, could be problematic and should be avoided. This may seem like a tall order, as so many

apps are merely variations off of the same name or theme, and this fact alone may make many of these names difficult to protect as trademarks, but at the early development and marketing stages it is often better to be safe than sorry. The U.S. Patent and Trademark Office offers a free search engine that is not entirely straightforward for new users, but can still be quite useful for simple key word searches.2 You should also keep in mind that even unregistered marks can be problematic in the future, as they can still be used to prevent your client from using their mark in certain geographic areas where they can establish continuous use. Carefully review all terms and conditions, license agreements, and any other restrictions on distribution which may be placed on the app. Many developers will have outsourced the programming of the app code or at least incorporated open source or other third party software. This saves time and money, and is generally encouraged by the creators. However, some open source software licenses may for example require free/ open distribution of any app making derivative use of certain portions of the associated software, which will likely come as quite a nasty surprise to the entrepreneurial client who has no intention of making his or her products freely available to the public. Also, read the terms of use for any third party services or materials incorporated into the app. Most developers understand immediately that music and video may likely be protectable by copyright and that permission must be obtained from the owner or creator of these works, but what is generally not so clear is that the same protection may apply to clips, thumbnails, or other mere portions of such works. Even licensees or authorized developers for a licensor or distributor such as Apple must adhere to strict guidelines regarding use of protected trademarks and copyrighted works.3. “Fair use” is not a reliable defense for developers where the app in question is

intended for commercial use. The safest course of action is to assume that in the absence of express authority or permission granted or obtained to use third party works- your client may be best advised not to use them at all. Even where such services are offered in the public domain and authorized by third parties (such as Flickr for example) and easily incorporated using web-based Application Programming Interfaces (API), it is still important to review the associated agreements to ensure that your client’s intended uses are within the scope of the permission granted, or that the various licenses involved are not incompatible. If your client has in fact incorporated third party services in the app, don’t assume that a default End User License Agreement (EULA) will be sufficient for what he or she has in mind. For many relatively simple apps, a standard EULA such as what Apple provides may work, but the third party agreements described above often require some customization. A common example is where an open source license requires end users to comply with specific terms. If the app in question collects data from an end user and transmits it to third parties, such features should be disclosed and permission from the end user obtained, or else the developer may run the risk of violating computer fraud and privacy laws.4 More specifically to clients who are developing apps for Apple products, if they intend to distribute via the App Store it is necessary to use Apple’s Software Development Kit (SDK), which imposes a large number of limitations on the scope of the app and the tools used in its creation.5 Hackers have long since found (and continue to develop) ways to unlock or “jailbreak” devices using the Apple operating system (iOS), and developers have subsequently been able to create apps without the Apple restrictions if they are willing to work around App Store distribution. The U.S. Copyright Office has even ruled that jailbreaking constitutes “fair use”

under copyright law, while stopping short of finding that such activities are actually non-infringing.6 However, keep in mind that Apple continues to keep up the fight against jailbreaking by invalidating warranties and a steady stream of firmware upgrades, in addition to threats of legal action for breach of contract by users (however unlikely) or of express judicial challenges to the jailbreaking exemption. Take at least basic steps to protect your client’s IP It is widely understood by developers that they own copyrights in their apps once they are created.7 What your clients may not necessarily know is that registration of a copyright is required before an action for copyright infringement can be brought in court, and although expedited registration is possible it is expensive. Further, unless registration is obtained prior to the infringing activities, certain remedies such as attorney fees and statutory damages are unavailable.8 Registering software with the Copyright Office is relatively easy and inexpensive, but generally speaking you will need to be able to prove that the code was literally copied to establish infringement. Not all of the code needs to have been literally copied, and in some jurisdictions “non-literal” copying of the “structure or fundamental essence” of the program may be sufficient.9. Customization such as comments within the code itself can be used as proof of literal copying, but may not be dispositive. Functional aspects (i.e., a menu command hierarchy) of the code are generally not protectable, but aesthetic aspects of an arrangement for a user interface generated by the code may be protectable, again depending on the context. In addition, if your client balks at providing source code and instead only submits object code with the application, this is allowed but only under a “rule of doubt” with no presumption of validity.10 Continued on Page 13 

Nashville Bar Journal - February 2011 7

FEATURE

Don’t Forget What Your Mother Taught You Just Because You Are Using a Computer:

Tech Etiquette for Lawyers by:

Bill Ramsey and Phillip Hampton

In this age of technology, it is easy to forget about something as old-fashioned as manners. We believe, however, that good manners and etiquette are just as important (perhaps even more important) in this age of fast-paced high tech communications. In this article, we have attempted to list the keys to etiquette in this technological age. Remember What Your Mama Said When we were all growing up (at least baby boomers like Bill) our parents, especially our mothers, would continuously remind us to “mind our manners.” We were taught to say “yes, sir” and “no, ma’am” and “please” and “thank you.” There is no reason to abandon these rules in this modern age just because we can send “tweets,” emails, and Facebook postings to one another. Please remember to mind your manners in all your communications with others: • Be polite • Be considerate • Be responsible • Say please and thank you • Follow the rules of common courtesy to one another When using electronic communications like email, Twitter and Facebook, there is a tendency to abandon proper rules of etiquette. Because these communications are casual and less formal, one can quickly fall into the trap of becoming too familiar and informal. Remember, however, that communications in the practice of law are business communications. These are not informal discussions with family and friends. 8 Nashville Bar Journal - February 2011

Legal communications should not be casual and flippant. Remember the following rule: When you send an email regarding legal matters in which you are involved, you should treat that communication like a business letter. When you send an email inside your firm, you should treat that communication as a memorandum. The above rules apply to all electronic communications – email, cell phone calls, instant messages, chats, texts, and social networking communications. For the purposes of etiquette in this article we will focus solely on email etiquette. Generally Recognized Email Rules Over time, certain rules of etiquette have developed for communicating via email, especially in the business context. Those rules are as follows:

1. Be concise and to the point. Business emails do not need to “ramble on” like Led Zeppelin’s Robert Plant. 2. Do not overuse “reply to all.” Obviously “reply to all” is a useful tool, especially in emails relating to group projects. However, when you have an email message that is really intended for only one person on a group email, it is inappropriate to use “reply to all.”

3. Avoid sending an email you did

11. Do not use all caps. This is the

2. Return receipts. Why request a

not mean to send. Before you hit the “send” button, reread the entire email and make sure it has the right tone and is going to the proper recipients.

email equivalent of shouting.

return receipt? The recipient can just click no when asked if he or she wants to send a return receipt. The practice just clogs up everyone’s email box.

4. Avoid sending emails to the wrong addressee. We have all done it. Just after you hit the send button, you realize that you sent an email to someone other than the intended recipient. Consider preparing the text of the email first and adding the addressee last – after you have finished typing the email contents.

5. Beware of the “auto complete” feature. Modern email programs “remember” the email addresses you have used previously. They may “auto complete” an email address once you begin typing the first few letters. As a result, you may be preparing an email to go to “John Doe” but once it recognizes the first “Jo,” the email program will auto complete the address to “Joe Blow.” Make sure auto complete doesn’t cause you to send an email to the wrong person. 6. Use the “re” line. Recipients like to know what the message is about at a glance.

7. Do not send chain letters or spam. This rule is self-evident. Chain letters and spam are annoying. 8. Do not send hoaxes or urban legends. Before you forward that email about some miracle or tragedy, check to make sure it’s not a hoax or an urban legend using websites such as www. snopes.com, better yet, don’t send these types of emails at all.

9. Please no viruses. Keep your virus checking software up-to-date. 10. When you send web pages to others, do not send the page itself; instead, send a link to the page. This practice will cut down on the size of your email, and will normally ensure that the recipient views an accurate version of the page.

12. Do not send large attachments to others without their permission. Better yet, do not send large attachments at all if you can avoid them. Use www.box. net or some other secured site to post the attachment and then send link to recipient.

13. No irony! No sarcasm! It is often difficult to detect by simply reading an email that you are using irony or sarcasm. The use of irony or sarcasm may create a serious misunderstanding.

14. Use spell check. Enough said. 15. Set your system clock. If your system clock is accurate, the recipient can tell when your email was sent. Of course, if you want to convey the impression that you are sending emails at 4 a.m., then adjust your system clock to deceive the recipient. If you want to be honest, however, set your system clock to the accurate time.

16. Avoid a “me too” reply to a mass email. Most of the time such replies are meaningless. 17. Use a signature. Prepare a very short, but informative, signature, using your name, address and phone number and put it at the end of the text you write. A signature is always handy if someone wants to call or send snail mail to you. Pet Peeves We have several pet peeves regarding certain email practices. These are not generally accepted rules, these are just practices we do not like.

1. Overuse of “high priority.” Don’t send an email and mark it high priority when it’s really something that can wait. Otherwise, you will end up like the little boy that cried wolf.

3. Automated replies. Use these sparingly and please use the “reply only once” option and send the automated reply only to the sender, and not to everyone in a multiple recipient email.

4. Do not forward personal emails. When someone sends you a private and personal email, he or she intends it to be just that – personal. Avoid the urge to share.

5. Don’t send multiple email exchanges when one telephone call will do. Sometimes it is just better to pick up the phone than exchange a series of emails. We know email is quick and easy, but sometimes using a phone call is more efficient.

6. Don’t use “cutesy signatures and emotions.” Why use these? They are unprofessional. 7. Don’t send religious emails. We know it is hard to believe, but not everyone has the same religious beliefs as you do.

8. Don’t send politically charged emails. We know it’s hard to believe, but not everyone has the same political views as you do.

9. Please reply to an email when you are asked to do so. It is simple courtesy to respond to an email when someone requests a response.

10. Last minute cancellation emails. Our pet peeve of all time is the use of a cancellation email at ten minutes to twelve, informing someone that a twelve o’clock meeting is cancelled. If you do have to cancel at the last minute, have the guts to call. Continued on Page 16 

Nashville Bar Journal - February 2011 9

FEATURE

Gossett v. Tractor Supply Co., Inc. — Is Summary Judgment Still an Option for Employers? by:

Joshua J. Sudbury

Nearly forty years ago, in the case of McDonnell Douglas Corp. v. Green,1 the United States Supreme Court established a three-part evidentiary framework for deciding employment discrimination cases. The McDonnell Douglas opinion set forth the “basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment.”2 Under McDonnell Douglas, the plaintiff bears the initial burden to establish a prima facie case of discrimination or retaliation.3 Once established, the prima facie case creates a rebuttable presumption of discrimination or retaliation on the part of the employer.4 The burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for the action.5 If the employer brings forth such evidence, the burden then shifts back to the employee to prove, by a preponderance of the evidence, that the employer’s stated reasons were only pretext for discrimination.6 At all times, however, the plaintiff maintains the ultimate burden to convince the trier of fact that his or her termination was the result of intentional discrimination.7 For many years, Tennessee courts, like their federal counterparts, recognized the applicability of this burden-shifting framework to claims of employment discrimination and retaliation at summary judgment as well as at trial.8 Last fall, however, in the case of Gossett v. Tractor Supply Co., Inc., the Tennessee Supreme Court abandoned the McDonnell Douglas burden-shifting framework at summary judgment for all employment law cases in Tennessee.9 In a 3-2 decision, the Court reiterated Tennessee court’s continual path away from their federal counterparts in the area of summary judgment. 10 Nashville Bar Journal - February 2011

The plaintiff in Gossett worked in the General Accounting Department of a publicly held company. The plaintiff alleged his supervisor instructed him to make certain revisions to the company’s inventory reserve statement, an action the plaintiff claimed would result in an artificial increase in the company’s quarterly earnings statement in violation of the Securities Exchange Act of 1934 and related federal laws.10 The plaintiff claimed he refused to participate in the illegal activity, which allegedly displeased his supervisor and purportedly caused him to be terminated more than one month later.11 The plaintiff sued claiming common law retaliatory discharge based on a violation of public policy.12 The trial court initially denied the company’s motion for summary judgment finding the case presented genuine issues of material fact.13 However, approximately two months before trial was scheduled to begin, the Court of Appeals issued its decision in Collins v. AmSouth Bank, finding employees asserting common law retaliatory discharge claims must show they reported the suspected illegal activities to someone other than the persons engaging in the suspected illegal acts.14 In light of the Collins decision, the company filed a motion to reconsider arguing it was entitled to summary judgment because the plaintiff had not reported the illegal activities to anyone other than the person who had

allegedly instructed him to engaged those activities.15 The trial court agreed and entered summary judgment for the company finding that the plaintiff could not establish an essential element of his claim and that, therefore, the company to judgment as a matter of law.16 Because the trial court’s grant of summary judgment was based solely on Collins, the main issue before the Court of Appeals was whether the reporting requirement was part of the prima facie case of common law retaliatory discharge. After a thorough discussion, the Court of Appeals reversed the trial court’s decision, holding the reporting requirement espoused in Collins was not an element of the plaintiff’s common law claim for retaliatory discharge.17 The court went on to find summary judgment was inappropriate due to the existence of a genuine issue of material fact concerning the alleged instruction of illegal activity as well as whether the legitimate business reasons offered by the company for the plaintiff’s termination were pretext.18 Despite ordering remand, the Court of Appeals encouraged the Supreme Court to resolve the question regarding a plaintiff’s duty to report a suspected illegal activity as part of the common law tort of retaliatory discharge.19 The Supreme Court granted the company’s petition for certiorari and decided unanimously that the reporting of an illegal activity is not an essential element of a claim of retaliatory discharge for refusing to participate in an illegal activity.20 However, the main focus of the Gossett opinion centered on an issue not addressed by the lower court decisions: the continued viability of the McDonnell Douglas framework at summary judgment in all Tennessee employment law cases. By a 3-2 margin, the Court held the framework was no longer appropriate for use at summary judgment in light of the recent clarification of the summary judgment standard in Hannan v. Alltel Publishing.21

Writing for the majority, then Chief Justice Janice Holder stated that an employer’s satisfaction of its burden under McDonnell Douglas does not necessarily show the absence of a genuine issue of material fact.22 The majority stated the employer’s legitimate reason was not always mutually exclusive of a discriminatory or retaliatory motive and therefore could not alone conclusively establish that a discriminatory or retaliatory motive played no role in the termination decision.23 Because of this shortfall, courts applying the McDonnell Douglas framework may dispose of factual questions at summary judgment by failing to consider the facts alleged in support of the employee’s prima facie case.24 As an example of this possibility, the majority pointed to its decision in the case of Allen v. McPhee.25 In that case, applying the McDonnell Douglas standard, the Court awarded summary judgment to the employer based on the plaintiff’s inability to demonstrate the existence of a genuine issue of material fact regarding the employer’s motivation for reassigning the plaintiff to a lesser position.26 The Gossett majority contended that by applying the McDonnell Douglas standard, the Allen Court had neglected to give the plaintiff, as the non-moving party, the benefit of all reasonable inferences in her favor and had failed to discard all countervailing evidence on the issue of retaliation.27 Doing so would have revealed evidence that the employer reassigned the plaintiff shortly after she reported sexual harassment by her supervisor.28 According to the majority in Gossett, this fact, and the reasonable inferences drawn from it, would have allowed a reasonable person to reach more than one conclusion as to the true motivations behind the plaintiff’s reassignment.29 Thus, to prevent future Tennessee courts from granting summary judgment in the face of a genuine issue of material fact, the Gossett majority abandoned the McDonnell Douglas frame-

work in favor of the analysis set forth in Hannan v. Alltell. The majority’s ultimate decision to dispense with this time-honored framework drew much criticism from the dissent. Writing for the dissent, current Chief Justice Cornelia Clark contended the McDonnell Douglas framework did not conflict with the analysis of summary judgment in Tennessee.30 Justice Clark argued the framework allowed courts to analyze employment discrimination cases, which often involve circumstantial rather than direct evidence of an employer’s motive for an employment decision, in a logical sequence both at trial and at summary judgment.31 The dissent noted that the majority’s criticism of the application of the McDonnell Douglas standard in Allen was unwarranted because Tennessee had begun to depart from the federal summary judgment standard long before that case was decided.32 Perhaps the most significant point raised by the dissent was its question concerning how an employer could expect to obtain summary judgment in future cases if unrebutted proof of a legitimate, non-discriminatory and non-retaliatory reason for its decision is insufficient to affirmatively negate an essential element of the plaintiff’s claim or show that the plaintiff cannot prove an essential element of the claim at trial.33 As the dissent noted, if such proof is no longer sufficient to warrant summary judgment, “then the majority has foreclosed perhaps the most common argument” among employers seeking summary judgment in discrimination and retaliation cases.34 Further, the dissent noted the majority’s criticism of the Allen decision only serves to heighten confusion surrounding summary judgment burdens in Tennessee employment law cases. The majority Continued on Page 15 

Nashville Bar Journal - February 2011 11

BILL AND PHIL’S GADGET OF THE MONTH CLUB By: Bill Ramsey of Neal & Harwell, PLC and Phillip Hampton of LogicForce Consulting

Our Favorite Gadgets from the Consumer Electronics Show Forgive us if our eyes are just a bit glazed over. After surveying just a fraction of the 1.4 million square feet of exhibit space at the 2011 International Consumer Electronics Show in Vegas, we are absolutely giddy over the many cool technology gadgets that we saw. The annual CES is the largest consumer technology tradeshow in the world with over 140,000 industry professionals from over 130 countries in attendance. In short, it is a geek fest like nothing you've ever seen; and we thoroughly enjoyed ourselves. It is very difficult to classify our favorite products, but we will give just a preview of some product trends. The 2011 edition of the Bill & Phil Show (coming to a CLE near you) will feature many more incredible tech tools that you will certainly want to get your hands on. For now, here are just a few of the highlights from CES 2011: Blackberry Tablet – Thanks to the success of Apple's iPad, tablet computing devices were all the rage at CES. Research in Motion's Blackberry, a longtime smartphone staple for the legal profession, is getting into the tablet market with its Blackberry Playbook. This tablet sports a 7-inch display and weighs less than a pound. It runs on the BlackBerry operating system, has front and rear-facing cameras, has an HDMI video port, and supports Flash (iPad owners, take note). We got to test drive one at the show and think it will be a worthy competitor to the iPad. PrimeSense – "Natural Interaction" technology, as pioneered by PrimeSense, was on conspicuous display at CES. This technology which allows a user to interact with an electronic device (computer, DVD-player, gaming console, etc.) using nothing but hand gestures and voice will certainly revolutionize the home theater/ computer center. We are anxious to see if the technology can extend to use in the office space. 12 Nashville Bar Journal - February 2011

Windows Phone 7 – Microsoft's entry into the smartphone race may be late; but the Windows Phone 7 is nothing to dismiss out of hand. Certainly the iPhone and Android are miles ahead in terms of sales and market share; but don't count out Microsoft just yet. We played around with the Windows phone with a heavy dose of skepticism as we proudly brandished our shiny new Droids. While we didn't trade them out for the new Windows phone right there on the show floor; we came away with a bit of respect for the new Microsoft phone. In many ways, it is more intuitive than the iPhone and Droid interface. The speed and the responsiveness of the demo unit were quite impressive. Of course, the native integration with all things Microsoft, including Outlook, Word, OneNote, etc., is a huge plus. We look forward to a test drive with the Windows 7 Phone outside the safe confines of the massive Microsoft CES booth. Wireless Media Stick – Wireless video was everywhere at CES, as were massive numbers of HD and 3DHD TVs. One of the best and niftiest devices was the Wireless Media Stick ($89 with discount) at www.hsti.com . This patented technology allow you to stream media files from any computer or media player to home wireless network to any media player with a USB port. You can stream video from your smartphone, your iPod, your tablet device etc. You can stream video, picture, and music. Best of all, the device is a very small USB device and an app you put on your computer or other devices. You will have to see it to believe it! We like cheap and small! Neer – Normally we do not like social networking apps, especially ones that tell people where you are, but Neer is pretty slick. As Neer puts it “Neer allows you to privately and automatically

share your location with the people you care about. Not everywhere you go, just the places that really matter. Neer is for those times when you’ve wanted to know… .” You put the Neer widget (a small application) on your smartphone, and you can determine the location of your family members, friends, and co-workers who use Neer and allow you in their “inner circle.” You can use the contact button to call or text them. They do not have to call you constantly to update you on where they are. Neer sends their locations automatically and you can get the information (almost in real time) on your phone. If you do not want people to know where you are, you can turn it off. Neer should be a “must have” for people who have teenagers, or who have to supervise a team of workers. Check it out at www.neerlife.com. Think Geek Cocktail Chemistry Set Bill really liked this “gadget.” You can buy it on thinkgeek.com, along with other ridiculous gadgets. The set includes: one Erlenmeyer flask (7" tall x 3.5" wide, holds 20 oz.), one shaker (6.5" x 2", holds 10oz), four test-tube shot glasses (6" x 1", holds 2 oz.); one glass mixing rod (8" long), and one metal bottle-rack (5" x 13.5"). It will take you back to your high school chemistry days and add a scientific flair to your next cocktail party. Remember the cocktail rules: 1. You must be twenty-one; 2. A proper martini is made with gin and not vodka (sorry, but it's true) and 3. Constitutional isomers of dimethyl ether, when blended with a combination of citric acids and disaccharides are damn tasty.  See you next month, Bill & Phil

There’s an App For That— But Does Your Client Own It? Legal Advice for Protecting Mobile Software Apps Continued from page 7

Even for small developers, some degree of patent protection should generally at least be considered and if possible filed prior to launch. The Supreme Court in 2010 reaffirmed in Bilski v. Kappos11 that computer programs and associated business methods are patentable if they are sufficiently novel, useful and “non-obvious.” However, if a developer waits too long to file, patent protection may be lost12, especially with regards to international patent rights.13 Determining whether or not an app has some patentable features can be very daunting and case-specific, but there are some good databases and search engines available to look for the most relevant “prior art” in the field.14 A provisional patent application can be a cost-effective and relatively quick way to satisfy the filing requirements, but there are potential pitfalls that should be considered. For starters, a provisional application is not a patent or even a formal patent application, but merely a mechanism for holding a filing date for twelve months until a non-provisional application can be prepared and filed. If the disclosure in the provisional application is inadequate, a later-filed nonprovisional or international application may also not be able to claim the early filing date. The app name may be a protectable trademark, but this will depend on more than just selecting a name that is not currently in use by a competitor. Trademark registration is a prerequisite for an infringement action against a competitor using a confusingly similar mark, but also may be used to give notice to potential competitors that your client’s mark is already in use or even to assist in domain name disputes. As another practical example, if your client is a Google AdWords user, trademark registration is also a prerequisite for simply resolving disputes using the trademark complaint process.15

Encourage your clients to select a name that is not merely descriptive of the services offered by the app (e.g., MusicMaker, RouteFinder). While a name that inherently describes the app may be valuable to selling the product (and this may ultimately be the deciding factor for your client anyway), keep in mind that the value and the ability to register and protect a trademark is directly related to its distinctiveness and lack of descriptiveness. If employee agreements or other equivalent documents are in play, make sure that any and all IP rights are transferred to your client in writing. Whether or not the services performed by an employee or third party programmer may qualify as a “work for hire” or as having been assigned or even co-invented may generally be resolved in favor of your client, but is an issue best avoided if possible. Life Cycle Portfolio Management Finally, don’t assume that any initial protection which your clients have had the foresight to obtain will always be sufficient. Make sure your client updates or otherwise maintains their intellectual property. As new versions are released for different platforms, new interfaces are created, or the app name itself changes, IP may become obsolete. Obviously, it may not be cost-effective to file another application every time some revision, however minor, is made to the app. But some timely or periodic review of a client’s portfolio is important to make sure that continued innovation does not outstrip the level of protection that is in place. Summary Obviously this article merely scratches the surface of what is needed to generate and enforce an effective intellectual property portfolio, particularly with regards to the patent field. However, by addressing the above points your clients

may at least be aware of, and hopefully avoid stumbling into, some of the trap doors that all too many app developers have fallen into over the last few years. n Gary L. Montle is an attorney with the law firm of Waddey & Patterson, P.C., in Nashville, Tennessee. His practice focuses on intellectual property, primarily with regards to electrical engineering, software and web-based matters. (Endnotes) See Apps for iPhone, http://www.apple.com/iphone/ apps-for-iphone/.

U.S. Patents and Trademark Office, Trademark Electronic Search System (TESS), http://tess2.uspto.gov/.

See, e.g., Guidelines for Using Apple Trademarks and Copyrights, http://www.apple.com/legal/trademark/ guidelinesfor3rdparties.html.

See, e.g., Joel Rosenblatt, Apple Sued Over Applications Giving Information to Advertisers, Bloomberg Bus. Wk., Jan 5, 2011, available at http://www.businessweek. com/news/2010-12-30/apple-sued-over-applicationsgiving-information-to-advertisers.html (discussing Lalo v. Apple, 10-5878, U.S. District Court, N.D.Ca. (filed Nov. 23, 2010)).

Competitors such as Google, Hewlett-Packard, and Motorola also have development kits which are widely regarded to be less restrictive, but this situation is of course always subject to change.

Jailbreaking has been added by regulators to a list of explicit exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). For further explanation, see Larry Downes, The Jailbreaking Exemption Has its Limits, http://news.cnet. com/8301-13578_3-20012109-38.html .

More particularly, copyright ownership is predicated by physical creation- for example, the saving of source and/or object code in an appropriate format.

There is currently a split in the federal Circuit Courts regarding whether actual registration is required before an action may be brought, or whether it is sufficient to provide evidence that an application has been filed.

Ilog, Inc. v. Bell Logic, LLC, 181 F. Supp.2d 3 (D.Mass., 2002); see also Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).

10 Further description is probided on the General Copy Requirements of the Copyright Office website at http://www.copyright.gov/eco/help-deposit.html. 11 Bilski v. Kappos, No. 08-964, 561 U.S. ___ (June 28, 2010), available at http://www.supremecourt.gov/ opinions/09pdf/08-964.pdf. 12 For example, a statutory bar applies under 35 U.S.C. 102 against any application filed more than one year after a first offer for sale or public disclosure.

Most foreign jurisdictions require a patent application to be filed prior to any public disclosure for patent rights to be available.

14 For example, three of the many search engine options can be found at: http://www.uspto.gov/patents/ process/search/index.jsp, http://www.google.com/ advanced_patent_search, http://www.freepatentsonline.com/. 15 See, for example, the policy set forth by Squidoo on its website, www.squidoo.com.

Nashville Bar Journal - February 2011 13

IT’S YOUR MOVE! As most of you know, the Nashville Bar Association and the Nashville Bar Foundation will be moving to the 10th floor of the One Nashville Place building located at 150 Fourth Avenue North this Spring. Our new facilities will offer our membership modern conference rooms, top-rate educational facilities, member guest offices, and space members can use for off site client meetings, depositions, or other functions. Construction has begun on our new space, and we will be providing updates and photos of our progress on our redesigned website, Facebook, and in our emails to members. But, in order to give the NBA and Foundation a space worthy of its great members, we need your help. Three months ago, the Nashville Bar Association embarked on our first ever capital campaign, “It's Your Move,” under the leadership of campaign co-chairs Aubrey Harwell and Trey Harwell, to raise the funds necessary to construct and outfit the new Bar headquarters. The capital campaign began with the “quiet phase” to secure major gifts, and we are thrilled to announce that, with the commitments and contributions of the firms and individuals listed below, we have raised over 50% of our goal! Leaders: Miller & Martin; Neal & Harwell; Sherrard & Roe; Waller Lansden Dortch & Davis. Partners: YLD; Waddey & Patterson; Walker Tipps. Substainers: Branstetter, Stranch & Jennings; Cornelius & Collins; Manier & Herod; MGLAW PLLC; Supporters: H3GM Contributors: Rothschild & Ausbrooks; Bob Pope; White & Reasor PLC Friends: Tim Bowden; Gareth Aden; Gail Ashworth; Steve Cobb; Jonathan Cole; Law Office of Bart Durham; Lew Conner; Frank Grace; Bill Harbison, Aubrey Harwell; Trey Harwell; John Kitch; Tom Lawless; Bob Mendes; Mitch Grissim & Associates; Paul Ney; Mary Parker; Tom Peebles; Jack Robinson; Emily Shouse ; Scott Sims; Elizabeth Tipping; Bob Walker; Tom White; Tom Wiseman; Gigi Woodruff; Ed Yarbrough; Mandy & Stephen Young Associates: Shirley Clay; The Honorable Frank Clement; Jim Higgins; John Hollins; Kay, Griffin, Enkema & Colbert; Helen S. Rogers; Sheree Wright 180 Club: Robert Boston; Wendy Cozby* Today, we begin the second phase of the campaign and are reaching out to the broader Nashville legal community, seeking the participation of all of our members. Your generous support of this campaign will help the Nashville Bar Association keep pace with the changing face of the legal profession and continue to provide you with high quality services and top notch facilities that will allow the NBA to maintain its leadership position among metro bar associations across the country. One hundred eighty years ago, a group of attorneys gathered in Nashville to create an organization providing the opportunity for camaraderie, additional credibility to their profession, and priceless wisdom for their practice. Today, with nearly 3,000 members,the Nashville Bar Association is as strong as our leaders envisioned generations ago. Rich in history and heritage, everything the Nashville Bar Association is today is because of you and those who came before you. If you would like to help build a better Bar, please consider donating to the capital campaign by completing the form found below or on our website at: http://www.nashvillebar.org/ItsYourMove.html It's your history. It's your heritage. It's you Bar Association. And It's Your Move. We look forward to building a better Bar with you.

pledge!

Name:_____________________________________________________________________________________________ Address:__________________________________________________________________________________________ Contact Name: ___________________________________________________________________________________ Phone: ________________________ Email:___________________________________________________________ CONTRIBUTION INFORMATION o My firm/I would like to make gift of $______________ PAYMENT INFORMATION o Enclosed is a check for the full amount. (Amounts $1,500 and over can be paid in 3 annual installments.) o My firm/I pledge to pay the above amount in three equal annual installments beginning on _______________ (date). o The first pledge payment in the amount of $_____________ is enclosed. GIFT ACKNOWLEDGEMENT The acknowledgement and subsequent listing of my firm’s gift should appear as (please print clearly) _____________________________________________________________________________________________________ Signature: _______________________________________________________ Date: ______________________

Thank you for your gift. We are most grateful for your support! 14 Nashville Bar Journal - February 2011

Checks may be made to either Nashville Bar Association or Nashville Bar Foundation. Gifts may be tax deductible as a business expense or charitable contribution. Please contact your tax advisor. Please mail your check to: Nashville Bar Association, 315 Union Street, 8th Floor, Nashville, TN 37201. * Contributions as of February 3, 2011

Gossett v. Tractor Supply Co., Inc. Continued from page 11

specifically noted the only evidence of causation in Allen was the inference created by the temporal proximity between her sexual harassment complaint and her reassignment. But, as the dissent pointed out, the majority of federal circuits, including the 6th Circuit, have held that a temporal proximity alone is insufficient to overcome summary judgment in the face of an employer’s legitimate, non-discriminatory reason for its action.35 Thus, the dissent argued that by stating the Allen case would have come out differently, the majority “sharply reduced the quantum of proof that a plaintiff needed to survive summary judgment.”36 By repudiating Allen simultaneously with its abandonment of the McDonnell Douglas standard, the dissent argued that the majority had made it needlessly more difficult for defendants to obtain summary judgment in employment discrimination and retaliation cases.37 The Court’s decision to abandon the McDonnell Douglas framework at summary judgment makes clear that Tennessee courts diverge markedly with their federal counterparts at the summary judgment stage. Employers faced with claims of discrimination or retaliation will be saddled with a summary judgment burden that is at least markedly different from, if not significantly more onerous, than that of employer defendants in federal court. To date, however, it is still too early to tell whether Gossett will have the docket burdening effects claimed by the dissent. Rather than attempting in vain to bear their newly enlarged summary judgment burden, employers who cannot remove their case to federal court may find it more cost effective to settle much earlier in the litigation process, regardless of the merits of the employee’s claim. As the dissent in Gossett points out, the majority decision to abandon the McDonnell Douglas framework at summary judgment may negatively impact the

framework’s continued viability at trial, particularly as it pertains to motions for directed verdict where an employer has provided uncontradicted evidence that the employee was discharged for a legitimate, non-pretextual reason.38 Moreover, the majority’s opinion raises questions regarding the finality of discovery. For example, where an employer has set forth a legitimate, non-discriminatory reason for its decision and the employee, after full discovery, cannot point to evidence tending to show that decision is mere pretext, what justification does the court denying summary judgment have for expecting that the plaintiff will produce such evidence at trial?

18 19

Only time will tell how these important issues will play out in the lower courts. n Joshua J. Sudbury is an attorney in the Litigation section of King & Ballow. Before joining King & Ballow, Mr. Sudbury served as a Judicial Law Clerk for the Honorable Diane K. Vescovo, United States Magistrate Judge for the Western District of Tennessee at Memphis. (Endnotes) 1 2 3 4 5 6 7 8

9 10 11 12 13 14

15 16

411 U.S. 792 (1973). Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 (1981). Id. at 252. Id. at 254. Id. at 252-53. Id. at 253.

22 23 24 25 26 27 28 29 30 31 32 33 34

Id. See Gossett v. Tractor Supply Co., 320 S.W.3d 777, 792 (Tenn. 2010) (Clark, J., concurring in part and dissenting in part) (citations omitted). Id.

Id. at 779. Id. at 779-80.

Id. at 780.

Id.

Gossett v. Tractor Supply Co., No. M2007-02530COA-R3-CV, 2009 Tenn. App. LEXIS 135, at *45 (Tenn. Ct. App. Mar. 2, 2009). Id. at *46-49. Id. at *49. Collins had been decided by then Judge Koch of the Middle Section Court of Ap peals. Though the Gossett case was also heard in Nashville, a panel from the Western Section decided the case. Therefore, the Gossett court noted its decision created a division between the Western and Middle Sections and urged the Supreme Court to resolve the dispute. Gossett, 320 S.W.3d at 789 (Clark, J., concur ring in part and dissenting in part). Justice Koch, who had authoredthe Collins opinion as a mem ber of the Court of Appeals, also concurred in this decision. 270 S.W.3d 1 (Tenn. 2008). On the same day as the opinion in Gossett was issued, the Tennes see Supreme Court also declined to apply the Mc Donnell Douglas framework in a similar case involving a claim of retaliatory discharge. See Kinsler v. Berkline, 320 S.W.3d 796, 801 (Tenn. 2010) (Holder, C.J.) (stating “we need to use the framework set forth in [McDonnell Douglas], as the separate opinion indicates we should, to consider this retaliatory discharge case” based on the Court’s finding of a material issue of fact regarding whether the defendant employer’s stated reason for terminating the plaintiff were pretextual). Gossett, 320 S.W.3d at 782. Id. Id. at 783. Allen v. McPhee, 240 S.W.3d 803 (Tenn. 2007). Id. Gossett, 320 S.W.3d at 784. Id. Id. Id. at 789 (Tenn. 2010) (Clark, J., concurring in part and dissenting in part). Id. at 791. Id. Id. at 793. Id. at 793-94 (citing Ann C. McGinley, Credulous Courts and the Tourtured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev. 203, 244-45 (1993); Christopher R. Hedican et al., McDonnell Douglas: Alive and Well, 52 Drake L. Rev. 383, 424 (2004)) See Gossett, 320 S.W.3d at 794 (Clark, J., concur ring in part and dissenting in part)(case citations omitted). Id. Id. Id. at 794 n.4.

Collins v. AmSouth Bank, 241 S.W.3d 879, 885 (Tenn. Ct. App. 2007). The trial court initially denied the company’s motion for summary judg ment in October of 2006. The Collins opinion was issued on July 26, 2007. Gossett, 320 S.W.3d at 780. Id.

Nashville Bar Journal - February 2011 15

Tech Etiquette For Lawyers Continued from page 9

11. Don’t be an email “flamer.” This is especially true when there are multiple recipients to an email. Don’t “flame” people through the use of an email. If at all possible, when you have concerns or criticisms with another person, meet with them and discuss them behind closed doors.

12. Pattern backgrounds. Why use these? They only increase the size of emails and they serve no purpose.

We have other pet peeves that we could share with you, but we do not want to enhance our reputation as a pair of whiners and complainers. We would love to hear your email pet peeves however. Please share your email pet peeves with us by emailing us at bramsey@nealharwell.com or phampton@logicforce. com. We want to accumulate a list of these pet peeves and publish them “with attribution” if you wish in a subsequent article. n

William T. Ramsey is a member of the Neal & Harwell law firm. He joined the firm in 1981. The primary focus of Mr. Ramsey’s professional practice is complex civil and criminal litigation. He is past President of the Nashville Bar Association. He served on the NBA Board from 2002-2005. Phillip Hampton is president of LogicForce Consulting, LLC

13. Don’t use old “re:” lines. Don’t continue to use a “re:” line about something that occurred in 2010, when you are talking about a 2011 problem. Keep your subject lines up-to-date.

100% CLUB

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 enroll 100% of their Nashville attorneys as members of the NBA. Contact Vicki Shoulders at 615-2429272 or vicki.shoulders@nashvillebar.org. Firms, law departments and legal organizations that join this Bar year will be recognized as such throughout the year.

CONGRATULATIONS & THANKS TO THE FOLLOWING 100% CLUB MEMBERS:

Waller Lansden Dortch & Davis, LLP (166) Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (87) Miller & Martin PLLC (57) Bone McAllester Norton PLLC (32) Harwell Howard Hyne Gabbert & Manner, P.C. (31) Neal & Harwell, PLC (30) Manier & Herod, P.C. (28) Lewis, King, Krieg & Waldrop , P.C. (28) Sherrard & Roe, PLC (27) Adams and Reese LLP (27) Gullett, Sanford, Robinson & Martin, PLLC (26) Leitner, Williams, Dooley & Napolitan, PLLC (21) Riley Warnock & Jacobson, PLC (20) Ortale, Kelley, Herbert & Crawford (20) Cornelius & Collins, LLP (18) Walker, Tipps & Malone, PLC (17) Waddey & Patterson (15) Frost Brown Todd LLC (15) Tune, Entrekin & White, P.C. (14) Lassiter, Tidwell, Davis, Keller & Hogan, PLLC (14) Hughes & Coleman (14) Brewer, Krause, Brooks, Chastain and Burrow, PLLC (14) Smith Cashion & Orr, PLC (13) Ogletree, Deakins, Nash, Smoak & Stewart (13) Branstetter, Stranch & Jennings, PLLC (13)

16 Nashville Bar Journal - February 2011

White & Reasor, PLC (12) Watkins & McNeilly, PLLC (11) Parker, Lawrence, Cantrell & Smith (11) Dollar General Corporation (11) Burr & Forman LLP (11) Levine, Orr & Geracioti (10) Kay, Griffin, Enkema, & Colbert, PLLC (10) Drescher & Sharp, P.C. (10) Corrections Corporation of America (10) Taylor, Pigue, Marchetti & Mink PLLC (9) Spicer Rudstrom, PLLC (8) Schulman, LeRoy & Bennett, P.C. (8) Rudy, Wood , Winstead & Williams PLLC (8) Hall, Booth, Smith & Slover, P.C. (8) Farris Mathews Bobango, PLC (8) Reno & Cavanaugh PLLC (7) Morgan & Akins, PLLC (7) MGLAW, PLLC (7) Loeb & Loeb, LLP (7) Hollins, Raybin & Weissman, P.C. (7) Dodson Parker Behm & Capparella, P.C. (7) Buffaloe & Associates, PLC (7) Willis & Knight, PLC (6) Shackelford, Zumwalt, Hayes, LLP (6) Robinson, Reagan & Young, PLLC (6) Leader, Bulso & Nolan, PLC (6) Evans, Jones & Reynolds, P.C. (6) American General Life & Accident Ins. Co. (6) Trauger & Tuke (5) Luna Law Group, PLLC (5) Kroll, Inc. (5) Kinnard, Clayton & Beveridge (5) Jones Hawkins & Farmer, PLC (5) Holton Blackstone & Mayberry, P.C. (5) Haynes, Freeman & Bracey, PLC (5) Bridgestone Americas Tire Operations, LLC (5) Barrett Johnston, LLC (5)

Todd, Floyd & Hammet, PLC (4) Thrailkill, Harris, Wood & Boswell, PLC (4) Rutherford & DeMarco (4) Moses Townsend & Russ, PLLC (4) McCune, Zenner, & Happell, PLLC (4) Lowery, Lowery & Cherry, PLLC (4) Lieff, Cabraser, Heimann & Bernstein (4) Law Offices of John Day, P.C. (4) Howard & Mobley , PLLC (4) Hale & Hale, PLC (4) Dobbins, Venick, Kuhn & Byassee, PLLC (4) White & Rhodes, P.C. (3) Weatherly, McNally & Dixon, PLC (3) Tennessee Justice Center (3) Rothschild & Ausbrooks, PLLC (3) Rogers, Kamm & Shea (3) Puryear Law Group (3) Norris & Norris, PLC (3) Mudter & Patterson (3) Moseley & Moseley, Attorneys at Law (3) May & Ryan, PLC (3) Marlowe Law Offices, PLLC (3) Lindsey + Sawyer, PLLC (3) Larry R. Williams, PLLC (3) Kennedy & Brown, PLLC (3) IASIS Healthcare LLC (3) Hix & Gray, PLC (3) Grissim & Hodges (3) Glasgow & Veazey (3) Garfinkle, McLemore & Young, PLLC (3) Equitus Law Alliance, PLLC (3) EMI Christian Music Group, Inc. (3) Corbett Crockett (3) Comdata Corporation (3) Cheadle & Cheadle (3) Barry Gammons, Attorney at Law (3) Baker, Campbell & Parsons (3)

Nashville Bar Journal - February 2011 17

PROFILE

Profile: Gregg Ramos by:

Jennifer McMillen

Attorney Gregg Ramos is not a politician. This fact no doubt disappoints many Nashvillians who were happy to see the “English Only” ordinance defeated with his help. This fact also leaves him unconstrained to speak candidly on measures he says unfairly single out Nashville’s immigrant population and he has become one of the most vocal members of the legal community on one of the most politically charged issues facing our country.

for people who do back breaking labor in the sun but I quickly determined that it was not for me.” Instead Ramos went to Arizona State University, graduating with top honors and subsequently attended law school there. After graduating he became a prosecutor in Phoenix for four years participating in close to forty jury trials but it was his wife’s love of country music that brought him to Nashville in 1984.

Ramos grew up in Phoenix, Arizona and he describes his upbringing as bicultural with a strong Mexican heritage. Both of his parents were born in the United States at a time when there was no such thing as border control. His father was a seasonal laborer who spoke almost no English and had a third grade education. Due to his U.S. citizenship, Ramos’s father was drafted to serve in World War II fighting first in France and next in Germany. He came back from war with an intense American patriotism and watching his father attempt to integrate himself and his family into America left an indelible impression on Ramos and formulates his feelings on assimilation that he carries with him today: “Assimilation is a natural slow process that was difficult for my father but with time, he was able to do it. It didn’t happen overnight and it cannot be expected to.”

After arriving in Nashville, Ramos pounded the pavement for a job and eventually associated with Howell, Fisher, Branham and North. When Judge Walter Kurtz found out he had a background in criminal law, he appointed him on criminal cases. One case in particular was an armed robbery where Ramos’s client was just 19 and the late Ross Alderman represented the co-defendant. The clients insisted on a trial and Ramos remembers that the intense feeling of responsibility stemming from representing someone so young whose liberty was at stake prompted him to get sick in the mornings before court. Ramos got an acquittal for his client but afterwards decided that criminal law was not for him.

When his father lost his job in the mid-1960s, Ramos was in grade school and his entire family was expected to go to work in the agricultural fields picking potatoes and onions. “I have all the respect in the world 18 Nashville Bar Journal - February 2011

Ramos soon became active in several civic groups including Catholic Charities, the Tennessee Justice Center, and Conexiόn Americas. He describes involvement in these groups as a natural gravitation for him and although he credits Nashville as an incredibly welcoming city, he says that it was not until the 1990s when an influx of Latino immigrants moved to Nashville that he felt like he was home.

When the conversation turned to recent proposals affecting Nashville’s immigrant population, Ramos doesn’t mince words and isn’t shy to express his opinions on what he calls “political window dressing” by local politicians. As I sat listening, it seems at the heart of his message is an earnest desire for people to understand that assimilation into American culture takes time and is a natural process that does not happen overnight. “Kids like me—we just want to grow up fitting in. Although the first generation always has more difficulty learning the language, those problems dissipate with time and often you will see the second and third generation translating for their parents. I think that sometimes people get the misperception that recently arrived immigrants are refusing to learn the English language…that is not true but it does take time for them.” Ramos points to his own family as evidence of this. “My parents spoke almost no English; I speak better English than I do Spanish and my children really have to work on their Spanish.” Ramos is hesitant to label his opponents racist but attributes much of their rhetoric to political grandstanding and fear mongering. “People are naturally going to be anxious with anything new but it becomes incumbent for someone like me to say that change is inevitable but it doesn’t always have to be scary. Nashville is a welcoming place but we just have to remind people that change doesn’t have to be filled with anxiety." Ramos has proven himself willing to engage in civil dialogue with his opponents and even went as far to invite one of them to meet immigrants who are attempting to learn English and settle into Nashville. Not surprisingly, his offer was rejected. "What I'm trying to do is to get people to analyze immigration issues but what I’m advocating for is to go beyond the surface and not just conduct a superficial analysis. Of course this message is extremely hard to convey especially in a political climate where anything about immigration is almost toxic.”

Niccolò Machiavelli wrote in The Prince, that one of the major obstacles in any effort to advance systemic change is the “incredulity of men,” which is to say that people “do not readily believe in new things until they have had a long experience of them.” Gregg Ramos may be attempting the impossible, that is, calling on people to slow down and conduct a meaningful analysis of immigration which is the last thing anyone looking to rally a crowd wants to do. However, if the results of the English-Only vote are a predictor of success, the majority of Nashville is still willing to listen. n Jennifer McMillen graduated from the University of Memphis in 2006 and is an assistant district attorney in Nashville.

MJC

MORGAN JOHNSON CARPENTER & CO. A PROFESSIONAL CORPORATION Forensic Accountants & Consultants

Professionals in Loss and Value Measurement Mark N. Henry, CPA 555 Marriott Drive, Suite 800, Nashville, TN 37214 Phone: 615-231-6460 • Fax 615-231-6463 mhenry@mjc.biz • www.mjc.biz

Nashville Bar Journal - February 2011 19

Help Wanted by:

C. Dewees Berry IV

One recent Sunday morning my home telephone rang. Reluctantly, I put down my coffee and newspaper and picked up the receiver. On the line was my law school classmate Lex Truelove. I will always think of Lex as the pimpled stripling in the front row whose constantly raised right hand got him so disliked by the better element. But I must admit he went on to a stellar career in academia. His 900 page treatise on the application of Rule in Shelley’s Case between 1585 and 1587 is said to be the last word on the subject. And he’s currently the dean of one of the country’s most prestigious colleges of law. “Berry,” he began, skipping the customary pleasantries, “I need your help.” That news magazine’s annual law school rankings will be coming out soon, and within the next couple of days I have to tell the publisher how many of our recent graduates are employed. That’s one of their main criteria. The market, of course, remains tight- even for our graduates. So I’ve got to take heroic action to get the numbers up. We have a handful of young people in the Nashville area—all good students mind you—who don’t have positions yet. That’s where you come in.” “Well, Lex,” I said, “I’m flattered that you think my firm might need new lawyers, but I’m afraid I’m going to have to disappoint you. We’ve filled all our openings for this year.” “Oh, I wouldn’t expect you to hire anyone as a lawyer. I realize no firm can do that at this late date. I’m asking you to find something for one or two of them to do for you personally—just on a shortterm basis, just until I can respond to the publisher. I wouldn’t ask if it weren’t a real emergency. I’ve already tried the local restaurants and department stores.

20 Nashville Bar Journal - February 2011

Jobs waiting tables, tending bar, and selling sundries simply aren’t to be had. But surely you must need someone to clean out the gutters, walk the dog, or babysit a grandchild.” I was taken aback. “I’m confused, Lex. Why are the rankings so important? And how could it possibly make a difference in how your institution fairs if I were to do as you suggest?” “It’s obvious you don’t understand the academic world, Berry?”? Those rankings are everything. Our alumni are obsessed with them. If we were to slip even one spot our donations would fall off precipitously. I’d probably have to lay off professors, and . . .” “You might actually have to teach a class yourself?”

make more calls. You think about it, and I’ll get back to you shortly. Remember, my friend, I’m counting on you.” I hung up the phone and stared out the window for a few seconds. But it didn’t take me long to decide what to do. I refilled my coffee cup and picked up the sports section. Humming the first few bars of Meat Loaf’s “I’d Do Anything for Love (But I Won’t Do That),” I then removed the receiver from its cradle and placed it on the kitchen counter. n C. Dewees Berry, IV is a member of Bass, Berry & Sims PLC. He is also the editor of the Tennessee Real Estate Law Letter and teaches property at the Nashville School of Law. Berry served as NBA president in 2003.

“There’s no need to be snide, old man; no need at all. Take my word for it; the importance of the rankings can’t be overstated. And also take my word for it that you can help. That’s because we aren’t just talking about legal employment. There’s an article on the topic in this morning’s Times. The title—“Is Law School a Losing Game? —is a tad melodramatic, but what the article says is true: For purposes of the rankings, ‘[a] law grad counts as employed . . . Ne wY even if he or she has ork Tim a job that doesn’t es, require a law Jan ua degree.’” ry

“D

e wo ans s r a how king. y gr a De man They duate ya sa pot re don’t .” at H sa re om y e

I was about to quote Big Daddy in “Cat on a Hot Tin Roof” and observe that there was a “powerful and obnoxious odor of mendacity” about the whole thing. But I didn’t get the chance. “I’ve got to run, Berry,” Lex said. “I have to

Nashville Bar Journal - February 2011 21

Disclosure Nashville law firm, Moses Townsend & Russ, PLCC (MTR Family Law) has moved from its longtime downtown office to a renovated historic Victorian house in the midtown area at 205 23rd Avenue North. Elizabeth Tipping has been named a partner at Neal & Harwell, PLC. Tipping, who joined Neal & Harwell in 2003, practices in the area of civil litigation. Tipping concentrates her practice on trial work and has successfully tried a number of jury and bench trials. She has experience in a wide range of litigation areas including product liability, business litigation, personal injury, class actions, and other complex litigation matters. Erin Palmer Polly has been named as a member of the firm Walker Tipps & Malone. Polly received her undergraduate degree from Maryville College in 1999 and is a 2001 graduate of the University of Tennessee College of Law. Polly, who has been with the firm since 2001, focuses her practice on general business, tort and civil rights litigation. Jason Callen has been named as a member of the firm Walker Tipps & Malone. Callen received his undergraduate degree from Washington & Lee University in 1998 and is a 2003 graduate of the University of Chicago Law School. Callen, who joined the firm in 2007 after a judicial clerkship with the United States Court of Appeals for the Seventh Circuit and practicing with a Chicago law firm, works on general business and corporate litigation, as well as tort litigation. Thomas H. Lee joined Frost Brown Todd as a partner in the Nashville office. Lee has three decades of experience as a government relations counsel, lobbyist, attorney, journalist, and strategist. His firm, BlairBlvd LLC, specializes in building and investing political capital for its 22 Nashville Bar Journal - February 2011

\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 clients. Lee is a graduate of the Vanderbilt University School of Law, where he was executive editor of the Vanderbilt Law Review and graduated Order of the Coif, and the University of Tennessee, where he earned a bachelor of science in communications. Catherine H. Gwyn has joined the firm Gullett Sanford Robinson & Martin PLLC (GSRM). Gwyn will practice in the firm’s Real Estate & Commercial Transactions section as an associate. She has practiced in the area of real estate law since 1987. She has represented lenders, businesses and individuals in residential and commercial real estate transactions. Her practice involves residential sale and loan closings, commercial sale and loan closings, construction and development loans, solving complicated title issues, foreclosures and other matters pertaining to real estate. Haverly MacArthur has been elected partner in the firm Adams and Reese. In the Intellectual Property Group, her practice focuses on the clearance, prosecution, registration and enforcement of intellectual property for corporations, individuals and entertainment industry clients in Nashville and other Adams and Reese offices. Ryan N. Stringfellow recently joined the law firm of Morgan & Akins, PLLC, as an associate attorney. Stringfellow will focus his practice primarily on civil litigation, including workers’ compensation, construction and contract disputes, business law, employment law, real estate and land use planning. He received his Bachelor of Science in Building Construction, cum laude, from the University of Florida in 2006, and his Master of Business Administration and Juris Doctor from Samford University.

Chad M. Jackson recently joined the Nashville law firm of Morgan & Akins, PLLC. Jackson will focus his practice primarily on civil litigation, including workers’ compensation, premises liability claims and Governmental Tort Liability Act claims. He brings extensive litigation experience and close familiarity with the Tennessee administrative and judicial systems. He graduated cum laude from Cumberland University and attended law school at the University of Memphis, where he received the Dean’s Distinguished Service Award. Kevin Baltz has been elected to Membership in the firm of Miller & Martin PLLC. He is a member of the firm's General Litigation and Commercial Departments. Baltz concentrates his practice in the area of business litigation, transportation law, and dispute resolution. He received his B.A. from the University of Tennessee at Chattanooga in 2000 and received his J.D. from University of Tennessee College of Law in 2003. Stephanie S. Pierce has been elected to Membership in the firm of Miller & Martin PLLC. She is a member of the firm's Corporate Department, Health Care Practice Group and Transportation Practice Group. Pierce concentrates her practice on the health care industry and compliance matters. She received her B.A. from the College of William & Mary in 2000 and her J.D. from the University of Tennessee College of Law in 2003. Jonathan Williams has been named a member and partner of Larry R. Williams, PLLC. Formerly an associate with the firm, Williams practices in the areas of personal injury and workers’ compensation, business, real estate and probate litigation. Williams serves on the board of directors of the Tennessee Association of Justice and is a member of the Harry Phillips

American Inn of Court. He received his law degree from Nashville School of Law in 2007. F. Laurens "Larry" Brock joins the law firm of Adams and Reese as a Partner. Brock has served as national and regional counsel in both products liability and healthcare litigation, defending nursing home and elder care cases from Florida to Mississippi to Tennessee, as well as representing one of the nation's largest diversified providers of elder care services. He has defended physicians from a wide array of specialties in medical malpractice lawsuits and trials throughout his entire career. Brock is a native of South Florida and obtained his undergraduate degree from Emory University in 1976 and his J.D. from Cumberland Law School in 1980. Charles A. Trost, former Commissioner of Revenue of the state of Tennessee, has returned to the law firm of Waller Lansden Dortch & Davis, LLP, as senior counsel to the tax and government relations departments. Trost was appointed Commissioner of Revenue by Governor Phil Bredesen in September, 2010 for the remainder of his 8-year term which ended January 15, 2011. Trost received his Juris Doctor from the University of Alabama and his Master of Law in Taxation from New York University. He also holds a Bachelor of Arts from Vanderbilt University. Brian Adams has been hired as a new prosecutor for the DA’s office in Nashville. Adams received his law degree from Suffolk University Law School in Boston, MA, and was graduated from Wesleyan University in Connecticut for his undergraduate degree. Adams interned with the Davidson County DA’s office for two summers during law school. Adams will be working as an Assistant District Attorney in the General Sessions Court. Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.

WELCOME NEW NBA MEMBERS Devin DeVore Richard D. Dumas Dumas Law Office Shana G. Fonnesbeck Bradley Arant Boult Cummings LLP James Frazier Meagan E. Frazier Smith Harris & Carr George B. Green Jr. Lewis, King, Krieg & Waldrop , P.C.* Craig Grella F. Evans Harvill Harvill, Ross, Hogan & Ragland Whitney Clark Henry Lewis, King, Krieg & Waldrop , P.C.* John C. Howell Leigh A. Imhoff

Alison Helen L. McKenzie McKenzie Law Office. PLLC

Michael D. Shapland Video Gaming Technologies, Inc. Nick Shelton Woodard & Shelton, PLLC Georgia Lee Sims 20th Jud. Dist. Pub. Def. Office

Thomas R. Moncrief

Tiffany I. Smoot

Kelly A. Nanney Miles Mason Family Law Group, PLC

Mohammed A. Syed King & Ballow

Effie D. Sahihi Effie D. Sahihi, Attorney at Law

Scott Tweedell Michael D. Ponce & Associates

James Isaac Sanders Neal & Harwell, PLC*

* Belongs to a 100% Club firm

Chad M. Jackson Morgan & Akins, PLLC* Andy Maloney Andy Maloney, Attorney at Law

Brittany A. Schaffer Loeb & Loeb, LLP* Lindsay B. Schenk Frost Brown Todd LLC*

DIAL - A - LAWYER Dial-A-Lawyer is held the first Tuesday of each month. January Volunteers: Morgan Smith Victoria Ferraro Tom Lawless

Doug Pierce Kim Thompson Gina Crawley

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.

2011 NBA Premier Members INCLUDE:

Gail Vaughn Ashworth Robert L. Ballow Kathryn E. Barnett Barbara Bennett Michael Weimar Binkley Charles W. Bone Jay S. Bowen C. Dewey Branstetter Jr. John E. Buffaloe Jr. Joseph P. Calandriello C. Mark Carver Jonathan Cole Dixie W. Cooper Patricia J. Cottrell John A. Day David Clyde Downard John Franklin Floyd John J. Griffin Jr. William L. Harbison Trey Harwell John Scott Hickman Barbara D. Holmes Paul T. Housch John D. Kitch Neil B. Krugman Thomas W. Lawless

Richard Wesley Littlehale John Charles McCauley Rob McKinney Robert J. Mendes Elizabeth Enoch Moore Michael I. Mossman Katharine Elizabeth Phillips Tracy A. Powell Mark Bradley Reagan Jason B. Rogers Edgar M. Rothschild III Jerry Scott Michael W. Sheridan Thomas J. Sherrard III Marietta M. Shipley Emily A. Shouse Stacey Koontz Skillman David Randolph Smith M. Clark Spoden Irwin Bruce Venick Howard H. Vogel Karl D. Warden James L. Weatherly Jr. Peter Weiss Larry R. Williams Stephen G. Young

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. There will be a special section in the Nashville Bar Journal and on the NBA website (www.nashvillebar.org) that will run a continual list of NBA Premier Members. Nashville Bar Journal - February 2011 23

Classifieds

Office Space

green hills Established Green Hills law association has office and adjoining secretarial space available for immediate occupancy. Free parking, excellent on-line and hard-cover Tennessee library, conference rooms, receptionist, and voice mail available. Call 383-3332.

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

Midtown Midtown : 682 square feet with beautiful view of Centennial Park; $19.15 per square foot with annual increases; available as is or with build-out cost to be prorated over term of sublease; space is newly carpeted and newly painted, with small kitchen area; covered parking; available immediately. Please call 615-321-5659. Midtown-1900 Church Executive office suites for lease in Midtown Nashville located at 1900 Church, Suite 300. Free covered parking, conference rooms, break room, color copier, and receptionist to greet your clients. Administrative support and flexible terms available. For more information, please call Cheryl Gunn at (615) 983-6935. historic downtown franklin

DOWNTOWN Law firm has office space to rent for two attorneys and assistants, if needed or option 2 attorney can sublease entire suit which will accommodate four to five attorneys and staff. Office is located in the Regions building downtown on the first floor with window view. Includes internet, all utilities, use of copy/fax/ scanner, and postage machine. If interested, please e-mail rpnimmo@nimmolaw.com or contact Price Nimmo at 615-244-2244. DOWNTOWN Easy-to-get- along- with attorney looking to share office space with same. Large office with view of river and Titan’s stadium, common reception area and conference room located in the Washington Square Building on Second Avenue North, one block from Historic Metro Courthouse. Security 24 hours per day on site. One check covers utilities, phones, internet, copier, scanner, fax, and receptionist. Opportunity to share services of experienced paralegal. Please call Lisa Ewing at 615-330-7390 for details.

Advertising: Available: 3200 square feet, National Register Property in Historic Downtown Franklin, walking distance to Courthouse, available as executive suites or lease entire. Private parking in rear of property, 701 West Main Street, Shirley McGrew, sjkm@clearwire.net, 615-479-1100.

24 Nashville Bar Journal - February 2011

Contact Tina Ashford at tina.ashford@nashvillebar.org or (615) 242-9272

HOW WILL YOU ADVISE YOUR NON-CITIZEN CRIMINAL CLIENT TO PLEAD? Padilla v. Ky. (U.S. Sup.Ct. 3/31/10) has a profound impact on your duties to your foreign clients. We advise on immigration consequences of crime and handle all immigration matters. Mention this ad for an NBA member discount on the “Padilla plea memorandum” ($750). Immigration Law Offices of Sean Lewis 615-646-6002 www.MusicCityVisa.com branch offices Downtown Law Offices Memphis, TN Branch Offices starting at $185 incl: prestigious business address, Memphis phone number, receptionist, call forwarding to your corporate office, cell phone or voice-mail. Receive mail and deliveries on your behalf, forward mail, scan and email documents. Conference Rooms and Day Offices available for client meetings, depositions and mediations. Confidential support services. Fulltime offices available with flexible lease terms 6 to 36 months. Beverly Johnson, (901) 3125500, beverly@executiveofficecenter.com.

Classified Advertising: Rates: $75 for the first 50 words and $1 for each additional word. Available Sections: Positions Available, Expert Witness,

For Sale, Positions Wanted, Forensic Document Examiner, Technical Support Services, Office Space, Litigation Services, Office Sharing, and Accounting.

Nashville Bar Journal Classifieds Online at www.nashvillebar.org

NEWS YOU CAN USE! New Workers’ Compensation Coverage

with a Dividend Plan

Lawyers’ Professional Liability Insurance with Very Competitive Rates

• Great rates

• Zero deductible available

• Opportunity for a dividend

• Choice of claims expenses — inside or outside the limits

• Easy, convenient claims reporting

• Competitive rates

• Loss control tools that may help reduce your losses

• Coverage available up to $20 million

• Endorsed by the Nashville Bar Association

Plus, if you are enrolled in the Workers’ Compensation Program, you can earn a 5% discount on the Business Owners policy with coverages tailored specifically for legal professionals.

IPSCO has provided professional liability insurance to attorneys since 1956. Our extensive experience, market access to thirteen admitted and several non-admitted carriers, plus very competitive rates make IPSCO a great choice.

Email: lawyers@assoc-admin.com

Visit: IPSCOlawyers.com

IPSCO Superior Service • Superior Solutions Insurance Planning & Service Company, Inc. • 2301 21st Avenue South • Nashville, TN 37212

Elder Law Practice of Timothy L. Takacs

My client’s problem isn’t paying for the care his Mom needs.

It’s finding it.

Long-term illness and disability raise tough questions for your clients. n How can we keep Mom in familiar surroundings for as long as possible? n How do we find the services she needs, including the right nursing home when the time comes? n What will we do if there are problems? n How do we get the best care for Mom, spend her money wisely, and honor her wishes to leave a legacy for her family? The Elder Law Practice of Timothy L. Takacs has the answers. As Tennessee’s most respected elder law firm, we do more than just help the elderly qualify for public benefits. We empower families to make the right decisions during every step of the long-term care journey. When your clients are facing long-term illness or disability, point them in the right direction.

Call the Elder Law Practice of Timothy L. Takacs. Serving Middle Tennessee 201 Walton Ferry Road Hendersonville, TN 37075

Voice: (615) 824-2571 Fax: (615) 824-8772

Serving the Cumberland Plateau Region Voice: (931) 268-5761 Fax: (931) 268-1071 Toll-free: (866) 222-3127

Family Website: www.tn-elderlaw.com Professional Education Website: www.elderlaweducation.com

ELDER LAW PRACTICE OF TIMOTHY L. TAKACS