Nashville Bar Journal | February 2014 by Nashville Bar Association

Nashville Bar Journal

February 2014 - VOL 14, NO. 1

Heartaches by the Numbers: Estate Planning for the Digital Estate Jeffrey Mobley & Laurie Parker

Social Media and Your Law Firm Bart Pickett

B*law*ging Will Cheek

BE MINE.

WWW.NASHVILLELEXUS.COM

A Monthly Publication of the Nashville Bar Association

Articles 6 8

Departments 2

Heartaches by the Numbers: Estate Planning for the Digital Estate

Jeffrey Mobley & Laurie Parker

Social Media and Your Law Firm Bart Pickett

10 Getting The Answers You Need In Jury ....... Selection: How Many vs. Do Any? Susan Macphersono

CENTER SECTION

Will Cheek

19 Davidson County Criminal Appeals: Worth the Effort, Despite the Data

Jason Gichner

Columns 16

Communique • Diversity Committee • Norman Award • Liberty Bell Award • Golden Oldie Reveal • Upcoming Events

CONTINUING LEGAL EDUCATION

18 B*law*ging

From the President

Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory Classified Listings

Golden Oldie

Gadget of the Month

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

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.

Profile: Bill Young

Bart Pickett

NBA Calendar of Events February 12 - 12 PM NALS Committee Meeting

February 18 - 12 PM Ethics Committee Meeting

February 12 - 12 PM Appellate Practice Committee Meeting

February 18 - 12 PM Business Law Committee Meeting

February 13 - 11 AM LRIS Committee Meeting February 13 - 12 PM Community Relations Committee Meeting

February 19 - 12 PM Memorial Service Committee Meeting

February 25 - 12 PM Health Law Committee Meeting February 27 - 12 PM NBF Trustees Meeting February 28 - March 1, 2014 Mock Trial Competition

February 22, 2014 Race Judicata @ Percy Warner Park REGISTRATION ON PAGE 20

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

' A Monthly Publication of the Nashville Bar Association

Charles K. Grant, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

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

Journal Staff:

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

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

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

Nashville Bar Association Staff 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 Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy. POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219

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

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

Nashville Bar Journal - February 2014

From the President

No More Judicial Nominating Commission;

NBA Supports Constitutional Amendment on Judicial Selection by:

Charles K. Grant

For the first time in over 40 years Tennessee no longer has a statutory process of merit selection of appellate judges. The Judicial Nominating Commission expired on June 30, 2013, when the legislature allowed it to "sunset." However, let's not let it pass on without a proper albeit brief obituary. What eventually became known as the "Tennessee Plan" originally was adopted in 1971, with bi-partisan support to secure a highly qualified, nonpolitical appellate bench. With the independence of the judiciary at stake, the goal of the Plan was to minimize the role of partisan politics in the selection and election of judges. As amended from time to time, it has operated effectively for almost four decades in achieving its goals. As described by Supreme Court Justice Bill Koch in a speech before the Tennessee Business Roundtable in 2009, it was "imperfect and perhaps in need of some tinkering," but it was nevertheless "an appropriate, effective and efficient way to select and retain judges." The function of the Tennessee Plan was to provide a screening process for all gubernatorial appointments of appellate judges and trial judges. More than 76 judges have been appointed under the Tennessee Plan’s merit selection feature. The members of the commission were appointed by the speaker of the respective Houses, from the public, and from nominees offered by various bar groups. The statute required a conscious effort to balance geography, race and gender in the makeup of the commission. Non-lawyers also were included among its members. After the judges had been appointed, formal judicial performance evaluations were provided by the Judicial Performance Evaluation Commission (which will sunset on June 30, 2014). This panel reviewed the work of individual appellate judges and gave an opinion to voters as to whether the judges should be given new terms. This merit retention feature of the Tennessee Plan has proven to provide opportunities for women and ethnic and minority judges to prove their qualifications before being subject to election. It also reduced the impact of partisan elections on the judiciary by keeping political money and advertising at a minimum. However, the retention election was not just a rubber stamp. Former Supreme Court Justice Penny Jo White received a “no” vote that removed her from the bench. Many believe that, as a result of the Plan, Tennessee has been spared the scandals and crises of confidence in the independence of the judiciary that plagued other states. A keen example of one scandal comes from West Virginia, where the state supreme court was to review a $50 million judgment against A.T. Massey Coal Company, Inc. Massey successfully spent $3.5 million to unseat a perceived unfavorable chief justice of the West Virginia Supreme Court. Newly elected Justice Benjamin, who had been supported by Massey, refused to recuse himself and cast the deciding vote to overturn the judgment against Massey. In Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009), the Supreme Court reversed, holding that the probability of bias was too high to be constitutionally acceptable. A similar high-profile case comes from Illinois. There the Illinois Supreme Court was faced with an appeal from a $1 billion judgment against State Farm Insurance Company. Lawsuits allege that State Farm and other interests spent considerable sums to unseat one justice considered unfriendly. The Illinois Trial Lawyers responded in defense of the judge and a total of more than $9 million was spent on the election with the seated justice unseated. Newly elected justice Lloyd Karmeier refused to recuse from the State Farm case and cast the deciding vote to reverse the damage award against State Farm.

2014 NBA BOARD OF DIRECTORS

One of the most common criticisms by opponents of the Plan is based on the argument that it violates the Tennessee Constitution's (Article 6, Section 3) requirement of direct election of judges.1 While this argument has failed in numerous lawsuits, it nevertheless remains potent as evidenced by recent efforts in the legislature to put forth bills for the direct election of appellate judges. With the Judicial Nominating Commission's demise, on October 9, 2013, Tennessee Attorney General Robert Cooper issued an opinion stating Gov. Bill Haslam has the legal authority to fill judicial vacancies. The following week, on October 16, 2013, Gov. Haslam issued Executive Order No. 34 establishing the Governor’s Commission for Judicial Appointments. The Order states, “in order to sustain the third and equal branch of government and its continued operations, it is essential to continue to fill judicial vacancies with men and women of the highest caliber, who by temperament, ability and integrity will freely, impartially and independently interpret the laws and administer justice.” The new Commission for Judicial Appointments is composed of the eleven incumbent members of the old Judicial Nominating Commission plus six new members appointed by the Governor in consultation with the Speaker of the House of Representatives and the Speaker of the Senate. The challenges to the constitutionality of Tennessee's method of selecting and retaining appellate judges remain. To quiet these concerns, the Legislature has put the matter to the people in the form of a proposed constitutional amendment. Senate Joint Resolution No. 2 will be on the ballot in the November 2014 general election. The proposal provides that the governor would appoint appellate judges, subject to legislative confirmation, followed by retention elections. Faced with the prospect of the direct election of appellate judges, among other concerns, the Bar Association's Board of Directors voted on December 3, 2013, to support the proposed constitutional amendment. This decision was guided by its policy on Taking Official Positions on Matters of Public Interest and by the work of the Governance Committee (Pat Moskal, Chair). I, for one, support the constitutional amendment. Whether or not it passes, let us hope that future governors abide by Gov. Haslam's example and maintain the process of merit selection of our judges. The continued independence of our judicial system depends on it. n

For a robust discussion by one critic on the merits of the Tennessee Plan see Brian T. Fitzpatrick, Election as Appointment: The Tennessee Plan Reconsidered, 75 Tenn. L. Rev. 473 (2008); Penny J. White & Malia Reddick, A Response to Professor Fitzpatrick: The Rest of the Story, 75 Tenn. L. Rev. 501 (2008).

Charles K. Grant, President Edward D. Lanquist, Jr., President-Elect Dewey Branstetter, First Vice President John C. McLemore, Second Vice President Thomas J. Sherrard, Immediate Past President Stacey Billingsley Cason, Secretary Nicole James, Treasurer Hon. Joe B. Brown, Assistant Treasurer Gareth Aden, General Counsel Hon. Joe P. Binkley, Jr. Kathryn S. Caudle Irwin J. Kuhn Claudia Levy Hon. Randal S. Mashburn Jeffrey Mobley Andrea P. Perry Matt Potempa Sara F. Reynolds Nathan H. Ridley Maria M. Salas Saul Solomon Jocelyn A. Stevenson Overton Thompson, III M. Bernadette Welch

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 ASSOCIATION Each day, we work hard to help people and businesses in our community. The NBA has a wide variety of services and programs that can help lawyers work smarter, stay informed and keep connected with fellow attorneys. From sole practitioners to the largest firms, from legal aid attorneys to those in private practice, the NBA supports all of us so we can better serve our clients and the justice system. Our Bar Association is much more than just a collection of services. The power of our membership lies in the power of the people.

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@theNashvilleBar

WE are the Bar. And together, we shape the future of the legal profession. Nashville Bar Journal - February 2014

communiqué

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

After 25 years, the Minority Opportunities Committee transitions to the Diversity Committee

Nominations Sought for Norman Award

At its December 3, 2013 meeting, the Board of the Nashville Bar Association voted unanimously to adopt a recommendation to change the name of the Minority Opportunities Committee to the Diversity Committee. The move follows recent national and local trends in broadening diversity initiatives in the legal profession.

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. Deadline for nominations is March 15, 2014.

Earlier in the year, members of the former Minority Opportunities Committee led by co-chairs Rita Roberts-Turner and John Park, began meeting regularly to discuss the committee’s mission both historically and prospectively. Members agreed that the committee, which was formerly established by the Nashville Bar Association in 1988, was historically necessary to both denounce and remedy the racial discrimination exhibited particularly toward African Americans that had clouded the Bar’s past. There was also an acknowledgement that the Committee’s work in helping minority lawyers and law students navigate the legal profession remains relevant today. The 2013 minority high school student summer internship program saw an increase in the number of employers over recent years as law firms and agencies fully embrace the value of the program. With almost double the number of usual applicants, last summer’s class was one of the most racially diverse in a decade. Still, members realized that the Committee’s continued relevance in an ever culturally expanding community required looking at diversity from many different perspectives. “The challenge that we had as a committee was to broaden the scope of the committee while at the same respecting the historical purpose that gave rise to the committee in the first place. In the end, we believe the committee can maintain its focus on the programs that have been instrumental in developing and fostering racial diversity in the Nashville bar, including several members of our own committee, while at the same time ensuring that diversity in the bar is an inclusive goal that reaches out to every current and potential member of our legal community,” said Committee co-chair John Park. His sentiments are evident in the newly adopted mission statement: The Committee’s primary focus in the promotion of opportunities for racial minorities in the Nashville Bar and the community. As the Diversity Committee, the Committee’s efforts have been expanded to encompass diversity and inclusion based on other characteristics within the Nashville legal community. Toward that end, the goal of the Committee will be to implement programs that: provide employment opportunities, assist with career development and professional advancement, and increase the number of diverse students attending and successfully completing law school. The Diversity Committee meets monthly at the Nashville Bar Association Office. For scheduled dates/times contact Traci Hollandsworth at Traci.Hollandsworth@nashvillebar.org. 4

Nashville Bar Journal - February 2014

The award is given to criminal law practitioners, including specifically defense attorneys, prosecuting 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 addressed to the NBA Criminal Law & Criminal Justice Committee and sent to Committee Chairs, Brian Ewald at ewaldbm@gmail.com or MaryKathryn Harcombe at Mary-KathrynHarcombe@ jis.nashville.org.

Nominations Sought for Liberty Bell Award Nominations are being sought for the Liberty Bell Award that will be presented during the NBA's annual Law Day Luncheon during Law Week. Deadline for nominations is March 14, 2014. This award is given to that person or group (not necessarily lawyers or law related groups) who has promoted a 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 addressed to the NBA Community Relations Committee and sent to Traci Hollandsworth at traci.hollandsworth@nashvillebar.org.

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

2014 Davidson County High School Mock Trial Competition The Nashville Bar Association Young Lawyers Division will once again host the Davidson County High School Mock Trial Competition on Friday, February 28, and Saturday, March 1, at the Historic Metro Courthouse. More than a dozen schools from Davidson County will compete in five rounds over two days, playing the part of lawyers and witnesses in a fictional civil trial. The top two placing teams will continue on to the state competition. Volunteers are needed to help judge and score the teams in each of the five rounds, which are scheduled for the following dates and times: Round 1 - Fri. Feb. 28 at 4:00 p.m. Round 2 - Fri. Feb. 28 at 6:00 p.m. Round 3 - Sat. Mar. 1 at 8:30 a.m. Round 4 - Sat. Mar. 1 at 11:00 a.m. Final Round - Sat. Mar. 1 at 2:30 p.m. If you are available to volunteer as either a juror/scorer or judge, please contact Rob Laser at 615.252.2393 or rlaser@ babc.com and include (1) the round(s) for which you are available; and (2) whether you would prefer to serve as a juror/scorer or judge. For further information about the competition, please contact Peter Robison ag 615-2441440 or pcrobison@cornelius-collins.com. Volunteers are what make this competition possible every year, and the students greatly appreciate your time and support. We look forward to seeing as many of you as possible for this event!

-Golden Oldies

COMMITTEE INFORMATION n NBA NEWS

Dean Joe C. Loser, Jr. to Retire William C. Koch, Jr. will become the new dean of NSL The Nashville School of Law (NSL) today announced that Dean Joe C. Loser, Jr. will retire following a nearly 28-year tenure that has advanced the institution into one of the state’s finest law schools. Tennessee Supreme Court Justice and NSL faculty member, Justice William C. Koch, Jr. will become the new dean of NSL in July 2014 following Dean Loser’s departure in June 2014. Justice Koch is a renowned judge who has been recognized for excellent legal scholarship and advancing access to justice throughout the State of Tennessee. He has served on the Tennessee Supreme Court since 2007, and he previously served for 23 years on the Tennessee Court of Appeals where he was the presiding judge of the Middle Section of the Court from 2003-2007. He joined the faculty of NSL in 1997, and been named 4th year “instructor of the year” three times. Dean Loser is a 1959 graduate of the school and has significantly advanced the institution during his term as dean. Enrollment at the school increased dramatically under Dean Loser’s leadership, and in 2005, the school moved to its current 30,000 square foot campus on Armory Drive. The new facility features advanced technology, ample classroom and library space, and easy parking and interstate access.

UPCOMING EVENTS: Race Judicata Percy Warner Park February 22, 2014 REGISTRATION ON PAGE 20 -------------------------------------Mock Trial February 28 - March 1, 2014 -------------------------------------NBA Happy Hours: February 6th Sponsored by KraftCPAs

Allen Lentz correctly identified the individuals in the Dec 13/Jan 14 Golden Oldies photo. Pictured are: John Bailey and Jim Berry

March 6th Sponsored by Document Solutions April 3rd Sponsored by Grumpy’s Bail Bonds

Nashville Bar Journal - February 2014

Feature

Heartaches by the Numbers:

Estate Planning for the Digital Estate by:

Jeffrey Mobley & Laurie Parker

You’re sitting somewhere—a law office, your home, Starbucks—looking forward to a productive afternoon of work without interruption… well, not exactly. You hear the soft chime of emails landing in your inbox, the whoosh of incoming text messages, and the cherubic tone of harps as Facebook messages are received, all while listening to your favorite artists on Pandora (my Pandora stations are Joni Mitchell, Van Morrison, and Gordon Lightfoot). You’re living in the digital world. The average adult now spends more than five hours a day online.1 Nearly half of us have bought something online using a tablet or smartphone, and more than 60% of us have made an online purchase using a home computer.2 We now do most of our banking online.3 We have email accounts (often more than one), we post photos on social media sites, we download music and movies to enjoy on our tablets and phones, and we can even access our medical records online. Most of our financial records, including bank and investment account statements, tax records on programs such as QuickBooks or TurboTax, credit card information, and automated payments for charges such as Netflix or utility bills, are now stored digitally. Some of us may have online sales accounts, such as an eBay virtual store or a product website. More and more of the important details of our lives are stored in bytes of data. What happens to all this information when we die? Just as clients need estate planning assistance in wrapping up finances and distributing assets in the “real world,” attorneys are recognizing that a client’s online affairs also need to be put in order in settling an estate. Current ABA Model Rules of Professional Conduct encourage lawyers to “keep abreast of the law and its practice, including the benefits and risks associated with relevant technology.” While the amended rule has obvious ramifications for attorney-client confidentiality and e-discovery issues, it reflects a new concern for estate attorneys: how can a lawyer help his or her clients protect their digital assets, not just their traditional net worth assets? 6

Nashville Bar Journal - February 2014

As with traditional assets, one of the first things you must do in estate planning is identify all the assets. James Lamm, a Minneapolis attorney specializing in digital estates, suggests conducting a “digital fire drill” with your client to identify what online accounts or property the client would like her family and/or fiduciary to be able to access should the client become incapacitated or die. In addition to accounts with actual monetary value, such as bank and retirement accounts, the client must decide if she wants to allow access to more personal information. What if your client dies and no one can get into her house without setting off the home security system? Not insoluble, but definitely a problem. Does she want her family to be able to read her email? Listen to her voice mail? Download her iTunes purchases? What about the autobiographical novel she was writing in her spare time? Or her personal journal recounting life events or comments she wouldn’t want her family to see? Cracking the Digital Code. Once accounts and files are identified, the client must prepare a list of passwords needed to access them. An executor can’t access information on a device if he doesn’t know the device code, and he can’t access an online profile or account without the username and password. The account and password list must be both complete and current. Without a comprehensive, consistently updated record of accounts and passwords, a fiduciary is severely hampered in settling a client’s digital estate. Written password lists are easy to lose and easy to steal, but several programs and online services, both free and commercial, offer secure, easily updated password storage. By entering one “master” password, the user can view a complete list of personal accounts and passwords. A friend

who works in IT recommends KeePass, but other popular choices include 1Password, oneSafe, and Keeper. The key here is that the username and master password must be provided to the fiduciary ahead of time. It’s also not a bad idea for the client to include the answers to any possible security questions in case there is a problem with a password. Security questions are often part of setting up an online account, and correct answers are required to reset a missing password. Typical ones ask the name of a favorite pet, your mother’s maiden name, the make and model of your first car, the street name of your childhood home, what your high school mascot was, and so on. Another option is a service that stores digital account information securely, but also allows a client to grant access to a fiduciary through a predetermined verification process in the event of death or incapacity. The most popular of these services include Deathswitch, LegacyLocker, and Entrustet, but there are many to choose from (hopefully ones with more pleasing names). A clearly delineated list of accounts and passwords, with accompanying instructions on what to do with the information, is the best-case scenario, though not a common one.

information. In addition to financial asset accounts, clients may have other digital accounts that will require information to be deleted or secured. These can include email accounts, both personal and workrelated; social network pages; sites that allow video or photo uploads, such as YouTube, Instagram, Vine, or Picasa; and online retailer accounts like Amazon or Barnes and Noble that might store credit card information. Financial asset accounts are often the easiest for a fiduciary to access. The fiduciary should contact the financial institution for specific instructions, but often a copy of the death certificate and letters testamentary/of administration are sufficient. Email providers and social networking sites usually have stricter policies. Most email providers will delete a user’s account after a defined period of time with no activity. While this protects user privacy, it also means a fiduciary must act quickly to secure access to the account. Employer email accounts belong to the employer, not the employee. Should a family member want access to a loved one’s work emails, approaching the employer might work, but without extenuating circumstances, such requests are unlikely to be successful.

How do you handle the digital estate of a client who didn’t plan ahead? This is where things get much more complicated. While programs and consultants exist to help crack digital encryption, they are costly, time-consuming, and not always effective. Some online companies require a court order before granting a fiduciary access to a decedent’s account, and federal laws and some states forbid access to any online account belonging to another person.

Gmail has a procedure for designated representatives to follow to ask for access to a decedent’s personal email account, but does state that such requests are not always granted. Yahoo!’s terms of service say that email accounts are not transferable, though Yahoo! has allowed access under certain limited circumstances. The most likely reason for an email service provider to grant permission would be if the account was used for business. Check the provider’s terms of service for information to see if your client’s situation might allow access.

Once you get into the decedent’s operating system, your journey’s just beginning. Check the browser favorites list or bookmarks bar, then the browsing history, for sites that are likely to contain personal

Facebook requires a court order to enter a decedent’s account. However, verified family members may request that an account be deleted, and anyone may request that an account be memorialized by filling

out an online form and showing proof of death. Twitter does not allow access to a deceased user’s login information, but will deactivate an account after receipt of a detailed request form and proof of death. LinkedIn has a similar procedure. Not all online retail sites list information on closing accounts due to death or disability of the owner, but any saved credit card numbers or other payment information can and should be deleted from the user profile. Check through old credit card and bank statements to make sure you have covered all online merchants the decedent patronized. Some sites, like Amazon’s, give instructions on how family members may close a decedent’s account, but may keep the account information until any business need for the it has expired, whenever the retailer decides that might be. Online photo and video upload sites such as Flickr, Instagram, YouTube, and other similar sites are the modern equivalent of Mom’s photo albums and Dad’s home movies. While these may not have monetary value, the contents of these personal pages can have incalculable sentimental importance. These services usually will not release login information for any account, but will delete an account on request accompanied by proof of death. If an account is private and the fiduciary doesn’t have login information from the client, these treasured photos can be lost forever. Hunting for Buried Bitcoins. Your client may also be a property owner in the digital world. Digital property can include PayPal credits, e-gifts, or online retailer credits or gift balances; affinity points from airlines and others; apps, movies, e-books, and game uploads; software licenses; ownership of an eBay or Etsy business; or even virtual property such as virtual real estate, a video game Continued on Page 14  Nashville Bar Journal - February 2014

Feature

Social Media and Your Law Firm by:

Bart Pickett In today’s tech-savvy world, finding new, digital ways to reach and maintain existing and new clients remains critical. Social media sites provide a way for law firms to do just that. Social media varies in definition and source. Merriam-Webster defines social media as: “forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos).” Popular social media sites include: Facebook, Twitter, LinkedIn, Google+, and YouTube. Much has been said previously about using those sites and ethical implications. This article is meant to be an anecdotal look at Nashville firms and their use of social media. The same set of questions posed to several different firms provided the answers below. Those questions were: (1) What kinds of social media do you utilize? (2) Which do you use the most? (3) What kind of results have you seen? (4) Do you pay for any of the services? (5) Do you have any concerns using social media? (6) Is there anything else you want to add about your firm’s experience using social media? Waller Landsen Dortch and Davis Waller uses LinkedIn, Twitter, Facebook, YouTube, Google+ and blogs to reach its client base. They primarily rely on LinkedIn, Twitter and blogs. In fact, the homepage of Waller prominently displays links to their LinkedIn, Twitter and Google+. “It’s important that our firm embrace social media as a tool to help network and engage in conversations with our peers, our clients and future clients. We can either evolve or struggle to remain relevant,” notes Mark Greene, Waller’s Chief Business Development Officer. Waller has seen great results from its social media presence.

Nashville Bar Journal - February 2014

On Twitter, they have frequently seen their tweets being shared. Twitter acts as an amplifier with access to reporters, bloggers, conference directors and colleagues. Josh Rosenblatt, a Waller associate has seen that firsthand: “For me, Twitter is an easy an useful business development resource. The industry I focus on is national, not local. Twitter is the easiest way to listen to and be a part of the industry’s conversations.” LinkedIn has proven to best used for individual attorney exposure. Through LinkedIn, Waller attorneys use it as a source of white paper and blog distribution as well as the networking environment it provides. Also in LinkedIn, the attorneys began implementing LinkedIn Groups to create a more discussionbased environment with their colleagues and contacts. Throughout the firm and its attorneys’ use of original content, Waller is seeing a return in more in-depth discussions into issues it delves into. As to Facebook, Waller primarily uses it for brand extension and the shaping of their public image. As a direct result of its concerted social media marketing, Waller has experienced an increase in inbound traffic to its firm’s website. Waller does not currently utilize targeted ads through social media. Some of its attorneys have chosen to purchase premium LinkedIn accounts. Waller also hired two thirdparty vendors for their blog development and distribution and social media distribution for their published articles. The thought of using social media can be a daunting idea, particularly to older lawyers. Facing the fear that something on the web can be taken out of context, Waller initiated social media guidelines to keep their posts simple and to the point. Their rule of thumb: if you’re not comfortable seeing your post in tomorrow’s news then it might be

a good idea not to post it. Mindful of the Rules of Professional Conduct and their specific restrictions on lawyer advertising and solicitation of clients, Waller has made it a point to advise its attorneys to disable the endorsement feature or disclaim any implication of special skills or abilities based on such endorsements. David Raybin of Hollins, Raybin & Weissman Raybin utilizes Facebook, LinkedIn and YouTube. He has only seen moderate business generated from Facebook. He sees LinkedIn as potentially beneficial in the future but has not yielded much business from it yet. Where he does see a benefit is in YouTube. “YouTube is super. We have our testimonials and lawyer interviews on there,” he notes. Raybin doesn’t pay for any social media services. Raybin’s biggest concern in his online presence is that people can go online and “validate” him. “People may have heard about David Raybin, but they want to “validate” what they have heard about me so they go online and read about me in my website,” he explains. He sees social media as a tool to help his presence. “Social media changes every day and should be a vehicle to increase your visibility to Google since Google drives 90% of the searches.” Rocky McElhaney Law Firm The Rocky McElhaney Law Firm uses Facebook, Twitter, Google+, AVVO and YouTube. They have employed a full-time Events and Public Relations Coordinator who manages all of the firm’s social media accounts. The firm primarily relies on Facebook, Twitter and their blog. They use those resources to reach former clients, fellow lawyers and the general public. They regularly post information about success they are having for their clients, firm events and any major legal updates. “We try to use all forms of social media symbiotically to create a unified presence and spread the message of our firm’s unique approach to representing injury victims,” Taylor Sutherland proudly explains. The lawyers use their personal accounts to promote the firm account. The

firm then uses its Twitter and Facebook pages to promote the firm’s blogs which averages 4-5 blog posts weekly. The firm also cross-posts its videos and info from YouTube, Google+ and LinkedIn on its Facebook and Twitter accounts. The results have been off the charts according to Sutherland. They use an internal tracking software to keep with every new client call they receives call from. Since starting their full court press on their social media/blog/website campaign, the number of new clients who are finding the firm online has grown by leaps and bounds. They have not paid for any of the services available on the social media sites but do spend money on the full-time employee dedicated to updating the sites. The firm maintains a LinkedIn account but has reservations about the return it produces: “It seems harder to reach our potential audience on there than it does on our Facebook page or from our blog.” Ultimately, the firm subscribes to a technique they call “dynamite fishing” where they employ cross-promotion across all platforms in order to reach a wider audience: “You never know when a blog post, Facebook post, or tweet is going to be the one that hits that injured person just the right way to get them to pick up the phone and call.” Bass, Berry & Sims Currently, Bass, Berry & Sims uses Twitter, Linkedin and YouTube. They also have several blogs and many of their attorneys contribute to 3rd party blogs. “It's a common misconception that the c-suite or general counsel do not use social media. In reality, an increasing number of executives are consumers of social media even if it is passive usage (e.g., many executives are users of Twitter, even if they do not tweet themselves),” says Kerry Price, Bass Berry’s Director of Marketing and Communications. Twitter and Linkedin provide the firm vehicles

whereby they can distribute their attorneys' thought leadership and firm news to an audience who has made an active choice to follow their firm and use social media as an aggregator of news and information. They use Twitter and Linkedin with about the same frequency. Bass Berry continues to see increased engagement through the number of followers they have for each of their accounts. Additionally, members of the media are generally heavy users of social media and Bass Berry has had success attracting inquiries based off information they have disseminated. Bass importantly realizes that social media is in a sense “the wild west of marketing.” Most people are aware of the dangers of social faux pas associated with posting something inappropriate or controversial. Price is no different: “I worry more about inadvertent mistakes that are inconsistent with the professional ethics for which lawyers must adhere. Our industry must subscribe to very high standards and consequently we have boundaries that are unique to our industry. I view it as my department's job to continually monitor and educate attorneys on social media best practices.” In furtherance of this cautious approach, Bass has adopted a social media policy that provides approved guidelines for social media usage. Laura Baker of The Law Offices of John Day, P.C. Baker does not specifically use her personal Facebook and Twitter accounts to market for potential new clients; however, she notes that keeping in touch with friends, family, and colleagues on social media sites like Facebook has brought her a number of referrals and new clients. “I think by staying active on these sites my contacts are reminded that I’m a lawyer, and it’s my experience that when people need a lawyer they call the one they know first,” notes Baker. If they call her about a case in an area of the law in which she does not practice, she can still help them by referContinued on Page 13 

Nashville Bar Journal - February 2014

Feature

Getting The Answers You Need In Jury Selection: How Many vs. Do Any? by:

Susan Macphersonon

The way you ask the question signals to the prospective jurors what you are expecting to get for an answer. That signal can either encourage jurors to volunteer a response or encourage them to sit on their hands through your voir dire. When you ask jurors “how many of you…?” you are signaling that the belief, attitude or experience you are asking about is so common that it you would expect it to apply to one or more of them. When you ask jurors “do any of you…?” you are signaling that whatever you are asking about is not the norm, and thus you are not necessarily expecting anyone to raise a hand in response. As we all know from interactions with clients, co-workers, and even our children, signaling expectations has an influence on the response and that principal applies to jury selection as well. Since jury selection involves interacting with a group of people who would generally rather remain silent, sending the right signal about your expectations can make a critical difference in getting the information you need to assess juror bias. For many of our clients, dropping “do any of you…?” as the default framing for their voir dire questions was half the battle. Knowing when and why to use “how many” vs. “do any” will help you accomplish your goals in jury selection.

you feel that way?” Stating that this is a belief shared by “many” sets up agreement as the socially desirable response which then encourages more jurors to raise their hands. To then sort out those who believe government regulation could never be effective from those who have the opposite view, you can shift to the “some” format: “Some people think X while others think Y. How many of you are closer to the X side of the scale? (Chose one juror with hand up.) Tell me about that.” If you are primarily interested in identifying those who think “X,” then that belief or attitude should be very specifically described, e.g., “Some people believe regulation is simply not the answer – regardless of how it is written or how it is enforced they believe it just doesn’t work. Others think there may be ways to improve regulatory efforts to make them more effective.” What “others” think is intentionally stated in broader terms encompassing a variety of opinions when your goal is to identify those who really believe “X” without necessarily identifying those at the other end of the spectrum.

When you are trying to get at a belief or attitude that jurors might be reluctant to share, you should always use the “how many” format. As indicated above, this makes it easier for jurors to respond because you have signaled that it would be the norm. You can make that signal more explicit by prefacing the “how many” question with a short sentence acknowledging that either “some” or “many” people share the belief, attitude or experience you are asking about. Whether you use “some” or “many” in the preface depends on the topic of your question. For example, if your ultimate goal is to sort out those who are the strongest adherents of a widely shared bias you would want to start out by encouraging the broadest possible response: “Many people believe that government regulations on XYZ have not been effective in solving or reducing the problem of XYZ. How many of

You send another important signal when you state what “some” believe and what “others” believe and ask how many subscribe to each view: differences of opinion among members of the jury panel is also the norm. More importantly, you reinforce what should be the central message of your introduction to the voir dire, which is that hearing about the different ways jurors look at the issues involved in the case is the main purpose of jury selection. Even when that purpose has been clearly stated at the outset, without being clouded by qualifications that send a mixed message (e.g., “We are just looking for people who can be fair and impartial”), we often hear jurors preface their response by

10 Nashville Bar Journal - February 2014

saying, “Do you want to know what I really think?” While we all know that overcoming fear of speaking in public is a hurdle for many of the jurors, we often forget that publicly stating a position about which there may be strong disagreement is a much higher hurdle. Being taught that it isn’t “polite” to discuss topics where there may be fundamental differences – politics, money or religion – is one reason why most jurors have little or no prior experience in publicly expressing their opinions. When and why would the “do any of you…?” format be the better choice for a voir dire question? In cases where you want to frame one or more of your opponent’s contentions as being “outside the norm,” using that format will help you find out whether that view is likely to be accepted or rejected by your jury. The basic principal that jury persuasion is determined by matching your arguments to the jurors’ preexisting attitudes and beliefs tells you that this type of “audience testing” on key issues can be an essential element of voir dire. When you ask “do any of you…?” you are not endorsing the attitude or belief you are asking about, and you are not signaling an expectation that any of the jurors will have an affirmative response. But what if they do? Depending on the situation, you may need to probe for details to be able to distinguish the juror’s opinion or experience from your opponent’s contention, you may need to probe for details to develop a challenge for cause, or you may simply thank the juror for that response and move on. If you have been able to conduct jury research before trial, this question will have been tested and you will be in a better position to anticipate how jurors are likely to respond. However, if you have not been able to conduct any jury research, it may happen that a “do any of you…?” ques-

tion gets many affirmative responses. If so, you can use this feedback just as you would after getting the same finding in jury research: reassess your strategy and redesign your message or rule out your plan to frame that contention as being outside the norm. There are also some other less sensitive situations where using the “do any of you…?” format makes sense, such as after reading a witness list, or when you are short on jurors and trying to discourage those who remain from asking to be excused due to the length of the trial. At the outset of jury selection, there are a number of these standard qualifying questions for which the “do any of you” format is certainly appropriate. The problem occurs when that format becomes the default that is used for all the questions that follow. Having a topic list of issues to cover in voir dire often leads to this unintentional use of the “do any of you” format. Writing out full questions in advance, or reading out loud the questions written

by your jury consultant, will force you to think through which signal you want to send and will help to extinguish the often detrimental “do any of you” default. n Susan Macpherson is a founding member and Vice President of NJP Litigation Consulting’s Midwest regional office located in Minneapolis. She has been conducting jury research since 1976, and has advised attorneys across the country on complex commercial, antitrust, intellectual property, class action, and criminal cases. She is a contributor to National Jury Project’s practice manual, JURYWORK: Systematic Techniques (Thomson West, updated annually). You can learn more about NJP Litigation Consulting at www.njp.com or contact Susan Macpherson at smacpherson@njp. com.

Nashville Bar Journal - February 2014

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

MONTH

MS Office 2013 is for Real and for You

By: Bill Ramsey, Neal & Harwell, PLC and Phillip Hampton, LogicForce Consulting

In quiet moments, every person wrestles with the great questions in life: Who will be the next American Idol? Could I handle a case before the Supreme Court? And the largest of them all: 2014 is here, so is it time to upgrade to Office 2013? There’s been quite a splash about this new Microsoft Office software suite and frankly, the hype is (largely) justified. There’s a lot to like with many of the new options creating opportunities for a greater magnitude of productivity and efficiency without a steep learning curve necessary. Just remember our primary rule: if a manufacturer wants you to like it, they call it an “update,” but if you’re not sure how to use it, we call it a “change.” To help you digest it all, we’re going to break this post into two portions, the first discussing the new features and the second discussing purchase points. New Features The most obvious change to Office 2013 is the stripped-down, minimalist interface. Frankly, we were taken aback. Phil would call it “bland,” while Bill would call it “Less busy,” but it grows on you. Microsoft is stressing its simplicity and cleanness so that you can focus on what’s most important. Here’s the real truth—if the only changes in Office 2013 centered around Word, it would still be worth purchasing for anyone in the legal profession. While there’s not a lot of dramatic functionality changes from Word 2010, many of the features seem custom-made to meet the challenges within our industry. • Have you just received another PDF that needs to be changed? Not a problem. In previous versions of Word, you could save documents as PDFs, but Word 2013 allows users to open and edit specific PDFs. Then you can resave the edited versions as a PDF or a DocX file. • Have you been given a large document to read? Excellent! There is now a seriously great reading mode that makes long documents appear as if you’re reading a hard copy book on the screen. It also allows you to

•

bookmark long documents, with the last viewed page reappearing when you reopen the large document. To create greater reading comprehension, the large ribbon of icons disappears at the top. Then, once you’ve completed your research, you can switch it back to the regular view for normal reading-typing functions. Toggle between applications a lot while you’re working? Great! While the main interface may seem bland, each app opens to a color-coordinated start screen. So Word is blue, Excel is green, PowerPoint is orange, and Publisher is green, allowing you to easily identify your app as you toggle. Power users will appreciate recognizing every app option.

Another app upgrade is the reinvention of the opening screen. Instead of showing a blank, open application to start with, the left side offers a list of previously opened spreadsheets (or documents or presentations) while most of the opening page highlights the many templates now available to users. So you are given a plethora of options to customize your project from the start, not start with a generic, one-size-fits-all template that must be molded later. Best of all, especially for Excel, you’ll know within a few clicks pretty quickly if the new template is indeed the best option or not. Office 2013 also features tight integration with SkyDrive, which is Microsoft’s cloud storage option. We both really like SkyDrive, because it allows you to integrate wherever you’re at with whatever device you are currently using. It also saves the last spot you were working on in a specific app, allowing you to restart where you left off—even if you are on a different device when you restart. Please remember that we never recommend any cloud options for sensitive documents. And for all of you tablet lovers (Phil and Bill both on this one), this software is more touch friendly, so that will allow you to keep working efficiently. Continued on Page 13 

12 Nashville Bar Journal - February 2014

Social Media and Your Law Firm Continued from page 9

ring them to colleagues who do practice in that area. Baker has utilized Facebook when she needed to spread the word that she was building a new practice area: “When I began practicing domestic law, I found that clients initially heard about me through my new Facebook page dedicated to the subject.” Continued from page 12

Purchase Points Office 2013 can be purchased using the great, new subscription model or the old, clunky licensing model. (Do you like how we slanted that so that you’ll instantly feel a greater affinity toward the first option and not the second? Phil and Bill, thy middle name is “subtlety.”) Yes, we like the subscription model because of the many benefits that come with it. Just to name a few: this model allows you to install the software on up to five devices, be they mobile or desktop, gives you the handy cloud storage options, plus it provides automatic updates, so you never risk falling behind on important new updates. The subscription model sets a solid foundation for greater efficiency and productivity in your firm over the coming years. The Final Analysis Frankly, there are many competitors to the MS Office suite, including Apple’s iWorks and Google Docs, but we still think MS Office is the de facto standard for law firms because no suite offers everything (word processing, spreadsheets, presentations, e-mail aggregation) as fluently and as well as Office. To use the most compelling example: Excel is indispensable for anyone working with large, complex spreadsheets. Honestly, there’s not really an equal in any of the other office suites. So once you’ve answered this big question in life, then you can go back to worrying about the others that trouble our universe. As for us, we see the next American Idol being some kid with a guitar, big voice, and bigger smile.  See you next month, —Bill & Phil

APPELLATE BRIEFS and ARGUMENT THOMAS F. BLOOM, J.D. (Emory 1977) (615) 260-5952; tfbloom1@comcast.net Retained by attorneys throughout the State for 29 years to draft briefs and/or argue cases in over 400 appeals, State and Federal. Research assistance also available. Quality Guaranteed at reasonable cost. References available upon request.

Baker also has a profile on Avvo.com and other similar lawyer marketing websites which she finds can be very useful sources for new business. “Just like I seek out reviews and ratings when shopping for a new product, consumers shop around for attorneys,” said Baker. These sites give them information about attorneys, their practice areas, and their credentials. -As evidenced by the experiences highlighted above, social media can certainly prove to be a worthwhile venture for you and your firm. Caution should be used, however, when you begin or continue in your effort to create an online presence as this is an evolving platform that could expose you to unwanted attention. Lawyers using social media are still subject to the Rules of Professional Conduct. One should consider reviewing the rules particularly as they apply to advertising, solicitations and communication with clients or potential clients when dealing with their social media activities. In the absence of formal written opinions, we must use our professional judgment in accordance with the ethical rules. For example, while The Tennessee BPR has not issued any formal opinion as to ‘endorsements’ like those on LinkedIn, that does not relieve us of our duty to comply with our rules. When considering what social media, if any, you and your firm should use, a bit of preparation and caution should prove invaluable as you continue to gain new clients and keep the ones you have. n Bart Pickett is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty Mutual Group, Inc.’s insureds and customers of its affiliated groups throughout Middle Tennessee. Prior to practicing, Pickett worked as a law clerk for the Honorable Judge Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joseph P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

Nashville Bar Journal - February 2014

Heartaches by the Numbers: Estate Planning for the Digital Estate Continued from page 7

character, or virtual currency such as Bitcoins. The value of these virtual properties can be small, but sometimes online values are astounding—Planet Calypso, a virtual planet in the online game Entropia Universe, sold for $6 million in 2010, and generates monthly income for the owner.4 Many online properties are transferrable as part of the decedent’s estate. Check with the site administrator for the proper procedure. Some people spend thousands of dollars building their online music libraries. Does all that music just disappear into the Cloud when a client dies? When someone downloads a purchase from iTunes, she isn’t actually getting any ownership rights to that download; she is just buying a license, and as of now, Apple has no policy under which to transfer that ownership after the buyer’s death. However, iTunes does allow for more than one download of a purchase, so a song could be downloaded from the decedent’s account to a new device. Alternately, a CD or DVD of the download could be burned, then that disc could be copied to another device. Original works of intellectual property can be both created and stored digitally. Music can be composed; movies written, animated, and/or edited; poetry, fiction, or magazine articles such as this one written. Unfinished works can also be valuable, depending on the source, as can emails, if your client is famous. (Think of all those collected letters donated by celebrities to university or Presidential libraries—emails are the modern-day equivalent.) Clients may own web sites or blogs, including any designs, photos, or content. Domain names can be highly valuable digital assets (the domain name Brand.com sold for $500 thousand in June 20135). Digital publishing rights for books, art, or other intellectual property and patents or trade secrets for digital works all need to be protected. Other important information often stored on personal data devices includes final wishes, last letters to loved ones, and the location of important documents (or digital copies of the documents themselves). Check your client’s device for items 14 Nashville Bar Journal - February 2014

such as birth certificates, Social Security cards, marriage licenses, divorce decrees, mortgage information, car titles, military discharge papers, insurance policies, pension or retirement fund documents, the location and number of safe deposit boxes, even lock combinations or the whereabouts of keys to personal storage units. Legal Issues. The recognition of the importance of online privacy has created a tangle of issues for fiduciaries and estate attorneys. Federal laws such as the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act prohibit accessing personal digital information, and the Stored Communications Act (also known as Title II of the Stored Wire and Electronic Communications Act), part of the Electronic Communications Privacy Act of 1986 (ECPA), recognizes privacy rights in digital communications and protects files from disclosure by internet service providers. In 2012, Facebook successfully fought off a request by a decedent’s family that it open her account to them.6 The Court held that the ECPA protected the decedent’s privacy even after her death, and that Facebook was prohibited from releasing the contents to anyone without her permission. State laws can also prevent an executor from gaining access to the deceased’s electronic information, but some state legislatures are now recognizing the need for fiduciary access to digital assets. As of the end of 2013, seven states (Connecticut, Idaho, Indiana, Nevada, Oklahoma, Rhode Island, and Virginia) had enacted laws granting fiduciaries at least limited access to a deceased person’s online accounts, and several other states were considering similar legislation. Without legislation on the subject, a fiduciary could possibly face penalties just for trying to do his job. In response to this problem, the Uniform Law Commission is drafting a model act that would grant fiduciaries the power to manage and distribute digital assets.7 Tennessee Legislation. Legislation has been filed in the General Assembly to address these issues in Tennessee. Senate Bill 2077 and House Bill 1945, filed in

January 2014, if passed into law create the Digital Asset Protection Act of 2014. This Act would grant the personal representative of a testate or intestate decedent the right to access, take control of, distribute or terminate any digital accounts of a decedent and any digital assets owned by a decedent. “Digital accounts,” digital assets,” digital devices,” and digital records custodian” are all defined in the Act. The definition of “property” under Title 31 (Descent and Distribution) is expanded to include digital accounts and digital assets. Similar rights are granted to Trustees under trusts and to attorneys-in-fact under powers of attorney. The status of this legislation is unclear at this time. There is some sentiment in the legislature to delay consideration of this bill until 2015, allowing time for the National Conference of Commissioners on Uniform State Laws to complete its drafting of a uniform act dealing with fiduciary access to digital assets. So What Can a Poor Boy Do? Until Tennessee legislation is enacted, what is an estate attorney to do? If your client has any significant online presence at all, you should include in her Will instructions for disposition of digital assets and closure of accounts. Does she want her Facebook page deleted or memorialized? To whom does she leave her magic Elven sword purchased in her online role-playing game? Who inherits her eBay business? (eBay allows transfer of businesses, but not personal accounts.) Does your client want to leave behind a final post for her blog? What about farewell emails to family and friends? Powers of attorney over digital assets and Wills should delineate and empower a fiduciary to access, manage and close out the client’s online life upon incapacity or death. The important factors are to grant a fiduciary access to any and all devices, to make that person an authorized user

of any account, and to grant consent for that person to act as the client’s agent in dealing with any internet service provider or site administrator. According to the Uniform Law Committee, hitting each of those points “should be adequate” to avoid liability under state and federal laws.8 Sample Power of Attorney Clause. Without limiting the general grant of authority and power to my attorney-in-fact in this instrument, I grant to my attorney-in-fact any and all authority, power and access to any and all of my digital assets, including but not limited to documents, photographs, music, videos, movies, notes, records, memoranda, electronic communications and other information, data and records of all types, kinds and formats (collectively my “digital estate”) stored on any device or in any server or in the “cloud” or elsewhere. My attorney-in-fact may access, manage, deactivate, delete and take any and all other actions without limitation regarding my digital estate. My attorney-in-fact is also granted all authority, power and access over and to any digital and/ or electronic device or equipment (collectively the “device”) owned or used by me and may access any and all of my digital estate on any device. By granting my attorney-in-fact this authority, power and access over my digital estate and any device, I expressly provide that my attorney-in-fact: (1) has the same authority, power and access as I have; (2) has my lawful consent as an account holder or authorized user; and (3) is authorized as a user of any account, device or other repository of my digital estate.

This language can be pasted into the client’s durable general power of attorney or, in some instances, the client will prefer to sign a separate durable power of attorney dealing only with her digital estate. The digital POA may be supplemented by a separate document containing any wishes the client has regarding her online accounts and assets. A provision might be included allowing a fiduciary to hire outside help, if the agent isn’t comfortable maneuvering in the online marketplace. The client may wish to have a different attorney-in-fact for her digital assets than for the remainder of her estate. Sample Will Clause. Without limiting the general grant of authority and power to my Executor in this Will, I grant to my Executor any and all authority, power and access to any and all of my digital assets, including but not limited to documents, photographs, music, videos, movies, notes, records, memoranda, electronic communications and other information, data and records of all types, kinds and formats (collectively my “digital estate”) stored on any device or in any server or in the “cloud” or elsewhere. My Executor may access, manage, deactivate, delete and take any and all other actions without limitation regarding my digital estate. My Executor is also granted all authority, power and access over and to any digital and/or electronic device or equipment (collectively the “device”) owned or used by me during my life and may access any and all of my digital estate on any device. By granting my Executor this authority, power and access over my digital estate and any device, I expressly provide that my Executor: (1) has the same authority, power and access as I had during my lifetime;

(2) has my lawful consent as an account holder or authorized user; and (3) is authorized as a user of any account, device or other repository of my digital estate. This area is evolving and expanding at warp speed, and the legal system will likely always lag behind, perpetually in pursuit. Technology changes quickly in the digital age. It’s up to us to guide our clients through that brave new world out there. Stay tuned…scratch that…stay wired. n Jeff Mobley is a founding member of Howard Mobley Hayes & Gontarek, PLLC. Jeff is a certified estate planning specialist in Tennessee and a co-author of Pritchards. Jeff currently serves on the NBA Board of Directors. Laurie Parker is a Law Clerk at Howard Mobley Hayes & Gontarek, PLLC. She is will graduate from Belmont University College of Law this May as a member of its Charter Class. (Endnotes) Digital Set to Surpass TV in Time Spent with US Media, eMarketer (Aug. 1, 2013), http://www.emarketer. com/Article/Digital-Set-Surpass-TV-Time-Spent-withUS-Media/1010096.

Jackie Stewart, Survey: Online Banking Surges, Mobile Lags, American Banker (Sept. 8 2011), http://www. americanbanker.com/issues/176_175/online-bankingsurges-1042001-1.html?zk

Banking.com Staff, American Bankers Association Survey: Online Banking on the RiseI, Banking.com (Sept. 12, 2011), http://www.banking2020.com/2011/09/12/ american-bankers-association-survey-online-bankingon-the-rise/.

SEE Virtual Worlds® Sets Guinness World Record for ‘Most Expensive Virtual Property Purchase, BusinessWire (Mar. 31, 2011), http://www.businesswire. com/news/home/20110331005255/en/VirtualWorlds%C2%AE-Sets-Guinness-World-Record%E2%80%98Most#.UuAYvvvnbDc.

June 2013 Biggest .COM Domain Name Sales, Domain News (2013), http://www.domainnews.com/june2013-biggest-com-domain-name-sales.html.

6 Re Request for Order Requiring Facebook, Inc. to Produce Documents and Things, 923 F.Supp. 2d 1204 (N.S. Ca. 2012)(decision issued on Sept. 20, 2012).

See Fiduciary Access to Digital Assets Committee, Uniform Law Commission, http://uniformlaws.org/ Committee.aspx?title=Fiduciary%20Access%20 to%20Digital%20Assets.

8 Fiduciary Access to Digital Assets Committee, Uniform Law Commission, November 2013 Committee Meeting Draft (Oct. 22, 2013), at 10, http://www.uniformlaws.org/shared/docs/Fiduciary%20Access%20 to%20Digital%20Assets/2013nov_FADA_Mtg_Draft. pdf.

Nashville Bar Journal - February 2014

Profile

Bill Young

Administrator of the Administrative Offices of the Court by:

Bart Pickett

On November 8th, Bill Young became the newest administrator of the Administrative Offices of the Court (“AOC”). The AOC has three primary responsibilities: information and technology support for Tennessee courts, conducting seminars and providing other educational programs for Tennessee judges, and administration of the criminal indigent defense fund and guardian ad litem funds. The administrator serves at the will of the Tennessee Supreme Court. The Clarksville native graduated from Vanderbilt University in 1978. He finished Vanderbilt University Law School in 1981 with the likes of Mayor Karl Dean, former gubernatorial candidate Mike McWherther and Waverly Crenshaw of Waller Landsen. Following law school, Young served as law clerk to then Chief Judge George Paine of the bankruptcy courts. Young spent a significant portion of his career at the Tennessee Attorney General’s office beginning in 1985. He started out in the Tax Division where he stayed until he was tapped to be the Deputy Commissioner of Commerce and Insurance in charge of TennCare oversight. During that time he worked closely with longtime friend, Bob Corker, who was then the Finance and Administration Commissioner. After leaving his deputy commissioner post, Young went to the work for the Hospital Alliance where he was responsible for lobbying on behalf of non-for-profit hospitals. He later joined the Tennessee Hospital Alliance which represented all hospitals in Tennessee. Prior to re-joining the AG’s office in 2010, Young spent time in Chattanooga working for Blue Cross/Blue Shield as its General Counsel and Chief Compliance Officer. He 16 Nashville Bar Journal - February 2014

served in that role from 2002-10. Around the same time that his boss at Blue Cross, Vicky Gregg, was retiring, Young heard from Attorney General Cooper about serving as Solicitor General. Young gladly accepted and moved his family back to Nashville. As Solicitor General, Young was a part of the senior management team. He along with the two attorneys under him supervised all appellate work. Young also reviewed amicus briefs from other states for which Tennessee was asked to join in on the brief. Additionally, Young handled opinion letters on behalf of the Attorney General. Those opinions usually related to legislation. By statute, the Attorney General is required to issue written opinions if requested. Through this role, Young had lots of interaction with the state legislature which has helped prepare him for the next step. Despite loving his job as Solicitor General, Young took on a new role: Director of the Administrative Office of the Courts. Being asked by Chief Justice Wade, to serve the state in a new way, Young felt compelled to this new adventure. When accepting the position, he made one request: to allow him to hire a #2. Young wanted someone who he could work with and who had the ability to serve as second in command. He found that person in Ana Escobar who not only came highly recommended from numerous individuals but had also previously served with Young on the now defunct Judicial Nominating Commission. “Ana is a great person and lawyer. I’m not sure the Mayor is happy with me for stealing her away from Metro,” Young joked. Escobar most recently served as the Metropolitan Clerk.

The AOC is part of the judicial branch with roughly 70 employees (40% for informational technology, 30% for education, and 30% for the criminal indigent defense fund). As director, Young serves as the “face” of the AOC. When he took the job, Young committed to travelling across the state and meeting many of the judges he did not know. He did so because he “wants to get out there and find out these judges’ thoughts.” Perhaps Young’s biggest responsibility right now is the upcoming legislative session. Among other issues, next year brings debates about judicial redistricting. Young and the AOC will certainly have a front row seat Additionally, the second half 2014 brings about the election of all Tennessee judges.

ment of Health. She also did a stint at the Attorney General’s office from 1984-92 and worked as a staff attorney at the Tennessee Supreme Court from 1992-2003. They have one child, Beth (22), who is completing her Masters of Accounting at Wake Forrest University. In what leftover spare time Young has, he enjoys playing tennis and following baseball. He’s an avid Atlanta Braves fan and even has season tickets. Young looks forward to the challenges and experiences his new role will bring. He is both honored and nervous about following in the shoes of the retiring Libby Sikes. Based on the confidence placed in him by those in power throughout his career, the

judges of Tennessee should rest assured that Young is more than capable. As said best by his friend Lt. Governor Ramsey, “A man of high moral character as well as a keen legal mind, I have no doubt Bill will excel in this new role.”. Bart Pickett is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty Mutual Group, Inc.’s insureds and customers of its affiliated groups throughout Middle Tennessee. Prior to practicing, Pickett worked as a law clerk for the Honorable Judge Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joseph P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

In addition to spending much of his career serving the state and federal governments, Young dedicates much of his spare time to making a difference. He’s serving his second term on the Access to Justice Commission which the Supreme Court created to determine how we can better serve those in need of pro bono services. He also serves as the incoming chair of the Parks Center which is a nonprofit that provides various services including healthcare and housing services to the mentally ill and indigent. State service is familiar in the Young household. Young’s wife Jane Young serves as General Counsel for Tennessee Depart-

Nashville Bar Journal - February 2014

Interest

B*law*ging by:

Will Cheek

Why Should I Blog? Lawyering involves a delicate balance of too much to do and too little time to do it in. Work on your desk competes for limited personal time. Precious hours for downtime are quickly consumed. Sleep and relaxation suffer. New wavers Devo covered a classic song that captures things well: Workin in a coal mine Goin down, down Workin in a coal mine Whew! About to slip down Lord I am so tired How long can this go on? So, why blog? Here are four basic reasons: • • • •

New frontier for lawyers Education for client and referral base Source of business Appearances and establishing expertise

New Frontier Although blogging has been around for more than a decade, attorneys in general have done a poor job exploiting blogging as a new communication tool. Many attorney blogs regurgitate the newsletter format, featuring detailed legal articles that are posted months apart. These posts often read like condensed law review articles. In the internet age, the newsletter format does not work. Internet consumers are looking for quick, easy, entertaining, and useful information. Posting lengthy lawyerly articles is not blogging.

18 Nashville Bar Journal - February 2014

There is plenty of room in cyberspace for real attorney blogs. Education for Client and Referral Base Folks frequently turn to the internet for information. People are in search of answers to all kinds of queries from the internet, including legal questions. Sadly, much of the information on the internet concerning legal advice is wrong. In addition, legal information on the internet is usually not tailored to a particular legal field or location, such as Tennessee or Nashville. The fact that blogging is a new frontier for lawyers creates an opportunity for innovative attorneys to fill the void. If you follow some simple recommendations for blogging, your blog can easily become a destination for clients and referral sources – who want to regularly read informative posts about useful information. This is your primary objective. Your blog should become a go-to source for education concerning your blog topic. Do not expect your readers to pick up every post, but you want readers to visit regularly enough for your blog to become a destination. Source of Business As a young associate, I did not understand the importance of being a rainmaker. I get it now. If you have a book of business, you get more respect from your law firm. Although it takes time and patience, a good blog is an excellent source of business. My Last Call blog easily generates $50,000 to $100,000 in new business each year. Perhaps more importantly, I often hear from repeat clients that have read a blog post. Blogging is a great way to remind existing clients that you are an expert and that you

are around to help. My blog leads to new business from existing clients—for example, when I break news about a new legal issue that impacts clients. Becoming a trusted adviser to a client is one of the best ways to cement a long-term relationship with a client. Providing helpful information for free in a blog can pave the way for new relationships and strengthen bonds with existing clients. Appearances and Establishing Expertise People tend to seek out professionals that have a reputation for being the best. Traditional methods of becoming known as the best lawyer are largely passé in the internet era. I am not a fan of this, but in my experience, your appearance in internet searches is critical to becoming a rain maker. An AV Martindale Hubbell rating is not as important as being on the first page of a Google search. Blogging is an easy way to increase your visibility on the internet. If your name pops up in multiple searches on a legal topic, you appear as an expert on the topic. Internet search engines like Google are basically a popularity contest. A good blog can help you place your name near the top of the list in Google searches. There is only one word for being at the top of a Google search: Priceless.  Will Cheek blogs at Last Call: Your First Stop for Tennessee Liquor Law at http://lastcall.bonelaw.com/. Cheek leads the Alcoholic Beverage Team at Bone McAllester Norton PLLC. Cheek also helps entrepreneurs launch new businesses and takes pride in serving as “on-call general counsel” to established entrepreneurs.

Interest

Davidson County Criminal Appeals: Worth the Effort, Despite the Data by:

Jason Gichner

Successfully appealing a criminal conviction is difficult. Most convictions are affirmed on appeal. As an attorney who handles these appeals, I am often confronted with the questions of whether a case is worth appealing and what is the likelihood of success. These are not easy questions to answer. First of all, defining success can be tricky. Reversal of the conviction and dismissal of the case is clearly the gold standard. There are, however, many other results that qualify as success. Often, the best a client can ever hope for is a reversal of the conviction and a remand for a new trial. In certain circumstances, the client is seeking a sentence reduction or merely a remand for a new sentencing hearing. The first task is establishing a legitimate goal for the appeal. Unrealistic goals result in unsuccessful appeals.

In other cases, significant relief was achieved through the appeal. Interestingly enough, two of these cases involved pro se litigants. In State v. Thornton, a pro se appellant successfully convinced the Court of Criminal Appeals to reverse and vacate 170 separate convictions for violating an order of protection.5 Since the defendant had been convicted at trial of 180 counts for violating an order of protection, and sentenced to ten calendar days for each count, all running consecutively, this constituted a major victory on appeal. The appellate ruling not only vacated 170 convictions, but it reduced the total sentence by 1,700 days.

Once the appellate goal is established, a more informed discussion on the likelihood of success can take place. Clients need to approach criminal appeals with their eyes open and recognize that obtaining relief is an uphill struggle. In an attempt to illustrate how steep this uphill climb actually is, I reviewed all of the appellate criminal opinions for Davidson County cases from January 1, 2013 through October 22, 2013.

Another pro se example is Cole v. State, where Mr. Cole convinced the Court of Criminal Appeals to reverse the judgment of the trial court which summarily dismissed his post-conviction request for DNA analysis.6 The case was remanded to the trial court for further proceedings.7

During this time period, 165 appellate decisions were issued involving criminal cases that originated in Davidson County.1 The Tennessee Supreme Court issued two of these decisions. The remaining 163 opinions were issued by the Court of Criminal Appeals. Of these 165 appellate decisions, relief was granted in just 15 cases. This means that during this ten-month window, relief was granted in just over 9% of criminal appeals out of Davidson County. It is also interesting to look at the type of relief granted. In certain cases, the relief was very minor, such as in State v. Hidalgo, where the Court of Appeals remanded the case for a merger of two felony offenses.2 The ruling had no effect on the total length of the sentence, but did vacate one criminal conviction on Mr. Hidalgo’s record.3 Another minor victory was achieved in State v. Dalton, where the case was remanded to determine the amount of jail credit the defendant was entitled to receive on her sentence.4

Significant victories were also obtained by litigants represented by counsel. In State v. Webster, the Court of Criminal Appeals held that the evidence presented at trial was insufficient to support a felony conviction.8 The case was remanded for sentencing as a misdemeanor theft, as opposed to felony theft.9 A new trial was granted in State v. Tate, where the appellate court held that the trial court erred in admitting improper testimony.10 The Tennessee Supreme Court held in State v. Robinson that the evidence at trial did not support the conviction for a Class A felony and remanded the case for resentencing as a Class B felony.11 This likely resulted in a significant reduction of the total sentence given the range of punishment applicable to a Class A felony as opposed to a Class B felony. Continued on Page 21  Nashville Bar Journal - February 2014

20 Nashville Bar Journal - February 2014

Davidson County Criminal Appeals: Worth the Effort, Despite the Data Continued from page 19

In looking at all the cases where some form of success was achieved on appeal, there is a pretty mixed bag of relief. Four cases consisted of post-conviction relief involving a remand to the trial court for consideration of the post-conviction evidence.12 Two ordered a merger of offenses.13 Three cases involved either a reduction in the charge or a partial dismissal of the convictions.14 Three resulted in a reduction of the total sentence.15 Two resulted in the granting of a new trial, and one ordered a new sentencing hearing.16 There were not any appellate decisions involving Davidson County criminal cases in the last ten months where the entire case was reversed and dismissed. So given these statistics, why would a client ever appeal a criminal conviction? The answer is because the stakes are so incredibly high. A criminal conviction involves significant consequences, such as incarceration, loss of voting rights, difficulty in obtaining future employment, and various other hardships. If there is even a small chance of obtaining relief, it is worth a shot. The downside is the cost of the appeal, which certainly needs to be considered, but the cost of not even trying to obtain relief is greater. While the percentage of relief over the last ten months is relatively low, it is still a high enough percentage to justify appealing every single case where legitimate issues exist to raise on appeal. After all, those 9% of successful litigants would never have obtained relief if they lost hope in the face of the uphill climb. Two of these guys even managed to make it up the hill without a lawyer.  Jason Gichner is an associate at Dodson Parker Behm & Capparella, PC in Nashville. Jason is a graduate of the Western Trial Advocacy Institute in Laramie, Wyoming, and the Clarence Darrow Capital Defense College in Chicago, Illinois. A former supervising attorney at the Office of the Metropolitan Nashville Public Defender, he concentrates his practice in criminal defense, general litigation, and entertainment law.

(Endnotes)

This case survey entailed reviewing all Davidson County criminal appellate decisions as reported by the Tennessee Administrative Office of the Courts.

Cole, 2013 WL 4735471; Anthony D. Forster v. State, No. M2012-01641-CCA-R3-PC, 2013 WL 4033665 (Tenn. Crim. App., at Nashville, Aug. 8, 2013); Marcus Pearson v. State, No. M2012-01529-CCA-R3-PC, 2013 WL 1912586 (Tenn. Crim. App., at Nashville, May. 8, 2013); Frederick Alexander Avery v. State, No. M2011-02493-CCA-R3-PC, 2013 WL 451867 (Tenn. Crim. App., at Nashville, Feb. 6, 2013).

2 State v. Jose L. Hidalgo, No. M2011-01314-CCAR3-CD, 2013 WL 1197726 (Tenn. Crim. App., at Nashville, Mar. 26, 2013). 3

Id.

State v. Latonya Deon Dalton, No. M2012-01240CCA-R3-CD, 2013 WL 3820995 (Tenn. Crim. App., at Nashville, July 22, 2013).

State v. Elder Mark Anthony Thornton, No. M201102444-CCA-R3-CD, 2013 WL 322202 (Tenn. Crim. App., at Nashville, Jan. 29, 2013).

Willie Andrew Cole v. State, No. M2011-01676-CCAR3-PC, 2013 WL 4735471 (Tenn. Crim. App., at Nashville, Sept. 3, 2013).

Id.

State v. Michael Webster, No. M2012-00713-CCAR3-CD, 2013 WL 2457181 (Tenn. Crim. App., at Nashville, June 5, 2013).

Id.

State v. Joshua Brandon Tate, No. M2011-02128CCA-R3-CD, 2013 WL 3964122 (Tenn. Crim. App., at Nashville, July 31, 2013). 10

Robinson, 400 S.W.3d 529.

13 State v. Forrest Melvin Moore, No. M2012-02059CCA-R3-CD, 2013 WL 3874934 (Tenn. Crim. App., at Nashville, July 25, 2013); Hidalgo, 2013 WL 1197726 14 Webster, 2013 WL 2457181; Thornton, 2013 WL 322202; State v. Jim George Conaser, No. M201102086-CCA-R3-CD, 2013 WL 4505410 (Tenn. Crim. App., at Nashville, Aug. 21, 2013). 15 State v.Vernica Shabree Calloway, No. M201100211-CCA-R3-CD, 2013 WL 5372122 (Tenn. Crim. App., at Nashville, Sept. 24, 2013); Dalton, 2013 WL 3820995; Robinson, 400 S.W.3d 529.

Tate, 2013 WL 3964122; State v. Jermaine Johnson, No. M2012-00391-CCA-R9-CD, 2013 WL 1200346 (Tenn. Crim. App., at Nashville, Mar. 26, 2013); State v. Timothy P. Guilfoy, No. M2012-00600-CCA-R3-CD, 2013 WL 1965996 (Tenn. Crim. App., at Nashville, May 13, 2013).

2014 NBA Premier Members INCLUDE: Elizabeth A. Alexander Gail Vaughn Ashworth Kathryn E. Barnett Charles H. Beaty Barbara Bennett Charles W. Bone Jay S. Bowen C. Dewey Branstetter Jr. Joe B. Brown Kenneth Sherman Byrd Kathryn Caudle Mark P. Chalos John Ray Clemmons Dixie W. Cooper Patricia J. Cottrell John A. Day John Franklin Floyd Charles K. Grant John J. Griffin Jr. William L. Harbison Marian F. Harrison Trey Harwell Paul T. Housch R. Jan Jennings John D. Kitch William C. Koch Jr. Edward Dodson Lanquist Jr.

Thomas W. Lawless Claudia Vettel Levy Richard Wesley Littlehale Randal S. Mashburn Amanda J. McClendon Jeffrey Mobley Marlene Eskind Moses Patricia Head Moskal Michael I. Mossman Jonathan Parrett Gregory J. Pease Tracy A. Powell Benjamin M. Rose Edgar M. Rothschild III Maria M. Salas Thomas J. Sherrard III Emily A. Shouse Saul A. Solomon Michael G. Stewart James Gerard Stranch IV Hon. Aleta Arthur Trauger Irwin Bruce Venick Michael J. Wall James L. Weatherly Jr. Peter Weiss Thomas V. White Larry R. Williams Nicholas S. Zeppos

NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs & Services. Contact Vicki Shoulders (615.242.9272, vicki.shoulders@nashvillebar.org) for details. Nashville Bar Journal - February 2014

Disclosure Shane P. Morris has been elected as partner at Waller. He advises business clients on complex tax issues arising throughout all stages of the business lifecycle. Morris joined Waller in 2004 after earning his J.D., magna cum laude, from the University of Alabama School of Law and his LL.M. in taxation from New York University. He earned his B.S., magna cum laude, from Birmingham-Southern University. Elizabeth C. Sauer has been elected as partner at Waller. She advises investors, developers, managers and owner-operators in a wide variety of real estate transactions. Sauer joined Waller in 2010 after working for Arent Fox in Washington, DC and Wyatt, Tarrant & Combs in Louisville, Ky. She earned her J.D. from the University of Virginia School of Law in 2004 and her B.A., with distinction, from the University of Virginia in 2001. Matthew T. Harris has joined Baker Donelson as a shareholder. He handles acquisitions, dispositions, development, financing and complex leasing of industrial and distribution center projects, health care, multi-family, office and wireless communications properties. Richard L. Pensinger has joined Baker Donelson as a shareholder. He represents clients in the wireless telecommunications, health care and restaurant industries in the acquisition, sale and lease of commercial real estate. For more than a decade, he has represented a leading wireless telecommunications provider in the development, leasing, acquisition and disposition of network real estate assets throughout the country. Anne Marie Kempf has joined Baker Donelson as a shareholder. She handles voluminous site-selection matters for a major telecommunications provider. She supervises the transactions required for development, leasing, acquisition, and upgrade of thousands of communications 22 Nashville Bar Journal - February 2014

\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 facilities throughout the Southeast and Midwest. Her experience includes comprehensive mediation training, handling multi-state land acquisitions and financings, public-private partnership transactions, including tax incentive financings, and real estate development initiatives. John T. Herzog has joined Butler Snow LLP as a member of the Government Relations Group. He will focus on providing government relations, public policy and strategy for both corporate and association clients at a federal and state level. Herzog graduated cum laude from the University of Mississippi with a degree in psychology and chemistry. Paul Ney has been named shareholder at intellectual property law firm Waddey Patterson. He was previously Of Counsel at the firm. Ney’s legal practice has focused on civil litigation encompassing various intellectual property law matters in private and public settings. Ney is a 1980 graduate of Cornell University with an A.B. degree in Biology and a 1984 graduate of Vanderbilt University with both a J.D. degree and a M.B.A. degree. He is admitted to practice by the Tennessee Bar, California Bar, U.S. 6th Circuit Court of Appeals, U.S. 5th Circuit Court of Appeals, the Federal Circuit Court of Appeals, and the U.S. Supreme Court. Darlene T. Marsh has joined Dickinson Wright PLLC as a member. She focuses her practice primarily in commercial real estate with an emphasis on finance and environmental compliance. She represents automotive suppliers establishing their first manufacturing facilities in the United States, including tax incentives based on job creation. She received her B.S. from Tennessee State University and her J.D. from Vanderbilt University School of Law. Marsh is licensed to practice in the States of Tennessee and Alabama.

Andrea Barach has joined Baker Donelson as a shareholder and a member of the Firm's Business Department. She represents clients in a range of business transactions including acquisitions, dispositions and financings across several industries including health care, long term care, real estate development and finance. A major component of her practice has been the representation of long term care providers in their efforts to obtain financing with very favorable economic terms under FHA insured loan programs. Barach is a graduate of the University of Chicago Law School and is a member of the American Health Lawyers Association. She is also a member of the Nashville, Tennessee, and American Bar Associations. Carolyn Schott has joined the law firm of Sherrard & Roe, PLC as a Member. Schott’s experience is broad and includes federal and state tax, tax litigation, estate planning, exempt organizations and corporations. A graduate of the University of Kansas School of Law, Schott also holds a M.S. in Taxation from Grand Valley State University in Michigan and a M.A. in Philosophy from the University of Kansas. She completed her undergraduate work at Hollins University in Virginia. She is a member of the Nashville, Tennessee and American Bar Associations. Pele I. Godkin has been named partner with Cornelius & Collins, LLP. The focus of her practice is civil litigation, dispute avoidance and alternative dispute resolution, with an emphasis on workers’ compensation law. Godkin represents plaintiffs and defendants and is admitted to practice in all state courts, as well as the U.S. District Court Middle District of Tennessee. She is also certified by the Tennessee Supreme Court as a Rule 31 Listed General Civil Mediator. She is a graduate of the Seattle University School of Law. Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.

Welcome New NBA Members!

Jacob Alsup Matthew Anderson Keane Barger Taylor Isaac Bearman Bradley Arant Boult Cummings LLP* William Wells Beckett III Waller Lansden Dortch & Davis, LLP* Josie Beets Tennessee Bar Association Julie Ann Bigsby Metropolitan Public Defender Sarah Blood Farrar & Bates, LLP Terrance L. Bond Barry Gammons, Attorney at Law* Robert Barrett Bragdon Bragdon & Bragdon, P.C. Amanda Ashlee Brown Waller Lansden Dortch & Davis, LLP* Cory Alan Brown Waller Lansden Dortch & Davis, LLP* Cathy Bruner Waller Lansden Dortch & Davis, LLP* David John Bujdos Jr. Waller Lansden Dortch & Davis, LLP* Nicholas Burgett Melrose Law Group PLLC Aleah Cagle Rosemary Catherine Calcese Waller Lansden Dortch & Davis, LLP* Ross Carlson Evan Lawrence Clark Waller Lansden Dortch & Davis, LLP* Christopher Climo William Cline Mackenzie Collins The Collins Law Firm, PLLC James Coutts Harris Martin Jones, P.A.* Deanna J. Daugherty Jennifer Lea Dusenberry Office of the Public Defender Victoria Dutschmann Dustin Faeder Jody Faison Faison Law Leigh Ferguson Department of Commerce & Insurance Mark D. Folk Waller Lansden Dortch & Davis, LLP* Ellen Elizabeth Forrester Office of the Public Defender Dwayne Fortner Eric Brandon Fugett M.S. Waller Lansden Dortch & Davis, LLP* Jenna Fullerton Katie Garro Amanda Gentry Joel Kevin Hargis Department of Codes & Building Safety Melissa Hargrove Keeda Jarresse Haynes Office of the Public Defender Heath Henley Trevor Wayne Howell Gullett, Sanford, Robinson & Martin, PLLC*

Lynne Ingram U.S. Attorney's Office Mary Bethany Jackson Lindsay Elizabeth Jacques Waller Lansden Dortch & Davis, LLP* Stella Kamm Seamus Kelly Branstetter, Stranch & Jennings, PLLC* David Owen Kieley Office of the Public Defender Alan Korpady DeSalvo & Levine PLLC James Joseph Ladieu Tennessee Department of Transportation Brenton Hall Lankford Martin Heller Potempa & Sheppard, PLLC* Chandler Lawson Amanda Jane Lloyd David Bradley Malik Law Offices of David B. Malik, Esq. Eleanor Grams McCulty Waller Lansden Dortch & Davis, LLP* William Ellison McLaurin Waller Lansden Dortch & Davis, LLP* Chase Neely Chen George Ni Waller Lansden Dortch & Davis, LLP* Mary Ruth Pate Metropolitan Public Defender Richard Pearce Grant, Konvalinka & Harrison, P.C. Emily Petro Tennessee Higher Education Commission Brian Allan Pierce Waller Lansden Dortch & Davis, LLP* Jade Margaret Preis Waller Lansden Dortch & Davis, LLP* Jesica Renee Reeves Waller Lansden Dortch & Davis, LLP* Sarah Lynne Reist Gordon Law Group, PLC Toni Rutgerson Law Office of Toni Waynick Rutgerson Daniel Michael Spirko Waller Lansden Dortch & Davis, LLP* Christopher David Street-Razbadouski Office of the Public Defender LeAnne Stewart Sumner Office of the Public Defender Laci Tanner Courtney Teasley Courtney Teasley, Attorney at Law Michele Torsiglieri Toombs Circuit Superior Court Phillip Turner Ashleigh Melissa Hall VanLandingham Waller Lansden Dortch & Davis, LLP* Anna Waller Shirley Koh Sin Wang Waller Lansden Dortch & Davis, LLP* William Felon Wilson Waller Lansden Dortch & Davis, LLP* Will Woods Waller Lansden Dortch & Davis, LLP* David Patrick Wright Waller Lansden Dortch & Davis, LLP* Jeffrey Zager Sixth Circuit Court * Belongs to a 100% Club firm

Jason K. Murrie has been named partner with Cornelius & Collins, LLP. Murrie represents plaintiffs and defendants in his broad-based civil litigation practice, which includes personal injury, employment and commercial disputes. He is licensed to practice in all federal and state courts in Kentucky and Tennessee. He is a 2006 graduate of the University of Louisville Brandeis School of Law. Brian Neal has been elected as member in Stites & Harbison, PLLC. A litigator in the Business Litigation and the Torts & Insurance Practice Service groups, Neal concentrates his practice on trial work in connection with complex commercial disputes, badfaith insurance defense, products liability and general litigation. Neal holds a law degree from University of Michigan Law School, a master’s of science degree from the University of Edinburgh, and a bachelor’s degree from Birmingham Southern College. Sarah Clark Hannah has been named as Member inn Frost Brown Todd. Hannah represents public and private companies, from start-up ventures to multi-national corporations, in a wide array of corporate and commercial transactions, with an emphasis on mergers and acquisitions, commercial real estate, and franchise and distribution. Hannah is a graduate of Belmont University and Vanderbilt Law School.

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January Volunteers:

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To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided. Nashville Bar Journal - February 2014

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Advertiser Index DeLisi & Ghee, Inc. ................................. 17 Elder Law Practice of Timothy L. Takacs ..................................................... Back Cover IPSCO .............................. Inside Back Cover Lexus of Nashville ...................... Front Cover NBA Career Center ................................. 24 Thomas F. Bloom, JD ............................... 13 Thomson Reuters ..................................... 11

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                                           

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Elder Law Practice of Timothy L. Takacs

When the going gets tough, the tough call Tim Takacs When long-term illness or disability of elderly family members threatens to disrupt your clients’ financial, legal and emotional well-being, you don’t call just anyone. You call Timothy L. Takacs. illness or disability of During the long-term

aging lovedElder ones, clients may discover n Certified Law your Attorney n Architect of the don’t Life Care Planning to Elder Law that the pieces always fallapproach into place. n Accredited by the Department of Veteran Affairs n Charter member and first chairperson of the Tennessee

Bar Association’s Elder Law Section n Member of the National Academy of Elder Law Attorneys (NAELA)

since 1991, and former Board member n Charter member of the Special Needs Alliance n Martindale-Hubbell AV Peer Review Rating n Founder of The Tennessee Pooled Trust n Listed in Mid-South Super Lawyers magazine since 2006, The Best

Lawyers of America magazine since 2007 and US News Best Lawyers in 2012 n One of the founders and the first president

of the Life Care Planning Law Firms Association n Author of Elder Law Practice in Tennessee and A Guide to

Elder Law Practice, both published by LEXIS Law Publishing

For two decades, improving quality of life for elders and the families who love and care for them has been his primary focus. He can help your clients, too. Middle Tennessee: (615) 824-2571 Cumberland Plateau: (931) 268-5761 Toll-Free: (866) 222-3127 Family Website: www.tn-elderlaw.com Professional Education Website: www.elderlaweducation.com

Life Care Planning Elder Law Estate Planning Care Coordination