Nashville Bar Journal | June 2014 by Nashville Bar Association

Nashville Bar Journal

June 2014 - VOL 14, NO. 5

The Challenge of Unmanned Aerial Systems (UAS) Law James Mackler

The Importance of a Fair & Impartial Judiciary

(or Why Every Lawyer Should Vote on August 7, 2014) Liz Sitgreaves

Pay It Forward: Tennessee’s New Lawyer Mentoring Program Kelly Frey

Lexus | Nashville would like to welcome our next artist in residence

Ken Vrana showcasing his “ICON” series through November.

2010 Rosa L Parks Blvd Nashville TN 37208

A Monthly Publication of the Nashville Bar Association

Articles 6 The Challenge of Unmanned Aerial Systems (UAS) Law James Mackler

Departments 2 4

Pay It Forward: Tennessee’s New Lawyer Mentoring Program Kelly Frey

10 The Importance of a Fair & Impartial Judiciary (or Why Every Lawyer Should Vote on August 7, 2014) Liz Sitgreaves

16 Ride-Sharing Technologies: Will Regulators Choose the Correct Path? Matthew Pierce

19 ARTS IMMERSION 2014 Columns

From the President Communique • Golf Tournament Results • Lawyers for Littles - Bowl for Kids Sake • Golden Oldie Reveal • Upcoming Events

CONTINUING LEGAL EDUCATION CENTER SECTION

22 24

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.

NBA Calendar of Events JUNE 17 - 12 PM Ethics Committee Meeting

JULY 8 - 11:30 AM LAW Committee Meeting

JUNE 17 - 12 PM CLE: Drones

JULY 9 - 12 PM NALS Meeting

JUNE 19 - 2:30 PM CLE: Tort Refrom Update

JULY 15 - 12 PM Ethics Committee Meeting

JUNE 24 - 12 PM Memorial Committee Meeting

JULY 16 - 11 AM Business Law Committee Meeting

JULY 4 NBA CLOSED FOR HOLIDAY

JULY 17 - 11:30 AM CLE Committee Meeting

JULY 17 - 12 PM Government Lawyers Committee Meeting JULY 22 - 2:30 PM CLE: Using a Trial Technology Consultant in the Litigation Life-Cycle JULY 23 - 12 PM Community Relations Committee Meeting

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

From the President

Advancing our Experiment in Democracy— Expanding Voting Rights by:

Charles K. Grant

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 - June 2014

… and that government of the people, by the people, for the people, shall not perish from the earth." Abraham Lincoln, Gettysburg Address, 1863

We all know and take for granted that voting is so fundamental to our form of democracy. Probably more so than any other act, voting connects the average citizen to her government. It has been that way since the beginning. "No taxation without representation" was a rallying cry of New England colonists in the years before the American Revolution. They believed that because they were not represented in British Parliament they were being denied their rights as British citizens. Over the past two centuries, the advances in America's experiment in democracy have, in large measure, been due to the expansion of the franchise to her citizens. In 1789, the first election of the new Congress, only white landowning men had the right to vote in most states--about 6% of the population. Over the ensuing decades property requirements for voting were eventually eliminated. The Fifteenth Amendment, ratified in 1870, sought to extend the right to vote to millions of the recently manumitted and made clear that this right should not be denied on account of race, color, or previous condition of servitude. This amendment was intended to ensure that black males could vote. Although a few states allowed women to vote, they had to wait another fifty years, until 1920, before the Nineteenth Amendment ensured this right existed. Despite these constitutional amendments we know of the many barriers that were erected to prohibit blacks and others from voting. The American Bar Association's Law Day theme for 2014 is "American Democracy and the Rule of Law: Why Every Vote Matters." As we approach the 50th Anniversary of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, this theme calls on every American to reflect on the importance of the citizen's right to vote and the challenges we still face in ensuring that all Americans have the opportunity to participate in our form of democracy. Today, 30 states require voters to present identification to vote in federal, state and local elections. On the face of it, this does not seem like it should be a barrier to the ballot box. One might ask, "Who doesn't have a form of government issued identification?" The answer might be surprising. Many Americans lack the necessary identification that these laws require, and face barriers to voting as a result. According to a 2006 study from the Brennan Center for Justice (at New York University School of Law), nationwide more than 21 million Americans did not have government-issued photo identification; a disproportionate number of these Americans are low-income, racial and ethnic minorities, and elderly. (http://www.brennancenter.org/page//d/download_file_39242.pdf ). The study argued that Voter ID laws have the potential to deny the right to vote to thousands of registered voters who do not have, and, in many instances, cannot obtain the limited identification states accept for voting. They further assert that many of these Americans cannot afford to pay for the required documents needed to secure a government-issued photo ID. As such, these laws impede access to the polls and are at odds with the fundamental right to vote.

2014 NBA BOARD OF DIRECTORS

Millions of Americans are working, paying taxes and supporting their families but are unable to vote because of a conviction of a felony. According to the Sentencing Project (http://www.sentencingproject.org/template/page.cfm?id=133) nationally, an estimated 5.85 million Americans fall into this category. Felony disenfranchisement is an obstacle to participation in democratic life which is exacerbated by racial disparities in the criminal justice system. According to the Urban Institute (http://www.urban.org/UploadedPDF/412986-Imprisonment-and-Disenfranchisement-of-Disconnected-Low-Income-Men.pdf ) , 11.4 percent of African American men aged 20 to 34 were in prison in 2008, compared with just 1.8 percent of white men. One out of every 13 black Americans of voting age can't vote due to criminal disenfranchisement laws, a number much higher than for any other demographic. This ratio is more stark in Florida, Kentucky, and Virginia, where more than 1 in 5 black adults is barred from the polls. Overall, 2.2 million black Americans have lost the right to vote because of felony disenfranchisement laws. The patchwork nature of these disenfranchisement laws among the various states demonstrate that they serve no meaningful penological interest, especially in circumstances where persons have served sentences and have been returned to their communities. For example, ex-offenders in Maine and Vermont never lose the right to vote. In Tennessee, since 2006 ex-offenders can regain the franchise as long as they do not owe restitution (ordered as part of their sentence of conviction) and are current in their child support obligations. Doubtless, these financial obligations are very important, but must the inability to pay them prevent someone from voting? Let's keep the march toward full democracy moving forward by ensuring that all Americans have the right to vote. n

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.

https://www.facebook.com /NashvilleBarAssociation

@theNashvilleBar

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

communiqué JOINUS for a good night of fun for a great cause! Thursday, June 26, 2014 – Check In at 5:30 pm •Bowling 6-8 PM Hillwood Strike & Spare 3710 Annex Avenue, Nashville, TN 37209 (615) 425-2695 Visit www.tnbowling.org and sign up today! Questions, contact Todd Wilson at (615) 522-5661 or Sarah Beatty at (615) 522-5659

-Golden Oldies Justin Milam correctly identified the individuals in the May Golden Oldies photo. Pictured are: Robert Brandt and Gareth Aden

NBA Calendar of Events July 18, 2014 Casa Azafran Legal Clinic YLD co-sponsored free legal assistance Additional Dates: August 15, September 19, October 17, November 21, December 19, 2014 Sign up with Peter at pmalanchuk@constangy.com -----------------------------------------------------July 19, 2014 Carbolic Smoke Ball @Hard Rock Cafe - Reverb Room (Upstairs) -----------------------------------------------------July 24, 2014 Brews for Backpacks @Craft Brewed -----------------------------------------------------July 28, 2014 Happy Hour with the Judges @NBA Office -----------------------------------------------------September 25, 2014 NBA Free Member Picnic @Hall of Fame Park ------------------------------------------------------

Nashville Bar Journal - June 2014

October 17, 2014 Tennessee Supreme Court Historical Society Cocktail Reception @ The Cordelle (45 Lindsley Avenue, Nashville, TN) -----------------------------------------------------November 18, 2014 NBA Swearing-In @ AA Birch Building -----------------------------------------------------November 20, 2014 NBA Fall Memorial Service @ Downtown Presbyterian Church -----------------------------------------------------December 4, 2014 NBA Annual Meeting & Banquet ------------------------------------------------------

2014 Nashville Bar Association & Nashville Bar Foundation

May 15, 2014 - The Annual Golf Tournament was held this year at the Vanderbilt Legends Club in Franklin, TN. The tournament drew 24 teams that participated in a 4-person scramble.

THANKS TO EVERYONE WHO TOOK PART IN THIS YEAR’S EVENT!

1st Flight – 1st Place Vic Alexander Michael Davis Alex Dawald Samantha Boyd

1st Flight – 2nd Place Michael Ewing Will Helou Mark Donnell Dan Beasley

2nd Flight – 1st Place Blair Durham Aaron Woodard Josh Offutt Ben Winters

2nd Flight – 2nd Place Matt Cox Andy Pitchford Blake Bernard Nate Bailey

Longest Drive (female) – Janis Mize Longest Drive (male) – Scott Safford and Alex Dawald Closest to Pin – David King Longest Putt – Pete Ezell Hole Sponsors Anderson & Reynolds Middle Tennessee Collaborative Alliance Sherrard & Roe Tom Lawless Golf Cart Sponsors Alpha Court Reporting IPSCO Kraft CPAs

Nashville Bar Journal - June 2014

Feature

The Challenge of Unmanned Aerial Systems (UAS) Law by:

James Mackler

As dawn breaks over fields of cotton stretching toward the horizon, the morning song of the crickets is joined by the hum of an electric motor overhead. An eight rotor aircraft, no bigger than a hawk, is barely visible overhead. Onboard sensors are measuring the moisture content and chlorophyll levels of the plants below. High resolution cameras seek out weeds, check the status of farm equipment, and even scan for vandals. A farmer sits down at his kitchen table, opens his tablet computer and sees, at a glance, more information that he used to get from an entire day of scouting his field. He responds with the precise application of fertilizer, water and seed, increasing yields and saving precious resources.1 The technological challenges of the scene described here pale in comparison to the legal complexities. The commercial use of unmanned aerial systems (UAS or “drones”) involves a complicated and evolving patchwork of federal and state regulation, common law, and sophisticated business planning. The situation gets even more complicated when drones are used for law enforcement or investigation purposes. This article provides an overview of the future of commercial use of UAS and the current legal challenges. In the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012, Congress directed the FAA to take a number of interim steps toward the complete integration of unmanned systems in the national airspace no later than September 30, 2105. According to the Association for Unmanned Vehicle Systems International (AUVSI) Integration of UAS into the national airspace will create more than 34,000 manufacturing jobs and more than 70,000 new jobs in the first three years with total job creation of 103,776 by 2025. The total economic impact will exceed $82 billion within that time frame.2 The list of potential uses includes aerial photography, surveying land and crops, communications and broadcast, monitoring forest fires and environmental conditions, and protecting critical infrastructures. Federal Regulation 6

Nashville Bar Journal - June 2014

In 1981, long before drones were part of the national conversation, the FAA issued Advisory Circular (AC) 91-57, Model Aircraft Operating Standards. The one page circular advised “voluntary compliance” with safety standards for model aircraft operators.” It advised that model aircraft be operated below 400 feet and within line of sight of the operator. In 2007, the FAA issued a “Notice of Policy” in the Federal Register intended to clarify “FAA’s current policy concerning operations of unmanned aircraft in the National Airspace System”.3 The most important and controversial portion of this notice stated that “the FAA recognizes that people and companies other than modelers might be flying UAS with the mistaken understanding that they are legally operating under the authority of AC 91-57. AC 91-57 only applies to modelers, and thus specifically excludes its use by persons or companies for business purposes.” This 2007 “Notice of Policy” has formed the basis for a complete ban by the FAA on commercial use of UAS. The FAA has been attempting to prevent the commercial use of UAS through cease-and-desist letters and large fines. On October 17, 2011, Raphael Pirker was using a model airplane to take aerial photos over the University of Virginia. The FAA attempted to levy a $10,000 fine against Pirker, arguing that his aircraft was a UAS operating illegally for commercial purposes and engangering the public. In March of this year, an Administrative Law Judge struck down the FAA’s complaint. “There was no enforceable FAA rule” concerning Pirker’s aircraft, he wrote, and the government’s

insistence amounted to a “risible argument” that the FAA has authority over anything that moves through the air, including even “a paper aircraft, or a toy balsa wood glider.”4 The agency is appealing this ruling and continues to assert that “commercial flight requires a certified aircraft, a licensed pilot and operating approval. To date, only one operation, flying drones in the Arctic, has met these criteria.5 In the meantime a variety of entities are conducting limited UAS operations pursuant to a special FAA waiver process or “Certificate of Authorization” available only to public entities, private non-profit educational institutions, and their private partners. Tennessee Regulation Tennessee has been very aggressive in limiting the use of unmanned systems. In 2013, the Tennessee legislature passed T.C.A. 39-13-609, the “Freedom From Unwarranted Surveillance” act. With limited public safety exceptions, the act prohibits law enforcement agencies from using drones without a search warrant to gather evidence. On April 4, 2014, T.C.A. § 70-4-302 was enacted making it a Class C misdemeanor to “use a drone to conduct video surveillance of private citizens who are lawfully hunting or fishing.” On May 1, 2014, HB 1779 was signed into law. The legislation makes it a crime to use an unmanned aircraft to “capture an image” except under certain enumerated circumstances. These exceptions include limited uses for public safety, research, utility purposes, and situations in which the owner of the property captured in the image consents to the image. Liability Concerns As commercial UAS are integrated into the national airspace, it is inevitable that there will be accidents causing property damage and personal injury. For example, in May of this year, a United Airlines pilot reported a near miss with a camouflaged-painted UAV at 2,300 feet while making an approach to Tallahassee Regional Airport.

Questions of fault are particularly vexing when a vehicle is acting autonomously. In such a situation it is unclear how liability might be allocated among the drone manufacturer, owner, and “operator.” Until such questions are addressed on a legislative level, Courts will have to apply traditional common law concepts to these novel situations. Legal scholars are just beginning to tackle this problem.6 Privacy Concerns As already discussed, states have begun to address privacy concerns through legislation specifically aimed at UAS. The federal government has taken more halting steps. On May 23, 2013, Senator Mark Udall introduced Senate Bill 1057, the “Safeguarding Privacy and Fostering Aerospace Innovation Act” which would prohibit the use of UAS by private persons to conduct surveillance. The Bill did not make it out of committee. The United States Senate’s fiscal 2014 transportation appropriations measure made FAA progress on UAS integration contingent upon the FAA completing a detailed report on privacy impacts. It is settled law that individuals generally do not have a reasonable expectation of privacy in public or from a public vantage point. The Supreme Court has upheld warrantless searches of private property conducted by manned aircraft since the 1980s.7 On the other hand, in 2001, the Supreme Court held that the use of a thermal imaging device to obtain information from the interior of a home that could not be obtained through visual observation constituted a search, at least where the technology is not typically used by the public.8 It is an open question whether that same precedent would apply to the use of drones as the technology becomes increasingly available to the public. The Way Ahead Faced with the uncertain environment, many UAS operators are advertising business services that clearly violate the

FAA’s current regulatory stance while the FAA continues to insist on its authority to regulate and enforce restrictions on commercial applications of this emerging technology. Other entrepreneurs are taking a conservative approach, trying to work within the regulatory framework, in order to maximize their ability to jump into the market at the first possible opportunity. Law enforcement agencies are similarly reluctant to employ this very effective tool. As attorneys, we can work on behalf of our clients – whoever they may be – to shape the law as it develops. We can also ensure that our clients understand not just the current situation but our best estimate about what the near future may hold.  James E. Mackler is an attorney with Bone McAllester Norton PLLC. He concentrates his practice in the areas of federal criminal defense, regulatory compliance and civil litigation, where he has 15 years of experience defending and prosecuting criminal cases at the state, federal and military level. He is the founder of the firm’s recently launched unmanned aerial systems (UAS) focus, the first of its kind in the region. James also leads the firm’s veteran and military law efforts, helping former military members transition to the civilian sector and representing soldiers and officers in disciplinary hearings. This includes helping them develop entrepreneurial strategies as well as ensuring that veterans receive the services they need and deserve. He is a former military pilot and is slated to join the Air National Guard as their legal adviser on drone and cyber warfare issues. (Endnotes) This description is used with the permission of Farmspace Systems, LLC.

AUVSI, The Economic Impact of Unmanned Aircraft Systems Integration in the United States (Mar. 2013).

Unmanned Aircraft Operations in the National Airspace System, 14 C.F.R. Part 91, Docket No. FAA2006-25714 (Feb. 6, 2007).

Huerta v. Pirker, NTSB Docket No. CP-217 (Mar. 6, 2014).

FAA, Busting Myths about the FAA and Unmanned Aircraft, http://www.faa.gov/news/ updates/?newsId=76240 (last updated Mar. 2014).

Jeffrey K. Gurney, Sue My Car Not Me: Products Liability and Accidents Involving Autonomous Vehicles, U. Ill. J.L. Tech. & Pol'y 247 (Fall 2013); Geoffrey Christopher Rapp, Unmanned Aerial Exposure: Civil Liability Concerns Arising from Domestic Law Enforcement Employment of Unmanned Aerial Systems, 85 N.D. L. Rev. 623 (2009). 6

See California v. Ciraolo, 476 U.S. 207, 213 (1986); Dow Chem. Co. v. United States, 476 U.S. 227, 229 (1986); Florida v. Riley, 488 U.S. 445, 468 (1989).

United States v Kyllo, 533 U.S. 27, 29 (2001). Nashville Bar Journal - June 2014

Feature

Pay It Forward: Tennessee’s New Lawyer Mentoring Program by:

Kelly Frey

“ …ask not what your profession can do for you, ask what you can do for your profession.”1 This year Tennessee embarks upon a noble experiment – a CLE program designed to support newly graduated attorneys as they enter our profession. Under a new rule adopted by the Tennessee Supreme Court (based upon the recommendation of the Tennessee Commission on Continuing Education), senior attorneys completing approved coursework can obtain CLE credits and be certified to provide mentorship to new attorneys practicing in the state.2 The training and mentorship envisioned under the new rule is different from most CLE programs approved in Tennessee – it is not based upon substantive law or legal ethics, but rather professionalism, practice management, leadership, work/life balance, and the practical difficulties of our profession (especially as faced by young people just entering the practice of law). Why a Mentoring Program? Lawyers are killing themselves – literally. A recent report by CNN indicated that attorneys ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations (with other professionals such dentists, pharmacists, and physicians making up the top four at risk populations).3 According to the CNN report, lawyers are also prone to depression, which the American Psychological Association identified as the most likely trigger for suicide – lawyers are 3.6 times more likely to suffer from depression than non-lawyers. And as I recently learned in the mentor training I just completed, depression has its disproportionate genesis in law school. While entering law students are equivalent in their level of depression to other professions, by the middle of the second semester of law school that level of depression has increased – to almost three times that of other post-graduate students – and, statistically, stays at higher levels than most professions throughout a lawyer’s career.4

Nashville Bar Journal - June 2014

And if these statistics were not ominous enough, with the current economic environment and the continued imbalance between new lawyers graduating and new legal jobs available, we have created a potential crisis situation for even the best and brightest as they enter our profession. Tennessee’s New Mentoring Program In response to this potential crisis experienced by our new professionals, the state has initiated a new mentoring program designed to foster mutually beneficial relationships between new attorneys and experienced practitioners, reduce the isolation experienced by beginning attorneys, improve the quality of legal services received by clients from new attorneys, place renewed emphasis on the importance of professionalism and civility among those in our profession, and generally benefit the legal profession as a whole. Under Tennessee’s program, senior lawyers can receive a seven-year certification as an “Approved Mentor” if they (a) are currently licensed in Tennessee, in good standing, and have five years practice in Tennessee, (b) have not experienced disciplinary issues, and (c) have completed the mandatory training. This mandatory training requirement is focused upon the life challenges faced by new attorneys. But, it includes helpful information for any practicing attorney, regardless of age or experience.

Learning to be a Mentor My recent mentorship training started with self-assessments with respect to “how I think”. I took the Optimism Test and found out, not surprisingly, that I was somewhat of a pessimistic thinker.5 And according to my materials, “individuals who think pessimistically become depressed”! Luckily there is hope for us pessimistic thinkers – just change the way we think. My materials suggested I simply start by noticing good things. It’s that easy. It’s called “right spotting”. We all tend to concentrate on the negative things that happen in life – and then via our confirmation bias, we naturally confirm those negative things over and over (and over and over) again. That is why it is not the nine “good things” that happen during the day that we think about right before we fall asleep – it is the one “bad thing” that happened during the day that occupies our mind. In my case, all it took was following my mentorship materials and walking to the downtown drugstore to pick up a small lined notebook in which I wrote down three things every day that were “good” – good things that happened to me or that I experienced. It seemed silly the first few days, but as time passed I suddenly realized I was thumbing back through the pages and re-reading all of the good things I had experienced. And guess what? I wasn’t so negative, anymore. And what I had written in my right-spotting notebook just confirmed for me that good things do happen – day after day. I felt renewed … and blessed … and optimistic. And all it took was a $2 notebook and a couple of minutes a day to confirm what I should have known – being a lawyer is great! My recent training also suggested tips on how to best interact with others in my profession and how to balance my strengths and weaknesses against others’ strengths and weaknesses. In working with my staff,

I found that if I focused on their strengths they were much more engaged with me in projects and I got better results (while concentrating on staff weaknesses produces worse results, statistically the worst thing that a manager can do is just ignore their staff – creating what the mentorship materials referred to as employees who are “keepers of the nightmare” – the employees who perpetuate the worst events and character of the firm and who can convey those, explicitly or by their demeanor, to clients). Similarly, my strengths and weaknesses seem to be unique – and give me a perspective that is not shared by all. So even the process of communicating with someone who has opposite strengths and weaknesses can become a problem if I am not sensitive to their perspective and frame of reference. This is nothing more than the old adage of “writing for/speaking to your target demographic, not yourself ” – but the mentorship materials provided a set of small flashcards that dramatically demonstrated how miscommunications can occur when the words that are spoken are not heard as they were intended (and provided a helpful tool to reinforce that learning during a hectic day that tends to pass in six-minute increments based upon the billable hour). The training also provided great resources that are available online to all attorneys on topics from office politics to the unwritten customs and rules in the local practice.6 Things we never learn in law school and find out only fortuitously or at great personal expense in failures early in our practice. At the end of my training, I became eligible for the Supreme Court’s seven-year “Approved Mentor” designation (contingent upon a background and disciplinary history check). I also received CLE credit for the coursework and will receive another six hours of CLE credit for participation

this coming year as part of an approved mentoring plan with a new attorney. But as importantly, I received some exceptional information and training (which I only wish I had received as a young attorney) – information and training I would suggest might make each of us better attorneys (and better persons). The Advantages to Young Attorneys of Mentoring We all know the advantages of a mentor to a young professional – substantive knowledge when he/she needs it, introductions and networking, and having a champion he/she can use as a sounding board. But the Tennessee program takes this mentorship a step beyond these historical benefits. The Tennessee program concentrates specifically on the challenges of transitioning from law school to the practice of law. It helps young attorneys understand how their emotional state can influence (both positively and negatively) their professional careers. The training also provides much needed resources to help build the type of professionalism that makes leaders and sustains young attorneys faced with the challenges they each experience as they start their new careers. The Future of Mentorship in Tennessee For all of the benefits of the new mentorship program in Tennessee, there is one cautionary note – it is set for expiration at the end of this year unless readopted by the Supreme Court.7 So this really is an experiment to see if the bar can find ways to effectively elevate both the professionalism and the ease of entry of young lawyers into our ranks. From my perspective, the course materials and training were excellent and concentrated on some of the core issues we all face being lawyers – and I would highly Continued on Page 20 

Nashville Bar Journal - June 2014

Feature

The Importance of a Fair & Impartial Judiciary

(or Why Every Lawyer Should Vote on August 7, 2014) by:

Liz Sitgreaves

Law Day 2014’s theme—American Democracy and the Rule of Law: Why Every Vote Matters—holds true for the upcoming retention election of Tennessee’s appellate court judges. On August, 7, 2014, Tennesseans decide whether to retain or replace three Tennessee Supreme Court justices (Justice Connie Clark, Justice Sharon Lee, and Chief Justice Gary Wade) as well as the appellate court judges who sit on the Court of Appeals and the Court of Criminal Appeals. Each of the justices and judges on the ballot were placed on the bench under a form of merit selection and the Tennessee Judicial Performance Evaluation Commission has recommended each of them for retention. The August 7thelection, however, is about more than the justices and judges on the ballot; it is about the importance of maintaining a fair and impartial judiciary. The focus of the election should be on the quality of the judiciary rather than on any single issue or single opinion. The system of merit selection of judges, which began more than 74 years ago, permits judges to be selected based on their qualifications.1 The additional critical component of merit selection is the subsequent retention election of the judges, which follows a review by a performance evaluation commission. The benefits of this system of selecting judges is to insulate judges from political pressure and permit judges to make decisions in accordance with the law, also known as “decisional independence.”2 As the American Judicature Society has stated regarding merit selection: “An independent judiciary is one of the hallmarks of American democracy. For our judicial system to function independently and effectively, it is imperative that qualified judges be free to make appropriate decisions under the law.”3 As a result of the judiciary functioning independently and effectively, decisions that are in accordance with the law will not necessarily be popular.4

In recent years, attacks on the judiciary, which focus on a single issue or a single opinion, have increased. Prior to 2010, only four justices in the United States have ever been removed from the bench as a result of a retention election.5 In November 2010, three justices of the Iowa Supreme Court were removed after receiving less than 50% of the vote in the retention election.6 The campaign to unseat the justices focused on the Iowa Supreme Court’s decision invalidating the state’s ban on same-sex marriage.7 Similar campaigns to unseat judges occurred in Florida, Colorado, and Kansas.8 Campaigns against the judiciary have caused increased spending in judicial elections. Between 1990 and 1999, only $83.3 million was contributed to state supreme court candidates.9 This number rose to $206.9 million between 2000 and 2009.10 In the recent North Carolina Supreme Court primary race, spending exceeded $1.3 million, with 90% of the money spent by two groups that opposed the incumbent candidate.11 Notably, a comprehensive study by a team of independent researchers on the effect of campaign contributions on judicial behavior found that there was no statistically significant relationship between money and judicial decisions in retention election systems.12 Costly elections harm the public’s perception of the court by fostering the notion that campaign’s contributions impact the decision-making of the court.13 Continued on Page 14 

10 Nashville Bar Journal - June 2014

Nashville Bar Journal - June 2014

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

MONTH

Elmo MO-1 Visual Presenter

By: Bill Ramsey, Neal & Harwell, PLC and Phillip Hampton, LogicForce Consulting We have become spoiled to all of the nice tech accoutrements now readily available in newer federal and state courtrooms. All one has to do is just walk in with a laptop or tablet, plug in to the in-house multimedia system, and begin presenting their case. Often, however, we are tasked with using trial presentation technology in an older courtroom or in a more rural area. Then, we begin thinking about how to make up for the lack of in-house tech resources in the courtroom so we can still use technology effectively in presenting our case. Such was the case recently in a matter being tried in a rural jurisdiction. In our pre-trial assessment, we noted that the courtroom did not even have a document camera, commonly referred to as an "Elmo", which is actually the brand name for a very popular document camera found in many courtrooms. We knew that, at a minimum, we had to have a document camera to be able to display physical exhibits (paper or otherwise) on a screen for the jury. A document camera is a very popular device to have in courtrooms simply because, if all else fails, and you are unable or cannot display electronic versions of your exhibits on a screen for all to see, you can simply put a document below the document camera (which is attached to a projector). You can still display the image of the document, magnified on the screen. Most document cameras will allow you also to zoom in/out on the document as well as adjust the contrast and focus to increase the readability of the document. So the first item that we had to have in our electronic court kit for this trial was a document camera. We had a couple of qualifiers: it had to be portable (as we were going to have to take this on the road), and it had to be inexpensive -- as we did not have a huge tech budget for this trial. We remembered that we had seen a product at the Consumer Electronics Show last year from the company that made the original Elmo document camera. This smaller, portable device is dubbed the MO-1 Visual Presenter and can be purchased directly from the Elmo company website, www.elmousa.com. We noted that the price point, $399.99, was within our budget and much less than the larger, industrial strength visual presenters that you normally see in courtrooms. So we purchased the MO-1 in black (it also comes in white and pink -- yes, pink). After we received the MO-1 and unpacked it, we were really surprised at how small and compact the unit is. You can literally put this device in your computer bag or even your purse or manbag (Bill’s). It weighs just 1.3 pounds. Ultraportable….check. Affordable…check. Now, does it actually work well? We quickly hooked it up to test out our latest gadget. We connected the MO-1 to a projector using a regular VGA cable, but it also has an HDMI port as well. The camera arm of the device unfolds and can be raised to varying heights, depending on the size of the object or document that you are presenting. The 8X digital zoom allowed us to zoom in for a closer look at a particular paragraph or area of a photograph. The nice thing about a visual presenter is that you can present an image of a 3D object. For example, if you wanted to demonstrate what a witness was doing on a smartphone, you could simply put the smartphone under the camera and let the jury see you flip through the menus/screens on the phone on the projection screen. You can also press the Pause button on the MO-1 and retain the image of the document or object on the screen while you pick it up to read from. The projected image, by the way, was very crisp and clear. It was more than sufficient for our needs in the small courtroom. Continued on Page 13 

12 Nashville Bar Journal - June 2014

Continued from page 12

Several other features of the MO-1 that we did not use in our trial, but are still really cool are: • • •

The ability to capture images of objects on an SD card and play back the images through the MO-1 as a slideshow. Using the MO-1's built-in camera and microphone as a webcam when connected to a computer via the device's USB port. Powering the MO-1 via the USB cable only when connected to a computer.

While we don't think that courtrooms will be ditching their industrial strength visual presenters to replace with the MO-1 (the more expensive Elmo's certainly are more powerful and can display with greater precision), we do think the MO-1 is an excellent addition to any attorney's travel kit. For anyone who has a need to display documents or objects to smaller audiences with ease, we can't think of a better, more economical solution than the Elmo MO-1.  See you next month, —Bill & Phil

ORDER YOUR NBA DIRECTORY ONLINE TODAY @ WWW.NASHVILLEBAR.ORG What Does That Attorney Look Like Who You Only Communicate With Via Email? Need to find the New Address of an Old Law Parnter? ******************************************* Find Out In The New 2014 NBA Attorney Directory!

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Nashville Bar Journal - June 2014

The Importance of a Fair & Impartial Judiciary (or Why Every Lawyer Should Vote on August 7, 2014) Continued from page 10

In his May president’s column, Nashville Bar President Charles Grant encouraged lawyers to defend the courts from unfair attacks, which undermine the public’s respect for the courts.14 On May 27, 2014, the Board of Directors of the Nashville Bar Association passed a resolution resolving to officially support the retention of the judges on the Tennessee Supreme Court, the Court of Appeals, and the Court of Criminal Appeals in the August 7, 2014 retention election. The Resolution further encouraged the members of the Nashville Bar Association to vote in favor of retaining the Supreme Court justices and encourage others to vote in the August 7, 2014 retention election. Voter actions, coalitions, and other educational efforts in the 2012 judicial elections in Iowa and Florida proved successful in combatting unfair attacks on the judiciary. Lawyers in Tennessee have the ability to become engaged in these elections. The Coalition for Fair Courts started by the Lawyers’ Association for Women is a coalition of various bar associations and community groups committed to voter education and participation in the August 7th retention election. The Coalition’s webpage15 provides information on the retention election, profiles of the judges on the ballot, and resources including explanatory handouts and sample letters to the editor. Lawyers can use this information to educate friends and family on both the retention election and the importance of a fair and impartial judiciary. Justice Sandra Day O’Connor, when discussing the current trend of politicizing judicial elections, stated: “In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution.” Maintaining the impartiality of our appellate judiciary and maintaining the public’s respect for the courts in Tennessee are two important reasons that every lawyer, whether practicing in litigation, intellectual property, transaction, or probate, should vote on August 7, 2014. Every lawyer should also encourage non-lawyers to vote because fair and impartial courts benefit all citizens of Tennessee.  Liz Sitgreaves is an associate at the law firm of Dodson, Parker, Behm & Capparella, PC., and former law clerk to the Honorable Frank G. Clement. She is also co-chair of the Nashville Bar Association’s Appellate Practice Committee and is spearheading the Coalition for Fair Courts on behalf of the Lawyers’ Association for Women-Marion Griffin Chapter.

14 Nashville Bar Journal - June 2014

(Endnotes) Edward W. Najam, Jr., Merit Selection in Indiana: The Foundation For a Fair and Impartial Appellate Judiciary, 46 Ind. L. Rev. 15 (Symposium 2013).

Id. See also ABA Task Force on Int’l Rule of Law Symposia, Report to House of Delegates, Principles on Judicial Independence and Fair and Impartial Courts (Aug. 2007), available at http://apps.americanbar.org/rolsymposium/docs/aba_resolution_hundredtend.pdf.

Najam, supra note 1 (quoting Brief for Am. Judicature Soc’y, Amicus Curaie, in Support of Appellees & Affirmance of the Judgment of the District Court at 3, Kirk v. Carpeneti, 623 F.3d 889 (9th Cir. 2010) (No. 09-35860)).

4 Melissa S. May, Judicial Retention Elections After 2010, 46 Ind. L. Rev. 59 (Symposium 2013) (citations omitted). 5

Id.

Id. at 63.

Id.

Joanna Shpherd, Justice At Risk, An Empirical Analysis of Campaign Contributions and Judicial Decisions, Am. Const. Soc’y L. & Pol’y 5 (June 2013), available at http://www.acslaw.org/ACS%20Justice%20at%20Risk%20(FINAL)%206_10_13. pdf. 9

Id.

Brennan Center for Justice, North Carolina Judicial Primary Spending Exceeds $1.3 Million, Breaks Record, (May 7, 2014), http://www.brennancenter.org/press-release/record-breaking-nc-judicial-primary-spending-exceeds-13-million#.U2uVmfEia90.facebook.

Shepherd, supra note 9, at 5.

Id. at 1 (finding 76% of voters believe that campaign contributions have some influence on judges’ decisions).

Charles Grant, From the President, Lawyers Must Lead Against Unfair Attacks on the Tennessee Supreme Court, Nash. B.J. 2-3 (May 2014), available at http://nashvillebar.org/Publications/NBJ/Archives/2014/May.pdf. 14

The webpage is located at www.law-nashville.org/Coalition_for_Fair_Courts.

NASHVILLE BAR ASSOCIATION Benefits of Membership

The Nashville Bar Association helps build a sense of community and camaraderie among our members and comes with tangible and intangible benefits for your career, profession, and community. Our members come from the public and private sectors, from large multi-state firms to solo practices; they are judges, in-house counsel, law students, paralegals, educators, and everything in between. Here are a few of the many reasons to belong to the NBA…

• Connect with Your Local Legal Community The NBA provides numerous opportunities to meet and connect with other Nashville-area attorneys. Through networking, social events, continuing education, committee work, and other career and personal development opportunities, we help bring our profession together. • Expand Your Business and Client Base Build relationships, network, and gain referrals through activities and programs, CLEs, committee work, volunteer projects, or by joining the NBA Lawyer Referral and Information Service at the member rate. • Be a Better Lawyer Learn from fellow lawyers and judges at NBA events. Enhance your professional development through high-quality CLE programs and committee in-service meetings, and stay informed with insightful and timely articles in the Nashville Bar Journal. • Sharpen Your Practice Skills with CLE Attend our innovative, and engaging CLE courses featuring local, regional, and national presenters. Our skilled faculty will keep you current on the nuts and bolts of the law, local rules and customs, ethics and professionalism, winning practice strategies, and key practice procedures—all at special NBA member rates. • Give Back to the Community Serve the public and help improve the image of lawyers by participating in community service projects offered by the Young Lawyers Division and the NBA throughout the year, volunteer for Dial-A-Lawyer—a free call-in service where members provide general legal information to the public, or help with one of the many projects offered through the Minority Opportunities Program. • Meet New People Don’t just hang out with familiar faces. Use social gatherings, NBA CLE’s, committee work, and Young Lawyer Division events and community projects to build your network of contacts throughout Nashville and surrounding counties.

• Learn from the Experts Attend NBA CLEs to hear from law practice leaders who will share their expertise and practical experience. Be educated, enlightened, and even entertained by keynote speakers and other special guests from the legal community—local, regional, and national. • Be a Leader Set the pace in the legal community by serving on committees, publishing Nashville Bar Journal articles, helping produce or present CLE seminars, joining the Young Lawyers Division, participating on the NBA Board, or working with the Nashville Bar Foundation. • Refresh and Renew Yourself Take time out from your daily routine to attend a Bar event or activity—such as the annual Golf Tournament, Free Member Picnic or one of our many Happy Hour gatherings—and catch up with old friends or unwind with new ones. And more… • Use the NBA Center—to hosts meetings, arbitrations, depositions, and other events. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access. • Visit the NBA’s Online Career Center—where you can post your resume, search job postings, and access the career resources library. • Receive Announcement Emails—covering timely events, membership news, spotlighted events, and CLE announcements. • Participate in the NBA’s Lawyer2Lawyer Mentoring program—a web-based resource designed to connect experienced attorneys with newer attorneys who desire assistance with substantive legal issues or the personal and professional demands of practicing law. • Use the NBA Attorney Directory—to find names, photos, and contact information for Davidson County lawyers and judges, firm listings, court information, and areas of practice of local attorneys.

Nashville Bar Journal - June 2014

Feature

Ride-Sharing Technologies: Will Regulators Choose the Correct Path? by:

Matthew Pierce

Advancing technology and innovative thinking can make our everyday lives easier. It can lead to improvements in efficiency and productivity. It can also place a strain on regulators as they try to introduce new rules and requirements for new technology to ensure public safety. Recently, with the innovation of ride-sharing technology, this intersection has come to a head. Ride-sharing technology is a service that uses a cell phone application to arrange a one-time ride on very short notice. In Nashville, there are currently two companies who provide this service, Uber and Lyft, and one more preparing to enter the market, Sidecar. The ride-sharing technology has lowered the cost of taxi services by circumventing the traditional taxi licensing and using efficiencies created by modern technology. Here lies the problem: ride-sharing technology has created a new category of service that falls between current regulations. Traditional taxi companies claim the ride-sharing technology companies are unfairly advantaged because they do not have to abide by the standard licensing requirements of a traditional taxi service. Additionally, citizens and regulators have voiced concerns that the unregulated companies are putting the public at risk by not meeting the standard insurance requirements. The battle began in 2013, when limousine drivers fought in court to keep the minimum price for a limousine and car service rate at $45. The limousine drivers won the court case, but the city of Nashville took its own action soon after, lowering the minimum rate to $9. This breakthrough allowed Uber’s black car service to enter the city and opened the door for other ride-sharing technology. Now that ride-sharing has taken off in the Music City, regulators have proposed legislation to label the ride-sharing technology as a transportation networking company and regulate the services under the city’s ordinances for livery vehicles.1 Although Uber and Lyft claim their drivers abide by all of the required licensing and insurance standards, the new regulation would effectively force the companies to hold their drivers to higher standards and could lead to higher costs. 16 Nashville Bar Journal - June 2014

In order to address the issues involved with ridesharing technology, it is important to remember two things. First, ride-sharing technology is a disruptive innovation, meaning it is an innovation that helps create a new market and value network, which eventually disrupts an existing market and value network, displacing the older technology. Ride-sharing technology has introduced a new and more efficient way to conduct a cab-service, and it has lowered the costs associated with cabs. It is unlikely ride-sharing will completely displace the traditional taxi company, however it is likely to change the rates charged and how companies conduct business. Second, the purpose of the regulations is to ensure public safety. The rules regulators implement are not to hinder innovation or stifle small businesses, they are there to protect the consumers with minimum safety standards. Both of these are important to remember when balancing the separate interests involved, and when trying to address different solutions. This article begins with a preliminary discussion of whether states have the constitutional ability to regulate the ride-sharing technology, followed by a comparative view of regulation implemented in other states. Finally, the article concludes with a discussion of the different paths Nashville could take when regulating the ride-sharing

technology. Ride-sharing technology is a budding industry in Nashville, how the regulators react to the concerns of the public, the other taxi companies, and the industry itself will determine its usefulness and longevity. The States Have a Constitutional Basis to Regulate The states have constitutional authority to regulate ride-sharing technologies through the use of general police powers. As stated in Munn v. Illinois, the police powers allow the states to regulate conduct between their citizens when it becomes “necessary for the public good.”2 The police powers are limited by the substantive due process clause of the Fourteenth amendment; whereby regulation must bear some rational relation to a legitimate state interest.3 When seeking to invalidate a regulation using the rational basis review, one must negate every conceivable basis that may support the rational relation between the regulation and a legitimate state interest.4 However, as stated in Craigmiles v. Giles, a regulation that is solely related to the economic protection of a discrete interest group is not a legitimate government interest and cannot be upheld under the rational basis test.5 In Craigmiles, the Sixth Circuit ruled unconstitutional a regulation requiring a licensing requirement for casket merchants because the merchants did not engage in any activities that affected the health or safety of the public. The only rational basis for the requirement was to prevent economic competition with funeral directors. In the present case, the rational basis for regulating ride-sharing technologies resembles the economic protectionism mentioned in Craigmiles, but it is not the sole reason for regulation. Although regulating the ride-sharing technology would serve to protect the economic interest of the existing taxi industry, it also bears a rational relation to protecting the pub-

lic good, a legitimate state interest. The regulation would make it more difficult for ride-sharing technologies to operate efficiently, yet a legitimate state interest clearly exists to protect the public. In essence, the preliminary question of whether the states have the ability to regulate the ride-sharing technology is answered in the affirmative. The states have a constitutional basis to regulate ride-sharing technologies because there is a rational basis between the regulation and the public interest. Comparative Analysis of Other Regulatory Structures Other states have implemented regulation of ride-sharing technologies with varying degrees of strictness. In California, the regulator and the industry worked together through the rulemaking process to create favorable regulation.6 California did not aim to stifle the innovation of the ride-sharing technology, instead California aimed to add regulation, which would further legitimize the technology. For example, California recognized the California Public Utilities Commission as the official regulator of peer-to-peer ride sharing services, establishing a new category of business called “Transportation Network Companies.” In addition, the legislature added anti-discrimination regulations and mandatory limits on liability insurance. Both of which the ride-sharing technologies embraced as they had already established these policies in-house. Based on initial reports about the proposed legislation, this is the route Tennessee will likely take. The District of Columbia took the opposite approach of California and chose to exempt the ride-sharing technology from any traditional definitions of for-hire services. The District chose to exempt the technology at the municipal level. Although this was a good temporary solu-

tion, with lawsuits arising about liability and insurance, the District has since began to draft proposals for new rules for ride-sharing technology.7 The proposed rules are said to include many of the same requirements for minimum liability insurance and mandatory drug tests like California’s regulation. But it also said to include a regulation, which would require ride-sharing drivers to obtain a taxi license or only work a maximum of 20 hours per week. This regulation places a severe hindrance on the ride-sharing technology as licensing is extremely expensive in the District and working only 20 hours does not effectively allow a person to make a livable income. Both of these regulatory regimes arose after a series of incidents involving ride-sharing technology. In California, an Uber driver who was not driving a customer at the time killed a six-year old pedestrian. Uber denied any liability stating, the driver was not providing an Uber service at the time of the accident. Uber later came out with a statement declaring an expansion of their liability insurance to any time an Uber driver is logged into the application. In the District of Columbia, an Uber driver allegedly raped a young girl after he drove her home early one morning. The driver maintained his innocence and prosecutors eventually dropped the investigation.8 Uber later implemented a $1 safety fee to every ride, which supposedly is used to pay for more extensive background checks and liability insurance. Other cities have taken a more rash stance against the ride-sharing technologies. In Madison, Wisconsin, plain-clothed officers are using the service and then citing the drivers for violating city ordinances. The

Nashville Bar Journal - June 2014

Ride-Sharing Technologies: Will Regulators Choose the Correct Path? Continued from page 17

city attorney stated the ride-sharing technologies are operating illegally and they need to follow city ordinances. Each of these separate reactions to the entrance of ride-sharing technology has seen varied levels of effectiveness but each can be used to learn how to regulate. It should be noted the California regime was the first implemented and it is a statewide regulatory regime, preempting any actions by the separate municipalities to limit the use of ride-sharing technology and the Tennessee proposals most similarly resemble this regulation. Different Paths for Regulating Ride-Sharing Technology There are essentially three different paths Nashville could take in regulating the ridesharing technology. First, it could stay exactly as is and choose not to regulate ride-sharing technology at all, leaving it up to each individual company to provide safety standards on their own and allow the general public to weigh safety concerns themselves. The no-regulation scenario is highly unlikely. As mentioned above the city already proposed regulations requiring background checks and minimal liability insurance. Additionally, part of the purpose of the Transportation Licensing Commission is to ensure the safety of the public and by issuing no regulation, they are not fulfilling this obligation. The second option would be to regulate the ride-sharing technology exactly as normal taxi companies are regulated, requiring licensing, minimal insurance, and other safety standards. This is also unlikely because of the regulatory environment in Nashville and the city’s view towards expansion and innovation. As the city expands and the demand for reliable transportation options increases, if the city regulates all ride-sharing technology as normal taxi companies, the ride-sharing will not likely be able to expand because

18 Nashville Bar Journal - June 2014

of the costs associated with licensing. As an expanding city aiming to become a technological hub, it is unlikely the city would push out one of the more popular, new innovative technologies. The third and most probable option is to create a new category under which ridesharing companies can be regulated. As mentioned above, the proposed Nashville regulations look to create a category for “Transportation Network Companies,” as in California. With this new category, the ride-sharing technology could be required to meet certain insurance standards and safety standards. The purpose of this would be to protect the public from any gaps in the insurance policy carried by the drivers. The insurance gap was mentioned in a letter written by the Tennessee Department of Commerce and Insurance warning ride-sharing drivers there personal insurance often contains exclusions for driving for hire.9 Regulating the industry would help cover this gap. It would also legitimatize the business and eliminate any regulatory ambiguity. Both of these could actually help expand the ride-sharing technology, as the companies would be able to plan based on the regulations without worrying about future litigation. Further, this would allow the ride-sharing companies to work with regulators to shape the regulation based on standards they already have for their own drivers. This is the most probable and most logical option. It balances public safety and innovation in a favorable way. There is no guarantee on exactly what these regulations will look like. At the time of writing this article, no drafts of the proposals have appeared and there are only preliminary reports about what the regulation will entail. Hopefully, the regulators will issue rules, which keep in mind their purpose of protecting the public, while also trying not to push out the innovative technology. In any event, ride-sharing

technology brought the strain created by innovative technology to the forefront and this is a great chance to show wisdom and caution for the Nashville regulators in implementing effective legislation.  Matthew Pierce is a third-year law student at the University of North Carolina and a graduate of the University of Tennessee. Matthew is currently an Editor of the North Carolina Banking Institute Journal and President of the Transactional and Corporate Law Association. His legal education has focused in areas of finance, securities, and banking law. Matthew plans to return to Tennessee to pursue these interests and contribute to the Nashville community. (Endnotes) Jamie McGee, Nashville’s New Cab Rules Could Target Uber, Lyft, The Tennessean, Mar. 10, 2013, http:// www.tennessean.com/story/news/2014/03/10/nashvilles-new-cab-rules-could-target-uber-lyft/6262097/.

Munn. v. Illinois, 94 U.S. 113 (1877).

United States v. Carolene Products Co., 304 U.S. 144, 148 (1938). 4

Craigmiles v. Giles, 312 F. 3d 220 (6th Cir. 2002).

Id.

Ca Pub. Util. Code § 5360.5 (2013).

Jared Meyer, Manhattan Moment: D.C.’s War on Ridesharing Services, Wash. Examiner (May, 2, 2014), washingtonexaminer.com/manhattan-momentd.c.s-war-on-ridesharing/article/2547996, reprinted in Economic Policies for the 21st Century (May 2, 2014), http://www.economics21.org/commentary/ dcs-war-ridesharing-services. 7

Peter Hermann & Clarence Williams, Limo driver arrested by D.C. police to be released, Wash. Post, (Mar. 14, 2013), http://www.washingtonpost.com/ local/uber-driver-charged-with-raping-woman-indc/2013/03/14/2bbf4c8e-8cb0-11e2-9838-d62f083ba93f_story.html. 8

Press Release, Tenn. Dep’t of Comm. & Ins., Department of Commerce and Insurance Warns of Ride-Share Auto Insurance Coverage Gaps (Mar. 12, 2014) available at https://news.tn.gov/node/12367.

The 6th Annual Arts Immersion was held on Wednesday, May 28, 2014 at the W.O. Smith School and exceeded its fundraising goal, raising $11,400 in support of the ABC's Volunteer Lawyers & Professionals for the Arts program! Over 300 tickets were sold for the event. Arts Immersion featured performances by Elise Davis, Lucas Carpenter, and Nashville Stagecraft as well as an interactive art piece facilitated by artist Auriane de Rudder. Other event highlights included a Jack Daniel's bourbon tasting table and a unique silent auction. A HUGE THANK YOU to the following: • THE EVENT SPONSORS: First Tennessee (Lead); Jack Daniel's (Bourbon); W.O. Smith (Host) •

PATRON COMPANIES: Baker Donelson; Bass, Berry & Sims; Bone McAllester Norton; Butler Snow; Bradley Arant Boult Cummings; Bowen Hayes & Kreisberg; Burr & Forman; Emma; International Entertainment Buyers Association; Milom Horsnell Crow Rose Kelley; Neal & Harwell; Waddey Patterson; Walker Tipps & Malone.

•

COMMITTEE MEMBERS: Lauren Kilgore, Kelly Donley, Ryan Levy, Mary Lauren Teague, Mary Katherine Schweihs, Kent Wolfenbarger, Jeremy Cain, Anita Modak-Truran, Jenna Harris, Kathryn Baker, Emily Dennis, Christy Hruska, Anjilee Khurana, Earle Simmons, Chip Greene, Amos Maley, Jeremy Brook, Courtney Karnes, James Patrick Urban, Franklin Graves, Catherine Moreton, Betsy Appleton, Shellie Handelsman, Lauren Spahn, Kaley Pennington, Ryder Lee, Joanna Collins, Sara Beth Gideon, Sarah Ballenger, Allyson Patterson

Nashville Bar Journal - June 2014

Pay It Forward: Tennessee’s New Lawyer Mentoring Program Continued from page 9

recommend that we make this type of training available to our entire bar (not just new attorneys). And in surveying the other senior attorneys going through the mentorship program I was impressed by their substantive knowledge, experience, and professionalism – this is a self-selected group dedicated not only to performing at their maximum as attorneys, but also contributing back to the profession. So I think we have the beginnings for an excellent program and I hope that we can extend the evaluation period sufficiently for the program to be objectively evaluated as to its results. Conclusion Every great leader has one final task before he/she can step down from that position of leadership – succession planning. As a profession, we need to look at the legacy we would like to pass on to the next generation of attorneys. We can inspire that next generation to learn, to participate, to

achieve – and we should. But unless we can also equip our new lawyers with the emotional resources and tools required to personally prosper, then we fail in our task of creating the type of leaders our local bar needs in the coming years. I think that is the best part of Tennessee’s new mentorship program – it is focused on building the type of character we all aspired to when we first choose this profession – the type of character we each strive to display when we are at our best.  Kelly L. Frey, Sr. is a partner with the Nashville Tennessee office of Dickinson Wright and can be reached at 615-620-1730 or kfrey@dickinsonwright.com. (Endnotes) 1 Derivation from John F.Kennedy, inauguration address, Jan. 1961.

Rosa Flores & Rose Marie Arce, Why are lawyers killing themselves? CNN (Jan. 20, 2014), http:// www.cnn.com/2014/01/19/us/lawyer-suicides/.

A recent informal poll of my classmates from law school indicated that they also experienced this statistically significant increase in depression during the second semester. Our entering law school class was divided into three sections, alphabetically by last name. We bonded with our section mates, who all shared the same class schedule and teachers. While our section members now include federal and state judges, law school professors, and esteemed members and leaders of the bar, we all distinctly remember that less than half of the section that began law school that fall with us actually graduated (an unusual attrition rate that contributed to our section’s unique cohesiveness, paranoia, and depression as we watched the seats in our section empty over those three years).

Authentic Happiness, Univ. of Pennsylvania, www. authentichappiness.org.

See Tenn. Bar Assoc., Mentoring Resource Sheets, http://www.tba.org/resource/mentoring-resourcesheets (providing recourses in downloadable PDFs).

See Tenn. S. Ct. R. 21, § 4.07(d); Petition to Amend Rule 21, supra note 2. 7

2 In re: Petition to Amend Rule 21, Section 4.07 (Mentoring Experiences), No. M2010-00913-SC-RL1-RL (Tenn. S. Ct. Jan. 11, 2013), available at http://www. tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_21_sec_4_07__01-11-2013.pdf [hereinafter “Petition to Amend Rule 21”].

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SUPPORTING GREAT ORGANIZATIONS IN OUR COMMUNITY FOR At First Tennessee, we believe that giving back is a great investment. That’s why we’ve always supported community-minded organizations like the Nashville Bar Association. From 1864 to many more years to come, we’re committed to strengthening our relationships and promoting progress in the places we’re all so proud to call our home.

OFFICIAL BANK PARTNER OF THE NASHVILLE BAR ASSOCIATION

Nashville Bar Journal - June 2014

Disclosure C. Dewey Branstetter Jr. has joined Sherrard & Roe as a partner. A Nashville native, Branstetter has maintained a litigation and transactional practice representing a wide range of entities and individuals for over 30 years. He currently concentrates on utility and municipal issues, employment matters, and complex litigation. Branstetter was an elected member of the Metropolitan Board of Public Education for eleven years, acting as Chairman for three. He has served on the boards of numerous other organizations such as Community Foundation of Middle Tennessee, Center for Nonprofit Management, Nashville Alliance for Public Education, and Harding Academy. He is currently Chairman of the Metropolitan Charter Revision Commission and First Vice President of the Nashville Bar Association. Joshua R. Denton has joined Gullett Sanford Robinson & Martin PLLC as a member. He will practice mainly in the firm’s Litigation section. . He routinely represents clients in complex commercial litigation involving business torts, breach of contract claims, real estate disputes, land use planning and zoning matters, and intellectual property. He earned his law degree from the University of Kentucky College of Law and a B.A. in journalism and political science from the University of Kentucky. Morgan Ribeiro has joined Waller to serve as Executive Director of the healthcare department. In this newly created position, Ribeiro will work directly with Waller’s Healthcare Steering Committee to lead in the development and implementation of the department’s strategy and client development activities. A graduate of Tulane University, Ribeiro has significant experience working with a wide range of healthcare organizations, including hospitals, health systems, and pharmaceutical and healthcare technology clients throughout the United States. 22 Nashville Bar Journal - June 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 Paula Barnes, Legal Administrator with Burr & Forman LLP, was inducted as president of the Association of Legal Administrators (ALA). Barnes is the first Nashville resident to serve in this international leadership position, serving the organization’s 9,000 members worldwide who are involved in the management of law firms, corporate legal departments and government legal agencies. She was inducted on May 21 at the ALA’s 2014 Annual Conference & Exposition in Toronto, Ontario, Canada. Barnes earned her bachelor’s degree from Grand Canyon University and her master’s degree from Baylor University.

Jennifer Clinard Surber has joined the law firm of Parker, Lawrence, Cantrell & Smith. Surber will be Of Counsel, focusing her practice on probate law and civil litigation. She is a 1999 graduate of the University of Memphis School of Law, and a 1996 Phi Beta Kappa, Magna Cum Laude graduate of the University of Tennessee. She brings over fourteen years of experience, serving for ten years as counsel to the Probate Court for Davidson County. She also served as Special Probate Master for the Seventh Circuit Court of Nashville and Davidson County in 2013. Surber will use her experience to help individuals and families with planning through wills and other instruments, probating estates, establishing conservatorships for disabled adults, and establishing guardianships for minors. She will also represent clients in general civil litigation matters. Phillip Miller has been invited to present at the national convention of the American Association for Justice (AAJ). The AAJ is the nation’s most recognized voice for the education and advocacy of the legal profession. Miller’s presentation will emphasize the use of focus groups in shaping a legal case. The convention will be held July 26-July 30 in Baltimore, Maryland.

Ben Katz, an associate in the Burr & Forman LLP’s Financial Services Litigation practice, has relocated to the firm’s Nashville office. Previously based in Burr & Forman’s Fort Lauderdale office, Katz assists clients in the financial services industry. He is the second attorney to relocate to Nashville this month. Katz’s practice covers a wide range of litigation matters with particular emphasis on the defense of claims under the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Telephone Consumer Protection Act. He also has experience working in the areas of commercial litigation, labor and employment, and bankruptcy. He received his undergraduate degree with honors from the University of Georgia and his law degree from Emory University School of Law.

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

June Volunteers: David Cooper Helen Cornell Gina Crawley Christopher Hugan Lawrence Kamm Tom Lawless Doug Pierce Joe Rusnak To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided.

LEGAL AID SOCIETY AWARDED $50,000 GRANT FOR VOLUNTEER LAWYERS PROGRAM The Corporation for National and Community Service has awarded Legal Aid Society of Middle Tennessee and the Cumberlands a $50,000 AmeriCorps Planning grant.

Welcome New NBA Members! Jocelyn Jeanne Adkins

Legal Aid Society is one of three Tennessee organizations to receive a 2014-2015 AmeriCorps planning grant administered by Volunteer Tennessee, a 25-member bipartisan board organized to encourage volunteerism and community service.

Kevin Bonin

Legal Aid Society will use the award to plan a capacity building program using AmeriCorps service members as liaisons for its Volunteer Lawyers Program, which engages the private bar to provide pro bono legal services across 48 counties in Middle Tennessee and the Cumberland Plateau. The planning will culminate in an AmeriCorps State Formula Grant proposal in 2015. “In most of the counties that we serve, Legal Aid Society is the only place that low income families can find legal help. Working with volunteer lawyers leverages our resources,” said Lucinda Smith, director of the Volunteer Lawyers Program. “This grant enables us to create a program to extend the Volunteer Lawyers Program’s reach and to provide effective legal help to more people in our region.”

Christopher M. Caputo Baker, Donelson, Bearman, Caldwell & Berkowitz, PC*

Legal Aid Society has eight offices that provide free civil legal assistance to low-income and vulnerable populations in 48 Tennessee counties. Legal Aid Society’s services provide families living in poverty an opportunity to obtain basic necessities, such as healthcare, housing, income, protection from family violence and access to basic goods and services. Visit www.las.org to learn more about Legal Aid Society.

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.

Timothy Capria Waddey & Patterson, P.C.*

Mackenzie Emerson Eileen Forsythe Whitney Haley Lewis, Thomason, King, Krieg & Waldrop , P.C.* Eugenia Izmaylova Brent Albert Kinney North, Pursell & Ramos, PLC Riochard Andrew Marrero Joanna C. McCracken Hall, Booth, Smith, P.C. Zachary Miller Burr & Forman LLP* Loren E. Mulraine Bone McAllester Norton PLLC* Ann Ralls Niewold Mark Andrew Peckham Jeffrey Simpson Lentix, Inc. Julianne Sullivan Gordon Law Group, PLC Theadore Charles Wills III Cole Law Group * Belongs to a 100% Club firm

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

Nashville Bar Journal - June 2014

Classifieds

Office Space For Sale or Lease Historic Office Bldg. For Sale or Lease: .8 Acres, corner lot with traffic light. 3400 sq. ft. 12 minutes from Courthouse, ample parking and ample on-site storage. Quick access to Opryland, Airport, hospital, and all interstates. 1215 Gallatin Rd. S. Contact Steve North, 615-860-7644; stevenorth@comcast.net 2 Blocks from courthouse Class A office space for rent in trendy residential area 2 blocks from courthouse. Three attorney offices. Traditional style with hardwood floors throughout, wide molding, exotic granite countertops & elegant alabaster sconce lights. Includes lobby, conference room, work room, two large secretarial stations, kitchinette and telephone system. Free parking. Covered parking available. Contact Carl Neuhoff, HND Realty LLC. 2977711 / 390-6186 / c.neuhoff @hndllc.com Downtown Office space for rent. Support staff to share. 501 Union St., Ste. 504. Call Cynthia Bohn 615252-8866. Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550. Office Space Nashville attorney with established civil law practice looking to share office space and support staff. Please call (615) 251-5448.

Vacation Rentals Golf Getaway: The Cottages at Olde Stone Bowling Green, Kentucky Arthur Hills Signature Course 3 BR – 3 ½ baths – Full kitchen – Grill Screened porch on 9th Fairway Dining – Tennis – Resort Pool/ Hot Tub – Fitness Center Contact Amy Gilmet: (502)357-1901

Legal Nurse Consulting Handling cases with medically related aspects? Best Practice Legal Nurse Consulting can help you with superior case preparation. Best Practice can screen cases for merit, find expert witnesses, write summaries and chronologies of medical records, along with other services. Contact Lisa at 615-481-5047 or visit bplnc.com for more information.

Classifieds Online @ www.nashvillebar.org Advertise your Office Space in the Nashville Bar Journal

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

Visit the NBA's Career Center & Get Started Today: http://jobs.nashvillebar.org/home Employers:

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- Place your job in front of our highly qualified members

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- Create an anonymous job seeker profile or upload your anonymous resume so - Limit applicants only to those who are qualified employers can find you - Fill your jobs more quickly with great talent

24 Nashville Bar Journal - June 2014

Elder Law Practice of Timothy L. Takacs ..................................................... Back Cover IPSCO .............................. Inside Back Cover First Tennessee Bank ................................. 21 Lexus of Nashville .......................Front Cover

Expert Witness Office Space

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Loews Vanderbilt Hotel ............................ 20 National Academy of Distinguished Neutrals, Tennessee Chapter .................................... 11 NBA Directory Purchase Form.................. 13 NBA Career Center .................................. 24 Thomas F. Bloom, JD ............................... 24 Thomson Reuters ...................................... 19

Should You Join the NBA LRIS? LRIS Markets & Advertises Your Services When you join the NBA LRIS,

your practice benefits from the LRIS’ marketing and advertising programs. Currently, LRIS reaches potential clients through advertising in the Yellow Pages in various telephone directories throughout the state. Clients are referred to us through a variety of sources including the courts, Office of the Attorney General, employee assistance programs, other Bar Associations and the Social Security Administration. Also, our on-line presence attracts clients nationwide. JOIN NOW Contact: Wendy Cozby, LRIS Coordinator (615) 242-9272 | wendy.cozby@nashvillebar.org The NBA Lawyer Referral & Information Service is the Exclusive Referral Service for the Nashville Bar Association.

Advertising: Contact Tina Ashford at (615) 242-9272 or tina.ashford@nashvillebar.org Classified Advertising: Rates: $75 for the first 50 words and $1 for each additional word. Available Sections: Expert Witness, For Sale, Forensic Document Examiner, Technical Support Services, Office Space, Litigation Services, Office Sharing, Vacation Rentals and Accounting.

Display Advertising: Full and Half Page color and black & white advertisements. Quarter and Eighth Page black & white advertisements. Please contact Tina Ashford for a display advertising quote.

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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 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