Nashville Bar Journal | August/September 2019 | The "How To" Issue: Practical Tips for Attorneys

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JOURNAL Journal Journal

AUGUST/SEPTEMBER 2019 | VOLUME 19 | NO. 4

FEATURE

How to Be Successful in the Courtroom: Local Judges Share Tips from the Bench ALSO

What Your Startup Client Wants You to Know The “ABC” Method of Courtroom Persuasion Trial Presentation in the Digital Age


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JOURNAL 6 Journal Journal AUGUST/SEPTEMBER 2019 | VOLUME 19 | NO. 4

FE ATU R E

How to Be Successful in the Courtroom Compiled by Editorial Committee

DEPA R TM E N TS

From the President

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Calendar of Events

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Laura Smith

Hear Ye, Hear Ye

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2020 Board Elections ABA Delegation Annual Member Picnic Carbolic Smoke Ball Karaoke Happy Hour Membership Renewals John C. Tune Award

19 Photo Gallery 38 Hearsay 40 100% Club 42

CLE Schedule

to Advise Startups: 11 How What Your Client Wants You to Know

Candi Henry & Kylene Henry

29 How to Cross-Exam:

The “ABC” Method of Courtroom Persuasion

Richard McGee & Kevin McGee

31 How to Use New Tech Tools:

Trial Presentation in the Digital Age

Kristin Thomas

CO L UMNS

Background Check 13 Bart Pickett Capitol Notes 15 Peggy Sue, the Beagle Hound Gadget of the Month 17 Bill Ramsey & Phillip Hampton

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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JOURNAL JOURNAL FROM THE PRESIDENT Effective Communication | Laura Smith Journal This issue’s “How To” theme made me think about Journal non-legal skills that make us better lawyers and en-

LAURA SMITH, Publisher

WILLIAM T. RAMSEY, Editor-in-Chief

CAROLINE E. SAPP, Managing Editor LAUREN POOLE, Managing Editor

JILL PRESLEY, Layout/Design/Production

EDITORIAL COMMITTEE JERRY BRIDENBAUGH KIMBERLY CLARK TIM ISHII KELLY FREY ROB MARTIN OLIVIA PARK BRUCE PHILLIPS BART PICKETT SYDNEY RAINES MIKE SANDLER KRISTIN THOMAS JONATHAN WARDLE CRAIG WEBB ELEANOR WETZEL NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1050, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1050, Nashville, TN 37219-2419. No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/NashvilleBarJournal. The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials to Jill.Presley@ nashvillebar.org to be considered by the editorial committee for publication in a future print or online content. NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1050 Nashville, TN 37219 615-242-9272 | NashvilleBar.org The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. The NBA—with 2,500+ members—is the largest metropolitan bar association in Tennessee.

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hance our personal brands. In 2018, an AllAboutLaw column detailed seven qualities every good lawyer should have: communication, judgment, analytical skills, research skills, people skills, perseverance, and creativity. I can say that communication, perseverance, and creativity have been particularly pivotal in my professional and personal development. I suspect that most lawyers think they are good communicators. However, simply talking—even effectively delivering a message—doesn’t make anyone a good communicator. Being an effective listener is essential to being a good communicator. I think many lawyers listen to respond. Before we debate, defend, or antagonize, we should instead pause, reflect, and digest. Next, we should ask questions to gain a deeper understanding. Further, we should seek clarification appropriately. Finally, to be an effective listener, we should acknowledge others’ feelings—even when we don’t agree with them. Perseverance is a driver of success in the practice of law. Legal representation, in all its forms, requires that we work diligently, respond well to setbacks, change course when necessary, occasionally refocus, and even fight when the situation demands it. Law school and the bar exam prepared us to persevere. And yet, overcoming challenges—professionally or personally—can still be discouraging. Sometimes, we are transfixed on the end result and become overwhelmed by the steps to reach the end. There are some practical things we can do to develop a practice of perseverance. First, experts say that we should be ever-mindful of the ultimate goal. Also, when presented with a challenge, it is important to minimize the time before taking the first action to attack it. For me, the key to perseverance is taking one small step, and then another, and another—until the goal is achieved. Finally, the best lawyers are creative. When most of us think about creativity, we think of the arts rather than the rule-following practitioners of the law. However, creativity has its place in the practice of law: new ideas, reframing arguments, or interpreting legal authority in a novel way. We don’t tap into creativity by thinking harder, though. Scientists believe your greatest creativity may come when your brain is disconnected. Finding outlets from your work to connect with nature, listen to music, or exercise will help you generate creative ideas. Investing some time in activities like doodling, writing a short story (Ernest Hemingway is said to have practiced writing a six-word story), or brainstorming taglines for your brand will boost your creative juices. By exercising those creative muscles, creativity will likely seep into your law practice. I hope that in the months ahead, you will challenge yourself to be a more engaging listener, persevere through challenges, and incorporate increased creativity in your law practice. I also hope you’ll make use of other how-to tips in this issue, as well. n —

NASHVILLE BAR JOURNAL | AUG/SEP 2019


NashvilleBar.org/ Calendar of Events | Full calendar online at NashvilleBar.org.

AUGUST 2019 M O N D AY

T U E S D AY

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F R I D AY

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NBFLF Steering Committee Mtg 4:00pm Dial-A-Lawyer | 6:00-8:00pm

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6 LAW Board Mtg | 11:30am NBA Board Mtg | 4:00pm

12 Law Firm Administrator’s Lunch 11:30am

Membership Committee Mtg 9:00am

NALS Mtg | 12:00pm

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YLD Board Mtg 12:00pm | Waller

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NBJ Editorial Committee Mtg 12:00pm | Neal & Harwell

Memorial Service Committee Mtg 12:00pm

Ethics Committee Mtg | 12:00pm NBF Trustees Mtg | 12:00pm

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7 Historical Committee Mtg 11:30am | Hal Hardin’s Office

NBA Happy Hour: Karaoke Edition 5:30pm | Alley Taps

20 NBFLF Steering Committee Mtg 4:00pm

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SEPTEMBER 2019 M O N D AY

T U E S D AY

W E D N E S D AY

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Dial-A-Lawyer | 6:00-8:00pm

F R I D AY NBA Delegation to Caen, France

NBA Delegation to Caen, France

LABOR DAY

Diversity Committee Mtg | 12:00pm

Holiday | NBA Office Closed

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3 LAW Board Mtg | 11:30am NBFLF Mentor Orientation 4:00pm

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YLD Happy Hour 5:30pm | Bearded Iris

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YLD Board Mtg 12:00pm | Waller

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Memorial Service Committee Mtg 12:00pm

NBFLF Steering Committee Mtg 4:00pm

Probate Committee Mtg | 11:30am

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NALS Mtg | 12:00pm

Ethics Committee Mtg | 12:00pm

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4 Historical Committee Mtg 11:30am | Hal Hardin’s Office

Belmont Law School Outreach 12:00pm

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CLE Committee Mtg | 11:30am Finance Committee Mtg | 4:00pm

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Tennessee Paralegals Association 12:00pm

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Membership Committee Mtg | 9:00am

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Executive Committee Mtg | 4:45pm Annual Member Picnic 5:30pm | Walk of Fame Park

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JOURNAL JOURNAL Journal Journal

2019 NBA BOARD OF DIRECTORS LAURA SMITH, President

Hear Ye, Hear Ye |

Events of Interest

2020 Membership Renewals

It’s time to renew your membership! The 2019 membership year ends on October 31. You may renew online at NashvilleBar.org/Renew (it only takes a few minutes!) or by contacting Vicki at Vicki.Shoulders@nashvillebar. org or 615-242-9272. If your firm is part of Firm Billing with the NBA, please check with your administrator before renewing online. Thank you for your continued support and membership! n

LAURA BAKER, President-Elect

JACQUELINE DIXON, First Vice President

WENDY LONGMIRE, Second Vice President SAL HERNANDEZ, Secretary MALAKA WATSON, Treasurer JEFF ALLEN, Assistant Treasurer GULAM ZADE, YLD President LELA HOLLABAUGH, General Counsel ERIN PALMER POLLY, Immediate Past President BRANT PHILLIPS, First Vice President-Elect TRACY KANE, Second Vice President-Elect MICHAEL ABELOW RAQUEL BELLAMY DANIEL BEREXA MARK BEVERIDGE HON. MELISSA BLACKBURN BRIGID CARPENTER SAMUEL FUNK MARY TAYLOR GALLAGHER JEFF GIBSON LYNNE INGRAM MARTESHA JOHNSON RYAN LEVY

Annual Member Picnic (It’s Free!)

The 2019 Annual FREE Member Picnic will be held on Thursday, September 26, from 5:30-8:30pm at Walk of Fame Park—located downtown across from the Country Music Hall of Fame. This event is co-sponsored by the Metro Law Department. Family-friendly, casual environment, a delicious BBQ dinner, friends and colleagues galore, music, and an open bar stocked full of local beers and wine. We’re also offering Lyft discount codes so you don’t have to worry about parking downtown (see Travel and Accomodations section on the event page online). For sponsorship and registration information, visit Nashville Bar.org/Picnic or email Traci. Hollandsworth@nashvillebar.org. We look forward to seeing you there! n

CHANCELLOR ELLEN HOBBS LYLE LIZ SITGREAVES ERIC SMITH DARKENYA WALLER CHANCELLOR BILL YOUNG STEPHEN ZRALEK

NBA TEAM MONICA MACKIE, Executive Director SHIRLEY CLAY, Finance Coordinator WENDY COZBY, Lawyer Referral Service Coordinator JAN MARGARET CRAIG, CLE Director TRACI HOLLANDSWORTH, Programs & Events Coordinator JILL PRESLEY, Marketing & Communications Director CHELSEA RAYMER, CLE Coordinator VICKI SHOULDERS, Membership Coordinator, Office Manager

HAVE AN IDEA FOR AN ARTICLE? We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Jill.Presley@nashvillebar.org.

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Tune Award Nominations

We are now seeking nominations for the John C. Tune Public Service Award to be presented at the Annual Meeting & Banquet on Thursday, December 5, at Music City Center. The purpose of the award is to recognize members who make outstanding contributions to the greater Nashville area community while distinguishing themselves as practicing attorneys. To submit your nomination, email Traci.Hollandsworth@nashvillebar.org no later than Friday, October 18, expressing why you believe your nominee is deserving of this prestigious award. Visit NashvilleBar.org/Awards for more information. n

NASHVILLE BAR JOURNAL | AUG/SEP 2019


2020 Board of Directors Election

Members of the NBA will be electing six new Directors to serve on the Board for a four-year term commencing January 1, 2020. If you are an active member of the NBA and are interested in being considered for Board service, please submit your name for consideration to Monica. Mackie@nashvillebar.org no later than Friday, August 16. The election will take place in November, and all members whose 2020 membership dues are received no later than Thursday, October 31, will be eligible to vote. n

YLD Carbolic Smoke Ball

This year’s 22nd Annual Carbolic Smoke Ball will be held on Saturday, August 17, at 21c Museum Hotel, from 8:00pm to 12:00am. ​All members of the Nashville legal community and their guests are invited! The evening will feature live entertainment, heavy hors d’oeuvres, and an open bar serving your favorite wine, beer, and cocktails. The dress code is cocktail attire. Visit NashvilleBar. org/Carbolic for sponsorship and registration information. n

Notice of ABA Election Notice is hereby given of the election of the Nashville Bar Association’s Delegate to the American Bar Association House of Delegates. The term of this position is January 1, 2020, to the conclusion of the ABA Annual Meeting in August, 2022. The Delegate will represent the NBA before the ABA House of Delegates, which typically meets during February and August of every year. The Delegate will be expected to report to the NBA on issues and policies coming before the ABA. This position will be filled by election by a majority of the NBA Board of Directors at its meeting on November 5, 2019. Eligibility has been determined by the NBA Board of Directors to be a member in good standing of the NBA, as well as the ABA, both at the time of election and throughout the term of office. Candidates shall file their notice intent to run for office by submitting any written declaration of intent to do so to: Nashville Bar Association, Laura Smith, NBA President, 150 4th Ave N, Ste 1050, Nashville, TN 37219. The declaration must be received no later than Tuesday, October 1, and include a copy to Monica Mackie, NBA Executive Director. If you have any questions, please contact Monica at monica.mackie@nashvillebar.org or by calling 615-242-9272. n

NBA Happy Hour: Karaoke Edition

In Music City, it seems like everybody has talent—even NBA members. If your dream is to be the next American Idol, make plans to attend this one-of-a-kind evening of karaoke on Tuesday, August 20, at Alley Taps in Printers Alley. Don’t worry if you can’t sing, as talent is not required. Awards will be given along with free food, free drinks, and lots of free entertainment. Visit NashvilleBar.org/Karaoke to learn more. n

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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Feature Story | Compiled by Editorial Committee

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NASHVILLE BAR JOURNAL | AUG/SEP 2019


How to Be Successful in the Courtroom: Local Judges Share Tips from the Bench

Whether you are a seasoned attorney or a law school graduate waiting for the bar results, now is the time to get into “back-to-school mode” and strengthen your courtroom skills. Several local judges provided us with the following tips on how you can improve your practice in the courtroom. Judge Joseph P. Binkley Davidson County Circuit Court Answering Questions — When an attorney or witness is asked a question, answer with a “yes”, “no” or “I don’t know.” The “yes” may be a “yes, but . . .” or a “no, but . . .” followed by an explanation. Too many witnesses answer questions with the explanation only, and when that occurs, it is difficult—and at times, impossible—for the trier of fact to know what the answer is to the question. Using Courtroom Technology — When using the overhead projector, an attorney should not use his or her fingers to point to the specific areas of the document for the trier of fact to consider. Use a pen instead, as some fingers are large, have unseemly hair, or have painted fingernails that are distracting, which diminishes the effect of the written material. Use clean and clear copies for exhibits. Frequently, documents are copied many times, and the words are smudged and the trier of fact is unable to read the documents clearly. Print can be small, so if using a projector, zoom in to highlight the important sections, and leave the document on the screen for a sufficient time for trier of fact to see.

Maps of intersections and roads where motor vehicle collisions occur are extremely helpful to the trier of fact. Have the witness draw where the vehicles were before the impact, and then, have the witness draw the positions of the vehicles after the impact. The Court has a stylus, which can be used to draw on the screens. When an attorney is using courtroom technology, call the court personnel and schedule a time to practice before the trial. It would also be helpful to have the clients attend, so that an attorney can show the clients how the system works. Filing Deadlines — When extending a scheduling order, always file a motion to extend a deadline before the deadline expires. When filed after the deadline has passed, the attorney must demonstrate that the failure to meet the deadline was due to excusable neglect and that the opposing party has not been prejudiced by the delay. See, e.g., Kenyon vs. Handal, 122 S.W.3d. 743, 756 (2003). Summary Judgment Motions — When responding to summary judgement motions, keep in mind the standard for granting the motion is the same standard that the trial court must follow in granting a motion for a directed verdict. The non-moving party must present specific facts showing there is a genuine issue for trial, and the non-moving party must do more than simply show there is some metaphysical doubt as to the material facts. When there is a properly supported motion, the burden then shifts to the non-moving party to set forth specific facts, not legal conclusions. The facts on which the non-moving party relies must be admissible at the trial; however, the facts need not be in admissible form. For (continued on page 8) (continued on page 00)

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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How to Be Successful in the Courtroom (continued from page 7)

example, an affidavit or a declaration is admissible either to support or oppose a motion for summary judgment, but affidavits and declarations are not admissible at a trial. On the date the summary judgment is scheduled to be heard, the moving party is challenging the opposing party to “put up or shut up” on a critical issue, and after being given sufficient time for discovery, if the non-moving party does not “put up,” summary judgment will be granted. Judge Melissa Blackburn Davidson County General Sessions Court, Division II Arrive on Time – If an attorney is in the courtroom and ready to proceed, we can usually get the attorney out and on his or her way in a prompt manner. Stay Available – If an attorney has a case before the court, making him or herself available helps the process move quickly and efficiently. Be Prepared – Without good answers to questions, I may not have all the facts to decide in an attorney’s client’s favor. Coming to court prepared is critical to success. Look the Part – How an attorney presents himself or herself to the court, both in appearance and action, demonstrates the attorney’s level of respect and competence. Always Be Respectful – Our system is successful because judges, attorneys, and court staff respect the court. Many times, attorneys mistake deference to the judge as the only sign of respect for the court. The entire process is strengthened, however,

NASHVILLE BAR JOURNAL | AUG/SEP 2019

by an attorney’s regard for procedure, the law, and especially, the attorney’s clients. Judge Mark J. Fishburn Davidson County Criminal Court I preface my remarks with the understanding that all judges have different personalities and approaches to the fulfillment of their duties and responsibilities. I, for one, may be described as having a generally laissez faire approach to courtroom management, particularly in trials, and as long as the lawyers play by the rules, because I believe that the attorneys know how to best present their case before the court or a jury. That being said, I offer a few observations that I hope will benefit those who survive the trenches. Each of these topics could be an article unto themselves and do not cover the full gamut of tips that could be offered. Be Prepared, Be Prepared, Be Prepared – Oratory talent and magnetic charisma are wonderful traits to have as a trial lawyer, but nothing is a substitute for preparation. Being able “to think fast on your feet” or to “act cool under pressure,” is a plus for successful lawyers, but it doesn’t happen naturally. It happens because the attorney is prepared. The attorney should know the facts, the opponent’s facts, the law that applies to those facts, and how to interpret those facts favorably in light of the prevailing law. “Winging it” is not the same as “thinking fast on your feet” or “acting cool under pressure.” (continued on page 14)


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ABOUT THE NASHVILLE BAR ASSOCIATION The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. The NBA—with over 2,600 members—is the largest metropolitan bar association in Tennessee.

150 4th Ave N, Ste 1050 • Nashville, TN 615-242-9272

LOG ON TODAY! N a shvill e Ba r.o rg /Ca re e r Cent e r


CAN YOU NAME THESE PEOPLE?

Be the first person to email the correct answer to Jill.Presley@nashvillebar.org, and your name—along with the correct answer—will appear in the next issue.

JUN/JUL GOLDEN OLDIES

Congrats to David Raybin of Raybin & Weissman for identifying the individuals in last issue’s photo. From left to right: John McLemore, Bob Brandt, and Gareth Aden.

NBA Firm Spotlight

Thank you to the Law Offices of John Day for all you do for the NBA. We value your membership and support! (pictured L to R: Hilari Boggess, Paralegal Manager; Penny Whitaker, Client Intake Manager; Carey Turner, Accounting Manager; John Day, Joy Day, Laura Baker, Caroline Sapp, Brandon Bass, Liz Sitgreaves)

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NASHVILLE BAR JOURNAL | AUG/SEP 2019


Editorial |

Candi Henry & Kylene Henry

How to Advise Startups: What Your Client Wants You to Know It’s no mystery that Tennessee is on the rise in startup activity. In the Kauffman Index’s most recent study on the matter, Tennessee ranks 14th in the nation, and it ranked highest in the nation for the “Opportunity Share of New Entrepreneurs.” So, who are these new entrepreneurs? Certainly, many are Millennials born between 1981 and 1998. After all, according to the Pew Research Center, Millennials make up the highest percentage of the workforce, and they are forecast to overtake the Boomers as the largest segment of the population as a whole in 2019. But startup entrepreneurs do not have an age limit. Moreover, some research suggests that the average entrepreneur is about 42, and that the founders of high-growth startups are 45.1 More than the age of their founders, today’s startups are marked by their culture. This means lawyers need to understand how startup culture works and what the founders need to succeed. Your startup client wants to tell you four things: 1. Speak My Language, Okurrr? Lawyers are used to advising businesses, but a startup company does not have a traditional business model—the startup business model is conceived with the idea of rapid growth and change.

It is easy for the uninitiated lawyer to find herself adrift when trying to adapt to the traditional model of legal advice for a new-model client. A new franchise owner, for example, might arrive with a pre-defined agenda of needed services. A startup client, on the other hand, might not have much more than an idea and a computer. Here, your role is just as much counselor as it is scrivener—and to provide counsel, you need to speak the same language. Embrace the startup vocabulary—it is essential to your law practice. Do you know what a Unicorn is? How about a Cockroach? Do you know what it means to be Ramen Profitable? When your client says it uses Scrum/Agile in the workplace or that it operates on a SaaS/PaaS/IaaS model, you have to know and understand those concepts before you can advise how those factors impact matters ranging from employee handbooks to client contracts. Also, remember that while change is inherent in a startup, the meanings of words may change, too. In tech parlance, this is not a bug, it is a feature. But contracts are still contracts, employees are still employees, IP is still IP, and deals are still deals. Your skills are transferrable to the startup world, so long as you are willing to learn (continued on page 12)

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Editorial |

How to Advise Startups (continued from page 11)

some new vocabulary.

pression of confidence.

2. I Need You to Adult for Me Your startup client probably knows a lot of stuff you don’t. He or she may talk finance on the first day. They may walk in the door with deals in the works from major industry players. But don’t be lulled into thinking your client fully understands securities or is prepared to operate a business—or even wants to be involved in the day-to-day details. Your startup client needs you to be proactive. Startup culture has also embraced a common belief of the Millennial generation—that some responsibilities are for “adults.” As a generation, Millennials perceive “adulthood” differently than older generations.2 So, your startup client may welcome help with “adulting.” Startup culture encourages entrepreneurs to think about things like product development, market testing, financing, and scalability. Startup culture does not, however, place an emphasis on bookkeeping, zoning, regulation, or, other activities traditionally associated with paperwork. Business licenses, F&E tax, workers’ compensation, and liability insurance are important components of a business, but they may be utterly unfamiliar to your client. Your startup client has reached out to you because she/he recognizes that a lawyer is a necessary component of her business model. Reaching out to you is likely a big step for your client, and a bit of a leap of faith. Reward that vote of confidence by embracing your role as counselor. Sure, you should provide legal options, but don’t hesitate to give advice. You can fill a vital role by educating your client about the ins and outs of running a business. Your recommendations will be valued and interpreted as a reciprocal ex-

3. Smooth UX Required Just as important as what you convey to your client is how you convey it. Your services need to be accessible to your startup client in an interface that connects

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with its normal business procedures. In short, you need to provide your client with a smooth-user experience. If your client meets via Zoom, you need to be available to meet via Zoom. If your client’s teams communicate via Slack, you need to communicate via Slack. Make it easy for your client to reach you and involve you in business decisions. Yes, this also means being willing to touch base after business hours and over the weekend—even if just to say “I’ll look at this Monday morning and get back to you.” The effort you make to be reachable and quick to advise enforces the perception of you as a member of the team, and this will soon make you invaluable to your client. 4. Shut Up and Take My Money If your startup client made it to your door, she has determined that she wants to develop a relationship with a lawyer— not merely acquire whatever advice and documents she can find online—and she

NASHVILLE BAR JOURNAL | AUG/SEP 2019

is comfortable with the concept of outsourcing. Almost 70% of adults now pay up to 40% more for a product or service to wait less.3 Your startup client may pay more to live in a building with a gym, coffee shop, and recreational room. She probably pays someone to deliver food and sends her dog to doggy daycare. She is happy to pay for these services because she understands the value they bring to her life. If you demonstrate how you bring value to the team, your startup client will be happy to pay your legal fees, too. TL; DR Nashville’s startup scene continues to thrive. Lawyers who are prepared for the city’s new entrepreneurs will reap the benefits of a dynamic and exciting clientele. At the very least, your startup client may be able to help you understand footnote four of this Editorial. n Endnotes See Zoe Bernard, The idea that most successful startup founders are in their twenties is a myth, Business Insider (Apr. 24, 2018).

1

See Jonathan Vespa, The Changing Economics and Demographics of Young Adulthood: 1975-2017, (Apr. 2017); Tony Maglio, Millennials Don’t Consider Themselves Adults Until 30, Research Says, The Wrap (Mar. 22, 2017). 2

3 See DataStax Survey Identifies The ‘Me’ Culture: Finds Most Adults Around the Worlds Are Willing to Trade Money or Personal Data for a Better Customer Experience, DataStax (Sept. 18, 2018).

CANDI HENRY isn’t a Millennial, and she doesn’t even play one on TV. Through her firm, 221B Law, PLLC, she helps lawyers and firms who need expanded capacity, particularly when specific business experience or in-depth legal research is needed. She also consults on website and social media content for lawyers. KYLENE HENRY is a professional Millennial. She has launched startup hubs in Boston, New York, and London. She served as Editor/Ambassador for tech.london and Editor of digital.nyc, as well as a consultant for Tech City Ventures.


BACKGROUND CHECK

Judge Eli Richardson | Bart Pickett

Middle Tennessee’s newest federal district court judge had an interesting path to his current role. Born in New Jersey, he grew up in and around the Philadelphia area. When it came time for him to go to college, Judge Richardson wanted to head south. He chose Duke University for its location and educational rigor and studied electrical engineering—later developing an interest in law. In particular, he became fascinated with the FBI and law enforcement. While attending Duke, he spent his free time playing on the ice hockey club team and serving as his fraternity’s rush chair and president. In 1989, following graduation from Duke, Richardson enrolled at Vanderbilt University Law School (VULS)—similar to Duke but in a different, bigger city. At VULS, he took all the criminal courses available. After his first summer, he worked at one of Michigan’s largest firms in Grand Rapids. In 1992, Richardson graduated from law school and started working at the firm he interned with, focusing on litigation and intellectual property work. An opportunity opened up, and Richardson moved to Atlanta to work

at a smaller litigation firm for a couple of years. It was during that time that he met his eventual wife, Erin, through an old VULS classmate. Ultimately, he started his own firm and practiced for three years, but he could not shake his past dream of being an FBI agent. He knew if he was going to do it, it was then or never. Richardson started at the FBI Academy in May of 1998. After he graduated the Academy, the FBI placed him in Newark, New Jersey in September of that year. He spent two years on the public corruption squad and two years as the weapons of mass destruction coordinator. In the latter role, he had the opportunity to work on important assignments including 9/11 and the anthrax mailings. Richardson eventually left being an agent because he saw the role of a prosecutor as preferable because the prosecutor is the one who controls the federal grand jury process. He was interviewed and hired by Chris Christie to be an assistant US attorney in New Jersey in their new counter-terrorism unit. Two years later, he moved back to Nashville, starting as an AUSA in March of 2004. There, he headed the anti-corruption and white-collar units, and later served as criminal chief. At the end of his tenure, he was assigned by DOJ to Belgrade, Serbia, to do both international criminal work and diplomacy. When he returned to the states in October of 2010, Richardson joined Bass Berry & Sims as a member, where he worked for eight years representing crime victims and doing internal investigations, white collar

defense, civil fraud defense and prosecution, and various other related work. It was while at Bass that one of his colleagues suggested he should seek the vacant judgeship. The nomination and vetting process proved to be a long one. In July 2017, he was initially nominated but was not confirmed until October of 2018. His short tenure as judge has been a pleasure and an honor. He perceives it as going to work every day to do the right thing. Having a great chambers staff, including three experienced law clerks, has made his transition smooth. In just nine months, he has had three jury trials. Richardson and his wife have three children, ages 21, 19, and 16. Erin, a trained attorney, works as the policy director for the Down Syndrome Association of Middle Tennessee. During their free time, Richardson and his family love going boating on Center Hill Lake. He also remains a loyal Vanderbilt, Eagles, and Phillies fan. In the past, he has enjoyed rollerblading and ultimate frisbee, though he has slowed down on those for fear of injury that might occasion (another) round of rehab that could impede a heavy docket. 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 in litigation 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.

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Feature Story | Be Proactive – Whether lawyers like it or not, their job entails some knowledge of disciplines beyond the law. As a criminal court judge, most defendants who appear before me have a host of psychological, sociological, educational, or economic deficits that contributed to their arrest. These deficits should be addressed by the attorney from the outset of representation because these deficits serve as significant barriers to successful release in the community. If the client has mental health issues, alcohol and/ or drug addictions, educational deficiencies, sporadic employment history, anger management problems, or any other behavioral or social environmental impediment to being a productive member of society, the lawyer should offer solutions to the district attorney during plea discussions or the court at sentencing and probation violation hearings. Never leave it to the court to find the solution. Professionalism – Maybe it is just me, but there seems to be a gradual, but continuing, deterioration and common courtesy in the courtroom. Do not

How to Be Successful in the Courtroom (continued from page 8)

interrupt the court. Do not interrupt opposing counsel. Do not interrupt witness testimony except through appropriate objections. Do not be condescending to others. Remember, the court is not your adversary unless an attorney causes it to be; an attorney’s client is not his or her adversary; witnesses are not an attorney’s adversary. Even adversary attorneys and parties are not the attorney’s enemy, and their actions should not be taken as a personal affront to an attorney. Exercise mindfulness. Communications – I am specifically referencing adequate and effective communications. Too often I see lawyers who only speak to their client, particularly if in jail, or opposing counsel, only on the scheduled court dates. Too often I have criminal defendants wanting a new lawyer, because his or her attorney has not met with him or her or will not listen. Take a little time to plan and organize work schedules to include face-to-face meetings, telephone conversations, and/or email exchanges with one’s clients and adversary counsel before every court

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NASHVILLE BAR JOURNAL | AUG/SEP 2019

date. Put expectations in writing on the first meeting with a client, so that the client knows what he or she can expect out of you and what the attorney can expect out of the client. Take the time to listen fully. Maybe that is why “silent” consists of the same letters as “listen.” Juror Engagement – Attorneys too often try to woo jurors with their superior knowledge through the use of legal terminology. QUIT!!! An attorney wants to engage the jury’s attention, inspire them to action, and persuade them to accept your story. To do this, an attorney must first speak a common language. Use common everyday words. Do not make jurors feel uncomfortable or put them on the spot during voir dire. PLEASE listen to what the jurors are saying. Repetitive questioning is a disservice to an attorney’s cause. Failure to appropriately respond to an answer can be a deal-breaker, particularly when it is an answer that involves a persona tragedy. Chancellor Ellen Hobbs Lyle Davidson County Chancery Court Introductions – Always state your name when you first begin speaking. Be User Friendly: No Email Dump – Try not to attach email chains of counsel as motion exhibits. Attaching emails exchanged between counsel is an adjunct to but not a substitute for substance. If the email chain is an absolute necessity, in the body of the motion or memorandum provide an editorial/summary of the significance of the email chain, factually and legally. Read Original Source Documents – (continued on page 16)


LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound may still drive with the driver’s hands-free technology in use. A violation is a Class C misdemeanor punishable by a $50 fine and three points on your driving record. Subsequent violations carry a heavier fine as do violations in a school zone or a construction work zone. Be careful out there.

—Tight as a tick on a dog’s ear. Summer Session With apologies to our poor readers who know that we are usually off to our doggie obedience school refresher course in the summer, we pen this column. While the Capitol complex usually gets very quiet after a formal session recesses for the year, May 2019 has given us exceptional news stories from relentless and skillful reporters. House Drama In the early evening hours of May 2, House Speaker Glen Casada was at the height of his powers. The legislative session had just recessed for the year. Bills he favored had tended to pass, and bills he opposed had tended to fail. One of the News Channel 5 stories that day concerned the possibility of a curiously doctored email from an activist who was subject to a restraining order. Speaker Casada went into total denial. “I know nothing of that,” and he probably didn’t. Armed with good sources, the reporters’ stories just kept on coming. It was probably no single story, but the

cumulative effect was damning. After a seemingly endless series of stories by News Channel 5 reporter, Phil Williams, and Tennessean journalist, Joel Ebert, and a host of Twitter feeds, on May 21, Casada announced that he would step down as House Speaker. The effective date for his resignation is reported to be August 2—his 60th birthday. The House Republican Caucus is scheduled to meet on July 24 to select a new Speaker candidate, and Governor Lee has issued a proclamation calling the Legislature into extraordinary session at 10:00am on August 23 for the purpose of electing a new Speaker. As you may imagine, several are barking about their interest in the position. Distracted Driving Statute Lawyers are busy. Lawyers make frequent use of their mobile phones. Lawyers need to pay attention to Chapter 412 of the Public Acts of 2019, which amends the Tennessee distracted driving law. Effective July 1, Chapter 412 expands the offense of distracted driving by prohibiting the use of a hand-held telecommunications device while driving. A driver

Checklist for August and September 1. Send a note to our legislative friends thanking them for their hard work during the 2019 session. 2. The NBA Young Lawyers Division’s annual Carbolic Smoke Ball soiree is Saturday, August 17. Invite a lawyer to attend! The cause is Nashville Children’s Alliance and Court Appointed Special Advocates. Visit NashvilleBar.org/Carbolic to learn more. 3. The new school year gets started in early August. Do not be holding onto your phone tight as a tick on a dog’s ear. Do pay attention to new traffic patterns. Calendar Notes State and NBA offices will be closed on Monday, September 2, for the Labor Day holiday. The Metropolitan General Election for the offices of Mayor, Vice Mayor, and Metropolitan Council is August 1. Any necessary runoff elections for candidates who do not receive a majority of the votes cast will be Thursday, September 12. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

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Feature Story | Commercial cases usually stem from a few core documents: the partnership agreement, the noncompete clause in the employment agreement, the contract for the sale of the business, etc. When you are first assigned to the case, read these core documents in their entirety. Do not just read the parts you think are relevant. Read all of the provisions of the documents. You are very likely to find provisions, in unlikely places in the document, which support your position, or which detract, and you need from the beginning to be aware of these assists and pitfalls. Also, absorbing the entire document gives you a basic understanding and feel for the transaction which will carry you throughout the case. Definitions – An often overlooked and forgotten source is the definition section of a commercial document or statute. Surprisingly, it is not just specialized terms which are defined. Ordinary terms are frequently specified in these definition sections. Complexity Doesn’t Win Cases – To be successful in handling any litigation, you must develop methods to reduce complex content to communicate it understandably and efficiently. This is especially challenging in the “Information Age.” If you are not careful, the details of important but not dispositive background or context can marginalize the legal and factual basis of dispositive points. The genius makes that which is complicated understandable. This is hard to do, but it is the quintessential skill of the best commercial trial lawyers. Judge Jennifer L. Smith Davidson County Criminal Court Petitions and Motions – Judges want to make good decisions, so help them do

How to Be Successful in the Courtroom (continued from page 14)

that by being direct and concise in the written filings. Cite statutory or case authority for the relief you are requesting, and if relying on a particular document or exhibit, explain how it supports the position. Don’t expect the court to do an attorney’s research or parse through supporting materials to reach a particular result. Educate the court on the particular issues in the case, and provide the Judge a road map to rule in your favor. Evidentiary Objections – State clearly the basis of any evidentiary objection with reference to the rule of evidence or other authority on which it is based. Resist the urge to object simply because an attorney is unhappy with the direction of a particular line of questioning unless there is an articulable legal basis for excluding the evidence. During trial, argument on an objection should be made at the bench or outside the hearing or presence of the jury. Some courts have rules specifically addressing the procedure for making objections at trial. Familiarize one’s self with those rules in advance. Trial Exhibits – Prepare copies of exhibits for the court and opposing counsel in advance. Familiarize one’s self with courtroom technology for displaying exhibits, and check the operational status of equipment on the day of the proceeding to avoid delays in hearings or trials. Ensure that any electronic evidence you intend to introduce is in a format that is compatible with courtroom equipment. This is particularly important if an attorney anticipates publishing video or audio evidence to a jury. Court Staff – Court officers and staff are an attorney’s friends. If unfamiliar

with the practice or rules of the court, ask them questions, and let them know as soon as possible if there are scheduling issues or if you are juggling cases in different courtrooms. Criminal dockets are often long and may include multiple evidentiary hearings. Communication with staff will help the court more efficiently manage a lengthy docket and avoid unnecessary wait times for attorneys, clients, and witnesses. Read the Rules – Read and re-read the rules of evidence and procedure applicable to your client’s case. The rule book should be thoroughly highlighted, tabbed, worn, and tattered due to overuse when the annual replacement volume hits your desk. Familiarize one’s self with local and court rules, along with any filing deadlines contained in the court’s pre-trial and/or case management orders. Failure to file certain evidentiary motions within the timeframe set by the Court could result in waiver of the issue at trial. n THE NASHVILLE BAR JOURNAL EDITORIAL COMMITTEE would like to personally thank Judge Joseph P. Binkley, Judge Melissa Blackburn, Judge Mark J. Fishburn, Chancellor Ellen Hobbs Lyle, and Judge Jennifer L. Smith for taking the time to provide us with highly sought after tips from the bench. We—along with the Nashville Bar Association—appreciate your willlingness and support!

PROUD TO SUPPORT THE NASHVILLE BAR ASSOCIATION HERMAN HICKS

Vice President Private Client Relationship Manager (615) 734-6186 • hahicks@ftb.com

©2017 First Tennessee Bank National Association. Member FDIC. www.firsttennessee.com

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NASHVILLE BAR JOURNAL | AUG/SEP 2019


BILL & PHIL’S GADGET OF THE MONTH

The Online Notary Public Act |

We are always excited when a governmental entity makes a decision to go hi-tech. The State of Tennessee has recently done so. We applaud its effort, and are certainly interested to see how this online notary thing will work out. The Tennessee Legislature passed House Bill 1794 amending Tennessee Code Annotated § 66-22-101 and § 8-16-302. The purpose of the legislation is to allow electronic notarization of instruments. The Tennessee Secretary of State has promulgated an interim set of regulations for the procedures to be followed when implementing the provisions of the new statute. Under the new law, “a notary public who is has been properly commissioned to conduct online notarizations may complete authorization notarial acts by means of an electronic interactive two-way audio and video communication that meets the following requirements. An online notarization may not be performed by an individual who has not been commissioned as an online notary public by the Department of State.” Under these new regulations, which took effect July 1, a previously commissioned notary public must submit an application for commissioning as an online notary public to the Secretary of State, Division of Business Services. The reg

Bill Ramsey & Phillip Hampton

ulations set forth the information that is to be contained on an application. The Secretary of State will then review the application, and if the applicant meets the qualifications for the commission, the Secretary of State will issue the applicant an online notary public identification number, which is to be used in performing an online notarial act and in communication with the Secretary of State. In order to properly perform an online notary verification, the online notary must: 1. Verify that the signer appears before the online notary at the time of notarization, but that appearance may be by means of an electronic two-way audio and video communication. 2. The notary must be physically located within this State. 3. The signer must demonstrate that the signer is not under duress and is not being coerced. 4. The online notary must verify the identity of the signer at the time of the signature by either a remote presentation of an I.D. card or go through an extensive credential analysis as set forth under the regulations. 5. The online notary must attach a “unique” electronic notarial certificate that cannot be altered. 6. Moreover, the online notary must keep a “secure” electronic record of all electronic documents notarized by the online notary public for at least five years that contains certain specific information about the document and the process. 7. The two-way video and audio communication must be encrypted. 8. The online notary public must make sure that all records relating to the transaction are securely stored using

the advanced encryption standard. In order to accomplish all this, you must contract with an appropriate third-party vendor (even before applying to become an online notary). That vendor, with whom you must have a contract, must be able to (1) provide you with the technology to be used in electronically attaching a notarial certificate signature and seal; (2) provide you with the technology to be used for proofing and credential analysis; and (3) provide the technology to store and maintain a record of the video and audio conference of the online notary sessions, if applicable. Doesn’t all this sound really hitech? We think this new twist on the notary public laws is interesting and exciting. However, we predict that, as with all new technology, there will be many, many hiccups and glitches. We will enjoy watching those, as well. Of course, Bill hopes that these hiccups and glitches will provide him an opportunity to recruit new clients and get more business that grows out of the mess-ups. n See you next time,

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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TENNESSEE CHAPTER

Nashville Area Members recognized for Excellence in the field of Mediation or Arbitration

Gail ASHWORTH (615) 254-1877

John BLANKENSHIP (615) 627-9390

Gayle MALONE, Jr. (615) 651-6700

Paul DeHOFF (615) 631-9729

Dan NOLAN (931) 647-1501

David NOBLIT (423) 265-0214

Matt SWEENEY (615) 726-5774

Barry L. HOWARD (615) 256-1125

John TARPLEY (615) 259-1366

James KAY (615) 742-4800

Michael RUSSELL (615) 815-0472

Mark TRAVIS (931) 252-9123

Mark LeVAN (615) 843-0300

Tracy SHAW (615) 921-5204

Jack WADDEY, Jr. (615) 850-8752

Check preferred available dates or schedule appointments online directly with the state’s top neutrals www.TennesseeMediators.org is free, funded by members 18

NASHVILLE BAR JOURNAL | JUN/JUL 2019

For more information about NADN, please watch the short video at www.NADN.org/about


NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. W E DNE S DAY, AUGUST 2 1 | LIVE SEM I N A R

TH U R S D AY, A U G U S T 22 | LI V E S EMIN A R

LEVEL UP YOUR LITIGATION SKILLS

LUNCH WITH CHANCELLOR PATRICIA MOSKAL

OVERVIEW

OVERVIEW

You set the stage for success at trial by taking outstanding depositions, winning motions, and managing your own client. Learn fresh ideas that you can work into your own practice to be ready to win before trial begins. PRESENTERS

The seventh Lunch with the Judges CLE features the Honorable Patricia H. Moskal. Join Chancellor Moskal as she addresses issues, tips, and insights related to practice in Davidson County. The NBA will provide a pizza and salad lunch at 11:30am. From 12:00 to 1:00pm, there will be an hour-long CLE related to courtroom practice with opportunity for questions.

Laura Baker, Law Offices of John Day, PC

PRESENTER

Brandon Bass, Law Offices of John Day, PC

Hon. Patricia H. Moskal, Chancellor

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 1:30pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:30 – 4:45pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $279 For registration after August 19, add a $10 late fee.

D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $39 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $59 For registration after August 20, add a $10 late fee.

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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F RI DAY, AUGUST 2 3 | LIVE SEMINAR

TU E S D AY, A U GU S T 27 | LI V E S E M I N A R

GOVERNMENT PRACTICE INSTITUTE

DOMESTIC VIOLENCE IN DAVIDSON COUNTY

OVERVIEW

OVERVIEW

The NBA Government Practice CLE seminars are scheduled for Friday, August 23 and Wednesday, December 18. Each program will offer 6 hours of CLE credit, with the December program offering 3 hours of dual (ethics) credit. Register for both programs and save $139 off the cost of admission.

Produced by the Federal Court Committee and Legal Aid Society of Middle Tennessee & the Cumberlands

Topics for the August seminar include a Tennessee Supreme Court Update, the annual Ridley Report, and more. The full agenda is available at NashvilleBar.org/GovernmentCLE.

Last year, Congress enacted an important new law—The Pro Bono Work to Empower and Represent Act or “the POWER Act.” The POWER Act requires that every federal district court sponsor a program every year to promote and encourage attorneys to provide pro bono legal services to survivors of domestic violence, sexual assault, and similar crimes. This year, Judge Crenshaw will moderate a panel discussion including General Sessions Judge Ana Escobar, DarKenya Waller of the Legal Aid Society, and possibly members of local law enforcement to discuss this topic and provide information on how you might be able to assist in this important cause. All are welcome to attend free of charge. An hour of CLE credit will be available with the payment of a fee. PRESENTERS Hon. Waverly D. Crenshaw, Jr., Chief District Judge US District Court, Middle District of Tennessee

PRESENTERS

Hon. Ana L. Escobar General Sessions Judge, Division III

A full list of presenters is available online at NashvilleBar.org/GovernmentCLE.

DarKenya W. Waller, Executive Director Legal Aid Society of Middle Tennessee & the Cumberlands

D E TA I L S

D E TA I L S

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7:30 – 8:00am

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:00am – 4:15pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.0 General

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

Location. . . . . . . . . . Tennessee Tower, 312 Rosa L Parks Ave

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

COST

COST

August 23 CLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $269

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35

December 18 CLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $269

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

August 23 & December 18 CLE . . . . . . . . . . . . . . . . . . . . $399

Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

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W E DNE S DAY, AUGUST 2 8 | LIVE SEMI N A R

WE D N E S D AY, S E P TE M B E R 4 | LI V E SEMIN A R

CLOSING THE DEAL

ESTATE PLANNING & ADMINISTRATION FOR IP & ENTERTAINMENT LAWYERS

Conveying Real Estate With and Without the Probate Court OVERVIEW Do I need to court approval to sell Mom’s house? What if she received TennCare—will they get the house? Will Dad have to move out now that step-mom died? Can I just file an Affidavit of Heirship rather than probating Granny’s will? Who gets paid out of the sale? Decedent’s estates, trusts, conservatorships, and guardianships often involve real property. This presentation will provide a “best practices” approach to attendees navigating these practice areas to ensure compliance with Tennessee law, local rules and the tenants of real estate regulations. Learn: • Necessity of opening probate or muniment of title • When is court approval necessary to sell/convey real estate • When is a partition or quiet title action necessary • What fees are appropriate in the above transactions • Proper handling of liens and judgments

Joint Entertainment, Sports & Media Law and IP Committee Meeting OVERVIEW The NBA Entertainment, Sports & Media Law Committee and Intellectual Property Committee will hold a joint meeting on September 4 at Bradley for a lively discussion on estate planning and administration for IP and entertainment lawyers, including valuing and transferring IP assets and estate-related copyright termination. All are welcome. CLE credit is available with the payment of a fee. Thank you to Bradley for hosting! PRESENTERS Jeff Mobley, Howard Mobley Hayes & Gontarek Linda Edell Howard, Adams & Reese D E TA I L S

PRESENTERS

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm

Matt Potempa, Martin Heller Potempa & Sheppard, PLLC

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm

Josh Anderson, The Anderson Group Real Estate Services

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

Adam LaFevor, SoBro Law

Location. . . . . . . . . . . . . . . . Bradley, 1600 Division St, Ste 700

D E TA I L S

COST

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 11:00 – 11:30am

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 1:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE HOSTED BY

COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $95 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $189 For registration after August 26, add a $10 late fee.

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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TH U RS DAY, S E PTEMBER 1 2 | LIVE SEMIN A R

M O N D AY, S E P TE M B E R 16 | LI V E S E MIN A R

STATE OF THE MIDDLE DISTRICT UPDATE

BEST PRACTICES FOR DEVELOPING PARENTAL LEAVE POLICIES

OVERVIEW Please join us for a presentation from the judges of the Middle District of Tennessee. They will be presenting on the state of the Middle District, practice developments, experience with the court’s new Local Rules, and the court’s pro bono program and recovery court. The judges also will be taking time to field questions and input from participants. An hour and a half of CLE credit will be available with the payment of a fee; otherwise, this meeting is free to attend. PRESENTERS Chief District Judge Waverly D. Crenshaw, Jr. District Judge Aleta A. Trauger District Judge William L. Campbell, Jr. District Judge Eli Richardson Magistrate Judge Joe B. Brown Magistrate Judge Barbara D. Holmes Magistrate Judge Alistair E. Newbern

How Employers & Law Firms are Responding to the Unique Needs of their Workforce OVERVIEW This CLE will focus on how Nashville employers are responding to the unique needs of lawyers who elect to take parental leave after the birth or adoption of a child and how lawyers can best advise their clients when drafting leave policies. The panel discussion will focus on: • Relevant Family Medical Leave Act (FMLA) updates and guidelines • National trends and policy considerations • How employers are crafting their parental leave policies to best suit their employees and work environments • Issues unique to lawyers who take leave to care for their children and the ways in which employers can support individual needs • Best practices for employees when taking parental leave under a work policy or the FMLA

Magistrate Judge Frensley

PRESENTER

D E TA I L S

Flynne M. Dowdy Gullett Sanford Robinson & Martin PLLC

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:30pm

D E TA I L S

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 General

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm

Location. . . . . . . . . . . . . . . Federal Courthouse, 801 Broadway

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm

COST CLE Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after September 12, add a $10 late fee.

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T UE S DAY, SEPTEMBER 1 7 | LIVE SEM I N A R

FR I D AY, S E P TE M B E R 27 | LI V E SEMIN A R

JUSTICE IN FULL

LUNCH WITH JUDGE KELVIN D. JONES

OVERVIEW

OVERVIEW

Procedural, Therapeutic, Restorative Co-produced by P. Danielle Nellis, John Drummond, and the NBA Criminal and Juvenile Justice Committees We believe in justice for all. How do we bring “justice in full,” to one? Three perspectives show how emotions, perception, communication, and decision-making inform our justice system. Procedural fairness research suggests that justice is in the eye of the beholder, that people actually care more about fair treatment and process than getting a particular outcome. Therapeutic jurisprudence theory shows the value, and the ethical challenges, of doing justice, if possible, in a way that actually benefits the persons involved. Finally, restorative justice focuses the wrongdoer’s attention on victims and other persons harmed, to heal and repair, experience remorse, make amends, and hopefully, desist from future wrongdoing.

The eighth Lunch with the Judges CLE features the Honorable Kelvin D. Jones. Join Judge Jones as he addresses issues, tips, and insights related to practice in Davidson County. The NBA will provide a pizza and salad lunch at 11:30am. From 12:00 to 1:00pm, there will be an hour-long CLE related to courtroom practice with opportunity for questions. PRESENTER Hon. Kelvin D. Jones, Judge

Join us for a 3-hour CLE to learn about these concepts and how they can create a positive impact on our justice system. All are welcome to attend free of charge. Three hours of CLE credit will be available with the payment of a fee. PRESENTERS D E TA I L S

A full list of presenters is available online at NashvilleBar.org/Justice.

Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm

D E TA I L S

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30 – 1:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:15pm

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 Dual | 2.0 General

COST

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $39

COST

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $59

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $99

For registration after September 25, add a $10 late fee.

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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M ONDAY, S E P TEMBER 3 0 | LIVE SEMIN A R

TU E S D AY, O C TOB E R 1 | LI V E S E M IN A R

DON’T GET LOST IN TRANSLATION

LAW PRACTICE 101

Speak the Language of Every Generation OVERVIEW Produced by the Diversity Committee Each of us has at least four distinct generations, and often five, working in our firms. Though we work side by side day after day, thanks to new technologies, we bring strikingly different expectations and ways of working to our jobs.

Family Law, Power of Attorney & Wills 101 OVERVIEW Brush up on the basics at our 101 CLE Series. This update is perfect for beginners or those seeking a refresher. Our 101 series will begin at 10:01am with a session on family law, followed by Powers of Attorney at 11:15am and Wills 101 at 12:30pm. Each session is an hour long.

This generational diversity can easily result in an “ism”—ageism—which we must avoid. Join us for this highly interactive workshop exploring intergenerational dynamics and addressing the everyday challenges of working fairly with everybody from 18 to 80! Along the way, you’ll have the opportunity to access your personal Gen IQ, using the Generational Edge Gen IQ Index; you’ll learn how to motivate each generation, how to prepare for the coming disruption of Gen Z, and how to solve the law’s most common generational conflicts. Finally, you’ll gain insight into other aspects of your work and life as you connect the dots between workplace generations and generations of clients and families. PRESENTER Amy Lynch, President, Generational Edge D E TA I L S

PRESENTERS Ashley Goins Alderson Stites & Harbison Rebecca McKelvey Castañeda Stites & Harbison Barbara Moss Elder Law of Nashville D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 9:30 – 10:01am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10:01 – 1:30pm

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30 – 1:00pm

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 General

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:15pm

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 Dual Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $99 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 Non-Attorney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $59 For registration after September 26, add a $10 late fee.

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COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 per hour Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 per hour For registration after September 27, add a $10 late fee.


T HURS DAY, OCTOBER 3 | LIVE SEM I N A R

FR I D AY, O C TO B E R 4 | LI V E S E MIN A R

IMMIGRATION LAW INSTITUTE

HEALTH & WELLNESS INSTITUTE

OVERVIEW

OVERVIEW

Co-produced by the Diversity Committee and Immigration Committee

Produced by the Attorney Health & Wellness Committee

The NBA Diversity Committee and Immigration Committee jointly present our first Immigration Institute. This CLE is for both immigration attorneys and non-immigration law practitioners who have an interest in current immigration issues. Whether or not you directly represent clients who are non-citizens, immigration issues arise in various settings and affect a variety of diverse people. CLE presenters will bring you the latest information on trends, topics, and issues in immigration law and will offer an opportunity for Q&A. PRESENTERS A full list of presenters is available online at NashvilleBar.org/ImmigrationLawInstitute.

The NBA Health & Wellness Committee is proud to present our first Health and Wellness Institute. This CLE will offer 4 hours of dual credit and feature sessions on wellness in the legal practice, including wellness tools and techniques, meditation and mindfulness, and stress management. PRESENTERS Karen Blake NBA Health & Wellness Committee Chair Elizabeth McCoyd Greer Adam Hill Joanna McCracken Julie Sandine Craig Webb D E TA I L S Registration & Welcome . . . . . . . . . . . . . . . . . . 7:15 – 7:45am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7:45am – 12:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 Dual Location. . . . . . . . . . . . . Brentwood Library, 8109 Concord Rd COST

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 1:30pm

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $195 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $389 For registration after October 2, add a $10 late fee.

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:30 – 4:50pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $99 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 For registration after October 1, add a $10 late fee.

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F R I –S AT, OCTO BER 2 5 – 2 6 | LIVE SEMIN A R

WE D N E S D AY, OC TOB E R 30 | LI V E S EM IN A R

THE KENTUCKY BOURBON TRAIL AND KEENELAND CLE

GUN LAW UPDATE & SKEET SHOOTING AT NASHVILLE GUN CLUB

OVERVIEW Journey with the Nashville Bar Association to the historic Kentucky Bourbon Trail and enjoy an afternoon of races at the Keeneland Racecourse. Registration includes bus transportation to and from Kentucky, general admission to Keeneland for afternoon races, two bourbon tastings, 2.5 hours of CLE credit, and lunch at historic Bardstown’s Old Talbott Tavern on Saturday. A block of rooms has been reserved for this event; please see “Travel” section online to book your room (not included in registration fee). Space is limited—reserve your spot today! PRESENTERS For a full list of presenters along with travel information, visit NashvilleBar.org/BourbonTrailCLE.

OVERVIEW Join us for a gun law update and skeet shooting at Nashville Gun Club. Attorney John Harris will provide an overview of gun laws in Tennessee and discuss Constitutional provisions, terminology in state and federal statutes, and expected legislation. A round of skeet shooting will follow the CLE. PRESENTERS John I. Harris III Schulman, LeRoy & Bennett D E TA I L S Registration at Nashville Gun Club. . . . . . . . . . 1:30 – 2:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2:00 – 3:00pm Skeet Shooting . . . . . . . . . . . . . . . . . . . . . . . . . 3:00 – 5:00pm

D E TA I L S

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30 – 9:00am

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Seminar and Trip. . . . . . . . . . . . . . . . . . 9:00am – 5:00pm (+1) Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

COST (INCLUDING SKEET SHOOTING) CLE Easy Passholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $85 NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $120

COST*

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $160

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $269

Non-Attorney Audit Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . $99

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $369 Non-Attorney Guests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $169

C O S T ( C L E O N LY; N O S K E E T S H O O T I N G )

For registration after September 10, add a $50 late fee.

CLE Easy Passholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $0

*Cost does not include hotel room. Please see NashvilleBar.org/BourbonTrailCLE for information on booking.

NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after October 28, add a $10 late fee.

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NASHVILLE BAR JOURNAL | AUG/SEP 2019


NB A ONLINE SEMINARS P erso n al i ze d Le a r ning on Your Sc h edul e

P LI LI V E WE B C A S TS Li ve C LE C redi t f rom I nnovat i ve We b c a s ts

PLI and the NBA provide sophisticated programs to Tennessee attorneys through live webcasts held at the NBA Conference Center. Attendees will earn live CLE credit. Registration is FREE for PLI’s Privileged members. Visit NashvilleBar.org/ CLE for course details and to register. Announcing our NEW online CLE platform with online seminars available at NashvilleBar.org/CLE! We have a variety of relevant and focused topics to choose from including the following. . . Business | Chancery & Circuit Court Client Relations | Commercial | Communications Corporate | Criminal | Employment | Entertainment Estate Planning | Ethics & Professionalism | Family Government | Immigration | Intellectual Property

MARK YOUR CALENDARS SAVE THE DATE! NBA Fall CLE Institutes October 10 | Employment Law October 17 | Estate Planning & Probate Practice October 28 | Family Law November 1 | Solo & Small Firm November 14 | Advanced Federal Court Practice November 20 | Business Law December 6 | Annual Entertainment, Sports & Media Law December 16 | Chancery and Circuit Court December 18 | Government Practice & Professionalism Lunch with the Judges Series October 16 | Chief Judge Kenneth Switzer & Judge Dale Tipps November 18 | Judge Rachel Le Andrea James Bell Mary Northern (FREE Historical CLE) November 8 | 1:00 – 4:30pm | 3.0 CLE

Ethics in Banking and Financial Services August 13, 8:00 – 11:00am

2.66 Dual

Complimentary breakfast included.

Storming the Gatekeepers: When Compliance Officers and In-House Lawyers Are at Risk September 4, 8:00am – 4:00pm 6.0 General Complimentary breakfast included.

Global Asset Management September 9, 12:30 – 4:00pm

3.0 General

Hot Topics in Electronic Discovery: What Corporate and Outside Counsel Need to Know September 18, 8:00am – 4:00pm 1.0 Dual | 5.0 General Complimentary breakfast included.

Hot Topics in Electronic Discovery: What Corporate and Outside Counsel Need to Know September 27, 8:00am – 4:30pm 1.0 Dual | 6.0 General Complimentary breakfast included.

The Ethics of Electronic Information: Competence, Confidentiality, and Other Ethical Conundrums October 11, 8:00 – 11:30am 3.0 Dual Complimentary breakfast included.

Securities Law and Practice: How the SEC Works October 17, 12:30 – 4:00pm 3.0 General Insider Trading Law October 30, 12:30 – 4:00pm

3.0 General

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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GET A CLE EASY PASS & GO! 3 EASY PASSES TO CHOOSE FROM:

8-HOUR CLE PASS

10-HOUR CLE PASS

$265 (2 free CLE hours = $95 savings)

15-HOUR CLE PASS

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$420 (6 free CLE hours = $255 savings)

Valid from Nov 1, 2018 to Oct 31, 2019.

Purchase your members-only CLE Easy Pass now, and save up to $255 on cutting edge CLE! Choose a CLE Easy Pass that fits your “Live” CLE hour needs and your budget. Call Vicki at 615-242-9272 for questions or to purchase your CLE Easy Pass today.

R E G I S TR ATI ON ONLINE NashvilleBar.org/CLE

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LATE FEE: Registration must be received by 5:00pm two business days ahead of the seminar. If you register late, please add a $10 late fee to your payment. CANCELLATION: No refund or credit will be issued after 5:00pm two business days ahead of the seminar; however, a substitute may attend for a registered participant. CLE EASY PASS HOLDERS: Cancellation must be received by 5:00pm two business days ahead of the seminar to retain CLE Easy Pass hours. CLE Easy Passes are non-transferable, and a substitute may not attend for an Easy Pass Holder.

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NASHVILLE BAR JOURNAL | AUG/SEP 2019


Editorial |

Richard McGee & Kevin McGee

How to Cross-Exam: The “ABC” Method of Courtroom Persuasion Objection: BORING. Sustained! They didn’t really teach us that in law school, did they? Many of us have a natural (branded in) tendency to “teach” or try to persuade our audience (judge or jury) the same way we were taught: words. Law school was built on lectures. We were taught facts, facts, and more facts…then apply the law. “Think like lawyers.” I can still hear my property professor asking one of my law school buddies, “What did the driver have in the back of the wagon?” “A barrel of beer,” my buddy replied. “No, Mr. Mirkin, he had custody!” Of course, jurors don’t think like this, and as advocates, we can’t either. Cross-examination is easily the most important opportunity to persuade in any case, no matter the forum. Through years (or for the elder author of this article, many, many decades), we have had the opportunity and necessity to evolve our cross-examination practices. One reality that bears itself truer on a daily basis is audience attention spans have become shorter. We have to embrace this, be interesting, and

be persuasive. More than ever, we have to be visual during cross-examination. There are many studies available that address the issue of persuasion of jurors and how “normal people” prefer to learn. A great compilation is available at a2lc.com, which offers multiple free resources, including incredible tools on storytelling. For example, the e-book Storytelling for Litigators, reports as many as 61-65% of “normal people” prefer to learn visually—different than the way most lawyers are wired and certainly different than traditionally trained. Some refer to this phenomenon as the “65% Rule.” Even before becoming aware of these scientific studies, we learned of anecdotal nightmares that proved the point. Some years ago, we had a lawyer in our office who clerked while he was finishing law school. As a law clerk, he observed countless jury trials, and following the verdict, he had the opportunity to engage with jurors. On multiple occasions, he asked jurors why they reached the decision that they did and, sadly, on multiple occasions he got the same shocking response: “The prosecution called 11 witnesses and introduced (continued on page 30)

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Editorial |

How to Cross-Exam (continued from page 29)

40 exhibits; the defense only called 2 and introduced none, so we had to vote for the prosecution.” How many times do you think those jurors were instructed about the presumption of innocence and the burden of proof? Countless, right? The moral of the story is that we had to learn to do a better job of both educating our jurors in voir dire and tell our client’s constructive story during cross-examination of our opponent’s witnesses. Trial lawyers in both the criminal and civil arena are taught to tell persuasive, visual stories during opening statements and closing arguments. Obviously, these are crucial points in any trial, but what about telling a persuasive story during cross? One of the keys is the effective use of “visuals” to control an adverse witness and/or engage in a constructive dialogue. That is, showing something, introducing something, and/or making something happen in the courtroom such as reenactments, videos, flipcharts, or demonstrations (with a witness or on your own). Simple example: the patrol officer and CPR. In a devastatingly sad jury trial involving the death of a one-yearold, the accused was frantically trying to save the child’s life when the first patrol officer rushed into his home. It would be one thing to use words to describe the mechanics of cardiopulmonary resuscitation. But, it was entirely more persuasive to ask the officer, who candidly didn’t have much to offer in terms of real facts, to step off the witness stand and demonstrate how to perform CPR. We asked him to demonstrate the life-saving attempts our client was performing on this precious child. We could have simply mentioned the fact that he was on his knees, sweating and panting as he counted and pressed on the baby’s 30

chest…. Yet, using the state’s witness, a police officer at that, to demonstrate these “facts” brought it to life. It was memorable, persuasive, and told a crucial piece of the story. It also is a prime example of “plowing with the other man’s mule,” as our esteemed Fayetteville colleague Ray Fraley teaches. No matter how much prep the prosecutor did with this officer prior to trial, he was not expecting to be on his knees in front of the jury demonstrating for the defense. Not only do visuals help capture the attention of our audience but they also help control the witness during cross. Even in the simplest of General Sessions hearings, utilize visuals—whether a picture, police department policy, or Google map. At a minimum, it sends a message to the witness: “I know what I’m talking about; I have investigated this case; don’t mess with me.” A practice tip: General Sessions Court is a great opportunity to get adverse witnesses to adopt visuals we create because they have not been prepped the same way they will for future proceedings. Timing is crucial. We always teach primacy and recency in cross: start strong and end strong. How to use a visual depends on when we might use it in a cross-examination. We can use visuals with an adverse witness to “show and tell.” This enables us to control the witness because we are literally walking them through something we are showing our audience. Alternatively, we can hold back a devastating visual until we have walked the adverse witness to the edge of the metaphorical cliff. Effective visuals can be constructive or destructive depending on the need. So, don’t be afraid to get outside the box during cross. Strive to be persuasive, be demonstrative, and be “vi-

NASHVILLE BAR JOURNAL | AUG/SEP 2019

sual.” Above all, don’t be boring. n

RICHARD MCGEE is a criminal defense lawyer in Nashville, practicing for over 40 years. He teaches Ad­vanced Criminal Trial Prac­tice at Vanderbilt University Law School, serves as a master faculty member of the Tennessee Criminal Defense College, founder of the TACDL Advanced Cross-Ex­ amination Program, and founder of the TACDL Da­ vidson County Roundtable. He was honored with the Jack Norman, Sr. Award in 2011. KEVIN MCGEE was an assistant public defender and has been in private practice since 2005. He also is a faculty member of the Tennessee Criminal Defense College and co-founder of the TACDL Advanced Cross-Examination Program.

VOLUNTEER FOR DIAL-A-LAWYER Thank you to our June and July volunteers!

MIKE ABELOW GINA CRAWLEY CHRIS HUGAN LYNNE INGRAM TOM LAWLES DOUG PIERCE ERIC SMITH LAURA SMITH Visit NashvilleBar.org/DialALawyer to learn more!


Editorial |

Kristin Thomas

How to Use New Tech Tools: Trial Presentation in the Digital Age Out·tech·ed (out tek ed). Verb. Losing at trial because opposing counsel had better equipment and more technological expertise. Litigation presentation is evolving as courts embrace the use of technology. Though technology can be intimidating, it is necessary in today’s digital age. If used appropriately, it is also one of the most powerful and efficient ways to connect with a jury. Before entering the courtroom for trial, an attorney may want to consider the following things. Pre-trial Preparation 1. Ascertain What and How to Present – What exactly do you have to present to the jury? Documents? Video/audio files? Video depositions? Answering these questions will assist an attorney in figuring out what equipment and software is necessary. 2. Communication with the Court Clerk – House rules and technology preferences differ between each court. Courthouses across the state (and nation) have varying degrees of technology available. Some of these considerations are

addressed at the pretrial conference, but often, the courtroom clerk/officer is an attorney’s point of contact. The court clerk/ officer has a wealth of knowledge on the available technology and the court’s preferences and procedures regarding its use. 3. Courtroom Inspection and Equipment Test – Prior to trial, most courts will allow an attorney to inspect a courtroom. During this scheduled visit, the court clerk/officer will likely inform an attorney about the courtrooms’ available resources and how they work. While there, an attorney may consider the line of sight for him or herself, the jury, and the judge; and if needed, plan for proper placement of projection screens and monitors. Confirm court procedures with the court clerk/officer and confirm a date/time to set up any equipment needed to present the visuals. Davidson County, Tennessee’s Courthouse is an example of a technological courtroom, which is where the equipment provided is sufficient for most attorneys’ needs. However, an attorney may still need to bring additional equipment, i.e. laptop, unless he or she plans on using the digital overhead projector. (continued on page 32

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Editorial |

How to Use New Tech Tools (continued from page 31)

4. Practices and Dry Run – For attorneys who present “off the cuff,” this may sound counter-intuitive, but presenting a general idea of what the attorney’s plans is imperative. If an attorney plans to operate the technology his or herself, it is even more important that the attorney practice speaking while computing simultaneously, as it is far harder than it looks. 5. Courtroom Setup – Keeping a courtroom setup as simple as possible is key. Technology has a way of channeling Murphy’s Law, so the simpler an attorney’s technology setup is, the easier it will be to diagnose and resolve the inevitable problems that pop up. In case technology is uncooperative, having a Plan B does not hurt, either. Common items to bring for even the most technology-outfitted courtrooms include a computer/device to present from, cabling and adapters to hook into the system, and Gaffer’s tape to secure the cabling to the floor (thus preventing safety hazards). Hardware Options What hardware options an attorney uses to present his or her case changes depending on his or her needs. There is an assortment of options with varying degrees of needed technological proficiency. The least technologically demanding option is the Elmo (the digital overhead projector). This choice is the most cost efficient, and if you only have a limited number of paper documents to present and no multimedia (such as video or audio), it is the perfect solution. If an attorney’s presentation includes more than a handful of paper documents or multimedia files, an Elmo

32

will be inadequate for his or her trial needs. In cases where audio, video, or other less traditional forms of evidence need to be presented, a more vigorous presentation platform will be required. While most attorneys consider a laptop computer when it comes to trial technology, any digital device that stores information and allows one to plug in and share (or project) the screen and audio will work, including smart phones, iPads, and tablet computers—even a digital camera will work. For iPad users, the best software package on the market today is Trialpad. While limited in file types, the Trialpad accepts but lacks certain functionality (such as video deposition playback); nonetheless, this software package is useful for smaller cases. When dealing with a larger volume of evidence, presenting via laptop is the most sophisticated option. A properly built trial laptop can handle large amounts of data, has the flexibility to use a variety of software packages unavailable to less robust devices, and has specially-made software to store, easily locate, and immediately recall any document, video, or audio file via a few quick keystrokes. While TrialDirector is the most prolific software package in the trial presentation space today, relative newcomer OnCue is gaining market share as an alternative. Due to the database infrastructure and user interface, both of these software packages are complex and require a technological background and steep learning curve before use in a real-world scenario. A final piece of advice regarding technology’s role in presenting a case at trial: prepared slides are meant to enhance the message, not regurgi-

NASHVILLE BAR JOURNAL | AUG/SEP 2019

tate it or take an attorney’s place. As the orator, an attorney must tell the story. Connect with the jury by communicating the issues of the case and important arguments. Reinforcing that message through visual proof and demonstratives is a highly effective way to present evidence and persuade members of a jury. n Endnotes Metro. Nashville Ord. BL2014-951 (Feb. 26, 2015), Substitute Metro. Nashville Ord. BL2014-909 (eff. Mar. 6, 2015) & Substitute Metro. Nashville Ord. BL2015-94 (eff. Mar. 6, 2015).

1

2 The The Metro Municipal Code section 17.16.250(E) fully defines “Owner-occupied,” whereas 17.16.070(U) defines “Not Owner-Occupied.” 3 Substitute Metro. Nashville Ord. BL2016-492 (eff. Feb. 24, 2017)

KRISTIN THOMAS is the owner of KT Designs, LLC, where she consults with litigation teams nationwide on argument strategy, demonstratives development, jury consulting and presentation technology in a wide range of practice areas.

Mark Your Calendar Aug 17 | Carbolic Smoke Ball @ 21c Museum Hotel Aug 20 | NBA Karaoke Night @ Alley Taps Sep 10 | YLD Happy Hour @ Bearded Iris Brewing Sep 26 | Annual Free Member Picnic @ Walk of Fame Park Nov 21 | Fall Memorial Service @ Downtown Presbyterian Dec 5 | Annual Banquet @ Music City Center


NashvilleBar.org/FindAMediator

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Welcome to the NBA! Congratulations on your new membership! Thank you for joining the NBA and all that it has to offer. We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@nashvillebar.org for questions and general information.

NEW MEMBERS (MAY 1 - JUNE 30) Teresa Bailey

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Robert B. Reardon

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Deron L. Johnson

Taylor J. Revenew

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Taylor L. Kinard

Mark Scott

Erin Coleman

Sophie Lange

Michael R. Small

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Brandon J. Smith

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Hugh Green, Jr.

Neil M. McIntire

Elizabeth M. Woodard

James W. Fuller, IV

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RESERVE OUR FACILITIES Did you know? The Nashville Bar Association offers its conference rooms to be used for arbitrations, mediations, meetings, depositions, and other events for attorneys who need a convenient place to meet in downtown Nashville. We have a spacious Conference Center and a smaller Board Room— both of which have Wi-Fi access, a computer, and phone—available for your use. For more information, contact Vicki. Shoulders@nashvillebar.org or visit NashvilleBar.org/ReserveOurFacilities.

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NASHVILLE BAR JOURNAL | AUG/SEP 2019


NONPROFIT SPOTLIGHT

The Tennessee Innocence Project | Jessica Van Dyke In Fall 2014, Americans were riveted when a new podcast named Serial debuted. In mesmerizing detail, Serial told the story of Adnan Syed, a young man convicted in 2000 for killing his high school girlfriend. Journalist Sarah Koenig took listeners through the background, history, and personalities of the victim, suspects, and witnesses. Episodes featured visits to crime scenes, review of the evidence, reconstructed timelines, and a deep dive into cell phone records—a true search for new evidence. Koenig walked listeners through the legal representation Syed had received at trial and the potential legal issues he might assert in his upcoming proceedings. Koenig and her staff clearly spent hundreds of hours investigating this case. (While reasonable minds disagree about whether Syed is guilty or innocent, I use this example merely to illustrate the quantity and quality of work required to investigate and litigate a post-conviction claim where a defendant is asserting actual innocence.) But what if Syed was indigent and lived in Tennessee? Attorneys in Tennessee are paid a maximum of $1,000 to conduct the type of post-conviction investigation that Serial documented. If the case is “extended and complex,” an attorney could be granted up to $2,000 for their work, all at a rate of $50 per hour. Attorneys appointed to post-conviction cases are often some of the newest in the courtroom and may not have ever sat through an entire jury trial. No support services are provided to an attorney searching for exonerating evidence—no investigator or expert witnesses (with the exception of capital cases). Attorneys with clients

asserting actual innocence are resigned to a world of begging for pro bono assistance from others. None of this changes based on the case complexity or sentence received; an attorney will be paid no more for reviewing, investigating, and litigating a two-week murder trial for errors than a post-conviction for simple felony theft. We know that wrongful convictions happen. To date, according to the National Registry of Exonerations, nearly 2,500 people have collectively spent more than 21,000 years incarcerated for crimes they did not commit. Tennessee’s exoneration rate is lower than states with similar incarceration rates. Tennessee has only had 19 cases of exonerations in state courts. Working to combat this, a volunteer project was created at the University of Tennessee College of Law in the early 2000s, which transitioned into a legal clinic until 2018. There has never been a full-time innocence organization in the state of Tennessee until the launch of Tennessee Innocence Project. Its first office is centrally located in Nashville. In a criminal justice system operated by and comprised of humans, there is bound to be error. Causes of wrongful conviction vary widely from mistaken eyewitness identification to false accusations or perjured testimony (one of the most common causes). Science is ever evolving. The validity of bitemark evidence, fiber analysis, and arson investigations, just to name a few, have now been seriously called into question, including in the 2016 Report issued by the Presidential Council of Advisors on Science and Technology. DNA technology has improved drastically in the last 15 years, and the introduction of genetic genealogy recently found its way into a Washington state courtroom in June

2019. Surprisingly, while DNA cases are perceived as the primary catalyst for innocence claims, according to the National Registry of Exonerations, only 20% of exonerations contained a DNA issue (493 exonerations have been categorized as DNA cases, but in 128 of those cases, DNA was not the central issue resulting in exoneration). We also know from the Registry that approximately 19% of exonerated persons pleaded guilty to crimes they did not commit; of those 2,471 exonerations, 494 were guilty plea cases. I often say that working in the innocence arena requires us to seriously consider the unbelievable. Who could confess to a crime they did not commit —especially if they were not present at the crime scene? Could a person that looked like and shared the same name as the real suspect really have been in the wrong place at the wrong time? How could a witness fabricate a heinous crime that never occurred? Tennessee was one of the few states without a full-time innocence organization. The Tennessee Innocence Project only accepts cases with claims of actual innocence. Cases are selected through an application process. Across the country, the civil bar has played a crucial role in investigating and litigating claims of actual innocence. We have a lot of work to do in Tennessee, and we hope you will join us. n JESSICA VAN DYKE is a 2011 graduate of the UT College of Law. After eight years at Parker Lawrence Cantrell & Smith, Jessica left private practice to serve as Executive Director and Lead Counsel at the Tennessee Innocence Project. TIP will host its first event on October 23: cocktails and dinner featuring keynote remarks by John Grisham.

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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Thank You for Your Membership! The NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to NBA programs and services. Contact Vicki.Shoulders@nashvillebar.org for information on how to become a Premier Member.

PREMIER MEMBERS

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Gail Vaughn Ashworth

Laura Heiman

Tracy Powell

Laura Baker

Lisa Helton

David Raybin

Heidi Barcus

Jamie Hollin

Sara Reynolds

Daniel Berexa

Paul Housch

Nathan H. Ridley

Michael Berman

R. Jan Jennings

Christopher Sabis

Mark Beveridge

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Carolyn Schott

Hon. Joe Binkley, Jr.

Jordan Keller

Kimberly Silvus

Hon. Melissa Blackburn

John Kitch

Ronald Small

Charles Bone

Dean Bill Koch, Jr.

Eric Smith

C. Dewey Branstetter, Jr.

Irwin Kuhn

Laura Smith

Kenneth Byrd

Ed Lanquist, Jr.

Saul Solomon

Christopher Cardwell

Tom Lawless

John Spragens

Loy Carney

Wendy Longmire

Joycelyn Stevenson

Kay Caudle

Christina Lopez

Michael Stewart

Mark Chalos

Hon. Randal Mashburn

Gerard Stranch

William Cheek, III

Sam McAllester, III

Jim Stranch

Hon. Patsy Cottrell

Hon. Amanda McClendon

Hon. Aleta Trauger

John Day

Nicholas McGregor

Howard Vogel

Joy Day

Bob Mendes

Michael Wall

Rascoe Dean

Margaret Moore

Elizabeth Washko

Jacqueline Dixon

Marlene Moses

Jim Weatherly, Jr.

Blair Durham

Hon. Patricia Head Moskal

Thomas White

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Phillip Newman

Thomas Wiseman, III

Keith Frazier

Dean Newton

Talley Wood

Richard Green

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Sheree Wright

John Griffin, Jr.

Mattison Painter

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Gregory Pease

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Aubrey Harwell, Jr.

Andrea Perry

Gulam Zade

Trey Harwell

Robert Perry

Stephen Zralek

NASHVILLE BAR JOURNAL | AUG/SEP 2019


HOW TO MANAGE YOUR SIDE

The Attorney-Client Relationship | Mark Bassingthwaighte

Numerous articles have been written on how to successfully manage attorney-client relationships. Typically, there is an emphasis on effective communication while maintaining a professional presentation. While this is worthwhile information, it’s time for something else. How do you manage a relationship if you don’t particularly like a client? For example, I love being a parent, but I can assure you when my kids were still at home there were more than a few times when I was seriously irritated with one or all of them. Such feelings are normal in relationships of all types, including attorney-client relationships. However, you can choose to do something about it by organizing your response to irritations. Can you control client irritation through client selection? You can and should choose clients wisely. However, that will not eliminate client irritation alone. Look at what you can do to try to minimize the amount of time you spend being irritated with clients. Your negative personal feelings will bring stress to the relationship and cause your work product can suffer. Why am I irritated with some clients? The immediate answer that comes to mind is because I’m not properly managing my side of the relationship. Again, when I was irritated with my kids, it was often because they were bothering me at a time when I didn’t want to be bothered. The same is

true with clients. The good news is this is something you have a great deal of control over. Start by considering your overall workload. When you allow your workload to get out of hand, you are giving clients a reason to bother you. Depending upon the frequency of the interruptions, relationships can start to become strained. Therefore, by effectively managing your practice and the demands it presents, you are also managing your side of the relationship. What can you do? Learn to say no. Say no to additional work outside your comfort zone or work that you do not have time to take on. When you say “yes” when you really should say “no,” you invite procrastination. Procrastination always causes relationship problems. After all, nothing is worse than when clients ask why work isn’t being done when we know deep down it should have been already. When you don’t say no, you are actually the one creating the problem, not your clients. If you have allowed your workload to rise to the level to the point of seriously impeding your work-life balance or ability to sleep at night, you may need an extra hand to delegate some of your responsibilities. Educate your clients. Help them help you. Set aside time to respond to email, take and return calls, be available for walk-ins, or to just focus on client matters without interruption. If it helps you, block out these times in your calendar and give your staff the authority to help enforce these boundaries. Next, implement a communication policy and let your clients know. You might place a short paragraph in your engagement letter or new client information sheet that clarifies when

you will be available to take and return calls and explain what an emergency is (and what it isn’t) so everyone is on the same page. Staff can take messages and offer what assistance they can when you are not available. Establish a policy on responding to email. I strongly suggest you allow yourself time to carefully consider your response to any substantive inquiry. Shooting out an immediate response to every email that comes in is a bad idea. How about text messages? I find them to be quite an annoyance. As with email, establish a policy and let everyone know what it is. For example, I am not accessible by cell phone 24/7. In fact, my phone is off more than it is on when I’m on the road. I understand this is not the same will other lawyers in today’s society. Therefore, I make sure that my clients understand that policy. If you take one idea away from this message it is this—help your clients help you. The next time you are irritated with a client, consider whether or not the problem might be you. If it is you, the good news is you can do something about it. When my kids became teenagers, I took my own advice and considered what role I played in the problem. All I can say is it made a world of difference. n MARK BASSINGTHWAIGHTE is Risk Manager with ALPS. He has conducted over 1,200 law firm risk management assessment visits, presented over 400 CLE seminars throughout the US, and written extensively on risk management, ethics, and technology. He is a member of the State Bar of Montana and the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee.

AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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VISIT NASHVILLEBAR.ORG/PHOTOGALLERY FOR MORE!

Summer 2019 Highlights Diversity Committee’s High School Intern Program

NBA Family Zoo Day 38

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Hearsay | Honors & Awards, On the Move, Firm News HONORS & AWARDS

ON THE MOVE

Bradley Arant Boult Cummings is pleased to announce that Kristina Allen Reliford has joined the firm’s Nashville office as an associate in the Litigation Practice Group. Reliford joins Bradley from Kelley Drye & Warren in New York. Reliford’s practice includes complex contract disputes, fraud, trade secret misappropriation, and securities and government investigation matters.

Frank Borger Gilligan has joined Dickinson Wright’s Nashville office as Of Counsel. Prior to joining Dickinson Wright, Borger Gilligan was Assistant Commissioner – Securities Division for the Tennessee Department of Commerce and Insurance where he oversaw the registration of broker-dealers, agents, investment advisers and investment adviser representatives, and the sale of all public and private securities offerings in the state.

Wade B. Cowan has been elected President of the National Employment Lawyers Association, the largest professional membership organization in the country dedicated to promoting the interests of individual employees and assisting lawyers who represent them. Cowan is a solo practitioner who represents workers in employment discrimination and retaliation cases as well as the negotiation of severance agreements. Tracy Powell, member at Sherrard Roe Voigt & Harbison, has been selected to serve as Council Member-at-Large of the Health Law Section of the American Bar Association (ABA) effective October 2019. Powell will serve a 3-year term ending in 2022.

Kirk Dryer joins Burr & Forman as counsel in the Lending Practice Group where he focuses on a wide range of commercial real estate transactions. Dryer began his legal career as a legal honors attorney in the Nashville office of the US Department of Housing and Urban Development (HUD) before moving to Washington, DC to accept a position at HUD’s headquarters. He most recently practiced as an associate at Venable in Washington, DC. Grace Fox has joined SIMS|FUNK where she will work on a range of complex business disputes. Previously, Fox worked at the Chicago office of Winston & Strawn, LLP Callie K. Hinson has joined Neal & Harwell, PLC, as an Associate attor-

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NASHVILLE BAR JOURNAL | AUG/SEP 2019

and adoptions.

ney. Her practice focuses on domestic law including divorce, child custody, child support, prenuptial agreements,

Ken Major has joined Ponce Law. Major is active in the community and serves as a member of the Executive Board of the Middle Tennessee Council of the Boy Scouts of America. He attended the University of Alabama and earned his law degree at the Cumberland School of Law at Samford University. Burr & Forman announces the continued expansion of its Nashville office with the addition of three attorneys:

Alex Little, Zack Lawson, and Emily Mack. Little will lead the firm’s new White Collar Criminal Defense team. He previously served as an Assistant US Attorney in Nashville and Washington, DC. Mack joins the firm as a partner in the Labor & Employment Practice Group, focusing on labor and employment, education law, and complex litigation. Lawson joins as an associate in the General Commercial Litigation Practice Group, concentrating his practice on criminal defense, government investigations, appeals,


Hearsay | Honors & Awards, On the Move, Firm News victims’ rights, and complex litigation. Attorney Dudley M. West has joined Miller & Martin’s Nashville law office. West, formerly with White & Reasor, has a diverse civil practice with an emphasis on business litigation and real estate. He has handled numerous commercial real estate acquisitions, dispositions and other transactions, and represented clients in a wide variety of business, real estate, and other civil litigation matters in state and federal courts. FIRM NEWS Baker Donelson has selected Samuel

T. Bowman to serve as the Firm’s next pro bono shareholder. Bowman has served for more than 10 years as the chair of the Nashville office’s Pro Bono Committee. He will be responsible for overseeing the continued development and growth of pro bono programs across the Firm’s 21 US offices. Bradley Arant Boult Cummings is pleased to announce the launch of its Cannabis Industry team, a multi-disciplinary group of attorneys dedicated to meeting the specific needs of cannabis industry clients, including hemp companies. Bradley partners Whitt Steineker and Jay Wright co-lead team. Dodson Parker Behm & Capparella has named Miranda Christy a shareholder in the firm. Christy’s practice

focuses on finance, business transactions and real estate, advising various clients on acquisitions, dispositions, financing, development, and leasing. The Tennessee Bar Foundation has awarded the Tennessee Justice Center two $100,000 grants from the Tennessee Legal Initiatives Fund. One grant will be used to reform systemic policies and procedures surrounding the CHOICES portion of the TennCare program; the other grant will be used to develop educational resources and to train volunteers to assist General Sessions Court litigants who cannot afford an attorney. The funds came from a settlement between the Department of Justice and Bank of America Corporation. n

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The Affinity Program is a partnership between the NBA and local businesses that fosters a mutually beneficial relationship between the NBA, its members, and participating local businesses. In order to take advantage of these member benefits, present your NBA membership card to the business. Don’t have a membership card? Email Chelsea.Raymer@nashvillebar.org today!

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42

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Enjoy 15% off any adventure. Valid in-store or online. Please contact the NBA for code. (Downtown/Berry Hill/Opry Mills) Receive 10% off application fee. (Nashville)

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Receive 10% off products in the Shop at Thistle Farms. (Sylvan Park) 10% discount on wine 5% discount on liquor (West End)

Specialized Attorney Services is state-wide process serving company that will serve any type of legal papers while providing GPS iServe technology coordinates through our Iphone app to ensure quality service to clients. We offer services such as document retrieval, filing and research as needed by our clients. Members will receive a 10% discount and volume discount.

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AUG/SEP 2019 | NASHVILLE BAR JOURNAL

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Thank you for supporting your local bar association!

The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. To become part of NBA’s 100% Club, contact Vicki.Shoulders@nashvillebar.org and support your local bar association today!

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NASHVILLE BAR JOURNAL | AUG/SEP 2019

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