Nashville Bar Journal | August/September 2021

JOURNAL Journal Journal AUGUST/SEPTEMBER 2021 | VOLUME 21 | NO. 4

FEATURE

Back to Court: Jury Trials in This New Era ALSO

Firm Wars: Return to the Workplace Masks in Schools NBA’s Lawyer Referral & Information Service is Revamped

A Safer, Stronger Nashville A vibrant legal community strengthens the fabric of a city. That’s the work of the Nashville Bar Association and why we’re proud to invest in its community building mission. We’re also excited to support bar association members like you with business credit and cash management solutions that help you build the bottom line at your practice.

Herman Hicks Private Client Relationship Manager First Horizon Bank 511 Union St. • Nashville, TN 37219 (615) 734-6186 • hahicks@firsthorizon.com

Official Bank Partner of the Nashville Bar Association

©2019 First Horizon Bank. Member FDIC.

FE ATU R E

Back to Court: Jury Trials in This New Era

AUGUST/SEPTEMBER 2021 | VOLUME 21 | NO. 4

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by Tim Warnock and Stuart Burkhalter

DEPA R TM E N TS

From the President

Mike Abelow

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Calendar of Events

3

Hear Ye, Hear Ye

4

Board Election Annual Member Picnic

YLD Happenings

9

Firm Wars: Return to the Workplace Summer Melton

22 Masks in Schools

Lora Fox and Melissa Roberge

Lawyer Referral & Information Service is 25 NBA’s Revamped

Mike Abelow and Jackie Dixon

CLE Schedule

15

barBITES

27

Hearsay

34

100% Club

36

C O L UMNS

Background Check 11

Bart Pickett Gadget of the Month 13

Bill Ramsey & Phillip Hampton Capitol Notes 19

Peggy Sue, the Beagle Hound

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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FROM THE PRESIDENT

Office Space | Mike Abelow MIKE ABELOW, Publisher WILLIAM T. RAMSEY, Editor-in-Chief CAROLINE SAPP, Managing Editor LAUREN POOLE, Managing Editor ADRIENNE BENNETT CLUFF, Layout/Design/ Production

EDITORIAL COMMITTEE RAMONA DESALVO TIM ISHII KELLY FREY SUMMER MELTON ROB MARTIN BART PICKETT KATLIN RYAN KRISTIN THOMAS JONATHAN WARDLE NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1350, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1350, 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 Adriene.BennettCluff@ 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 1350 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. Our mission is to improve the practice of law through education, service, and fellowship. The NBA—with 2,500+ members—is the largest metropolitan bar association in Tennessee.

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According to a recent Georgetown Law School & Thompson Reuters survey, occupancy costs are second only to staff compensation in the ranking of law firm expenses, and the average occupancy cost per full time equivalent lawyer is nearly $50,000. Occupancy costs account for 25% of overhead, on average. Due to the long term nature of some leases, experts note that “changing the trajectory of occupancy is like turning around the Titanic, slow and frankly, frightening.”

Maybe so, but the Nashville Bar Association is here to help its members determine if they are, in fact, on the Titanic, or there’s a more nimble ship available, which can avoid all icebergs.

With numerous new office buildings going up around town, along with changes in practice as we’ve all realized we can work effectively from home, we thought it was time to look at the overall market and the trends in law firm office space that we’ll be seeing in the next 5-10 years. For example, does the law firm office space in 5-10 years include a dedicated office for each attorney? Or, will there be a switch to “hoteled” offices that are available only when needed? What are the trends in office size and uniformity?

What are the trends in conference rooms and conference room technology?

To address these issues and others, our Real Estate Committee, chaired by Michael Wennerlund and David Wicker, is presenting a Real Estate Summit, October 20, 2021 at 12:00pm, with lunch provided. We will hear from both real estate brokers on what’s coming online in the market and the latest trends, as well as fellow lawyers who have recently made moves or are in the process of doing so. Befitting the topic, the Summit will be at Baker Donelson’s new offices in the Broadwest building on West End, so attendees will be able to see some of the new space concepts in practice. You can sign up to attend here: NashvilleBar.org/RealEstateCLE I’m also proud to report that the first edition of the NBA’s Trial Court newsletter is out. David Anthony and Michael O’Neill are the editors of this new benefit for members. Many significant trial court decisions, particularly by our State Court Judges, are never published or recognized unless the case happens to go up on appeal. In the old days, there used to be a company that did this across the State but that has gone away. Also in the old days everyone was around the court house and knew that Judge A had decided X. Those days are gone, so the NBA is moving to fill the gap. David Anthony and Michael O’Neill summarize the decisions and provide critical “practice notes” on the key lessons they took away from the cases.

We need your help on this project—if you are involved in a case that has a trial court decision that may be of interest, please reach out to David or Michael and send them a copy.

Thank you for being a member of the NBA. If you have further ideas on projects that would be valuable to you in return for your investment, please don’t hesitate to let me know. n

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

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

AUGUST 2021 M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

NBA Board Meeting 4:00pm | Bradley

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

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LAW Meeting 11:30pm | via Zoom

9 NBA Board Nominating Committee 2:00pm | NBA

NBF Leadership Forum Steering Committee 4:00pm | via Zoom

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NBA Ethics Committee 12:00pm | NBA

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F R I D AY

Entertainment, Sports & Media Committee | Happy Hour 5:00pm | Tailgate Brewery

4 NBA Historical Committee 11:30am | NBA & via Zoom NALS Meeting 12:00pm | via Zoom YLD Board Meeting 12:00pm

Employment Law Committee | Happy Hour 5:30pm | Black Rabbit

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NBF Trustees 12:00pm | NBA

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NBA Memorial Service Committee 12:00pm

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101 Years of Woman Suffrage Reception 4:30pm | Hermitage Hotel

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Employment Law Committee | Happy Hour 5:00pm | Sedona Taphouse

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SEPTEMBER 2021 M O N D AY

T U E S D AY

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W E D N E S D AY

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T H U R S D AY

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F R I D AY

NBA Diversity Committee 12:00pm | NBA

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

LABOR DAY (OBSERVED) Holiday | NBA Office Closed

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NBA Historical Committee 11:30pm

3 NBA Board/Staff Strategic Planning NBA Office

NALS Meeting 12:00pm

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6 LAW Meeting 11:30am | via Zoom

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8 NBA Memorial Service Committee 12:00am

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NBA Ethics Committee 12:00pm | NBA

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NBF Leadership Forum Steering Committee 4:00pm | via Zoom

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Finance/Executive Mtg 4:00/4:45pm | via Zoom

NBF Trustees 12:00pm | NBA Office

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22 NBA Free Member Picnic 5:30-8:30pm | Walk of Fame Park

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AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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JOURNAL JOURNAL Journal Journal

2021 NBA BOARD OF DIRECTORS MICHAEL ABELOW, President

MARTESHA JOHNSON, President-Elect LYNNE INGRAM, First Vice President

DANIEL BEREXA, Second Vice President JOSH BURGENER, Secretary JUSTIN CAMPBELL, Treasurer FLYNNE DOWDY, Assistant Treasurer LELA HOLLABAUGH, General Counsel JOSEPH HUBBARD, YLD President

Hear Ye, Hear Ye |

Events of Interest

2022 Board of Directors Election

Members of the NBA will be electing six new directors to serve on the Board for four-year term commencing January 1, 2022. 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 13. The election will take place in November, and all members whose 2022 membership dues are postmarked no later than October 31 will be eligible to vote. n

LAURA BAKER, Immediate Past President HON. MELISSA BLACKBURN, First Vice President-Elect LIZ SITGREAVES, Second Vice President-Elect BAHAR AZHDARI JAZ BOON BRIGID CARPENTER RAQUEL EVE OLUYEMO SAM FELKER LORA BARKENBUS FOX MARY TAYLOR GALLAGHER JEFF GIBSON PAZ HAYNES

Membership Renewals

It's time to renew your membership! The 2020 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

KIM LOONEY HON. ELLEN HOBBS LYLE MARLENE ESKIND MOSES JUNAID ODUBEKO KAYA GRACE PORTER TIM WARNOCK LUTHER WRIGHT, JR. HON. BILL YOUNG

Have an Idea for a CLE?

We are looking for creative, relevant, and Zoom-friendly CLE seminar ideas! Please contact Cameron at Cameron.Gearlds@nashvillebar.org if you have an idea or would like to see a specific topic in the coming months. We appreciate you! n

GULAM ZADE

NBA TEAM MONICA MACKIE, Executive Director CAMERON GEARLDS, CLE Director TRACI HOLLANDSWORTH, Programs & Events Coordinator ADRIENNE BENNETT CLUFF, Marketing & Communications Coordinator SHIRLEY ROBERTS, Finance 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 Adrienne.BennettCluff@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 9, to be held at the 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 15, expressing why you believe your nominee is deserving of this prestrigious award. Visit NashvilleBar.org/Awards for more information. n

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

Annual Member Picnic (It’s Free!)

The 2021 Annual FREE Member Picnic will be held on Thursday, September 30, 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. For sponsorship and registration information, visit Nashville Bar.org/Picnic or email Traci.Hollandsworth@nashvillebar.org. We look forward to seeing you there! n

YLD Happenings SAVE THE DATES

Aug 12 | Brews for Backpacks @ Craft Brewed Aug 28 | The 23rd Annual Carbolic Smoke Ball @ Hard Rock Cafe Sep 25 |YLD 17th Annual LogicForce Race Judicata @ Edwin Warner Park Oct 12 | Law Day - Advancing the Rule of Law Now @ The Renaissance Nashville Hotel Oct 26 | 2021 Arts Immersion @ Mercy Lounge Dec 2 | CLE with the Davidson County Judges View photos of these past events or at NashvilleBar.org/PhotoGallery. Be on the lookout for more information about upcoming YLD events! n

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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Feature Story | Tim Warnock and Stuart Burkhalter

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NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

Back to Court: Jury Trials in This New Era From March 23 through March 31, 2021, Tim Warnock and Stuart Burkhalter tried a case in the United States District Court for the Middle District of Tennessee in the courtroom to an in-person jury, with Judge Campbell presiding. At a time when widespread vaccination had not yet occurred, Warnock and Burkhalter successfully followed strict guidelines and were able to try a case from voire dire to verdict without any COVID-19 complications.

This article is not about the verdict, the parties, the issues or the lawyers. Rather, this article focuses on the way back into the courtroom for judges, law clerks, lawyers, Courtroom Security Officers (CSOs), court staff, and witnesses. While Warnock and Burkhalter admittedly had more to do with preparing for trial and little to do with the logistics, this article provides two different prospectives.

First, Tim Warnock writes about the differences between this trial and other jury trials that he has tried in the same courthouse over the past twenty-five years. Burkhalter writes from the perspective of a lawyer trying his second jury trial and bearing primary responsibility as first chair.

WARNOCK Trial Experience During COVID-19 Before the first day of trial, the Office of the Clerk of Court had taken several steps to allow the trial to move forward. The witness stand was fitted with a plexiglass shield. Sanitizing wipes were available at the witness stand. The water pitcher had been replaced with bottles of water.

Counsel tables were moved further away from the jury box than usual. A plexiglass shield separated the lawyer at the podium from the jurors, two of whom sat in front of the jury box in

order to maintain a safe social distance among the members of the jury. Both the plaintiff and the defendants had the option of using tabletop podia from counsel tables rather than the podium that included the Elmo (projector), although neither side elected that option.

Upon entering the building, we had our temperature taken as a prerequisite to the security checkpoint Once we reached the Eighth Floor, a nurse greeted us. The nurse took our temperature again and asked a series of questions about symptoms and possible exposure to COVID-19. We each received a sticker that reflected we were authorized to be on that floor on that day.

Everyone in the courtroom wore a mask except the witness while testifying and the examining lawyer while conducting an exam or otherwise speaking at the podium. The jury was led into and out of the courtroom by the CSOs (who developed a term− “stacking” −to describe the process).

Typically, lawyers see jurors outside the courtroom during the course of a trial. Lawyers encounter jurors in the elevator lobby, the hallways, or the cafeteria. The cafeteria was closed, so no one associated with the trial was in that space. We did not see a single juror outside the courtroom during the entire trial, suggesting that the practices on managing the jury may survive once things return closer to what we once thought of as “normal.”

The presentation of evidence and argument was not much different than before COVID-19 shut down most in-person proceedings. The courtroom is sufficiently large so that the lawyers and witnesses could use whiteboards and other demonstrative aids and still maintain safe social distances. For lawyers who prefer to use either trial-presentation software or the Elmo to (continued on page 8) (continued on page 00)

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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Feature Story | Back to Court: Back to Jury Trials present evidence, nothing changed.

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Lessons Learned One lesson that we learned involved presentation of testimony through deposition. Although some of the witnesses who appeared by deposition might have appeared live but for COVID-19, each of them was beyond the subpoena power of the court. The Local Rules of Court include deadlines for designating testimony and for making and responding to objections to designated testimony. However, in a case that requires significant testimony to be presented through deposition, lawyers should raise any issues regarding the admissibility of that evidence significantly in advance of trial to allow the Court to resolve those issues without having to inconvenience jurors during the course of the trial. To the extent deposition testimony is presented by video, the point is particularly important in order to edit the video appropriately.

If the video testimony includes testimony scrolling along the bottom of the screen in real time with the witnesses’ testimony, the importance of early resolution is accentuated in order to be able to edit out stray words that are otherwise excluded.

Another lesson involved managing resources in the courtroom and in our offices. Typically, we would have hauled boxes of transcripts and exhibits back and forth each trial day. That would have been horribly inefficient, not only for the lawyers but also for the courthouse personnel and would have meant more people, more trips, and more health screenings. We anticipated this and maintained an office copy and a courtroom copy of any transcript or documents that we thought we would

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

(continued from page 7)

need outside the courtroom. Also, both sides were allowed to use witness rooms close to the courtroom to store materials and to caucus on breaks, and that was tremendously helpful.

BURKHALTER Trial Experience During COVID-19 This was the second jury trial in my career, but the first in which I was charged with giving the opening statement and closing argument. So, in short, COVID-19 and the prospect of catching COVID-19, for better or worse, were not at the top of my list of things to be worried about as we approached trial and as the trial began. Instead, as things kicked off, I was far more concerned that my opening statement might drift into—heaven forbid—argument and then, thereafter, that I would be hurled from the courtroom by the deputy into the onrushing path of a hot-tub bus, or, else, that I might experience a sudden blackout and forget everything that we had been preparing for the past few weeks/months/years. So, for me, typical trial worries dominated.

I echo Warnock’s thoughts about the professionalism of the Court, Court staff, the jury, the witnesses, and opposing counsel. COVID-19, aside from the court room modifications and temperature screenings, rarely came up. In jury selection, not a single individual opted out due to COVID-19, even though all of them were provided that opportunity. The issues I noticed throughout trial were minor and probably wrapped up more in the fact that this was my second trial rather than a result of the coronavirus.

For instance, I did not take par(continued on page 14)

Editorial |

Summer Melton

Firm Wars: Return to the Workplace I’m going, going, back, back to the office, office.

I have not worked in an office since March of 2020. Yes, you read that correctly. For over a year, I have been working in my home office, taking breaks to walk my Great Dane, and attending Zoom hearings in my sweatpants. For many of us, this is the new normal.

Honestly, I cannot imagine taking the time to get ready and commute in rush hour traffic, when I can walk 20 feet from my bed and bill those two hours that I would have spent driving to work.

As vaccinations numbers rise and COVID-19 cases fall, law firms throughout Tennessee have taken a hard look at the pros and cons of returning to the office. For some, this means giving their employees the option to work from home a few days out of the week or indefinitely.

While some attorneys cannot wait to put on a suit and get back in the office, others ask: Why pay for thousands of square feet of office space downtown when my employees have shown that they can get the job done working at home? More importantly, many ask: Why leave my pet home alone when I can use one hand to dictate and the other to feed them treats?

In preparing to write this article, I spoke to twelve Nashville attorneys working in various areas of law about their return-to-work schedules.

Out of only twelve attorneys, there were at least five different return-to-work schedules reported. Most of these attorneys have returned to work on a hybrid schedule–having the option to go to the office one to three days a week. These attorneys do not feel pressured to be in the office every day and can maintain the new normal they have adapted to working from home. They also reported that they had the option to go back to the office sooner than their co-workers if they had been vaccinated.

At least two of the attorneys work for firms whose offices completely closed during the pandemic, and now, their work will continue to be 100% remote for the foreseeable future.

In contrast, five of the attorneys I spoke to reported that their offices never closed. A few were given the option to work from home when the pandemic started, but they found that no one actually took advantage of that opportunity. Interestingly, half of these attorneys work in-house. Some attorneys reported that even if they had the option to work from home, they would not take it because of the distractions at home, such as Netflix’s pretty compelling specials during the pandemic or toddlers running into the background of Zoom hearings or drawing space ships on mommy’s summary (continued on page 12)

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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CAN YOU NAME THESE PEOPLE?

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

APR/MAY GOLDEN OLDIES

Congratulations to Dewey Branstetter of Sherrad Roe Voigt Harbison for correctly identifying the individuals in last issue’s photo! From left to right: John Kitch, Marietta Shipley, Randy Kennedy, Bernadette Welch , and Rebekah Shulman.

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NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

BACKGROUND CHECK

Rachel Thomas | Bart Pickett

Once someone meets Rachel Thomas, they don’t usually forget her.

Her magnetic personality has helped her be successful. Having grown up the daughter of an ordained Baptist preacher/lawyer, she comes by it pretty naturally. Her uncle, Kelly Thomas, served as a trial court judge in Blount County for 16 years before being appointed to the Court of Criminal Appeals in 2006. Family get-togethers always involved crazy courtroom stories that enthralled Thomas.

Thomas lived in Maryville until age 4 when the family moved to the D.C. area and stayed until she was in 6th grade. Her father both taught at Georgetown Law School and was a lobbyist for the Baptist Church. Thomas finished her secondary education in Maryville where her sister Sarah, 18 months her junior, described Thomas as a “math nerd.” Wanting to follow in the footsteps of her maternal grandmother who attended Vanderbilt Medical School, Thomas went off to UVA to study pre-med. During college, however, Thomas found herself drawn back to the family business of law and, after she graduated in 2003, took a couple of years off to work for then-speaker Jimmy Naifeh before

law school.

In 2005, Thomas headed back to East Tennessee to start at UT College of Law. She went knowing that she wanted to be an assistant district attorney upon graduation. She loved her time at UT and made many lifetime friends there that she still regularly meets up with.

Graduating during the Great Recession in 2008, Thomas perhaps crazily decided to put all of her stock in the Nashville DA’s office where she had interned during her both summers during law school. Despite being told repeatedly that they were not hiring, Thomas held out hope that Torry Johnson would hire her at some point.

Fortunately for her, that time came in October 2008.

Thomas spent 5 years as an ADA. That dream job provided an opportunity to learn like Baptism by fire. She was in the courtroom every day and even had a stash of her preferred makeup in a drawer in the courtroom.

After her stint in the DA’s office, Thomas joined Riley Warnock where she worked mostly under Steve Riley. During her two years at the firm, Thomas had a great crash course in civil law. Riley, who Thomas considers one of her mentors, instilled in her the notion to put her health and family first.

In order to craft a practice where she was in the courtroom as much as possible, Thomas decided to take a risk and hang her own shingle in 2015.

Having spent time in multiple courts to observe, it was in the domestic realm that she noticed attorneys spent frequent time in the courtroom and still dealt with intellectually challenging

legal issues. Thomas then shifted her focus to family law and started The Law Office of Rachel Thomas. In 2019, she and Larry Hayes (who she shamelessly believes is the best family law attorney in Tennessee and an all-around brilliant and hilarious person), decided to officially join forces and formed Hayes Thomas, PLC. Hayes Thomas is currently located on 2nd Avenue, but is constructing a new commercial office building in Hillsboro Village where the firm will move in May 2022. They focus on divorce matters typically involving large estates and complex financial issues.

Every week you can likely find Thomas in court in Davidson and Williamson Counties. She cannot imagine loving a job more than the one she has. She has found the absolute perfect fit for her.

Thomas and her 4.5 year old daughter, Eve, live in Green Hills.

While Thomas says she’s best at (1) being a mom and (2) being a lawyer, she still tries to find time to pursue other outlets. She attends Calvary United Methodist Church. She also loves travelling. She “aspires to go broke travelling to crazy places.” Her next big trip is to the Maldives this fall to celebrate her 40th birthday. When she is at home, Thomas enjoys cooking, riding her bike in Percy Warner park, and tending to her flowers. 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.

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Editorial |

Firm Wars: Return to the Workplace (continued from page 9)

judgment motion.

For those that never left the office, they found that office life never really changed. While emails and memos were sent about wearing masks in common areas, many attorneys never wore masks at all. Specifically, many associate attorneys found that their more experienced counterparts changed nothing about the way they worked, noting that healthy people under a certain age have less of a risk of contracting the virus and getting sick from it. They also stand by the principles that it is more efficient to work in person, and that office comradery is just as important as meeting benchmark.

It is obvious that there is no “right way” to return to work at a law firm after a global pandemic. Firms, both large and small, have experienced a very challenging and unexpected event– and survived. However, one thing is true--this experience has changed the how, when, and where of our practice for the forseeable future. n

SUMMER MELTON is an associate attorney at McAngus Goudelock & Courie. She graduated from Arizona State University with a degree in Business Law and received her JD from the Belmont College of Law. After graduating, she was hired as an Adjunct Professor at Belmont University where she teaches Pre-Trial Procedure and coaches Belmont’s undergraduate mock trial teams.

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NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

BILL & PHIL’S GADGET OF THE MONTH

Back to the Office | Bill Ramsey & Phillip Hampton

We knew the WFH phenomenon was just a phase that would certainly moderate somewhat as pandemic fears waned. We are now seeing that transition take place. But as many of us head back to our offices on a more regular basis, we should use this time to re-assess how our work office is set up in light of some lessons we learned while working from home.

As we worked from home over many of the past 12-18 months, we discovered something very significant: we work much better when we are comfortable. Now, it is highly unlikely that our colleagues back at the office are going to approve of us coming to the office in our pajamas or gym shorts, but comfort is not just about slouching around the house in non-work clothes. On the other hand, is it really necessary to wear a suit (or other courtroom acceptable clothing) when you do not have a court appearance or an important client meeting? We think it is better to wear clothing that is comfortable, yet appropriate.

Similarly, ergonomics is a big factor in workplace comfort. If your home office

is more ergonomically friendly than your work office, why not update the workplace to a higher standard? Office chairs can be one of the biggest hindrances to productivity when they are uncomfortable and do not promote good sitting posture.

A chair with lumbar support, among other ergonomically-friendly features, is a huge benefit for office workers. We also like the option of standing at times rather than sitting all day at our desk, so we love having an adjustable-height desk that can be positioned either way. Make your office a comfortable and hospitable place to work.

A large monitor (or even multiple monitors) is essential for just about any office worker, but especially for those in the legal profession. Equally important to the size of the monitor is the placement of the monitor. For the most ergonomically friendly placement we recommend a monitor stand, such as the Kensington WellView Monitor Stand. This stand has an interchangeable fan, heater and air purifier that keeps our office environment just perfect.

Now that we are working in the office, there are any number of desk ac-

cessories that we have become accustomed to at home that would work well in the office also. We work on our smart phones almost as frequently as we do on our laptop throughout the day, so a cell phone stand (and/or charger) for our smartphone is essential. Since we are gadget hoarders, we require so many charging ports that we quickly run out of electrical outlet space. We love the new smart power strips that have both regular outlets as well as USB ports for our many charging cables. Keeping our coffee warm at the office is made easier with a USB-connected mug warmer. Finally, we love having a second screen devoted to such things as video conferences, playing music, showing upcoming appointments, etc. There are a number of options for this auxiliary screen, including an iPad, Amazon Echo Show, Facebook Portal, and Lenovo Thinksmart View. We have all of them.

Having a clean, spacious workspace not only helps with office ergonomics, but also promotes positivity in our minds which translates to both increased productivity and greater personal satisfaction with our jobs. Bill has long been a fan of Marie Kondo and her advice for de-cluttering. Whether you subscribe to all of Ms. Kondo’s regimen or not, a thorough de-cluttering of your workspace can be a huge productivity booster. During our move back to the office, we are using this time to re-assess how much we need to keep out on our desk or even in our files. If it doesn’t “bring us joy” and it’s not essential for our clients or for us to do our job, we’re trashing it. Good-bye, Office 2010 User Manual.

One facet of WFW that most certain(continued on page 20)

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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Feature Story |

ticular notice of the fact that the jury was fully-masked during the opening statement. However, I was struck by the anonymity of the masked jury when I looked out during closing argument. I was thoroughly convinced, mid-closing argument, that half the jury was scowling at me but that the other half was still in play. I have no idea if either of those things were true, and I am not sure seeing their faces would have provided too much more insight, but it was definitely something racing through my head.

The opening statement, likewise, did have a comic moment or two precipitated by coronavirus accommodations. As noted above, the podium in the middle of the courtroom had a plexiglass screen immediately to the right in between the podium and the jury. If someone was standing still at the podium, two jurors were at least partially blocked. Thus, I made what I thought was the clever decision to simply walk 10-15 feet backwards from the podium so that I had a clear line of sight of the entire jury. I remembered from law school that, when speaking to the jury, you do not want to aimlessly wander

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Back to Court (continued from page 8) around the courtroom. Instead, if you are going to move, move with purpose, stop, and then talk. I certainly found myself once or twice doing a convoluted moonwalk in between the podium and my spot 15 feet or so back during portions of the opening, but, all in all, I thought it came off pretty well. After it was over, though, Tim said that, next time, I might want to ask permission from the judge before I start scampering all over the place as the judge had apparently been eyeing me a few times during my presentation.

Bench conferences are also worth mentioning– I will say that we tried our best, but, if you are wearing a mask, attempting to engage in some type of close-quartered (sometimes heated) whisper, the court reporter is not going to be able to hear a word, and I was informed of that on numerous occasions.

There is obviously a certain understanding you begin to glean from the Court as the trial begins as to how the Court is going to deal with some gray areas in evidentiary disputes. That understanding is valuable to know when reaching a compromise on what deposition testimony is to be read. So, yes, it is certainly not ideal to be hashing out deposition designations in the evening over the phone with opposing counsel in the middle of trial as we did here, but, at the same time, I think both sides would have been hard-pressed to reach an agreement without knowing more how the Court was inclined to rule on similar evidentiary disputes.

which you might have a technical objection, it is better to do that than have to argue anything during a trial day. Even if you start early in the day or think you can fit oral argument in during a break or lunch, you more than likely cannot, and you will inevitably eat up time that could be dedicated to putting on proof and getting the jury’s job done more quickly. n

Trial Takeaways My biggest takeaway from this trial is that the jury’s time is precious, so anything you can do to speed up the proceedings is worthwhile. If you have to concede on deposition designations to

Federal Practice | Government

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

TIM WARNOCK is a member of Riley Warnock & Jacobson and focuses his practice on commercial and intellectual property litigation.

STUART BURKHALTER practices complex commercial litigation as a member of Riley Warnock & Jacobson.

N B A O N LI N E S E M IN A R S P ersonal i z ed Learn in g o n Your S chedul e

Announcing our NEW online CLE platform with online seminars available at NashvilleBar.org/DistanceLearning!

Choose from the following relevant and focused topics.

Corporate | Depositions | Elder Law Ethics | Family Law Guardian Ad Litem History | Probate Real Estate | Solo & Small Firm Technology | Trial Pratice

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. T HURS DAY, AUGUST 1 2 | LIVE SEMI N A R

M O N D AY, A U GU S T 16 | ZOO M SEMIN A R

DOMESTIC VIOLENCE FOR LAWYERS

ANNUAL CRIMINAL LAW LEGISLATIVE UPDATE

HOW TO HELP YOUR CLIENTS & TAKE CARE OF YOURSELF OVERVIEW Thousands of cases of domestic violence are reported in Middle Tennessee each year. Sadly, some incidents result in the death of the victim, children, and/or the perpetrator. Unfortunately, this tragic result is becoming more common.

In response to this growing crisis, Judge Smith has assembled a distinguished panel of judges, attorneys, and professionals to inform lawyers on: • How to Best Assist and Protect Domestic Violence Clients • Red Flags of Domestic Violence with Clients • Vicarious Trauma Attorneys Experience from Domestic Violence Cases and Available Support Services through TLAP • How to Protect Yourself as an Attorney PRESENTERS For a full list of presenters, visit NashvilleBar.org/DVCLE. D E TA I L S Seminar ������������������������������������������������������������4:00 – 6:00pm Credit ��������������������������������������������������������������������2.0 General Location ����������������� A.A. Birch Building, Jury Assembly Room COST NBA Members �����������������������������������������������������������������$95 Non-Members �����������������������������������������������������������������$189

OVERVIEW 2021 saw major legislative changes to criminal law. Learn more about substantive law changes including probation, parole, expungements and more.

PRESENTERS Chelsea Curtis Tennessee Public Defender’s Conference Daniel Horowitz The Law Office of Daniel A. Horowitz Jenny Charles Assistant District Attorney, District Attorney’s Office Ben Raybin Raybin & Weissman D E TA I L S Seminar ������������������������������������������������������������2:00 – 4:00pm Credit ��������������������������������������������������������������������2.0 General Location ������������������������������������������������������������Virtual (Zoom) COST NBA Members �����������������������������������������������������������������$95 Non-Members �����������������������������������������������������������������$189

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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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. F R I DAY, AUGUST 2 0 | HYBRID SEMINA R

FR I D AY, S E P TE M B E R 17 | ZOO M S E M IN A R

THE RULES YOU DON’T KNOW YOU DON’T KNOW ABOUT LEGAL WRITING

RACIAL HEALTH DISPARITIES IN THE TIME OF COVID OVERVIEW

OVERVIEW Somewhere and somehow, lawyers have learned a lot of rules about writing. Never begin a sentence with a conjunction. Never split an infinitive. Never end a sentence with a preposition. We’ve also developed pervasive habits—such as waiving “any and all claims whether in law or equity,” insisting that contracts be signed “in witness whereof,” and closing our arguments “for all the foregoing reasons.” But are these the rules to actually live by? And do our writing habits serve our clients?

Bad legal writing is bad lawyering; caselaw bears this out.

Find out the legal writing rules you don’t know you don’t know, and level up your writing game.

PRESENTERS

PRESENTERS

John Simpkins President of MDC Inc

Candi Henry Greater Nashville Regional Council

D E TA I L S

D E TA I L S Seminar ����������������������������������������������������������12:00 – 1:00pm Credit ��������������������������������������������������������������������1.0 General Location ������������������������ Hybrid (NBA Office & Virtual - Zoom) COST NBA Members �������������������������������������������������������������������$45 Non-Members �������������������������������������������������������������������$89

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This seminar will consider the impact of the COVID pandemic on racial disparities in health access and outcomes in the American South. It also will discuss the ways in which health law and policy might address disparities in care in the region.

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

Seminar ����������������������������������������������������������12:00 – 1:00pm Credit ��������������������������������������������������������������������1.0 General Location ������������������������������������������������������������Virtual (Zoom) COST NBA Members �����������������������������������������������������������������$45 Non-Members �������������������������������������������������������������������$89

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, SEPTEMBER 2 2 | LIVE S E M I N A R

FR I D AY, O C TO B E R 8 | LI V E S E M IN A R

THE ORIGIN, EVOLUTION & VALUE OF ROYALTIES

GOVERNMENT PRACTICE INSTITUTE

OVERVIEW

OVERVIEW

Venture capital activity in the music industry has soared resulting in royalty valuations are at or near all-time highs. Headline making deals (e.g. Bob Dylan, Neil Young) drive institutional and individual investors to the market. Obviously, royalties are not exclusive to the music industry. However, the music industry provides an interesting case study for examining royalties. The presentation might address the following questions: • Where and when does the concept of royalties originate?

• How have royalties been structured or used throughout history?

• How does the historical concept of royalties influence modern usage?

• What influences the valuation of royalties?

• How do we value royalties as an intangible asset?

PRESENTERS Josh Hedrick Kraft CPAs

The NBA Government Practice CLE seminars are scheduled for Friday, October 8 and Friday, December 10. Each program will offer six hours of CLE credit, with the December program offering three hours of dual (ethics) credit. Register for both programs and save $99.

Topics for the November programs include a TN Supreme Court update, Navigating the New Workplace, Public Records, and more! The full agenda is available at NashvilleBar. org/Government CLE. PRESENTERS

John Perdue Kraft CPAs

A full list of presenters is available online at

D E TA I L S

D E TA I L S

NashvilleBar.org/GovernmentCLE.

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

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Location ��������������������������������������������������������� TN Tower (Live)

COST

COST

Attendance Only; No CLE. . . . . . . . . . . . . . . . . . . . . . . . FREE

October 8 Institute ���������������������������������������������������������� $229

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

December 10 Institute ���������������������������������������������������� $229

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

October 8 & December 10 Institutes ������������������������������ $359

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

17

TENNESSEE CHAPTER

Nashville Area Members recognized in 2021 for Excellence in the field of Dispute Resolution

Gail ASHWORTH (615) 254-1877

John BLANKENSHIP (615) 627-9390

Paul DeHOFF (615) 631-9729

Barry L. HOWARD (615) 256-1125

James KAY (615) 742-4800

Mark LeVAN (615) 843-0308

Gayle MALONE, Jr. (615) 651-6700

David NOBLIT (423) 265-0214

Dan NOLAN (931) 647-1501

Michael RUSSELL (615) 815-0472

Tracy SHAW (615) 921-5204

Matt SWEENEY (615) 726-5774

John TARPLEY (615) 259-1366

Mark TRAVIS (931) 252-9123

Jack WADDEY, Jr. (615) 850-8752

Kreis WHITE (615) 309-0400

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

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

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound

Put out the fire and call the dogs in; the hunt’s over.

Browsing the Headlines From browsing the news headlines, one may be forgiven for forgetting that state budgeting, education, health care, and infrastructure are our most important state policy issues. State revenues are up in excess of projections, schools will reopen in August, the TennCare program is seeking managed care organizations to administer its health care delivery, and the repairs for the I-40 bridge over the Mississippi River are almost done. One may think that the topics of critical race theory, refugees, and health department vaccination ads had overtaken us all. We will stay under the porch and wait for another day to chase those squirrels.

Boring, but Important Just as the federal census occurs every ten years, so does the General Assembly’s constitutional obligation to redraw the lines that establish state legislative districts and the state’s federal congressional districts. Generally, voters choose their elected officials, but the duty to redistrict gives the members of the General Assembly the opportunity to choose their voters or at least the people who will live in the respective districts. Generally, the population growth

of Metropolitan Davidson County and the surrounding suburban counties have exceeded that of the other counties, so those rapidly growing areas will receive new legislative districts to the detriment of communities of low or negative growth.

Tennessee has 31 negative growth counties in the 2020 census, and all of those are rural.

number of counties that may be split to form state house districts to no more than 30. Several dogs are barking about the ultimate look of the fifth U.S. House district, presently composed of Davidson, Dickson, and most of Cheatham counties, but our legislative friends are presently holding any proposed maps as tight as a tick on a dog’s ear.

Process The map drawing process in Tennessee is intensely partisan and largely opaque. The federal census bureau released the 2020 resident population for the United States and each state in late April. The 2020 resident population for the country is 331,449,281 which reflects 7.4% in growth over the 2010 population.

The 2020 resident population for Tennessee is 6,910,840, which reflects 8.9% growth over the 2010 population. State officials will receive complete numbers from the federal census bureau in late August, and the process will begin with placeholder bills being amended and enacted into law in January 2022 for the 2022 election cycle. Based on the 2020 data, ideal populations for districts in Tennessee are: State House = 69,806 State Senate = 209,419 U.S. House = 767,871

Judicial Elections When you are reading this, many judicial candidates will have filed their first campaign financial disclosure reports covering the first half of 2021. Available funds do not predict the winner, but a candidate facing a contested election cannot prevail without solid campaign financing.

Each general sessions court slot and each state trial court slot will have a general election on August 4, 2022 for a full eight year term beginning September 1, 2022. The first day a candidate may pick up a qualifying petition from the election commission office for the May 3, 2022, primary is Monday, December 20, 2021.

Goals U.S. House districts must be “as nearly equal as possible” which means there is practically no variability among our nine U.S. House districts. State legislative districts must be “substantially equal”. Typically, courts have smiled kindly upon state legislative districts with populations within five percent above or below the ideal population. The federal law protects against racial discrimination in redistricting. The state law limits the

Calendar Notes Take your human for the Covid-19 vaccination. All good dogs get a rabies shot every year. Our humans need to do so for Covid-19.

The State and the NBA will observe the Labor Day holiday on Monday, September 6, 2021.

Invite a colleague to attend the NBA Picnic on Thursday, September 30, from 5:30 to 8:30pm downtown at the Walk of Fame Park. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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Gadget of the Month | -ly will carry over to the office is the use of Zoom, or some other video-conferencing app. We have been preaching video conferencing as a much more efficient and cheaper alternative to in-person meetings for some time. The legal world has now fully embraced video conferencing. So, it behooves us to optimize our office workspace to ensure we can have the best video conferencing experience possible from our work office. While most PCs and laptops now have built-in webcams as standard equipment, we highly recommend getting a high-quality external HD webcam to connect to your workstation to enhance both the audio and video quality of your video calls. Nothing says “low budget” more than a grainy video image while videoconferencing with a colleague or client. You might

Back to the Office (continued from page 13)

also consider investing in either headphones or earbuds, particularly in an office environment where others might be distracted by your video conference dialogue. Finally, depending on the brightness of the light source in your office, you might even consider investing in an inexpensive video conference light source (such as the Ring light or Lume Cube) to properly light yourself as you participate in a video call.

See you next time,

It certainly is good to be back in the office on a regular basis again. We feel that we have learned to work smarter over the past year. We don’t want to slip back to a lower office standard as we now transition back to the work office.

RESERVE OUR FACILITIES The NBA 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.

20

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

Thank You for Your Membership!

The NBA Premier Membership recognizes those 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 Matt Anderson

Trey Harwell

David Raybin

David Anthony

Lisa Helton

Sara Reynolds

Gail Vaughn Ashworth

Hon. John Holt

Nathan Ridley

Laura Baker

Lloyd Houk

Christopher Sabis

Daniel Berexa

Paul Housch

Carolyn Schott

Michael Berman

Jan Jennings

Joe Shelton

Mark Beveridge

Andrew Kaufman

Kimberly Silvus

Hon. Joe Binkley

Jordan Keller

Martin Sir

Hon. Melissa Blackburn

Chris Kelly

Liz Sitgreaves

Jonathan Bobbitt

John Kitch

Ron Small

Charles Bone

Dean Bill Koch

Eric Smith

Dewey Branstetter

Irwin Kuhn

Laura Smith

Hon. Joe Brown

Ed Lanquist

Saul Solomon

Kenny Byrd

Tom Lawless

John Spragens

Chris Cardwell

Wendy Longmire

Joycelyn Stevenson

Loy Carney

Christina Lopez

Mike Stewart

Kay Caudle

Hon. Randal Mashburn

Gerard Stranch

Mark Chalos

Sam McAllester

Jim Stranch

Will Cheek

Hon. Amanda McClendon

Hon. Aleta Trauger

Daniel Clayton

Bob Mendes

Howard Vogel

Chris Coleman

Margaret Moore

Michael Wall

John Day

Marlene Moses

Liz Washko

Joy Day

Hon. Patricia Head Moskal

Jim Weatherly

Jackie Dixon

Phil Newman

Tom White

Keith Frazier

Marc Overlock

Tom Wiseman

Barry Gammons

Elizabeth Ozment

Talley Wood

Dave Garrison

Matt Painter

Sheree Wright

Richard Green

David Parsons

Ed Yarbrough

John Griffin

Greg Pease

Hon. Bill Young

Bill Harbison

Andrea Perry

Stephen Young

Hon. Marian Harrison

Tracy Powell

Gulam Zade

Aubrey Harwell

George Preston

Stephen Zralek

Editorial |

Lora Fox and Melissa Roberge

Masks in Schools By statute, the local board of education has the authority to “manage and control all public schools established.”1 Courts interpret this grant of authority broadly to include the power to regulate the dress and appearance of students while they are in school.2 Mask requirements are an extension of the board’s authority over students and teachers.

During the COVID-19 pandemic, Tennessee schools received considerable guidance from the Tennessee Department of Education on opening, closing, providing online classes, training staff, and meeting the needs of special populations.3 The Tennessee Department of Health recommended that CDC guidelines be followed in schools. (The CDC recommended that teachers, staff, and students wear cloth face coverings, as able, especially when other social distancing measures are difficult to maintain.)4 In the locally litigated case Citizens for Limited Government and Constitutional Integrity, Inc., d/b/a Recall Williamson, et al. v. Jason Golden, in his capacity as Superintendent for Williamson County Schools, et al., plaintiffs unsuccessfully challenged Williamson County Schools’ mask requirements for students.5 In an order entered April 30, 2021, Chancellor Michael W. Binkley determined that mask mandates did not constitute an equal protection violation under the Tennessee Constitution.6 The Court held

22

that strict scrutiny did not apply because the face-covering requirement did not disadvantage a suspect class or involve a fundamental right; and the mask policy passed the rational basis test. While the Court expressed uncertainty about whether mask mandates were permitted after the Governor’s and Mayor’s orders mandating them had expired, the Court dismissed all claims against the school system because the Plaintiffs lacked standing.7 8 Similarly in ARJN #3, LLC, d/b/a Jonathan’s Grille, et al. v. John Cooper, et al., U.S. District Court Judge Eli Richardson determined that health-based restrictions are reviewed through a rational-basis test; and the party challenging the government action must negate every conceivable basis for the restriction.9 ARJN #3 was a challenge brought by the Nashville restaurant Jonathan’s Grille against officials of the Metropolitan Government of Nashville & Davidson County, asserting that the Health Director’s Orders mandating restaurant curfews and occupancy restrictions violated the restaurant’s right to equal protection and its substantive due process rights under the United States and Tennessee Constitutions.

Judge Richardson determined that rational-basis review was appropriate because the health orders did not implicate

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

(continued on page 23)

Editorial |

Masks in Schools (continued from page 22)

a fundamental right or suspect class.10 In the Court’s substantive due process analysis, Judge Richardson found the rational-basis test was met – by recognizing that the goal of the curfew and occupancy restrictions was to reduce the spread of COVID-19 in the Metro Nashville area and noting that the U.S. Supreme Court had found that “[s]temming the spread of COVID-19 is unquestionably a compelling interest.”11 The health orders also met the rational-basis test for the equal protection claim: [E]ven if Plaintiffs had plausibly alleged that restaurants were similarly situated to gyms and protests (which it does not find), Plaintiffs’ equal protection claim would still fail because the Amended Complaint does not rebut a rational basis for the distinction in treatment of restaurants and gyms/protests … the Court can conceive a rational justification for treating restaurants, where patrons are seated unmasked in close proximity,

differently from protests, which occur outside and allow for mask wearing, and gyms, where patrons are better able to practice social distancing and do not serve alcohol.12 Judge Richardson concluded that whether to impose mask mandates and whether to close schools were areas within the sound judgment of state and local governments, not federal courts: Also beyond the Court’s role is telling the Metropolitan Government of Nashville and Davidson County how, within constitutional boundaries, to respond to the threat of COVID-19.

Justice Kavanaugh’s observation in a case last year, in granting a point to the majority from which he was dissenting, is clearly correct: “Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of

Valuation, litigation, forensic and mediation support services require an independent and objective assessment. Price CPAs has assisted in cases involving these services.

voting and election procedures, state court and correctional institution practices, and the like.”13 Judge Richardson’s order granting the Metropolitan Government Defendants’ motion to dismiss was not appealed.

In sum, Courts have shown a willingness to defer to the difficult policy decisions that local leaders make when responding to the on-going COVID-19 pandemic. This deference likely includes a school system’s decision to require masks.

Endnotes TENN. CODE ANN. § 49-2-203(a)(2).

E.g., Morrison v. Hamilton Co. Board of Education, 494 S.W.2d 770 (Tenn. 1973) (county board of education regulation forbidding teachers and students from wearing beards bore a reasonable relationship to proper management of public schools).

3 https://www.tn.gov/education/health-and-safety/update-on-coronavirus.html.

4 https://www.tn.gov/content/dam/tn/education/health-&-safety/ TDH%20Recommendations%20for%20the%20Management%20 of%20COVID-19%20in%20Schools.pdf 5 Williamson County Chancery No. 20CV-49753.

6 Id. § 15-17.

7 https://tennesseestands.org/wp-content/uploads/2021/05/williamson. schools.memorandum.order_.pdf, at 15.

8 A motion to alter or amend has been filed but has not yet been heard.

9 ARJN #3 v. Cooper, No. 3:20-CV-00808, 2021 WL 409927, *8 (M.D. Tenn. Feb. 5, 2021).

10 Id. at *10.

11 Id. (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)).

12 Id. at *11.

13 Id. at *12.

1 2

LORA BARKENBUS FOX is the Associate Director of the Department of Law for the Metropolitan Gov-

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Connecting Talent with Opportunity NBA Career Center Whether you’re a Job Seeker searching for Career Resources or an Employer looking to Search Resumes for your next all-star team member, the NBA Career Center has everything you need!

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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 2,500 members—is the largest metropolitan bar association in Tennessee.

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NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

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Editorial |

Mike Abelow and Jackie Dixon

NBA’s Lawyer Referral and Information Service is Revamped In late 2019, shortly before the COVID-19 pandemic struck, then NBA president Laura Baker appointed a task force to study what is known as the “Lawyer Referral Service” to determine if the program should continue and, if so, how it could be improved. The task force consisted of Laura Baker, Mike Abelow, Dan Berexa, Wendy Longmire, and Jackie Dixon, chair. The task force has completed its work and made recommendations to the NBA Board.

The NBA’s Lawyer Referral and Information Service (LRIS) has been providing a service to the public and NBA members for more than 25 years. It follows the ABA model rules for the operation of public service lawyer referral programs. It also complies with Rule 44 of the Tennessee Supreme Court Rules, which addresses Regulation of Lawyer Intermediary Organizations.

The LRIS has not been doing well in recent years. Participation by attorneys on the practice area panels has declined to the point that some panels had no members.

The LRIS Task Force looked at the entire program with the goals of serving the public, serving NBA members, and

increasing income to the NBA. The task force started with the basic question of whether the lawyer referral service was a worthwhile program to continue. It was determined that the program should continue because it (1) provides the public with a trusted source to find an attorney for a small fee; (2) is a service to NBA members both by giving members a source for referrals to them as well as giving members a place to refer people when the member is unable to be of assistance; and, (3) has the potential to be a significant revenue source for the NBA. Although LRIS income has varied greatly over the years, depending on the amount of fee sharing received from panel attorneys, it has never been as significant as it is to some bar associations where lawyer referral income makes up close to one-third of the association’s income.

The Task Force recommended the following changes: Outsource the call screening. This change has been made and was necessary to provide better service and to ensure that calls were not being missed. Since this change was (continued on page 26)

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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Editorial |

NBA’s Lawyer Referral and Information Service is Revamped (continued from page 25)

made earlier this year, the volume of calls answered has increased.

Simplify the proceess for lawyers to serve on the LRIS panel. The lengthy and cumbersome application to serve on the subject matter panels has been shortened. It is now much less intimidating to complete. The list of practice area panels has been updated. Check out the application by going to nashvillebar.org/LRISAttorneys Raise the threshold for the 15% fee sharing. The threshold for fee sharing has been raised from $500 to $1,000 before lawyers have to remit 15% of their fee to the NBA. Reduce the lawyer participation fee. The annual participation fee that lawyers paid to receive referrals has been reduced from $299 to $150. A lawyer can serve on an unlimited number of practice area panels for the annual fee of $150, with no surcharge for certain panels as in the past.

Recruit lawyers for the practice area panels. Efforts are underway to recruit additional practice area panel members.

This is being done by soliciting from bar committees, directly asking specific attorneys or firms to participate, and recruiting from the NBA Leadership Forum. When you are asked to serve on a practice area panel, please say “yes!” Of course, you do not have to wait to be asked, members can sign up at any time to serve. It is a win-win. You will gain clients, participate in one to the NBA’s signature public service projects, and help the NBA’s bottom line.

Publicize the ravamped program. Efforts are being made to spread the word about LRIS. Even if you cannot serve on a practice area panel, you can still help the LRIS by directing others to the program. Tell your receptionist to direct callers to lawyer referral when the firm cannot assist. You can mention the LRIS as a possible source of an attorney when declining to represent someone. You can also remind your peers that LRIS can be a source of good quality referrals.

MIKE ABELOW is a member at Sherrard Roe Voigt & Harbinson and represents claims in commercial litigation and bankruptcy. He also serves on the board of the Nashville Bar Association as president.

JACQUELINE DIXON is a member of the law firm Weatherly, McNally & Dixon PLC where she practices family law disputes and divorce, personal injury, and probate law.

Mark Your Calendar Aug 12 | Brews for Backpacks @ Hermitage Hotel Aug 18 | 101 Years of Woman Suffrage Reception @ Hermitage Hotel Aug 28 | The 23rd Annual Carbolic Smoke Ball @ Hard Rock Cafe Sep 25 |YLD 17th Annual LogicForce Race Judicata @ Edwin Warner Park Sep 30 | Annual Free Member Picnic @ Walk of Fame Park Oct 12 | Law Day - Advancing the Rule of Law Now @ The Downtown Renaissance Hotel Oct 26 | 2021 Arts Immersion @ Mercy Lounge Nov 5 | Nashville Bar Foundation Fellows Dinner @ Loews Vanderbilt Hotel Nov 18 | Fall Memorial Service @ Downtown Presbyterian Church Dec 9 | Annnual Meeting and Banquet @ Music City Center

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NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

barBITES |

Jonathan Wardle, Office of Tennessee Attorney General

TORTILLA ESPAÑOLA Kitchen Notes I fell in love with tortilla española (also referred to as Spanish potato omelet) when I was seven years old and visiting some of my mother’s friends in Madrid. The ingredients are magnificently simple, but there is substance and depth to the flavor and texture combinations in this classic Spanish dish.

This is how I cook the tortilla when I make it at home. It is adapted from Penelope Casas’s wonderful book, “The Foods & Wines of Spain.”

Ingredients 4-6 potatoes, depending on size 1 large onion 4-5 eggs 1 cup olive oil (extra tbsp to preference) Salt

Directions 1. Peel the potatoes and cut into thin slices (about ⅛” thick) 2. Slice the onion into thin slices 3. Heat the olive oil in a large skillet on medium heat 4. Add the potatoes and onions, in layers, to the skillet. (Add the potato slices one at a time to form one layer, then add a layer of onions, and then add some salt. Repeat with additional layers until you have added all of the potatoes and onions.)

5. Continue to cook the potatoes and onions over medium heat, flipping occasionally, until tender. (The potatoes will not yet be brown, nor will they form a cake.)

6. While the potatoes and onions are cooking, beat the eggs in a large bowl until they just begin to get foamy.

7. When the potatoes and onions are tender, remove them from the heat and strain them in a colander. (Make sure you have something under the colander to catch the olive oil because you will want it later.)

8. Once strained, add the potatoes and onions to the eggs and press down until the potatoes and onions are covered by the eggs.

9. Let the mixture sit for 15 minutes.

10. Add about 3 tablespoons of the residual oil to a skillet and heat on high until hot. (I like to use the same skillet I used to cook the potatoes and onions, but you need to make sure there is nothing stuck to the bottom of the skillet.)

11. Add the potato, onion, and egg mixture to the skillet, reduce the heat to medium-high, and press the mixture with a spatula.

Then shake the skillet to prevent sticking.

12. Watch closely. As soon as the bottom begins to brown, flip the omelet. (To flip the omelet, put a plate on top of the potatoegg mixture and then invert the skillet while holding the plate. If anything stuck to the skillet, just add it to the top of the inverted omelet. Add another tablespoon of the residual oil to the skillet and then slide the omelet back onto the skillet.)

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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VOLUNTEER FOR DIAL-A-LAWYER Dial-A-Lawyer is held the first Tuesday of each month from 6:00 – 8:00pm, and the public is invited to call in with basic legal questions. If you would like to volunteer and help the NBA support this program, please contact Traci.Hollandsworth@nashvillebar.org.

Thank you to our July volunteers!

JOE RUSNAK TOM LAWLESS DOUG PIERCE

Pro Bono credit applies, and a complimentary dinner is provided.

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NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

5/5/21 4:58 PM

Welcome to the NBA!

Congratulations on your membership—thank you for joining the NBA! We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@nashvillebar.org with questions or to learn more.

NEW MEMBERS (MAY 1 - JUNE 30) Frank Abernathy

Savannah Darnall

Terry Olsen

Tim Amos

Casey Elrod

Kyle Parks

Klayton Anstine

Sam Flener

Matt Parolie

Davis Barnhill

Fred Johnson

Andrew Puryear

Pooja Bery

Jesse Joseph

Heidi Richards

Tonya Bowman

Ashleigh Karnell

Willie Robinson

Thomas Brothers

James Kemp

Alyssa Rogowski

Jeff Caballero

Robin Kimbrough

Trish Smith

Melissa Carrillo

David Marlowe

Gage Smythe

Mitch Carrington

Jeff Melcher

Brandon Steg

Kat Carrington

Heather Meshell

Travis Vest

Tenia Clayton

Catherine Moore

Lang Wiseman

Corey Coleman

Jennifer Nichols

Lynn Wolf

Heather Curliss

Chelsea Nickolson

VISIT NASHVILLEBAR.ORG/PHOTOGALLERY FOR MORE!

YLD Happy Hours | July 2021

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NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

VISIT NASHVILLEBAR.ORG/PHOTOGALLERY FOR MORE!

Diversity Committee Happy Hour | June 2021

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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VISIT NASHVILLEBAR.ORG/PHOTOGALLERY FOR MORE!

President’s Reception | June 2021

32

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

VISIT NASHVILLEBAR.ORG/PHOTOGALLERY FOR MORE!

President’s Reception | June 2021

AUGUST/SEPTEMBER 2021 | NASHVILLE BAR JOURNAL

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Hearsay | Honors & Awards, On the Move, Firm News H ONORS & AWARDS Wiseman Ashworth Law Group founding member Gail Vaughn Ashworth has been named the Lifetime Achievement winner in the Nashville Business Journal’s “Best of the Bar” Awards.

She is the first woman to receive this honor. Ashworth has extensive experience at the civil and administrative trial and appellate levels as both defense and plaintiff’s counsel, from personal injury to insurance coverage, product liability, employment law and medical ethics. Ashworth was the president of the NBA in 1997.

Bradley is pleased to announce that Junaid Odubeko has earned the Certified Information Privacy Professional credential in the United States through the International Association of Privacy Professionals. Odubeko focuses his practice on representing his clients in cybersecurity and data privacy, complex commercial litigation and business disputes, and real estate litigation.

The International Association of Defense Counsel (IADC) has announced that Kathleen Ingram Carrington, an attorney at Butler Snow LLP, has accepted an invitation to join the IADC, the preeminent invitation-only global legal organization for attorneys who represent corporate and insurance interests.

34

Carrington focuses her practice on personal injury and product liability litigation related to recalled products and allegations of product defect.

Metropolitan Nashville-Davidson County General Sessions Judge Lynda Jones is the recipient of Nashville Cable’s Spirit of Leadership Award. This award recognizes a Cable member not currently serving on the Board of Directors who exemplifies leadership through personal and professional accomplishments which have inspired and influenced the advancement of women.

M. Reid Estes, Jr., Dickinson Wright Member and South Region Practice Group Co-Chair has been recognized

by The Legal 500 United States 2021 in their editorial as a “Recommended Lawyer” for labor and employment disputes. Estes was admitted to the bar in 1980 after attending the University of Tennessee College of Law. Taylor Teresa J. Walker, Senior Advisor, and Chief Operating Officer, Emeritus at Waller LLP has attained the Certified Legal Manager® designation.

This designation demonstrates a mastery of the knowledge, skills, and abilities to operate at a high level of expertise in the field of legal management.

Walker is a past president of the Association of Legal Administrators.

NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

Bradley LLP is pleased to announce that Shundra Crumpton Manning, has been selected to the inaugural National Bar Association Associate Advancement Academy for Excellence.

The NBA Advancement Academy is designed to facilitate the advancement and retention of black attorneys in the nation’s largest law firms, focusing on associates within the first three years of practice at AmLaw 200 firms.

O N TH E M OV E Bone McAllester Norton is pleased to announce the addition of Brandon Meredith to their Sumner County office, and Jon Cooper to their Nashville office. Meredith primarily focuses on real estate, landlord and tenant law, estate planning and administration, estate litigation, construction, boundary lines, and other land use matters. Cooper, veteran Metropolitan Government attorney, focuses on administrative and regulatory law practice, and land use and zoning practice.

Ryan C. Davis Law, PLLC, is pleased to announce the hiring of Associate Attorney James Kemp.

Kemp’s practice is primarily focused on criminal defense, family law, and landlord/tenant

Hearsay | Honors & Awards, On the Move, Firm News representation. Kemp is a recent graduate of Belmont College of Law. Bradley adds five new attorneys to their Nashville office.

Alex Brent is an associate in the Healthcare Practice Group. He assists clients in the healthcare industry with transactional, operational, and regulatory matters. Mr. Brent received his J.D. from the University of Tennessee College of Law, where he graduated first in his class.

Katelin Davis is an associate in the Real Estate Practice Group.

She received her J.D. from the University of Mississippi School of Law, where she was executive online editor for the Mississippi Law Journal.

Ms. Davis earned a B.A. in Journalism from the University of Mississippi.

Tanner Hamilton is an associate in the Real Estate Practice Group. He provides counsel in real estate acquisitions and dispositions, finance and development, leasing, and lending. He received his J.D. from the University of Tennessee College of Law and his B.S. in Mechanical Engineering from Clemson University.

Shelby Lomax is an associate in the Banking and Financial Services Practice Group. She focuses on litigation and regulatory compliance issues and advises clients on regulatory risks relating to small business lending, alternative finance,

and merchant cash advance transactions. Ms. Lomax received her J.D. from Belmont University College of Law. Rachel Sodée is an associate in the Litigation Practice Group. She received her J.D. from Vanderbilt University Law School, where she was symposium editor for the Vanderbilt Law Review and president of the Labor and Employment Law Society. Sodée earned a B.A. in French and English from the University of Alabama.

N. Courtney Hollins has joined Baker Donelson as a shareholder and a member of the Real Estate Practice Group. Hollins represents buyers, sellers, developers, investors, landlords, tenants, lenders and borrowers in commercial real estate acquisition, disposition, construction, development, leasing and finance transactions, workouts, and restructuring.

Ryan Pratt recently joined Sobro Law Group. Pratt’s real estate practice includes representing developers, investors, landlords, tenants, and brokers in the planning, structure, finance, purchase/sell, leasing, and management of commercial and residential real estate. He obtained his J.D. degree from Vanderbilt University Law School.

FI R M N E WS McGlinchey Stafford recently launched Uplift, the firm’s newly reimagined wom-

en’s initiative. Uplift’s mission is to advocate for women lawyers at the firm and across the legal profession, and to be a home for their women attorneys to convene, engage, empower, and advocate for each other in their work, in leadership, in their communities, and across the legal profession and industries the firm serves. n

LAWYER REFERRAL & INFORMATION SERVICE

Are you looking for another avenue for revenue and referrals, specifically those tailored to your practice area?

If so, the NBA Lawyer Referral & Information Service needs you. We are currently in need of attorneys who handle issues such as:

COVID-19 Related Employment Evictions Immigration Workers’ Compensation For information on joining the LRIS, contact LRIS@nashvillebar.org. We look forward to hearing from you!

THE EXCLUSIVE REFERRAL SERVICE FOR THE NBA

AUGUST/SEPTEMBER 2021 | 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!

Anderson & Reynolds

Law Offices of John Day

Baker Donelson

LBMC

Blink Law

Legal Aid Society

Bradley

Leitner, Williams, Dooley & Napolitan

Branstetter, Stranch & Jennings

Lewis Thomason

Brewer, Krause, Brooks & Chastain

Lieff, Cabraser, Heimann & Bernstein

Bulso

Lindsey + Amonette + Nemer

Butler Snow

Littler Mendelson

Cole Law Group

Martin Heller Potempa & Sheppard

Cornelius & Collins

Matt Hardin Law

Dickinson Wright

McCarter & Beauchamp

Dodson Parker Behm & Capparella

McCracken-Kuhn

Equitable Trust Company

Meridian Law

Evans, Jones & Reynolds

Morgan & Akins

Fisher & Phillips

MTR Family Law

Frazer

Nashville Electric Service

Frost Brown Todd

Neal & Harwell

Grissim & Hodges

Nelson, Mullins, Riley & Scarborough

GSRM Law

North, Pursell & Ramos

Hall Booth Smith

Ogletree Deakins

Healthcare Realty Trust, Inc.

Ortale Kelley Law Firm

Holton & Mayberry

Parker, Lawrence, Cantrell & Smith

Kay Griffin

Patterson Intellectual Property Law

Keller, Turner, Andrews & Ghanem

Pepper Law

Kinnard, Clayton & Beveridge

Rainey, Kizer, Reviere & Bell

Latitude

Raybin & Weissman

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NASHVILLE BAR JOURNAL | AUGUST/SEPTEMBER 2021

Reno & Cavanaugh Riley, Warnock & Jacobson Robinson, Reagan & Young Rogers, Shea & Spanos Rudy Winstead Turner Shackelford, Bowen, McKinley & Norton Sherrard Roe Voigt & Harbison Sims|Funk Smith Cashion & Orr Smythe Huff & Murphy Spicer Rudstrom Starnes Davis Florie Stites & Harbison Sutherland & Belk Taylor, Pigue, Marchetti & Blair Venick, Kuhn, Byassee, Austin & Rosen Watkins & McNeilly White & Reasor Wiseman Ashworth Law Group Wood Stabell Law Group Wyatt, Tarrant & Combs

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