Nashville Bar Journal | December/January 2020-21

JOURNAL Journal Journal

DECEMBER/JANUARY 2020-21 | VOLUME 20 | NO. 6

FEATURE

Virtual Volunteerism ALSO

My Experience As A Federal Grand Juror Year 2020: Can There Be Any Silver Lining?

The CASE Act: Small Claims Copyright Court

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FE ATU R E

Virtual Volunteerism

DECEMBER/JANUARY 2020-21 | VOLUME 20 | NO. 6

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Jonathan Wardle

DEPA R TM E N TS

From the President

Mike Abelow

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Calendar of Events

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Hear Ye, Hear Ye

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Historical Committee Didn’t Renew Your Dues NBA YouTube Channel NBF Grant Applications

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My Experience As A Federal Grand Juror Bart Pickett

21 Year 2020: Can There Be Any Silver Lining?

Caroline Sapp

The CASE Act: Small Claims Copyright Court 23 Ramona DeSalvo

CLE Schedule

barBITES

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Background Check 11

Bart Pickett

Photo Gallery

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Gadget of the Month 15

Bill Ramsey & Phillip Hampton

Hearsay

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100% Club

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Capitol Notes 19

Peggy Sue, the Beagle Hound

C O L UMNS

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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FROM THE PRESIDENT

Accountability | Mike Abelow MIKE ABELOW, Publisher WILLIAM T. RAMSEY, Editor-in-Chief CAROLINE E. SAPP, Managing Editor LAUREN POOLE, Managing Editor JILL PRESLEY, Layout/Design/Production

EDITORIAL COMMITTEE RAMONA DESALVO TIM ISHII KELLY FREY SUMMER MELTON ROB MARTIN BRUCE PHILLIPS BART PICKETT 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 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 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 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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Due to the timing of the Nashville Bar Journal publication process, I am writing to you from the pre-Presidential election past. Here, I am desperate for a time machine to take me to the future and show me the outcome of the election. For now, I can only wait to learn what you (hopefully) already know as you read this.

Despite my impatience, it is impossible to know or control the future, but we can still plan for it. So, I thought I would use this space to announce my goals for the upcoming bar year. In part, this is due to social science research suggesting that publicly announcing goals makes you more likely to achieve them.

Similar to the magic in mediating a case, as opposed to depending only on private negotiations between the lawyers, it turns out there is magic in publicly announcing goals and expecting to be held accountable. To use a legal analogy often used by my predecessor Laura Baker: The first speech/article is like the opening statement—it tells the jury what you will prove. You must make that opening statement knowing that the jury will hold you accountable when it comes to the close of trial. So, here is my opening statement declaring my goals for the NBA this year. Please hold me accountable throughout the year and let me know how I am doing.

Deliver outstanding opportunities to connect in changed times. I came to Nashville in 2007 from Washington, DC. The thing I immediately appreciated most about practicing law here was that Nashville lawyers live the motto that lawyers should “disagree without being disagreeable.” This aspect of Nashville’s legal culture is a real and rare thing, but it could be easily lost if not purposefully and regularly nourished—it makes all the difference in our quality of life as lawyers. The NBA is a key to that dynamic, as it is hard to be unduly difficult with someone you may face at the next committee meeting or cocktail party. We need to continue to find and provide these opportunities, safely.

Separating the wheat from the chaff on technology changes that will affect our practice. The pandemic has prompted numerous changes in the practice of law, and has accelerated others that were already occurring. We must keep members up to speed on the technological changes that will make big differences in how law is practiced in the future. We must also not allow members to get wrapped up in changes that are transitional or temporary during this time. The NBA should be a go-to source for you to understand what is here to stay and what is on the horizon.

Delivering the most significant Nashville cases and transactions. When the bar was much smaller, members knew the scoop on significant cases and transactions through word of mouth. We are much bigger now, but it remains critical to understand, for example, what Judge A thinks about issue Y on a motion to dismiss. The NBA can compile and share this type of critical information through its committees and other sources. We encourage you to keep talking in this year of solitude, because as we all know, the rulings have not stopped coming down.

Having publicly announced my goals, I hope you’ll hold me accountable, let me know your feedback, and share other ideas you may have for how the NBA can deliver value to you in the upcoming bar year. Thank you for your membership! n

NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

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

DECEMBER 2020 M O N D AY

T U E S D AY

NOTE: Per CDC guidelines, all meetings will be held via video/conference call until further notice. Please check NashvilleBar.org/Calendar for the latest updates.

W E D N E S D AY

T H U R S D AY

F R I D AY

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

1 NBA Board Mtg 4:00pm | via Zoom

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CHRISTMAS EVE

CHRISTMAS DAY

Holiday | NBA Office Closed

Holiday | NBA Office Closed

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JANUARY 2021 M O N D AY

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Probate Committee Mtg 12:00pm | via Zoom

Historical Committee Mtg 11:30am | via Zoom

11 MARTIN LUTHER KING, JR. DAY Holiday | NBA Office Closed

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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JOURNAL JOURNAL Journal Journal

2020 NBA BOARD OF DIRECTORS LAURA BAKER, President

MICHAEL ABELOW, President-Elect

BRANT PHILLIPS, First Vice President TRACY KANE, Second Vice President BART PICKETT, Secretary JEFF ALLEN, Treasurer

JUSTIN CAMPBELL, Assistant Treasurer GILBERT SCHUETTE, YLD President LELA HOLLABAUGH, General Counsel LAURA SMITH, Immediate Past President LYNNE INGRAM, First Vice President-Elect

Hear Ye, Hear Ye |

Events of Interest

Message from the Historical Committee Do you have a funny story from court or your office that would not have happened absent the coronavirus? How have virtual hearings or mediations changed the way you approach these events? The NBA Historical Committee would like to share your stories with the bench and bar.

The stories can be published anonymously, and you will be given a heads up before we use any information that you provide. Please send all stories to NashvilleBar@ gmail.com. Thank you! n

DANIEL BEREXA, Second Vice President-Elect

Didn’t Renew Your Dues?

HON. MELISSA BLACKBURN BRIGID CARPENTER RAQUEL L. EVE OLUYEMO

Last chance to renew your dues! The 2020 NBA membership year has officially ended. To ensure uninterrupted member benefits, please renew online at NashvilleBar.org/Renew or contact Vicki.Shoulders@ nashvillebar.org. Thank you for your continued support and membership—we appreciate you! n

LORA BARKENBUS FOX MARY TAYLOR GALLAGHER JEFF GIBSON WILLIAM “PAZ” HAYNES MARTESHA JOHNSON HON. ELLEN HOBBS LYLE MARLENE ESKIND MOSES JUNAID ODUBEKO LIZ SITGREAVES ERIC SMITH DARKENYA WALLER LUTHER WRIGHT, JR. HON. BILL YOUNG GULAM ZADE STEPHEN ZRALEK

The NBA YouTube Channel

Have you checked out our YouTube channel at YouTube. com/NashvilleBar? There you can find the 2020 Virtual Fall Memorial Service, the RBG: A Meaningful Life program, free historical CLEs from years past, oral histories of the Nashville legal community’s most prominent characters, and more! n

NBA TEAM MONICA MACKIE, Executive Director SHIRLEY CLAY, Finance Coordinator CAMERON GEARLDS, CLE Coordinator TRACI HOLLANDSWORTH, Programs & Events Coordinator JILL PRESLEY, Marketing & Communications Director 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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Nashville Bar Foundation Grant Applications

The Nashville Bar Foundation is still accepting grant applications for 2020. If you know of any 501(c)(3) organizations that may be eligible for a Foundation Grant, please spread the word. View grant eligibility and application guidelines at NashvilleBar.org/NBFGrantGuidelines. The Foundation will allocate funding each budget year on the basis of written applications in a format prescribed by the Foundation. Grant applications can be found at NashvilleBar.org/NBFGrantApplication and are due in mid-January.

Watch your NBA Weekly Update for further information. n

NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

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 (SEPTEMBER 1 - OCTOBER 31) Blakely Barnes

Kathryn Kerbyson

David Bartz

Savannah Kolodziej

Eric Bonsall

Amy Little

Alexander Brent

Shelby Lomax

Morgan Brown

Wesley McCulloch

Hannah Burdine

Madison Patey

Jeffrey Cadle

Gale Robinson

Carmen Campbell

William Self

Albert Chollet

Jennifer Sherman

Ben Colalillo

James Smythe

Tucker Crain

Rachel Sodee

Brandon Crompton

James Starling

Katelin Davis

Sarah Stewart

Charles Elder

Thomas Thagard, IV

Rebekah Wallace Elliott

Jamer Walker

James Hodge

Andrew Wilson

William Johnson

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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Feature Story | Jonathan Wardle

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NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

Virtual Volunteerism

“People want to serve.” So says Carla Parker, Direct of Communications for JustServe1 in the Nashville area. Unfortunately, the pandemic “has made people apprehensive to go serve.” Parker was kind enough to spend a few minutes with me in November to discuss how service-based organizations and potential volunteers have had to adapt amidst an ongoing pandemic. Her message is timely, as service organizations see a significant uptick in volunteerism during the holiday season.

Andrae Crismon at the Legal Aid Society would probably agree. As he told me in a November email, the Legal Aid Society often sees more interest in volunteerism over the holidays, especially from law students looking for pro bono opportunities.

However, the pandemic has changed how otherwise willing people are able to serve. “They’re finding other ways to serve,” says Ms. Parker. “Really, people want virtual opportunities.”

Yup. Everything is going virtual. We are already familiar with virtual trials and depositions, virtual client meetings, and virtual working. And we have all seen how virtual living is on the rise outside of the office. Schools now engage students in virtual learning, shoppers make their purchases through virtual stores, and romantic hopefuls go on virtual dates to find that special someone.2 Even experienced-based traveling has given way to a new wave of virtual experiences.3 We were moving in this direction long before COVID-19. But the pandemic has thrust us into a whole new era of virtual working and living. This unexpected jolt into a contact-less existence has given rise to a new and more hopeful trend, one that I am sure Parker, and many service-oriented organizations, can appreciate: virtual volunteerism.

The organization Parker represents, JustServe, is just one

example of a particular type of service-oriented organization that I like to refer to as an online service clearinghouse. For years, these clearinghouses have helped would-be volunteers find service-based organizations in need of helping hands. Another such organization, Hands on Nashville, is an impressive local clearinghouse that Nashville can be proud of.

For years, online service clearinghouses have helped wouldbe volunteers search for potential service opportunities from the comfort of their own homes. However, most of the service opportunities listed with the clearinghouses still require traveling to a physical location and face-to-face involvement. The pandemic— and the emphasis on remote living and social distancing—has forced these clearinghouses (and the service-based organizations they serve) to find new ways for willing volunteers to serve.

Virtual volunteerism is now on the rise, and it is a good thing, too. Individuals who had limited means and opportunities before the pandemic are even more desperate now. For example, one study found that low-income parents were “less likely to be able to work from home and more likely to have had difficulty arranging child care than higher-income parents.”4 Another report published in September 2020 found that—six months into the pandemic—one half of adults who lost their jobs due to the pandemic were still unemployed.5 That same report found that almost one third of lower-income adults were having difficulty making rent or mortgage payments. And another article called the pandemic a “crisis within a crisis” for homeless individuals, noting they are “one of the most vulnerable populations in the COVID-19 pandemic, yet they’re largely invisible victims.”6 At the same time, the service-based organizations that try (continued on page 8) (continued on page 00)

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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Feature Story | to help those individuals and families now face even greater challenges than normal. Some wellsprings of charitable funds have dried up in this uncertain economic climate, and many would-be volunteers are unable to serve due to their own health concerns and social distancing restrictions.7 The president and chief executive of the National Council of Nonprofits was quoted, “People who used to donate to nonprofits are now standing in line to receive services, which tells you while demand is soaring, the resources are plummeting.”

Thankfully, the ancient maxim “necessity is the mother of invention” still holds true. Organizations and creative individuals now experiencing unexpected hardships have embraced the change and found new ways to virtually match volunteers with service-based organizations.

For example, Hands On Nashville has an entire page dedicated to Virtual Volunteerism. Upon my last review, there were nearly 30 virtual volunteer opportunities that ranged from teaching adult education (via Zoom) to creating social media to conducting surveys to writing letters to sewing masks to checking voicemails, and much, much more.

JustServe also allows potential volunteers to find virtual service opportunities or opportunities to serve from home.

When searching for a project, the willing volunteer can click on “more search options” and then select the option for “Volunteers participate from home” (or click here if you’re reading the online edition).

When I last checked, JustServe listed about 30 service opportunities around the Nashville area. These “virtual” opportunities included making shower kits, transcribing cemetery records, calling senior citizens, coordinating volunteer rides, creating informative posters, creat-

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Virtual Volunteerism (continued from page 7) ing greeting cards for inmates, and digitizing veterans’ memories, to name just some of the opportunities available.

Palmer was also quick to inform me of other opportunities that may require some travel away from home but that are still geared toward social distancing. For example, several service-based organizations dedicated to feeding the hungry have made changes to keep both volunteers and service recipients safe.

The Store, a partnership between Brad Paisley and Belmont University to provide a free grocery store for people in need, has opportunities for willing volunteers to deliver groceries. One Generation Away, an organization dedicated to distributing healthy food to families in Middle Tennessee, also has opportunities for volunteers to participate in food drops. And Dismas House, an organization dedicated to helping formerly incarcerated men facing reentry, has opportunities for families to provide meals for the men the organization serves.

Of course, those with resources to give can find plenty of opportunities for donations at this time of year. And many of those opportunities can be found online at JustServe, Hands On Nashville, and other online service clearinghouses.

But what about the many good members of the NBA who have long found fulfillment by using their legal skills to serve those in need? Are there virtual volunteer opportunities for them?

Of course! The Legal Aid Society will gladly help the willing lawyer-volunteer who wants to put his or her lawyer skills to good use through virtual service.

Indeed, the Legal Aid Society has long hosted legal clinics pairing volunteer lawyers with low-income individuals who have questions about certain legal issues. But now those clinics have gone virtual. In November alone, the Legal Aid

NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

Society scheduled 13 different virtual legal clinics. Mr. Crismon also suggests the willing lawyer can participate in Pro Bono Matters, where attorneys can browse case matters online to find potential opportunities to provide pro bono service.

Don’t let the pandemic get you down, especially at this time of the year when so many of our hearts naturally turn outward towards those in need.

There are plenty of people in need this year, perhaps more than ever. Thankfully, there are creative organizations that have found ways to help the willing volunteer surpass the obstacles of the pandemic. Go and serve, if only virtually. I think I can safely promise the recipients will be more than just virtually grateful. n This article represents the opinions of the author and not necessarily those of the Office of Tennessee Attorney General.

Endnotes JustServe is sponsored by the author’s religion, the Church of Jesus Christ of Latter-day Saints. However, it operates as “a service to help link community volunteer needs with volunteers and does not discriminate based on race, religion, gender, ethnicity, or sexual orientation in posting projects or encouraging volunteers to serve.” About Us, JustServe. It also prohibits the posting of any projects that engage in religious instruction or in “any form of religious proselytization.”

1

See Alyson Krueger, Virtual Dating is the New Normal. Will it Work?, The New York Times (Apr. 18, 2020).

2

See Vikas Gupta, Op-ed: The ‘Experience Economy’ is dead driving a boom in virtual reality, CNBC (Aug. 27, 2020); accord Augmented Reality.

3

Michael Karpman, Dulce Gonzalez, Genevieve M. Kenney, Parents are Struggling to Provide for Their Families during the Pandemic, Urban Inst. (May 21, 2020).

4

Kim Parker, Rachel Minkin, Jesse Bennett, Economic Fallout From COVID-19 Continues to Hit Lower-Income Americans the Hardest, Pew Research Ctr. (Sept. 24, 2020).

5

6 COVID-19 is a ‘crisis within a crisis’ for homeless people, Modern Healthcare (Aug. 24, 2020).

See Nicholas Kulish, Providing a Pandemic Safety Net, Nonprofits Need Their Own, The New York Times (July 24, 2020).

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JONATHAN WARDLE is an Assistant Attorney General in the Criminal Appeals Division of the Office of Tennessee Attorney General, serves on the Nashville Bar Journal Editorial Committee, and is a Fellow of the Nashville Bar Foundation.

Editorial |

Bart Pickett

My Experience as a Federal Grand Juror I will never forget checking my mailbox one evening and seeing a letter from the Middle District of Tennessee Federal Court. I had been chosen for grand jury duty. While I always thought serving on a jury would be a worthwhile experience, even as a lawyer, I did not know much about grand juries. The subpoena came with a questionnaire addressing the bare minimums for eligibility to serve, and a number to request a deferment, which I reluctantly ignored.

Per the recorded jury line, I had to appear at the federal courthouse at 8:00am. I arrived and lined up to check in with the jury coordinator. The large room was filled with people of all demographics from across Middle Tennessee. Around 8:15am, the coordinator commanded the podium to give her grand jury spiel. She said that if we were chosen, the term would be one day, every other week for a year. I burst out laughing before realizing it wasn’t a joke. She even tried to convince us that at the end of the year, most people want to keep doing it. They were picking two panels that day. Each panel had 23 members and 12 alternates. With only 103 of us that morning, selection seemed imminent. After a short video explaining what a grand jury does, we were escorted to a courtroom down the hall.

With all of us seated, the judge took the bench, thanking us for our willingness to serve, and addressed the importance of the grand jury. He began questioning the jury pool with questions regarding whether we had ever been arrested, been a victim of a crime, been investigated by or testified in front of a grand jury, and if we knew any lawyers. As you can imagine, the questioning took quite a while. Sitting on the back row, I became the last to answer the question about knowing any lawyers. I told the judge I was a practicing Tennessee attorney and that most of my friends were lawyers. Having no criminal law experience, however, I advised the judge and Assistant US Attorney (AUSA) that I could be fair. The judge then had anyone who had concerns about service line up. Without any real reason to be excused, I sat back and just hoped to be selected as an alternate, if at all. Alternates only serve if they are permanently replacing a grand juror, which seemed unlikely at least for the majority of the 12 alternates.

After hearing all potential excuses, the judge announced each of the panels. As he read off the 23 names of the first panel, I sat breathless on the back row with my fingers crossed. (continued on page 14)

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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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.

OCT/NOV GOLDEN OLDIES

Congratulations to Judge Ben Cantrell who correctly identified the individuals in last issue’s photo! From left to right: David Herbert, Mary Schaffner, R.B. Parker, and John McLemore.

THERE’S NO PLACE LIKE WORK F R O M H O M E F O R T H E H O L I D AY S .

ALPS has been proud to support you virtually this year with our quick and easy online malpractice insurance application and online risk management resources, blog articles and podcasts. While we can’t be there in person, we are still here as your Nashville Bar Association-endorsed carrier.

Until we meet again, visit us virtually at: alpsinsurance.com/nashville-bar-association

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NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

BACKGROUND CHECK

Commissioner James Haltom | Bart Pickett

If anyone has had an eventful and positive year, it has been Commissioner James Haltom. In the last year, he turned 40, had his first child, and took the bench as a trial judge on the Tennessee Claims Commission.

James grew up in Rockingham, North Carolina, the oldest of five kids.

He attended University of North Carolina, Chapel Hill, where he studied political science. When 9/11 happened at the start of his junior year, it forever changed his trajectory. He immediately enrolled in ROTC and simultaneously enlisted in the Army National Guard.

Out of college, James first moved to rural Mississippi as part of the Teach for America program. He taught second grade—which he describes as the hardest job he has ever had—and coached high school football. While in his first year of teaching, the Iraq War started, and his National Guard unit was put on alert and then deployed.

James spent the next two and half years on active duty, either training or in combat. He commanded a 20-soldier unit and spent almost every calendar day of 2005 in Iraq. In August 2006, he completed his active military duty service.

Eleven days after coming off active duty, James enrolled at Ole Miss

Law School. While there, he served on the moot court board, law review, and as the student body president. Going to law school after fighting in war made him appreciative; he treated law school like a job. While in law school, he also commanded two units in the National Guard—one an hour away and the other two hours away. However, his biggest accomplishment by far at Ole Miss was landing his wife, Claire. He graduated from Ole Miss in 2009.

Claire went to high school and college in Nashville, so James found himself following her to Music City.

He clerked for Burr Forman during law school, which led to a job where he practiced for five years in a commercial litigation practice with an emphasis on creditors’ rights and business litigation.

When Nelson Mullins established their Nashville office, they tapped James to help expand its litigation practice. He became a partner at the firm and remained there for another five years before his current judicial position became open.

Most claims against the State of Tennessee are heard by judges known as claims commissioners in each of the three grand divisions of the state. When the Middle Tennessee seat opened in 2019, James applied and was ultimately appointed by the governor in August of that year to serve an 8-year term.

He serves as the sole judge for the 42 counties in Middle Tennessee for lawsuits against the state.

James’ courtroom is housed in the Polk Building above TPAC. In his brief tenure, he has already had a dozen multi-day trials. Thus far, he has really enjoyed his new role. He now spends a lot of his time reviewing law and distinguishing facts rather than advocating

as he previously did.

Aside from taking the bench about six months before the pandemic, James and Clair added James “Houston” Haltom to their household back in March. Claire works as an equity partner at Baker Donelson, and they live in the Hillsboro/West End neighborhood.

James is about to start his 20th year of reserve military service in the Army National Guard. His current rank is Lieutenant Colonel, and he is the executive officer of the 30th Troop Command which has about 1,500 soldiers.

In addition to his busy professional life, James remains active in his hobbies. He considers himself a serious runner and cyclist. He is also a licensed pilot. During private practice, he would fly to hearings and meetings about three times a month. Now he does not have as much of a need to fly, although he recently flew his wife and son to have dinner with the family in North Carolina.

As Nashville grows, James has been grateful that the collegiality he has experienced within the bar has continued. He is thankful for the friendships he has made through the NBA, which have been so important to his career, and encourages every “casual” member to take on an active role. 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.

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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for the Holidays

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E NGAGE WI TH US

Editorial |

My Experience as a Federal Grand Juror (continued from page 9)

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My name was not called, even as an alternate, for that panel. He then started naming the second panel’s members. I made it all the way to Grand Juror Number 19 before hearing my name. I was about to spend one-tenth of my next work year in grand jury duty.

Each panel has a foreperson, a deputy foreperson, and an alternate deputy foreperson. The judge selected me as the alternate deputy foreperson for my panel.

We were informed that our panel would meet every other Thursday and that we should finish each day by 4:30pm. With the instruction to always call in after 5:00pm the night before grand jury duty to find out when to report, I left the building exhausted.

Two weeks later, I reported for my first official day of grand jury duty. My concern, upon learning of my year of service, was about prior commitments like jury trials that conflicted. Any absences had to be approved by the jury coordinator. Unlike a petit jury, a grand jury does not require a unanimous decision and does not require all 23 jurors to conduct business. A majority—or 16 people—must be present to hear evidence. To indict, 12 persons must vote in favor with a standard of probable cause. As it turned out, any time I did need to miss, it was approved.

So how does the process work?

We had our very own grand jury room reminiscent of a small college lecture room. There was a table up front for the AUSA, one for the foreperson and deputy, a small witness stand and an off-shoot for the court-reporter. The day typically started with an AUSA giving us an overview of what they planned on presenting and what charges, if any, they would present. Sometimes

NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

evidence or testimony was presented without an indictment as the investigation continued or we needed additional testimony. The AUSA would bring in whatever witnesses they had which typically was a federal agent and oftentimes fact witnesses. The fact witnesses having been subpoenaed to be there were advised about their Fifth Amendment right and told they could have an attorney outside of the room to consult with. While the witness was not bound to secrecy, the AUSA always requested that they not talk about it. As grand jurors, however, we are bound to secrecy forever short of a court order allowing otherwise.

I found my year of service to be informative and interesting. People always ask how often we indicted a person. While I cannot give specifics, I can say that the vast majority of the time we did indict, but that went more to the proof and presentation than to a “lower bar” for indictments.

True to the prediction, I saw several people wanting to sign up to serve again on that last day. They had jobs that went on with or without them unlike an attorney who goes home to a full inbox waiting on responses. While I will treasure my service, I will not be jumping in line to sign up again anytime soon. 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.

BILL & PHIL’S GADGET OF THE MONTH

iPhone 12: Back to the Future? | Bill Ramsey & Phillip Hampton

If you have been obsessing over the election or COVID, or if you have been living under a rock, you might not know that Apple just released the 12 Series for the iPhones—the iPhone 12 Mini, the iPhone 12, the iPhone 12 Pro, and the iPhone 12 ProMax. Of course, Bill could not wait. He bought the iPhone 12 as soon as possible. Phil kept his money in his pocket and held on to his Samsung Galaxy Note20.

While there are many new features in the iPhone 12 line—such as magnetic charging, 5G, more camera improvements, a faster processor, a brighter display, a glass screen that is supposedly harder to break—there are some throwbacks to older days. These include a return to flat sides (making the Mini and the 12 look and feel like an iPhone 4 or 5 in your hand), the “notch” at the top of the screen (that other smartphone makers have abandoned), the old lightning port (while other makers have switched to USB-C), and of course, a high price (as costly as a nice laptop computer). Don’t let the pricing fool you, though—the 12 starts at $799, but it only has 64GB of storage, no charger, no headphone, and no case. All will cost you extra, and you will soon be at the $1,000 mark.

Nevertheless, spendthrift Bill bought the 12 with 256GB, the new Magsafe charger ($39) and the compatible case ($49), putting him well over $1K. The Mini costs $100 less, the Pro

costs $200 more, and the ProMax costs $300 more. If you go whole hog with the ProMax, you will near the $1,500 mark.

We are surprised that Bill showed some restraint, but according to him, all you really get with the Pro models is a better camera and Lidar (which allows the camera to work better and measures distances and height of objects up to five meters away).

Bill loves the look and feel of his new iPhone 12. He bought one in blue, which he thinks makes him hip, cool, and savvy. (Phil says “Whatever!”) He thinks the square edges and stainless steel make it easier for his old hands to hang on to his prize, and is reminded of when he bought the iPhone 4 in 2010 (when he was 10 years younger).

Even Phil admits the 12 is a good-looking phone—the finishes don’t capture as many fingerprints and he likes the blue, as well (though he would never tell that to Bill).

Apple’s new A14 processor makes the phone very fast—noticeably faster than previous models—and the display is brighter. So, with the improved speed and display, Bill can watch his favorite Road Runner cartoons without any skipping or screen “hiccups.”

Speaking of speed, we must note that Bill is disappointed in the 5G behavior of his AT&T iPhone 12. He could see no improvement over 4G in areas where AT&T says it has 5G. Hopefully, that will change before Bill buys his next iPhone.

Bill loves the iPhone 12 camera. He can take beautiful, clear, and sharp photos of his garden and pet cattle, even at night. His pictures of his cattle at night are especially sharp with the new “Night Mode” and “Night Portrait Mode.”

Now to the charging and battery performance. Bill has noticed that the

iPhone 12 battery lasts much longer than the batteries on his previous iPhones. (Benchmarking by techno geeks confirmed his observation. The extra life is fueled primarily by more efficient screens and the new A14 chip which uses less power.) Of course, as with all batteries, the performance will likely degrade over time.

Finally, contrary to the mixed reviews given the new MagSafe accessories, Bill loves his charger and compatible MagSafe case. Some reviewers have suggested that the MagSafe charging is slower than plugging it in via a Lightning cable. MagSafe uses a magnetic disc that is on the back of the iPhone 12 case. It then magnetically and securely attaches to the MagSafe charger. Bill likes any kind of new, funky gadget, and MagSafe is no exception.

Phil and Bill both agree that the MagSafe setup is handy and foolproof.

The bottom line is that Phil thinks Bill has, yet again, wasted his money.

However, Bill is happy as a lark clinging to his “Back to the Future” iPhone 12. n See you next month,

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

15

TENNESSEE CHAPTER

Nashville Area Members recognized in 2020 for Excellence in the field of Dispute Resolution

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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

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 RI DAY, DECEMBER 11 | LIVE WEB C A S T

TU E S D AY, D E C E M B E R 15 | LI V E W EB C A ST

GOVERNMENT PRACTICE INSTITUTE

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OVERVIEW

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The NBA Government Practice & Professionalism institute is scheduled for Friday, December 11. This program will offer three hours of dual (ethics) credit and three hours of general credits. Topics include a Supreme Court of the United States update, Opioid Crisis update, the Staley Ridley Report, and more! The full agenda is available at NashvilleBar.org/Government CLE.

Produced by the Chancery & Circuit Court Committee Gain valuable insights on injunctive relief, procedural challenges, business court, and case law update from Davidson County Chancellors.

PRESENTERS For a full list of presenters along with travel information, visit NashvilleBar.org/ChanceryCourtInstitute.

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DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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T U E S DAY, DE C EMBER 2 9 | LIVE SEMIN A R

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DIVORCED & DECEASED

EVALUATING PERSONS FOR CONSERVATORSHIP

What Lawyers Need to Know About Probate Law & How to Address Probate Issues in Divorce Settlement Documents OVERVIEW This seminar will empower divorce lawyers to negotiate effective legal documents for their clients that will protect them in the event of an ex-spouses death. Topics will include probate basics, the effect of divorce on wills or trusts, strategy, and more.

PRESENTERS Caroline Beauchamp McCarter & Beauchamp Rebecca Blair The Blair Law Firm

OVERVIEW Produced by the Estate Planning & Probate Committee Learm more from specialists Dr. Pamela Auble and Dr. Keith Caruso about evaluating someone who is the subject of a conservatorship.

PRESENTERS Pamela Auble, PhD, ABPP Forensic Neuropsych Examiner Keith Caruso, MD Forensic Psychiatry Specialist Barbara Moss Elder Law of Nashville D E TA I L S Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35

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NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

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LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound

So sweet, she could charm a dog off a meat wagon.

TN General Assembly Election Update Tennessee continues to glow ruby red on the nation’s electoral map. That same trend continues in the Tennessee General Assembly except for one small blue dot here in Davidson County. Our Republican friends maintained strong legislative majorities in each house of the General Assembly with a 27-6 partisan majority in the Senate and a 73-26 partisan majority in the House. While Donald Trump carried Tennessee with around 60% of the vote and 92 of the state’s 95 counties, Davidson County was one of the 3 counties—along with Shelby and Haywood counties in West Tennessee—to go for Joe Biden. While the other 92 counties went overwhelmingly for Trump, Biden carried Davidson County by almost 100,000 votes out of 298,000 votes cast.

The new blue dot came about when Heidi Campbell defeated two term incumbent State Senator Steve Dickerson in the hotly contested general election by 3,800 votes of 112,000 votes cast. Senator Dickerson was a good friend of the Nashville Bar, and we are grateful for his service, particularly these last two years when he

chaired the Senate State and Local Government Committee. We also look forward to working with Senator Campbell in her new position. She is a current resident of Oak Hill and the former Mayor.

The remaining members of the Davidson County legislative delegation all won reelection, including Senator Ferrell Haile of Sumner County. While Senator Haile’s senate district includes all of Sumner County and Trousdale County, the district also includes about 60,000 folks in the eastern part of Davidson County. We suspect Senator Haile will now receive a few more requests for attention to the legislative supper dishes of the Davidson County dogs.

Redistricting Looms By the end of December 2020, the US Secretary of Commerce will submit the 2020 census data to the President who will then present the data to the Clerk of the US House. Congressional officials should get the data needed by the states for redistricting by early April 2021. As they have in the past, the General Assembly is expected to file placeholder bills in 2021, work on them in the summer and fall of 2021, and then actually pass the bills drawing the state’s congressional districts, state house, and state senate districts early in the 2022 legislative session.

Tennessee’s 2020 population in the early estimates is around 6,890,000 people, and we will continue to have 9 members in the US House. On the state level, house districts will be readjusted to reflect an ideal population of 69,590. West Tennessee is expected to lose two House seats, and those two districts will probably move to the

Nashville suburbs. The conversations for these issues are always spicy and almost always opaque, as elected officials get the opportunity to choose their voters and dogs rather than voters and dogs choosing their elected officials.

Calendar Notes The NBA office will be closed December 24, 25, 31, and January 1 in observance of the holidays. The 112th General Assembly will convene in Organizational Session on Tuesday, January 12, 2021.

The NBA and the General Assembly will observe the Martin Luther King holiday on Monday, January 18, 2021.

The General Assembly will reconvene in Regular Session on Monday, February 1, 2021.

Davidson County voters will get a rest period in 2021 because the county does not have a regularly scheduled election. The next one of those is the May 2022 primary election for local offices including all our general sessions and trial court judges. (BOLO alert for a 2021 special election in Davidson County if those agitated about this year’s property tax increase find an avenue for voters to challenge the increase by referendum instead of in the regularly scheduled Metro Council election in 2023.) n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

19

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Editorial |

Caroline Sapp

Year 2020: Can There Be Any Silver Lining?

Illness, death, a spiraling economy, job losses, social distancing from family and friends–these are just a few of COVID-19’s effects on Americans and on the world. With the year almost at an end, can one find any silver lining in 2020’s dark pandemic cloud?

Merriam-Webster defines silver lining as “a consoling or hopeful prospect” or “something good that can be found in a bad situation.” This noun typically makes one think of the phrase “every cloud has a silver lining.” While the pandemic’s effects have created grim and far-reaching devastation worldwide, perhaps there are some slivers of a silver lining to consider.

Creativity With fewer places to go, perhaps fewer distractions, and likely more downtime, some folks are getting creative by learning a new skill or craft. For example, language learning applications Rosetta Stone and Duolingo both reported an increase in the number of new users. Virtual Art Academy founder Barry John Raybould reported that since the pandemic, new enrollments have “exploded fivefold” in “the most

drastic jump in the academy’s 13-year history.”1 Learning or polishing cooking skills has also been on the rise. Chef Christina Tosi, founder of Milk Bar, noticed that first-time bakers were asking her for baking advice. As a result, she started a baking club on Instagram Live with “thousands of people watching every day.”

With the rise of work-from-home (WFH), businesses have also become creative in new ways to serve clients and customers. Zoom/videoconference platforms, online classes, outdoor gym activities, and curb-side delivery and take-out cocktails have all replaced traditional ways we communicate, eat, and exercise.2 When gyms closed, for example, some personal trainers and gyms moved their activities to the outdoors.3 The Outdoors With businesses, restaurants, bars, and other activities either closed or limiting the number of people, the “great outdoors” is the new hot spot. Attendance at Wisconsin state parks was up 44% in May and 52% when camping reopened in June.4 Even Tennessee state parks experienced an increase (continued on page 22)

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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Editorial |

Year 2020: Can There Be Any Silver Lining? (continued from page 21)

in park visitors with some state park attendance increasing by “30% or more in 2020.”5 In Utah, visitors to the Provo River Parkway—a trail cutting through the center of Provo—was up almost 133% in April 2020 when compared to April 2019.6 Doug Robins, the Assistant Director of Parks and Recreation for Provo, says of the increased popularity, “To be able to get out of the house and go experience nature and get outside, I think that’s a huge pressure relief for a lot of folks” and “[i]t really is an essential component of public health and safety.”7 Studies show being outdoors or exercising outdoors can reduce feelings of sadness and increase a person’s energy level. A recent study from the University of Maryland and Cornell University found that even 10 minutes of experiencing nature can improve one’s mental health and well-being.8 Director of the University of Chicago’s Environmental Neuroscience Lab, Associate Professor Marc Berman stresses the importance of nature and psychological benefits. This is especially true during a pandemic and Berman says, “[o]ur research has found that nature is not an amenity—it’s a necessity. We need to take it seriously.”9 So get up and experience nature to improve your mental health—doctor’s orders!

Family Time It is not surprising that many families are experiencing increased chaos, stress, and anxiety at being enclosed in close proximity with their immediate family. However, several others have reported that the pandemic lockdown and disruption caused family to spend more “quality” time together—time that they wouldn’t have otherwise spent

22

with their families.10 One example is a mother of three who reported that even

of the shelters.

While the above is not an exhaustive list, it is a sliver of silver for consideration. Even in troubled times, one can hope and remember: There is a crack, a crack in everything[.] That’s how the light gets in.

— Leonard Cohen n Endnotes 1 Michael Brice-Saddler, From Cooking to Calligraphy, People Stick at Home are Finding New Space for Creativity, Wash. Post (Apr. 11, 2020).

2 Clare Duffy, Here are Some of the Creative New Business Models and Strategies that have come out of the Cononavirus Pandemic, CNN Business (June 28, 2020).

Megan Cerullo, Gyms Embrace Outdoors to Escape COVID-19, CBS News (Oct. 16, 2020).

3

4 Paul A. Smith, Pandemic Spurs Broad Increases in Outdoor Recreation in Wisconsin, Milwaukee J. Sentinel (Aug. 24, 2020).

though they are stuck in the house, she now has an opportunity to see what her children are capable of academically and that the pandemic made her family come together and be more creative.11 Rescue Pets Since the beginning of the pandemic, animal shelters are reporting a surge in pet adoptions and applications to foster. At Foster Dogs, Inc., the founder and executive director said foster applications averaging 140 per month skyrocketed to almost 3,000 since the pandemic hit. Similarly, DC Paws Rescue in Washington received almost 300 foster applications when it usually has around 60.12 An animal shelter in Chicago recently reported all adoptable animals were rescued—for the first time ever.13 Multiple studies have shown the benefits of owning a pet, particularly in stressful times. Even in the darkest of times, having the presence of a non-human companion can decrease the owner’s psychological stress while also keeping animals out

NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

5 Mary Hance, Tennessee State Parks experience dramatic increase in Visitors Amid Coronavirus Pandemic, Tennessean (May 22, 2020).

6 Colin McGuire, More People Enjoying the Great Outdoors During Pandemic, Herald-Star (Oct. 26, 2020).

7

Colin McGuire, The Great Outdoors, The Mining J. (June 29, 2020).

Genevive R. Meredith et al., Minimum Time Does in Nature to Positively Impact the Mental Health of College-Aged Students, and How To Measure It: A Scoping Review, Front. Psychol. (Jan. 14, 2020).

8

9 Jack Wang, Why Time Outdoors is Crucial to your Health, even during the Coronavirus Pandemic, U. Chi. News (Apr. 6, 2020).

Erica Pandey, Coronavirus Reshapes American Families, ZXIOS (Apr. 4, 2020); see also RV Life Booms During the Pandemic, CBS News (Aug. 9, 2020) (While many family vacations were postponed, rescheduled, or canceled, motorhome sales were up 90% this July compared to July 2019, resulting in families exploring by motorhome) (Owner of New Jersey’s Garick RV for 36 years, Gary Threlfall reported seeing more first-time buyers of RV(s): “Just the fact that there’s so many people coming, calling, emailing. It’s kind of their only choice, because an RV is a socially-distanced vehicle, a socially-distanced vacation, and a way to corral or keep your family together.”).

10

Nikoleta Morales, Covid-19 Response Opens Door to More Time with Loved Ones, Comm. Health. (Jul. 24, 2020).

11

Derek Karikari & Pat Eaton-Robb, Pandemic Leads to Surge in Animal Adoption, Fostering, AP News (Apr. 24, 2020).

12

Sarah Whitten, Animal Rescues are Going to Need More Help than Ever Once Coronavirus Restrictions Are Lifted, CNBC (Apr. 11, 2020).

13

CAROLINE SAPP is the Managing Attorney of The Barnes Firm where she helps individuals and small business in catastrophic injury and wrongful death cases, fraud, and other complex litigation matters.

She is also a Managing Editor of the Nashville Bar Journal.

Editorial |

Ramona DeSalvo

The CASE Act: Small Claims Copyright Court The Music Modernization Act passed unanimously in a bitterly partisan Congress and the bill was signed by President Trump on October 11, 2018. This legislation helped to bring music licensing, pre-1972 sound recordings, and producer fees in line with modern means of distribution on digital platforms and to pay legacy artists and producers for their creative contributions.

What about the “little guy,” though? What happens when the copyrighted recordings or musical compositions of an independent recording artist or a self-published songwriter are infringed? What about the photographer whose online photographs are routinely stolen? Can these small business owners afford to bring an infringement action in federal court when typical infringement cases can cost over $300,000 plus costs to litigate? Just in case (yes, pun intended) these small entrepreneurs’ works are infringed, there may soon be a means to access the courts without bankrupting copyright owners, called the CASE Act—Copyright Alternative in Small Claims Enforcement Act. After more than a decade of study, substantial comments, and recommendations by the US Copyright Office, a

bill setting forth the CASE Act was first proposed in 2017 in the US House of Representatives (HR 3945) and then again in 2019 (HR 2426-Jeffries). After bi-partisan passage, it was introduced in the US Senate in May 2019 (S 1273-Kennedy).

Copyright protection is meaningless if the copyright claimant does not have the ability to enforce his or her rights or if the claimant is shut out of the court system due to the high costs.

Filing fees and service of process fees alone can cost $1,000 or more, depending on the number of defendants. The CASE Act is designed to address small claims, and to render the process affordable and accessible to creators.

Key features of the proposed bill are discussed here.

The bill creates a three-judge tribunal called the Copyright Claims Board (CCB) within the US Copyright Office that can hear claims valued up to $30,000, exclusive of attorney fees and costs. Proceedings can be done electronically, and hearings, if necessary, may be done via audio or video conference. As with other copyright claims,1 the claimant must file a claim within three years of the date the claim accrued. The claimant also must provide the CCB with a certificate of reg(continued on page 24)

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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Editorial |

The CASE Act: Small Claims Copyright Court (continued from page 23)

istration or show that application has been made to the US Copyright Office with the proper deposit copy and fee, and that the application has not been refused. The CCB cannot render a decision until a registration has been issued by the Copyright Office and all parties have an opportunity to view it.

A party may proceed with or without an attorney, but proceeding must be voluntary (i.e., all parties must agree to participate). Filing a claim with the CCB tolls the statute of limitations in the district court, and any party can opt out of the CCB action and proceed in federal court.

As with other copyright cases, a claimant may seek actual damages plus profits or, alternatively, statutory damages,2 subject to limitations. If the work was not timely registered under 17 USC § 412 (i.e., if it was infringed before it was registered), statutory damages are limited to $7,500 per work infringed, not to exceed $15,000 in a single proceeding. If the work was timely registered and then infringed, statutory damages are limited

to $15,000 per work infringed. When awarding statutory damages, the CCB may consider whether the infringer agreed to stop or mitigate the infringement. The CCB also may consider other monetary damages for a total of up to $30,000, including for violation of 17 USC 512(f) (false statements about online content).

Each side bears its own attorney fees and costs before the CCB, except in cases of bad faith. “Bad faith” means a party filed a claim that constitutes harassment, is filed with an improper purpose, or is one that does not have a reasonable basis in law or fact. In cases where a party is pro se, an award of up to $2,500 in costs can be made, and if represented, an award for fees and costs can be up to $5,000. Additional penalties can be imposed where a claimant repeatedly files groundless or harassing claims in a one-year period. If the infringer does not pay the award, the successful claimant may apply, within one year of the award by the CCB, to the district court to affirm the award and enter judgment (includ-

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NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

ing in the case of default), so that the claimant may enforce his or her judgment.

After passing the House with a bi-partisan vote, the CASE Act was referred to the Senate Judiciary Committee in May 2019 and reported upon on September 12, 2019. One would think COVID-19 may be the cause of the delay in passing, but there is another stumbling block—Senator Ron Wyden (D-Oregon). Wyden has put a “hold” on the bill, blocking it from a vote, on the grounds that the bill creates an extrajudicial, unappealable tribunal, and thus, more studies are warranted to protect due process. The text of the bill reveals Senator Wyden’s ostensive concerns are unfounded. There is a 90-day objection period following the application for judgment whereby a party may ask to set aside the CCB determination. Further, the proceedings are voluntary, and the matter may be moved to a district court before a determination is made. Until Wyden reconsiders his position, the bill is stalled in committee during this 116th Congress. n Endnotes 1

See 17 USC § 507.

2

17 USC § 504(b)(c).

RAMONA DESALVO practices copyright, trademark, and entertainment law at DeSalvo in Nashville. She earned her BA from University of California, Berkeley, and JD from University of Cincinnati College of Law. She is admitted in Tennessee, Ohio, and California (inactive). Ramona is a Fellow of both the American Bar and Nashville Bar Associations, and a member of NARAS, Copyright Society of the South, the NBA, ABA, TBA, and the Tennessee Lawyers’ Association of Women (Past President).

SINCE THE AGING PROCESS NEVER STOPS

The Day Will Come When... | Mark Bassingthwaighte

In the middle of a conversation with one of our insureds on the topic of the difficulty of learning to say no, the fine gentleman I was conversing with did a jump shift on me. For whatever reason, he felt it was important to acknowledge that he was cognizant of his age and he wanted me to know he had taken steps to make sure he continues to practice law competently. What really struck me, however, was his desire to also share he had instructed others at his firm to let him know if they were to ever see him start to mentally slip, because in his words “the day will come when….”

As a risk manager, I found his comments reassuring. In my mind, he’s one I would describe as someone who is growing old gracefully. He’s not in denial and, unlike far too many, he doesn’t appear to be fighting the aging process tooth and nail. He also has recognized that with age comes certain age-related risks and he’s doing something about that reality. In light of this conversation, I felt compelled to take a look at a few of these risks and talk about how to responsibly manage them.

The most obvious risk with the aging process is the unexpected event, something along the lines of a medical crisis that leads to a short or longterm absence. Should this ever occur, someone will need to step in and at least temporarily accept responsibility for your client matters, even if you aren’t in a solo practice. For the solo

practitioner, however, this is a particularly significant issue that underscores the necessity of having a backup attorney in place. Regardless of your age, if you haven’t already found one, now’s the time.

Next, don’t overlook the related file status problem. Lawyers don’t always keep files as current as they should.

There’s never enough time and just about everyone trusts their own memory. Here’s the problem with that line of thinking—memory isn’t as trustworthy as one ages, and if you’re not available due to an unexpected event, it doesn’t matter anyway. Given this, committing to keeping the status of all files current at all times is equally necessary regardless of your practice setting.

There are the subtler risks that arise as a result of the aging process itself, many of which can be quite gradual. Sooner or later, everyone begins to realize their memory, hearing, and/ or sight isn’t as sharp as it once was.

Some lawyers find they have difficulty accurately seeing everything on a computer screen, which leads to worry about making mistakes due to incorrectly entering a critical date or misreading what’s on the screen. Others struggle with forgetfulness, worrying that it’s only a matter of time before missing a filing deadline or incorrectly remembering a client’s instructions.

Others fears hearing loss, not the least of which is a fear of mishearing something due to being too embarrassed to ask a client or a judge to repeat what was just said.

There are any number of steps one might take to address these subtle risks. In terms of competency issues, the use of checklists can be a great way to make sure nothing is overlooked.

Additional training on how to get the most out of your computer tech might become necessary, if for no other reason than as tech evolves so does the standard of care. You might consider prioritizing the pursuit of relevant CLE in the areas in which you wish to continue to practice. Just because you’ve practiced in a given practice area for several decades doesn’t mean you can ignore your obligation to remain current on the impact of any recent changes in relevant law or regulations. Finally, be open to acknowledging that at some point you may need to start slowing down because the time and energy necessary to stay on top of it all is no longer there.

In sum, since no one has found a way to stop the aging process, the day will come when it’s time to cease practicing law. Until that day arrives, however, do all you can to age gracefully.

Be aware of your limitations as they arise and be open to hearing the concerns of others. Find ways to identify your specific risks and work to responsibly address them. I say this because I have had to sit down with a few solos over the years and be the one who had to tell them their time had come.

Trust me, aging gracefully is the better choice. 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.

DEC/JAN 2020-21 | NASHVILLE BAR JOURNAL

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barBITES |

Lisa Binder

POTATO LATKES Ingredients • 2 baking russet potatoes (peeled and grated) • ½ cup grated or chopped onions • 1 large egg (beaten) • 2 tablespoons all purpose flour • 1 1/4 teaspoons Kosher salt • ¾ teaspoon black pepper • ½ cup grated or chopped onions • Frying oil

Directions (yields 16-20, depending on size) 1. Coarsely grate potatoes and onion; drain any liquid.

2. Place in a bowl; add onions, egg, salt and pepper.

3. In a cast-iron or electric skillet, heat 1/8 inch of oil to 375°.

4. Drop batter by heaping tablespoonfuls into hot oil.

5. Flatten with spatula to form patties.

6. Fry until golden brown; turn and cook the other side.

7. Drain on paper towels.

8. If desired, serve with sour cream, applesauce, lox, or chives as toppings.

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NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

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 David Anthony Gail Vaughn Ashworth Laura Baker William Ball Daniel Berexa Michael Berman Mark Beveridge Hon. Joe Binkley Hon. Melissa Blackburn Jonathan Bobbitt Charles Bone C. Dewey Branstetter Hon. Joe Brown Kenny Byrd Chris Cardwell Loy Carney Kay Caudle Mark Chalos Will Cheek Daniel Clayton Chris Coleman Hon. Patsy Cottrell John Day Joy Day Jackie Dixon Keith Frazier Barry Gammons David Garrison Richard Green John Griffin Bill Harbison Hon. Marian Harrison Aubrey Harwell Trey Harwell

Lisa Helton Jamie Hollin John Holt Lloyd Houk Paul Housch Jan Jennings Andrew Kaufman Jordan Keller Chris Kelly John Kitch Dean Bill Koch Irwin Kuhn Ed Lanquist Tom Lawless Will Lewis Wendy Longmire Christina Lopez Hon. Randal Mashburn Sam McAllester Hon. Amanda McClendon Nicholas McGregor Bob Mendes Margaret Moore Marlene Moses Hon. Patricia Head Moskal Phil Newman Marc Overlock Matt Painter David Parsons Gregory Pease Andrea Perry Tracy Powell Joseph Presley George Preston

David Raybin Sara Reynolds Nathan Ridley Christopher Sabis Carolyn Schott Joe Shelton Kimberly Silvus Martin Sir Liz Sitgreaves Ron Small Eric Smith Laura Smith Saul Solomon John Spragens Joycelyn Stevenson Mike Stewart Gerard Stranch Jim Stranch Hon. Aleta Trauger Howard Vogel Michael Wall Liz Washko Jim Weatherly Tom White Tom Wiseman Talley Wood Sheree Wright Ed Yarbrough Hon. Bill Young Stephen Young Gulam Zade Stephen Zralek

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Hearsay | Honors & Awards, On the Move, Firm News H ONORS & AWARDS Davidson County General Sessions Court Judge Lynda Jones has been elected president of the Tennessee General Sessions Judges Conference a statewide organization consisting of 185 general sessions court judges from across the State of Tennessee for 2020-2021. She is also the District 6 Director of the National Association of Women Judges through 2021.

ON THE MOVE Frost Brown Todd has added member Jennifer Cote who brings more than 15 years’ experience advising employers on employee-benefit plans with a focus on employee stock ownership plans and executive compensation. Her work includes advising companies in many industries, with larger projects involving multi-million-dollar benefit plan changes due to acquisitions and reorganizations in the health care industry.

Wood Stabell Law Group recently announced the addition of two new attorneys. Ashley Gold practices in corporate law, commercial real estate, risk management and insurance, and workers’ compensation matters. She brings this expertise to her clients and serves as an outside general counsel for proactive, day-to-day legal advice working

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within her client’s budget. Additionally, she has experience in owning, leasing, and closing real estate projects. Lin Ye focuses her practice on corporate law, mergers and acquisitions, and healthcare. She assists with venture capital and private equity funds in investments in new and emerging companies and advises startups and early-stage companies in securities offerings to access the capital needed for growth.

The Southern Environmental Law Center welcomes George Nolan to our Tennessee team as Senior Attorney. Nolan was a member of Boult, Cummings, Conners, and Berry for many years, and then became a founding member of Leader, Bulso, and Nolan. He has practiced law in Nashville for nearly 30 years with a focus on litigation.

Quan Poole has joined Bone McAllester Norton, leveraging his litigation experience and focus on land use and zoning alongside Doug Sloan, advising clients on building permits and land subdivision, and assuring zoning legislation compliance with local, state, and federal law. Prior to joining Bone, Poole served as an assistant metro attorney with the Land Use and Economic Development team in Nashville and Davidson County, and worked as an assistant public defender for the Shelby County Government.

NASHVILLE BAR JOURNAL | DEC/JAN 2020-21

Caroline Sapp has joined The Barnes Firm where she will manage the firm’s Tennessee office.

She will focus her practice on helping individuals and small businesses in catastrophic injury and wrongful death cases, fraud, and other complex litigation matters.

Prior to joining The Barnes Firm, Sapp successfully represented hundreds of clients across the state at the Law Office of John Day. She obtained her JD at the University of Memphis, Cecil D. Humphreys School of Law, and her undergraduate and graduate degrees at Tennessee Tech.

FI R M N E WS Blakely Barnes, founder of The Barnes Firm located in Fairhope, Alabama, has opened a Nashville, Tennessee office. Barnes has an established practice in Alabama where he focuses on representing individuals and small businesses in catastrophic injury and wrongful death cases, fraud, and other complex litigation matters. He earned his JD from Vanderbilt Law School, MTS from Vanderbilt Divinity School, and BS from the University of Alabama.

Bradley recently announced that managing partner Lela Hollabaugh has been included in the 2020 edition of the LMG Life Sciences referral guide to leading North American law firms and

Hearsay | Honors & Awards, On the Move, Firm News lawyers that focus in the life sciences industry. As a “Life Sciences Star,” Hollabaugh is designated as among the preeminent life sciences practitioners in the US. LMG Life Sciences attorney rankings are based on peer, client, and firm feedback, combined with independent review of all research data, including publicly available information.

Bradley announced that partner Todd Presnell has been selected by the Defense Research Institute (DRI) as the 2020 recipient of the Tom Segalla Excellence in Education Award, which honors a member of DRI whose contributions through legal scholarship exemplify the highest educational standards of DRI and further its mission of improving the skills of the defense lawyer. A member of the Litigation Practice Group, Presnell maintains an active trial practice, serves in discovery-counsel roles, and leads and advises on internal corporate investigations.

Ortale Kelley has expanded its Alcoholic Beverage Law practice with the addition of paralegal Vicki Schmidt.

Schmidt’s 13 years of experience will help grow the firm’s footprint in obtaining beer, liquor and wine licensing for restaurants, hotels, package liquor stores, convenience stores and clubs.

She will also take charge of administrative operations. She is an associate member of the National Association of Licensing and Compliance Professionals. 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

STATEMENT OF OWNERSHIP Required by DMM 207.8.3.3; USPS Form 3685 1. Publication Title: Nashville Bar Journal 2. Publication Number/ISSN: 21962/15487113 3. Filing Date: 11/23/20 4. Issue Frequency: Bi-monthly 5. Number of Issues Published Annually: 6 6. Annual Subscription Price: $25.00 7. Mailing Address of Office of Publication: Nashville Bar Association, 150 4th Ave N, Ste 1350, Nashville, TN 37219-2419 8. Mailing Address of Headquarters of Publisher: Same 9. Publisher: Jill Presley, Editor: Bill Ramsey, Managing Editor: Caroline Sapp, 150 4th Ave N, Ste 1350, Nashville, TN 37219-2419 10. Owner: Nashville Bar Association 11. Known Bondholders, Mortgagees and Other Security Holders Owning or Holding 1% or More of Total Amount of Bonds, Mortgages or Other Securities: None 12. The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes has not changed during preceding 12 months.

13. Publication Title: Nashville Bar Journal 14. Issue Date for Circulation Data: 8/4/20 15. Extent & Nature of Circulation: a. Total Number of Copies (net press run) 2662 2310 b. Paid Circulation (by mail & outside the mail) (1) Mailed Outside County Paid Subscriptions 327 295 (2) Mailed In-County Paid Subscriptions 2207 1974 (3) Sales Through Dealers and Carriers, 0 0 Street Vendors, Counter Sales, etc.

(4) Paid Distribution by Other Classes of Mail Through the USPS 9 14 c. Total Paid Distribution 2543 2283 d. Free or Nominal Rate Distribution (1) Free or Nominal Rate Outside County 0 0 (2) Free or Nominal Rate In-County 0 0 (3) Free or Nominal Rate Copies - Other Classes 0 0 (4) Free or Nominal Rate Copies - Outside USPS 0 0 e. Total Free or Nominal Rate Distribution 0 0 f. Total Distribution 2543 2283 g. Copies Not Distributed 119 27 h. Total 2662 2310 i. Percent Paid

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17. This statement of ownership will be printed in the December/January 2020-21 issue.

18. I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including multiple damages and civil penalties).

— Jill Presley, Marketing & Communications Director, Nashville Bar Association, November 23, 2020

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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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