TDLA Journal - Winter 2021

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Journal the

WINTER 2021 ISSUE 9, VOLUME 1

Tennessee Defense Lawyers Association Tennessee Defense Lawyers Association Post Office Box 282 Lookout Mtn, TN 37350

TDLA Trial School January 21-22, 2022


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TABLE OF CONTENTS DAWN DAVIS CARSON TDLA President Hickman, Goza & Spragins dcarson@hickmanlaw.com

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President's Update

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LYNN LAWYER Travelers llawyer@travelers.com

by Dawn Davis Carson 6

CARTER R. HALE COURTROOM TECHNOLOGY & TRIAL PRESENTATION SOFTWARE: A PRIMER FOR DEFENSE LAWYERS AND A CALL TO ACTION by Carter R. Hale

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Scott, Sullivan, Streetman & Fox chale@scottsullivanlaw.com Authors of The Iceberg Effect: Fraud Below the Surface

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MADISON GRODY

Madison G. Grody, CPA, CFE Senior Consultant

Elliott Davis madison.grody@elliottdavis.com

Services: Fraud and Forensics, Litigation Support, Consulting and Advisory Industries: Professional services, Healthcare, Government

Professional Overview Madison is in her third year with Elliott Davis’ Forensic, Valuation, and Litigation Support practice. Madison works on cases involving healthcare fraud and varieties of contract litigation. Her experience includes financial analysis, investigative analysis, and services supporting litigation and forensic cases.

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AUSTIN STARKEY

Education Master of Accountancy, University of Tennessee at Chattanooga B.S., Accounting, University of Tennessee at Chattanooga

The Iceberg Effect: Fraud below the Surface by Madison Grody and Austin Starkey

500 East Morehead Street Suite 700 Charlotte, NC 28202

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Direct: 980.201.3940 Office: 704.333.8881 Fax: 704.390.7071

Madison.Grody@elliottdavis.com

Elliott Davis astarkey@elliottdavis.com

Professional Affiliations and Certifications Certified Public Accountant (CPA), Licensed in North Carolina and Tennessee Certified Fraud Examiner (CFE) American Institute of Certified Public Accountants North Carolina Association of Certified Public Accountants Association of Certified Fraud Examiners, Member Charlotte Chapter of the Association of Certified Fraud Examiners, Board Member Charlotte Regional Business Alliance Young Professionals, Member

MARC PARADISO

Thought Leadership Haun, A., Gaither, M., & Sompayrac, J. The Role of Forensic Accounting in U.S. Counterterrorism Efforts. The Coastal Business Journal. Fall 2018, 16(1), 25-51.

Exponent mparadiso@exponent.com

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AMY COURTNEY Automated Emergency Braking (AEB): New technology, new questions by Marc Paradiso and Amy Courtney

UPDATES

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Kid's Chance Auction

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DRI State Representative

elliottdavis.com

Exponent acourtney@exponent.com

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PUBLICATIONS COMMITTEE Jenna Macnair Manier & Herod Editor-in-Chief Mary W. Gadd TDLA Executive Director Contributing Editor Lyndsey Umphress R Chatfield Company Graphic Design

For advertising opportunities, please email Mary Gadd at office@tdla.net or call 423.314.2285

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PRESIDENT’S PERSPECTIVE

President's Update great event could not have occurred, without Mary Gadd our executive director. Mary worked not only to provide a wonderful event, but also worked to keep us all safe.

DAWN DAVIS CARSON is an experienced trial attorney with Hickman, Goza & Spragins law firm in Memphis. Her practice areas include wrongful death, healthcare liability and premises liability. She has over 20 years of experience, trying over 50 jury cases to verdict. She may be reached at dcarson@hickmanlaw.com

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o excited to take over as president, and hopefully get back to normal in 2022. Although 2020 and 2021 have been very difficult, through our past-president’s leadership, Heather Douglas's zoom meetings and CLEs were exceptional. TDLA, like many law firms adapted and thrived. We did miss some in-person events, but TDLA was fortunate to hold its Annual Meeting in Nashville in-person this fall. Some friends were still hidden behind masks and we exchanged fist bumps for hugs and handshakes, but it was business as usual. We had great support from our Sponsors, and truly thank them for visiting with us and providing exceptional speakers. As usual, this

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Looking into 2022 we are bringing back the in-person Trial School in Nashville. This event has been exceptional and will be our 3rd school. Thanks to Davidson County for allowing us to use the Courthouse. The setting allows new lawyers to gain real world experience with sitting judges. It is a wonderful way to help our profession grow. The wisdom the judges provide to the new lawyers is so helpful. We also have other activities planned this spring, and hope that you will be a part of it. There is always a committee needing your knowledge.

TDLA Thanks its 2021 Sponsors Prime Sponsor – Elliott Davis Presenting Sponsor – Exponent Title Sponsor – Minnesota Lawyers Mutual Insurance Patron Sponsors – Rimkus, Delta |v|, JS Held, ESi, Robson Forensic Friend of TDLA – S-E-A 2022 Sponsorship Package coming soon!

Dawn Davis Carson

Winter 2021 | Tennessee Defense Lawyers Association | Issue 9, Volume 1


BOARD OF DIRECTORS President................ Dawn Davis Carson Hickman, Goza & Spragins dcarson@hickmanlaw.com

KIDS' CHANCE AUCTION In this season of giving, our TDLA members from Manier & Herod law firm in Nashville participated in and sponsored the Kids' Chance of Tennessee auction at the recent Bureau of Workers’ Compensation conference which took place in Murfreesboro, TN. Kids' Chance is a nonprofit organization created to provide educational opportunities and scholarships for the children of workers seriously injured or killed on the job.

President Elect

Hannah Lowe Fields Howell

hlowe@fieldshowell.com

Secretary/............... Nathan Shelby Treasurer Rainey, Kizer, Reviere & Bell, PC nshelby@raineykizer.com

Immediate Past President....................Heather H. Douglas Manier & Herod hdouglas@manierherod.com DRI State Representative...... Catherine C. (Cate) Dugan Peterson White LLP cate@petersonwhite.com

Vice-Presidents...... Sean W. Martin Carr Allison swmartin@carrallison.com

Chris Frulla Rainey, Kizer, Reviere & Bell, PC

cfrulla@raineykizer.com

Rachel Bishop Stites & Harbison rbishop@stites.com

Directors................. Michael Haynie Manier & Herod mhaynie@manierherod.com

Hal S. “Hank” Spragins Hickman, Goza & Spragins

hspragins@hickmanlaw.com

Ken Ward Trammell, Adkins and Ward

kenward@tawpc.com

PAST PRESIDENTS Percy McDonald, Jr.* (1966-1967) William E. Herod* (1967-1968) Edward P.A. Smith* (1968-1969) Mac E. Robinson* (1969-1968) James E. Leary* (1970-1971) William H. Woods* (1971-1972) Woodrow Norvell* (1972-1973) Hugh C. Gracey (1973-1974) Henry T. V. Miller (1974-1975) Paul R. Leitner (1975-1976) J. G. Lackey, Jr.* (1976-1977) R. Hunter Cagle* (1977-1978) E. Blake Moore (1978-1979) Richard D. Taylor* (1979-1980) E. Riley Anderson* (1980-1981) C. Arnold Cameron* (1981-1982) James H. Camp* (1982-1983) James E. Moffitt (1983-1984) W. Ferber Tracy (1984-1985)

James M. Doran, Jr. (1985-1986) George S. Petkoff (1986-1987) W. Ritchie Pigue (1987-1988) L. Anderson Gaylon III* (1988-1989) J. Minor Tait, Jr.* (1989-1990) Terry L. Hill (1990-1991) Joseph C. Wilson, III (1991-1992) Gary K. Smith (1992-1993) Michael J. Philbin* (1993-1994) Thomas A. Williams (1994-1995) Kenneth R. Shuttleworth (1995-1996) Michael E. Evans (1996-1997) Brian H. Trammell* (1997-1998) Dale H. Tuttle (1998-1999) Katherine “Kitty” Boyte (1999-2000) Gary S. Napolitan (2000-2001) Joseph R. White (2001-2002) Gary R. Wilkinson (2002-2003) Steve A. Dix (2003-2004)

Rebecca Brake Murray (2004-2005) David J. Deming (2005-2006) Raymond S. Leathers (2006-2007) Robert G. Norred (2007-2008) C. Douglas Dooley (2008-2009) Stephen P. Miller (2009-2010) Melanie M. Stewart (2010-2011) Robert A. Crawford (2011-2012) John W. Barringer, Jr. (2012-2013) Bradford D. Box (2013-2014) James H. Tucker, Jr. (2014-2015) Catherine C. Dugan (2015-2016) Barret S. Albritton (2016-2017) Michael Mansfield (2017-2018) Lynn V. Lawyer (2018-2019) Rockforde D. "Rocky" King (2019-2020) Heather H. Douglas (2020-2021)

* Deceased

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DRI STATE REPRESENTATIVE

DRI Update

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etter Together. This was the theme of the DRI annual meeting this year. I have to agree it was so much better being together in person for this amazing event. I had the opportunity, along side Dawn Davis Carson, to represent TDLA in Boston. Although we are navigating a new normal in so many ways, we are also just getting back to business and reconnecting, which has been so exciting.

Since October 2020, Lynn Lawyer has represented Tennessee Defense Lawyers Association as the DRI State Representative. She is a past president with TDLA and managing counsel with Travelers Insurance Company. She may be reached at llawyer@travelers.com

The DRI Annual Meeting is always a spectacular program in a fabulous city. We were able to hear remarks from some blockbuster speakers including Brian David Johnson, Kristin Beck, and Ibram X. Kendi. Every speaker and panel member was dynamic and relevant. The program covered everything from the impact of COVID-19 to best practices for social media engagement to the art of selfadvocacy. If you have not been to a DRI seminar, you really are missing out. They are unparalleled and you can rack up the CLE credits. More importantly for me, was the chance to meet with the substantive law committees and reconnect with the other neighboring state defense

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organizations. It was great to get together, network and enjoy the opportunity to connect with old friends. The DRI seminars and meetings are a way for the TDLA leaders to meet with the other state and local defense organizations leaders and bring back ideas that we can use to improve TDLA. As leaders of TDLA, our goal is to offer premium benefits to its members. We are constantly working, in collaboration with DRI, to improve what we have to offer. There is so much return on investment with both of these organizations. I challenge our TDLA members to get involved with TDLA and DRI. Invest your time and energy into these organizations. You will not regret it! If you would like to become a member of DRI, please reach out to me and I will help get you connected. DRI offers its SLDO members a special package deal. If you are a TDLA member and want to become a member of DRI, you will get free registration to one seminar. In some cases, this is over a $1,000 savings and have I mentioned how fabulous their seminars are yet?! I would love to connect, take you to coffee, and

Winter 2021 | Tennessee Defense Lawyers Association | Issue 9, Volume 1


help get you involved in TDLA and/ or DRI!! **DRI Cares is hosting its 3rd Annual Coat Drive. This is a diehard, fierce, NATIONWIDE competition between all the SLDOs to collect the most new and gently used coats. All collected items will be donated to organizations in Tennessee

communities which will provide them free of charge to individuals in need. This competition will run from November 1, 2021-December 31, 2021. It is easy to participate! Your law firm, office or family should collect as many new and gently used coats as they can during the collection period and

report to me how many you have collected at the end of December. I will report to DRI and let you know how to facilitate the donation drop off. We are hoping that TDLA can bring home the coveted Golden Coat Award. Lynn Lawyer

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Your Witnesses Have Powe COURTROOM TECH

COURTROOM TECHNOLOGY & TRIAL PRESENTATION SOFTWARE: A PRIMER FOR DEFENSE LAWYERS AND A CALL TO ACTION Foam board blowups are obsolete. Now, more than ever, it is critically important for defense lawyers to familiarize themselves with courtroom technology and trial presentation software, and learn how to use them effectively.

Carter R. Hale is a partner with Scott, Sullivan, Streetman & Fox, in the firm’s Mobile Office. His civil defense practice is concentrated primarily on products liability; complex construction defect cases; catastrophic injury and death actions; professional liability, and employment matters. He’s a frequent CLE speaker on litigation and trial topics, with a particular focus on electronic discovery, digital evidence and emerging technologies. You can contact Carter at chale@scottsullivanlaw.com.

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t’s Sunday evening and your jury trial begins tomorrow morning. While reviewing your voir dire questions, your phone pings with a text from one of the codefendant’s attorneys: “Wanted to let you know we just settled with the plaintiffs.” Perhaps you have had a similar experience. Hopefully you anticipated this possibility and were prepared to try the case with or without a co-defendant. But then your stomach drops to the floor: The co-defendant’s attorneys had tasked themselves with utilizing and running trial presentation software for both defendants. Your entire case – your PowerPoint for your opening statement, all of your trial exhibits, as well as annotated demonstrative aids you prepared and organized to be queued up for direct- and cross-examinations – now resides in a program that may no longer be available to you, and even if it is, you have absolutely no idea how to operate it or any of the equipment necessary to use it. While the above is merely an

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anecdotal scenario that underscores the need for technology-challenged litigators to familiarize themselves with courtroom technology and trial presentation software, there are a number of significant reasons why it is crucial that defense attorneys promptly jump aboard the legal technology train. To be clear, the roots of this call to action did not sprout from COVID-19. Sure, the pandemic forced lawyers to learn (or attempt to learn) how to use Zoom. Most of you have attended Zoom hearings. You may have taken remote depositions and even uploaded exhibits for use at those depositions. Beyond these narrow, limited-used environments, however, far too many defense lawyers have distanced themselves from courtroom technology and trial presentation software for far too long. For some, intimidation or fear is the culprit. Some argue they don’t have the time, while others simply dismiss the notion that courtroom technology is a “necessity”, claiming their foam board blowups and flip charts are just as effective and serve them just fine. Whether you have used one or more of these excuses (all of which this article will debunk), it’s time for every TDLA member to acknowledge and acept that courtroom technology

Winter 2021 | Tennessee Defense Lawyers Association | Issue 9, Volume 1


Power. Are They Using It? is, in fact, a necessity; that its prevalence is growing exponentially and will only continue to do so; and that now – not tomorrow, next week, or over the next holiday, but now – is the time to become familiar with courtroom technology and trial presentation software, and how to use them effectively. This is equally true for seasoned litigators with decades of experience and new lawyers who just received their bar admission certificates. Put simply, the extent to which your experience and skill pay off in the courtroom is and will be determined in significant part by your familiarity with courtroom technology and trial presentation software and your ability to use it effectively.1 Along with our professional obligations, we are doing ourselves – and, more importantly, our clients – a grave disservice if we are unfamiliar with courtroom technology and trial presentation software, and how to use effectively use them. 2, 3 Further, juries expect it, and we should anticipate that the other side is going to use it. Finally, some judges not only require it, but prohibit the use of other demonstrative aids such as blowups. You do not need to pursue an IT degree. Instead, you need a general, foundational understanding of and familiarity with the following:

3. The compatibility of these technology tools with the court’s equipment (i.e., ensuring they “play well” with the court’s equipment), along with how well they are suited for the particular venue where you will use them (i.e., the courtroom’s layout, size, etc.). The underlying goal of this article is two-fold: to serve as a primer to facilitate your efforts in incorporating courtroom technology equipment and trial presentation software in your cases, and to provide you with a skill level sufficient to efficiently and effectively use these technologies. While this article is by no means all-inclusive, my hope is that it will provide you with a painless-aspossible roadmap. By design, I wrote this article in an intentional manner that would enable me to pitch you this commitment: Give me your time and read this article, and I can (almost) guarantee you will be positioned to use courtroom technology equipment and trial presentation software at your next jury trial. And, to the extent you may a question or two, feel free to reach out to me. I can unequivocally guarantee you that if I don’t have the answer, I will either put you in touch with someone who can, or get the answer for you myself. So, read on!

WHY YOU NEED TO BE

On this front, it is critical to note that this expectation is not limited merely to Millennials. Older jurors such as Baby Boomers are increasingly expecting media presentations in the courtroom.4 This shift is reinforced by a recent survey which revealed that “56% of potential jurors expect attorneys to use PowerPoint in presenting their case”, and “64% said they would expect attorneys to use creative graphics and videos to illustrate their case”. 5 2. Demonstratives are a powerfully effective way to present your case. We’ve all heard the saying, “A picture’s worth a thousand words.” This is especially true when presenting evidence to a judge or jury. Countless studies have long established that the overwhelming majority of people retain information presented visually far better than they remember information presented orally. Likewise, the manner in which information is presented (i.e., visually through presentations) has proven far more persuasive and effective with jurors. 3. New types of evidence necessitate the use of technology at trial. With the rapid and exponential growth of new types of evidence, and, consequently, new sources of evidence, lawyers must be versed in how to present these various kinds of information at trial. While videos and photographs have long been used at trial, the types of electronic and digital media, along with the sources where they reside or are stored, has changed and expanded astronomically. Videos are no longer limited to closed-captioned videos burned to DVDs, and photos are no longer confined to digital cameras. Today, sources of video recordings and photographic evidence include cellphones; home security cameras;

1. The technology equipment TECHNOLOGICALLY already in place in the COMPETENT… NOW particular courtroom in which you will try your case; 1. Clients, judges and jurors all expect lawyers to use 2. Trial presentation software technology at trial. and/or other technology tools available for purchase and use, As noted at the outset, your clients and their respective pros and expect you to be technologically cons as it relates to, among proficient. Judges increasingly other things, cost, ease of use, continue to conduct and navigate and suitability for the particular virtual hearings with ease, and, in cases you typically litigate; and turn, they expect the same from you. Perhaps most importantly, jurors expect you to use technology at trial. continued on next page

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continued from previous page dashboard cameras; drones; social media applications; GoPros; in-vehicle infotainment systems (IVIs); internet of things (IoT) devices such as Amazon Alexa and Apple HomePod mini, and wearable devices such as Apple Watches and Fitbits, to name just a view examples. Similarly, social media evidence has infiltrated the litigation arena, from photos, videos, and location information to posts which can be used to demonstrate a person’s emotional state (or lack thereof). Juries don’t want you to tell them what the plaintiff posted; they want to see the post itself, and it is far more effective and persuasive to show them in the same manner in which they themselves are familiar seeing them (i.e., on a screen). Presenting other evidence such as Google Earth images or Google Street View images electronically is likewise far more effective than simply holding up an enlarged photograph of an intersection. Using the Google Maps platform, for example, enables you to pan out, zoom in, and navigate a particular area – giving jurors a far better understanding of the location at issue.

HOW AND WHERE TO START 1. The courts’ technology equipment In lieu of undertaking exhausting research or embarking on an unnecessary spending spree, first find out what technology is already in place in the courtroom where you will be trying your case. This is the first and easiest step. Make a list of the equipment that is present, confirm that it is works, and identify the adaptors and cable connections each supports (i.e., see what inputs and outputs the equipment has). This will likely include document cameras (think

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Courtroom Technology - Touch-screens Touch-screens are available at the witness box and the lectern. They can be used to call attention to certain areas of a document, image, computer output or video input received by the system.

Technology Lectern The lectern (shown) contains the document camera, several laptop inputs, and a touch screen. It is height adjustable for ADA compliance. There is also an Apple TV available in the lectern for wireless streaming of evidence, be that video or documents.

Evidence Monitors There are monitors throughout our courtrooms which receive HD digital video. The monitors display items placed on the document camera, laptops connected to the audio/video cables, someone appearing via Video Conference, and they mirror the annotation input from the touch-screens. You will find two monitors on each counsel table, one monitor per two jurors in the jury box (shown), at the lectern, witness stand, the courtroom deputy station, and on the judge's bench. The lectern and witness stand both have touchscreen monitors which allow annotation. There is also a confidence monitor outside the jury box (shown) which reflects what is being seen by the jurors. If evidence has not yet been admitted, the Courtroom Deputy will mute what the jury can see and this monitor will be blank.

overhead projectors); a “technology cart”; TV monitors, and projectors. You will want to note where these items are located in relation to your counsel table. Also identify nearby power outlets that you will use. Of importance particularly during these current times is to confirm with the judge or his or her judicial assistant the arrangement of the courtroom for trial. Do not assume that the courtroom will be set up at trial exactly as it is on a day you are there prior to trial. Because of the pandemic, you must take into account that the traditional layouts may give way to alternative setups. One commonly-used courtroom

layout for jury trials during COVID-19 is having the jury seated in the gallery (meaning you will sit on the opposite side of the table with your back to the bench). The judge may sit off to the side, with witnesses testifying from the jury box. With these preliminary matters in mind, we will now turn to the best practices for accessing courtroom technology equipment available in the federal district courts, and the varying (to non-existent) courtroom technology equipment available in state court courtrooms.

Federal Courts For federal cases, the district

Winter 2021 | Tennessee Defense Lawyers Association | Issue 9, Volume 1


courts’ respective websites provide especially informative details about the technology they have, complete with pictures and specifications. Regardless of which court you are in front of, best practices include (1) contacting the court staff for your particular district court or magistrate judge, and (2) carefully reading the court’s pre-trial orders, as well as any applicable standard orders specific to the judge presiding over your case. One factor should always be kept forefront with respect to the use of courtroom technology and trial presentation software in any federal court courtroom: the particular court and its rules and orders ultimately dictate what technology you can and cannot use, and the extent or limit to which you can use it.

State Courts 1. Courtroom technology equipment

Not surprisingly, the types of courtroom technology available in state circuit courts vary not only from county to county, but often among the courtrooms within the same courthouse. As with cases in federal court, before making a decision as to (1) the technology you plan to use at trial and (2) how you will use it, you first need to find out what equipment the state circuit or district court already has in place (and, equally important, what it does not.) Perhaps most commonly found in circuit courtrooms are document cameras with a display surface and control features similar to the one below. Second, be sure to inquire as to the court’s policies regarding usage of the court’s equipment at trial (i.e., whether you must use the court’s equipment exclusively, or, whether you can utilize the court’s equipment in connection with your

own equipment and/or presentation software). Third, make note of the location of the court’s equipment within the courtroom and their proximity to your counsel table – in particular, outlets, adapters, technology carts and TVs. However, as emphasized earlier, be sure to confirm with the judge or his or her judicial assistant exactly how the courtroom will be arranged for trial – including the locations of the court’s technology equipment, counsel tables, the judge, witnesses, and the jury. For convenience, below is a nonexhaustive list of factors you should consider when preparing to use the court’s technology equipment and/ or your own equipment and trial presentation software.

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continued from previous page

Pre-Trial Technology To-Do List To Do

Comments

Orient yourself with Note your counsel table in relation to the location of: the courtroom - the judge - the venire (for voir dire) - the empaneled jury - witnesses, including both those attending in person and those who may be attending remotely - outlets - the court’s technology cart - monitors / screens / TVs Confirm that the court’s Just because there’s a TV or projector in the courtroom, or a contechnology is operating nection port for a laptop, doesn’t necessarily mean it works propproperly erly or at all. Identify the cables and adaptors you’ll need to bring with you to court Ensure your equipment is compatible with the court’s

If the court’s technology cart has a port to connect your laptop or other device, it’s useless if a VGA adaptor is required, and all you have with you is an HDMI cable (more on these terms later). While I advocate below for a trial setup that doesn’t require a DVD player, if you intend to play a DVD at trial and the court has a DVD player, test it to make sure it reads (plays) your DVDs.

TRIAL PRESENTATION SOFTWARE

Now that you have a working knowledge of the technology equipment most commonly available in our federal and state circuit court courtrooms and the key factors to address with respect to that equipment (i.e., its operability, its location in the courtroom, and the adaptors and cables necessary to connect to and use it) you’re ready for the fun part: trial presentation software. First, as a combined introduction and double caveat, I have focused on one specific trial presentation software. While word and space limitations are part of the reason, I do not want you to feel overwhelmed by a litany of options, all with different features, functions, and pros and cons. Moreover, I believe you will find the trial presentation software discussed below to be extremely easy to understand and operate (regardless of your technology skill level), costefficient, and at the same time feature-rich. The second caveat is that throughout this article, I use the term “trial presentation software”. As you will see below, the software discussed works very well in many other matters aside of trial. Indeed, these tools were designed and developed for use in many other litigation phases over the life of a case, including document and deposition review, analysis and organization; the ongoing development of the defense of your case; written discovery; depositions, and summary judgment hearings.

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Winter 2021 | Tennessee Defense Lawyers Association | Issue 9, Volume 1


LIT SUITE

You may have heard of TrialPad – the first iPad app specifically designed for lawyers. It debuted in 2010, the same year as the first iPad was released. Over the past decade, while consistently improving TrialPad and adding new features (many requested by lawyers), Lit Software developed other apps, including TranscriptPad and DocReviewPad. Most recently, on May 8, 2021, Lit Software introduced its latest app, ExhibitsPad.6 With LIT SUITE, you get all 4 of these apps and all updates to them. Below is an overview of each app, their key functions and features, along with some how-to’s. 1. TrialPad With the TrialPad app, you can easily present evidence to a judge or jury, and use exhibits during your direct- and cross-examinations of witnesses at trial or in depositions (whether remote or in person). TrialPad has feature-rich tools that are easy and quick to create – whether in advance or in real-time, and equally as easy and efficient to use.

ANNOTATION TOOLS

With TrialPad, you can highlight parts of a document, as well as mark on it as you go using your finger or Apple Pencil. The Redact tool allows to you place a black or white box over portions of a document. A “virtual laser pointer” enables you to point to a particular part of a document when you are discussing it with a witness or the jury. The Callout tool is especially powerful. Simply select the portion you want to enlarge, then use Callout to zoom in on that area. The process is seamless and impressive. An added bonus is the Snapshots tool, which enables you to generate a PDF of a document you annotated should you want to use it again later.

Exhibits TrialPad enables you to apply exhibit stickers to documents – whether one at a time, or to a group of documents,

and you can customize the fields in the sticker to your liking, as well as the color of the sticker. Moreover, you can keep track of which exhibits are admitted into evidence.

MULTIMEDIA By now, you’re probably not surprised to learn that you can present videos and audio using TrialPad, along with documents. Document Upload You can upload your documents, media and exhibits into TrialPad via most any cloud service that integrates with Apple’s Files app (e.g., Dropbox; Box; Microsoft OneDrive; Citrix Files; Google Drive, and iCloud). Alternatively, you can put them on a USB (thumb drive) and upload them to your iPad via a USB connector in rapid time.7, 8 You can import individual files, a set of files, or “import a .zip file (up to 1GB), which lets you create folders and subfolders on your computer, and then maintain those folders when you import [them] into TrialPad.9

EQUIPMENT AND SET UP TO PRESENT WIRELESSLY OR WITH A WIRED CONNECTION If you do not have an iPad, that is obviously the first thing you will need to purchase. TrialPad offers the flexibility of presenting with or without a wireless connection. To present with a wired connection, you will need either an HDMI adaptor to connect your iPad to the court’s technology port or to connect to a TV ((provided they have an HDMI input). If you are using a projector that does not have an HDMI input, it most likely has a VGA or DVI input. In such case, simply use a VGA or DVI adapter as illustrated in this diagram: You can present wirelessly – without a WiFi

connection – via Peer-to-Peer Apple AirPlay using an Apple TV (it’s a box, not an actual television).10 You will need an Apple TV if you do not have one, as well as an HDMI cable. Your set up will be similar to this:

COST OPTIONS

I created the table below to present the approximate costs for purchasing LIT SUITE and using its apps at trial. Simply view the costs in the column that applies to you, and you will see the items you will need to purchase. For items you already own, simply reduce the total cost by the amount of that item. Items in italics are optional but recommended.

WHY IT’S WORTH EVERY PENNY To the extent the cost gives you any heartburn, the price tags associated with other options are significantly greater. Additionally, TrialPad can easily be used by you while you are trying your case. This means you do not have to rely on someone else to have the correct exhibit or other document ready to go, or pay for a trial technician with specialized skills.11 It also eliminates the constant, “Next slide, please”, interruptions you otherwise make when using a program that requires another person to operate it. As we all well know, the time and expense associated with having large, foam board blowups made is costly. (And, I suspect I am not the only attorney who has called their legal copy vendor late on a Sunday evening because I thought of another document or deposition excerpt I wanted enlarged at the last minute.) Moreover, LIT SUITE comes free of the non-monetary expenses that accompany other trial presentation software, such as time, inefficiency, staffing, and uncertainty, to name a few.

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continued from previous page TrialPad also affords you the freedom to move around the courtroom, allowing for better engagement with the jury and witnesses. Even a laptop placed on a podium creates a barrier between you and the jury, a witness, or both. iPads are small and flat, providing an unobstructed visual connection between you and your audience.

LIT SUITE

I want to present

I want to present with

with TrialPad

TrialPad using a

wirelessly

wired setup

$399 annual subscription

$399 annual subscription

from $350 - $1,300

from $350 - $1,300

$150

N/A

$20 - $60

$20 - $60

HDMI adapter

$40

$40

USB Adapter to upload docs to TrialPad

$40 - $60

$40 - $60

$999 - $1,949

$849 - $1,799

$399

$399

Apple iPad Apple TV HDMI cable

One-time, initial total Annual cost thereafter

In addition to all of the benefits highlighted above, you can also use TrialPad and the other Lit Software apps comprising the LIT SUITE bundle in a host of other litigation settings besides trial, such as depositions, dispositive motion hearings and mediations. 2. TranscriptPad I’ve never been a big fan of deposition summaries. I know some lawyers heavily rely on them. My micromanaging, over-meticulous nature may be the reason. Whatever the case, and regardless of your position on deposition summaries, all litigators can benefit tremendously from Lit Software’s TranscriptPad app, which comes with the LIT SUITE app bundle. First, TranscriptPad is the go-to app for reading, reviewing, navigating, and annotating deposition transcripts. With the app, you can assign Issue Codes relative to your case, and within a matter of seconds, it will go through the 15 or 20 depositions that have been taken in that case and generate a report. This feature is especially intuitive: it doesn’t just grab a page and line number where a particular word was used, but will capture the question preceding it (if the word was in an answer) and capture the answer (where the word was in a question). This way you have the context in which the particular word was used. Further, because a line of testimony may be relevant to more than one issue in your case, you can assign multiple Issue Codes to the same text. The reports that TranscriptPad generates are fully customizable and searchable as well. The result is an organized and searchable narrative capsule. You can print, export or email the reports in PDF. You can also export a report as a Microsoft Excel file, which, when opened, will have tabs for each issue code.12 The Excel document has different tabs for each Issue Code.13 To the extent this is considered a “summary”, I love it. Associated deposition exhibits are also organized in TranscriptPad. You can open them up, view them, and when you

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works as a replacement for those thick, heavy exhibit binders that are an annoyance to create (or have created for you). What this means, of course, is that each juror will need an iPad.

close them out, you are automatically returned to the page and line where you were reading.

to DocReviewPad and have them all in one place, and with you everywhere you go.

Speaking of reading, the latest update release of TranscriptPad has a new feature called “Speak Transcript”.14 Yes, you guessed correctly: TranscriptPad will speak the deposition testimony to you. This means you can listen to a deposition while driving to a hearing out of town, or writing a summary judgment brief on your computer.

Store your documents in separate case folders and customize how they’re organized to suit your preferences. Search functionality is DocReviewPad is powerful – allowing you to search across every document you have uploaded filter your searches, to view the document or documents you sought to retrieve. You can annotate documents, assign them color-coded Issue Codes or Flags. Better yet, DocReviewPad will bates number your documents for you.

One caveat should be noted regarding TranscriptPad: it does not work with PDF versions of transcripts. You have to upload the ASCII file versions, instead. Most court reporters typically email these to you, anyway, but if they don’t, just simply ask for it. That said, in TranscriptPad, deposition transcripts look like the PDF copies to which most of us are accustomed to reading. 3. DocReviewPad Mega tech enthusiast and New Orleans attorney, Jeff Richardson, best describes DocReviewPad: it is “sort of like TranscriptPad for Documents”.15 You can upload your case documents

DocReviewPad also provides piece of mind when it comes to ensuring your documents don’t somehow disappear into the abyss. The app’s archiving feature backs up your cases, including all Issue Codes, Flags, and annotations, which also enables you to share them with other DocReviewPad users. 4. ExhibitsPad Lit Software’s newest app is ExhibitsPad, which was released just a few months ago. I have only briefly played around with this iPad app (which is free on the App Store), but its use purpose is exciting. ExhibitsPad

Now, before you file this away in a “never-gonna-happen” folder, think of the time and expense involved with exhibit binders. With compatible iPads starting at around $330, your investment of $4,950 (12 jurors, the judge, his or her judicial assistant, and opposing counsel) will pay for itself over time. You will eliminate future printing and copying costs –paper and ink, as well as assembly into binders (which aren’t free, either). Further, it is much faster to load the exhibits admitted into evidence onto iPads is much faster than printing and organizing binders.16 Attorney Jeff Richardson in New Orleans, who I mentioned earlier in this article, wrote an early review of ExhibitsPad.17 What is particularly informative is the detailed response in the comments by the head of Lit Software, Ian O’Flaherty, who highlighted some of the key features and capabilities of ExhibitsPad, which include: • A court employee (or counsel) can load evidence into the app easily and quickly via a USB drive. • The Home Screen of ExhibitsPad has a document, page, and multimedia count to ensure that every iPad has the exact same set of exhibits. • Every import of exhibits will completely replace the exhibits of any previous import, eliminating any possibility that exhibits from a previous matter could get left in the app and get with the current case being deliberated. • The app is very intuitive with

15


continued from previous page

BONUS TIPS 1. Practice, Practice, Practice…Just as the saying goes with washing hair – “rinse and repeat”, you, too, should practice, practice again, and then practice another time. This includes ensuring (1) that all equipment is operating properly; (2) that all documents are visible and easy to read when projected or viewed on large screens; (3) that images appear clear and not grainy or pixelated when displayed on large screens; (4) that videos play seamlessly; and (5) that audio is easily discernable and volume levels are appropriate. Monday morning is not the time to make sure everything is operating correctly.

a minimum learning curve, making it easy for nontechnically proficient users to navigate and review the evidence. (Everything is on one screen with a flat hierarchy so that users with different technology comfort levels won’t get lost within the app.) • Robust and easy search capabilities make finding exhibits a breeze among hundreds of exhibits that may be admitted into evidence. (A large search field is always at the top of the screen.) Exhibits are searchable by file names or types, exhibit numbers, or parts of names. OCR data is not searchable, preventing a juror from using the power of an iPad to mine the data. (As a user types in the search field, the files are filtered to only show documents or multimedia files that contain those characters.)

to access the internet. This is accomplished using Apple’s Guided Access.18 Additionally, a password is required to get to the Home Screen.

2. Triple-check your exhibits and those of the other parties.

Go through all electronic exhibits of the respective parties just as you would check paper exhibits to ensure any applicable or necessary redactions have been made (e.g., evidence the court • Jurors can take screenshots has excluded pursuant to a motion in (called “Snapshots”) of a limine; evidence that is inadmissible particular page of a document for later reference. The Snapshot under the Alabama Rules of Evidence, or evidence that is otherwise tool stores any Snapshots in a dedicated Snapshots area in the objectionable on other grounds). Indeed, unlike with paper exhibits, app. Jurors can also annotate where the risk that jurors might a snapshot of an exhibit using unintentionally see inadmissible and Apple’s familiar markup tools excluded evidence is rather slim, the without altering the original same does not hold true with electronic 19 exhibit.

• Jurors cannot exit the app, e.g.,

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exhibits. When paper exhibits are used, there are opportunities to check and re-check exhibits before they are published to the jury. With electronic exhibits, there may be fewer opportunities (if any) to conduct a last minute check of an exhibit before it is presented on a screen for the jury to see (particularly by the other side). As you well know, once they are displayed on large screens for the jury to see, it may very well be too late to un-ring the error bell.20

add up medical bills and expenses, lost wages, and other monetary damages which his clients wanted the jury to award. During the course of this exercise, his easel fell over twice, and worse – he miscalculated his addition, shortchanging his clients to the tune of several hundred thousand dollars. The resulting product, red marker scribbles through numbers with arrows pointing to other numbers, was not an impressive display for the jury.

The point is, just as you would make Of course, mistakes can and will and preserve the record for appeal happen. But this should in no way in “traditional” trials with respect to deter you from using technology exhibits, testimony, or any other matter, to present your case at trial. you must be on guard to do the same Mistakes are made using archaic when these things are presented using demonstratives, as well, like flipcharts. technology equipment.21 Indeed, in late 2019, I tried a weeklong jury case in Mobile County Circuit CONCLUSION I hope through reading this article Court. In his closing argument, the that you have developed a serious plaintiffs’ attorney used a flipchart to

interest in using courtroom technology and presentation software at trial and elsewhere in your practice. Moreover, I hope you have an increased comfort level, and will act now to get the technology wheels in motion. There are a variety of options available, and a hybrid may be the avenue you choose. I intentionally avoided presenting you with an overwhelming smorgasbord of options because the market is crowded, and attempting to jump head-first into the legal technology ocean with blinders on can be a daunting and intimidating undertaking, whether you’re a tech luddite or you’re tech savvy. Regardless of your choice, I wish you the best of luck. I know your fellow TDLA members will be proud of your performance at your next trial. Carter Hale

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continued from previous page Endnotes 1. As discussed in this article, the pandemic has forced courts to employ new means of conducting proceedings, including complex and document-intensive summary judgment hearings and bench and jury trials. The research conducted on courts’ adoption and implementation of different technologies in order to carry out proceedings are not likely to fully return to the former, traditional ways they’ve been undertaken whenever the pandemic ends. This reality is, in large part, attributable to courts’ first-hand realization of the efficiencies inherent in these technologies and their effectiveness in accomplishing their intended objectives. To this end, we, as lawyers, would be remiss to assume courts will return completely to the former, traditional methods of conducting proceedings. See, e.g., Jennifer Bottomly, Bufford, K., and Strokes, H., “Practicing Law at a Distance: The Circuit Bench Offers Guidance for Lawyers Navigating the Courtroom during the COVID Pandemic”, ADLA Journal, Vol. 36, No. 2 (Fall 2020), pp. 46-57 (comprising interviews with several Alabama circuit court judges who majorily shared positive experiences using Zoom and other technologies). 2. Modeled after the ABA Model Rules of Professional Conduct, Tennessee’s Rule of Professional Conduct 1.1, Comment 8, reads: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject." To date, 39 states have amended their rules to specifically require technology competence. See “Lawyers’ Duty of Technology Competence by State in 2021”, Percipient Blog (March 21, 2021), https://percipient.co/ lawyers-duty-of-technology-competence-by-state-infographic. 3. In Hartman v. State, for example, the defendant appealed the trial court’s denial of his motion for a new trial following his conviction for the crimes for which he had been charged. As grounds for his ineffective-assistance-of-counsel argument, the defendant asserted that his counsel should have been more familiar with the courtroom technology and should have used that technology. 858 S.E. 2d 39 (Ga. App. March 3, 2021). The defendant maintained that in failing to do so, his attorney did not adequately cross-examine the victim. Id., at 48. The Georgia Court of Appeals affirmed the conviction, citing defense counsel’s extensive cross-examination of the victim and his impeachment of her on several fronts. Id. Notwithstanding, this case is just one of many (including civil actions) which evidences an increased level of awareness of courtroom technology and a corresponding increase in expectations that attorneys know how to use it, and use it at trial. 4. See Cook, Katrina, Ph.D., and Keith Pounds, Ph.D., “Adapting Advocacy for the Post-Pandemic World”, Litigation Insights Blog (July 29, 2021), https://litigationinsights. com/adapting-advocacy-post-pandemic. 5. Id. 6. See “Announcing ExhibitsPad – An Exciting New App From LIT SOFTWARE!” (May 8, 2021), https://www.litsoftware.com/blog/2021/5/5/announcing-exhibitspad-anexciting-new-app-from-lit software. 7. Upload files to TrialPad on your iPad using a Lightning to USB Camera Adaptor ($39.00 on the Apple Store, https://www.apple.com/shop/product/MK0W2AM/A/ lightning-to-usb-3-camera-adapter?fnode=f3d1988b3d12849e9bcd963a085a58ce6cd577bc8e16cdbb35a2d1df7a61ed10e6cfb0e395a774d9b9d5a6ae3fab5312600edacccb65f169b4a79a0b2471a31db3730af8c96381587cc7b1efb484addc628fd77efa1913912ef5460f9d0fe2d1). 8. Tara Cheever of Lit Software noted in a recent video podcast interview that the company tested its newest app, ExhibitsPad (discussed later in this article), in a jury trial in Miami, where each juror was provided an iPad with all exhibits uploaded to them for use during deliberations. Tara said it took her less than 10 minutes to upload the exhibits in this document- and media-intensive case to all 11 iPads via USB! See Brett Burney, “AiL040-Tara Cheever from LIT SOFTWARE Discusses Effective Presentations, App Updates, Brand New ExhibitsPad App, and Why Subscriptions Produce Better Apps! [Developer’s Edition]” (July 8, 2021), https://appsinlaw.com/ail040-taracheever-from-lit-software-discusses-effective-presentations-app-updates-brand-new-exhibitspad-app-and-why-subscriptions-produce-better-apps-developers-edition. 9. Jeff Richardson, “Review: TrialPad – present evidence from your iPad”, iPhoneJD (May 16, 2019) (https://www.iphonejd.com/iphone_jd/2016/05/review-trialpad. html); see also, Jeff Richardson, “Review: LIT SUITE – powerful iPad litigation apps”, iPhoneJD (Feb. 24, 2021), https://www.iphonejd.com/iphone_jd/2021/02/review-litsuite.html (for Richardson’s updated review of TrialPad), 10. Apple’s Peer-to-Peer AirPlay feature enables you to present wireless from an iPad without a WiFi connection. For a short, simple explainer on setting up and using Peer-to-Peer AirPlay, visit https://support.apple.com/en-us/HT204289. 11. See n. 16, supra. 12. Jeff Richardson, “Review: LIT SUITE – powerful iPad litigation apps”, iPhoneJD (Feb. 24, 2021), https://www.iphonejd.com/iphone_jd/2021/02/review-lit-suite.html. 13. Id. 14. “Double Your Productivity in TranscriptPad!”, Lit Software Blog (Aug. 12, 2021), https://www.litsoftware.com/blog/2021/8/2/we-just-doubled-your-productivity-in-transcriptpad. 15. Jeff Richardson, “Review: DocReviewPad – review and annotate documents on the iPad” iPhoneJD (July 7, 2015), https://www.iphonejd.com/iphone_jd/2015/07/ review-docreviewpad.html. 16. See n. 15, supra. 17. Jeff Richardson, “Review: ExhibitsPad – an electronic exhibit binder for factfinders”, iPhoneJD (May 11, 2021), https://www.iphonejd.com/iphone_jd/2021/05/review-exhibitspad.html.

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18. Guided Access limits the iPad to a single app (here, ExhibitsPad). To turn on Guided Access, simply go to Settings > Accessibility, and turn on Guided Access. Next, tap Passcode Settings and then Set Guided Access Passcode. Enter a passcode and confirm it. See “Use Guided Access with iPhone, iPad and iPod touch”, Apple Support, https://support.apple.com/en-us/HT202612 (accessed on Sept. 2, 2021). 19. See Jeff Richardson, “Review: ExhibitsPad – an electronic exhibit binder for factfinders”, iPhoneJD (May 11, 2021), https://www.iphonejd.com/iphone_jd/2021/05/ review-exhibitspad.html. 20. For example, in Sherrer v. Bos. Scientific Corp., the plaintiff appealed a defense verdict following a nearly four-month jury trial. 609 S.W. 3d 697 (Mo. 2020). Of the four grounds comprising the plaintiff’s appeal, the appellate court devoted particular attention to the plaintiff’s argument that the trial court erred in not granting her motion for a mistrial after information was presented to the jury regarding her pre-trial settlements with two dismissed defendants. Id. At trial, while cross-examining the plaintiff, defense counsel displayed a PowerPoint slide on a 20-by-20 foot screen and multiple monitors that was not admitted into evidence, and was used solely as an aid to the jury. 609 S.W. 3d at 715, 720 (Mo. 2020). After a few brief questions, the trial court judge directed defense counsel to take down the slide. Id. It was during the sidebar that followed that defense counsel first realized that the slide included a text box in the lower right corner describing a settlement with the two dismissed defendants. Id. The plaintiff moved for a mistrial on the grounds that the reference to settlements in the PowerPoint slide violated the trial court’s rulings excluding any reference to prior settlements. Id. After a discussion with counsel, the trial court judge ultimately denied the plaintiff’s motion for a mistrial. Id., at 715-716. In a per curium opinion, the Supreme Court of Missouri ultimately affirmed the judgment, but the risk of reversal, coupled with the time and expense of the appeal and of potentially re-trying a four-month long case, serve as a strong reminder of the importance of reviewing each of party’s respective trial exhibits, including your owner, multiple times before trial. Id., at 716. 21. See, e.g., the recent case of United States v. Barrow, Criminal 20-127 (CKK) (D.D.C. Aug. 13, 2021). In Barrow, the defendant appealed unanimous verdicts convicting him of wire fraud crimes following an eight-day trial which took place in June 2021 during the COVID-19 pandemic. Id. Specifically, the defendant sought a new trial based on numerous grounds, all of which related to “alleged shortcomings in the Court’s technology – none of which Defendant’s counsel or Defendant alerted the Court of or objected to before or during trial...” Id. (Italicized emphasis in original). (The Court noted one glitch that occurred when “one of the jurors seated on the back row of the gallery indicated that he could not clearly see the text of an exhibit... on the monitor in the front of the gallery.” Id. However, the courtroom technology specialist remedied this issue by setting up an additional monitor closer to that juror. Id.)

19


FRAUD

The Iceberg Effect:

Authors of The Iceberg Effect: Fraud Below the Surface

Authors of The Iceberg Effect: Fraud Below the Surface

Fraud below the Surface Madison G. Grody, CPA, CFE

Austin T.perpetrator Starkey, CPA, CFF, CFE, ABV was an employee of the

Senior Consultant

Manager

company for less than three years. These losses were not just the

Services: Fraud and Forensics, Litigation Support, Consulting and Advisory Services: Fraud and Forensics, Litigation Support, Consulting and Advisory Industries: Professional Financial Manufacturing and Distribution, result ofand credit cardServices, misuse, but Industries: Professional services, Healthcare, Government Closely Held Business also unauthorized

bank transfers,

Professional Overview unauthorized tax payments, suspicious Madison is in her third year with Elliott Davis’ Forensic, Valuation, and Litigation Overview Professional entries, cashand Litigation Support practice. Madison works on cases involving healthcare fraud and Austin is in hisjournal 7th year with Elliott and Davis’overstated Forensic, Valuation, varieties of contract litigation. Her experience includes financial analysis, balances. forensic Support practice where he The assistsfraud clients and and counsel with complex financial investigative analysis, and services supporting litigation and forensic cases. accounting, and damages matters, including fraud investigations, forensic

accounting team was able to work

accounting, and consulting services.

closely with firm management to Education Master of Accountancy, University of Tennessee at Chattanooga make regarding Austin provides clientsrecommendations with experience in lost profits, internal control systems B.S., Accounting, University of Tennessee at Chattanooga

MADISON GRODY, CPA, CFE is in AUSTIN STARKEY, CPA, CFF, CFE, internal controls, anfraud improved and procedures, cash flow analysis, and risks, andfinancial he has experience in her third year with Elliott Davis’ Forensic, ABV isandinCertifications his 7th year with Elliott Davis’ performing fraud risk assessments and developing anti-fraud programs. reporting structure, and enhanced Professional Affiliations 500 East Morehead Street Certified Public Accountant (CPA), Licensed inand North Carolina and Tennessee Valuation, and Litigation practice. Forensic, Valuation, Litigation Support oversight and monitoring procedures. SuiteSupport 700 Elliott Davis, Austin was in an audit and assurance practice with a Certified Fraud Examiner (CFE) Market clients Street and Prior to joiningThe Charlotte, NC 28202 Madison works on cases involving healthcare practice where 629 he assists firm also supported the company’s American Institute of Certified Public Accountants firm in Atlanta where he performed a wide variety of assurance services Suite 100 fraud and varieties of contract litigation. counsel with complex financial accounting, North Carolina Association of Certified Public Accountants legalaudits, counsel during a civil suitcompliance to including year-end outsourced internal audits, audits, Direct: 980.201.3940 Chattanooga, TN 37402 Association of Certified Examiners, Member Her experience includes financial analysis, andFraud damages matters, including fraud pension plan audits, financial reporting, assessments. Austin obtainSECrestitution from and therisk perpetrator. Office: 704.333.8881 Charlotte Chapter of the Association of Certified Fraud Examiners, Board Fax: 704.390.7071 investigative analysis, and services supporting investigations, forensic accounting, andtransitioned to a corporate accounting and finance role with a Fortune 250 in Direct: 423.308.0679 Member the world forensic accountant, joiningof theaForensic, Valuation, and Litigation Support litigation and forensic cases. She may be Regional Business consulting services. He may be Member reachedAtlanta at beforeIneventually Office: Charlotte Alliance Young423.756.7100 Professionals, Madison.Grody@elliottdavis.com practice in Chattanooga. this scenario plays out repeatedly. reached at Madison.grody@elliottdavis.com. Austin.starkey@elliottdavis.com. Small, seemingly immaterial lapses Thought Leadership austin.starkey@elliottdavis.com Education Haun, A., Gaither, M., & Sompayrac, J. The Role of Forensic Accounting in U.S. in ethical behavior frequently lead to B.S., Accountancy, Miami University uch like the Titanic when received onlyBusiness a slapJournal. on the Counterterrorism Efforts. The Coastal Fall wrist. 2018, 16(1), 25-51. the discovery B.A., French, Miami University of millions of dollars it met its disastrous fate But what if you heard about other of potential fraud. Given the initial after striking an iceberg, suspicious activity or allegations Professional of Affiliations and Certifications behavior may detection of fraudulent businesses encounter further wrongdoing? The seemingly Certified Public Accountant (CPA) indicate a larger issue hidden below their own icebergs that challenge insignificant credit card expense Certified might in Financial Forensics (CFF) the surface, Certified Fraud Examiner (CFE) organizations should moral and ethical boundaries. be more than an isolated incident. Accredited in consider Business Valuation (ABV) with a forensic partnering Icebergs – massive, ominous, and Institute of Certifiedteam Public Accountants For example, after the departureAmerican of accounting to uncover the full potentially disastrous chunks of ice, Tennessee Society of Certified Public Accountants key personnel, an engineering firm extent of a fraud scheme. Association of Certified Fraud Examiners with over 90 percent of their mass discovered unusual activity on itsChattanooga Area Association of Certified Fraud Examiners hidden below the surface – are a corporate credit cards. The engineering DIVING DEEPER National Association of Certified Valuators and Analysts suitable metaphor for fraudulent firm engaged a reputable fraud and When a fraud allegation is made, behavior within organizations. Like forensic accounting team to investigate management will understandably elliottdavis.com an iceberg, what you see when allegations of corporate credit card rush to address the issue as quickly encountering fraudulent behavior is misuse and to identify other potential as possible. While this is a logical quite frequently only a portion of the elliottdavis.com issues. Although the engineering approach, it often leads to the underlying problem. firm anticipated credit card misuse investigation stopping short of Think about the last time you heard totaling $100,000, the fraud and identifying other potential fraudulent of an employee who submitted a forensic accounting team discovered acts and their root causes. One questionable credit card expense. over $750,000 in possible fraud losses, important reason for a thorough Maybe they were fired; maybe they a substantial total given that the investigation is that perpetrators

M

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regularly use multiple methods of committing a fraud (e.g., asset misappropriation, corruption, and/ or financial statement fraud). According to the 2020 Report to the Nations published by the Association of Certified Fraud Examiners, Inc. (“ACFE”), nearly one-third of the fraud cases included in the study involved more than one type of occupational fraud scheme. Fraud goes hand in hand with deception, so management may fail to identify fraudulent activity that is well concealed. Collusion among perpetrators can also significantly increase the impact of a fraud. Collusion allows for the circumvention of controls and override of independent verifications. According to the 2020 ACFE Report to the Nations, more than half of the fraud cases included in the study involved collusion among multiple individuals, and losses generally increased with multiple perpetrators. The median loss for a single perpetrator was $90,000, while the median losses for two and three or more perpetrators were $105,000 and $350,000 respectively. The likelihood of more fraud occurring than initially discovered is a factor that businesses should consider. An organization could benefit from the expertise of an external forensic accounting team with the ability to conduct high quality fraud investigations, including the examination of financial institution accounts, accounting records, and internal controls. Experienced forensic accountants possess broad industry knowledge and are aware of fraud schemes that are common to specific industries and service lines. The right forensic accountant will be a skilled interviewer who can “speak the language” of accounting and finance, which can result in more fruitful interviews and help identify inconsistencies between witness statements.

NAVIGATING TURBULENT WATERS

While human resources and internal audit functions often handle employee misconduct, forensic accountants possess skills and abilities specifically related to uncovering fraud that an organization’s internal employees may lack. Forensic services may include the following:

• • • • • • •

Evidence collection and preservation; Interviewing key personnel; Statistical processes to analyze financial and accounting data to identify suspicious or inappropriate activity; Comprehensive examination of financial institution records (e.g., banking, credit cards, investments, loans); Analysis of funds and asset tracing; Examination of digital evidence (e.g., deleted files, email communications, cell phone data); Using powerful data analytics tools to support investigations.

Organizations benefit from the fresh eyes of forensic experts providing an unbiased, confidential perspective. Your board of directors or audit committee may require or take comfort in having an independent investigation performed. It is difficult for organizations to conduct their own internal forensic investigation because that is not what they are skilled at doing on a daily basis, and they quickly become overwhelmed with the amount of data and financial information to examine. Businesses are currently using a wide variety of systems and have complex business structures that can often paralyze internal

resources when conducting an investigation. Computer forensic experts help organizations access and extract digital evidence, but these individuals typically do not possess the accounting and financial expertise necessary to detect fraud. This is where a forensic accounting team can partner with your internal resources, legal representation, and IT professionals to quickly review key evidence, analyze data, and generate meaningful results.

THE LIFE RAFT

Once the full extent of a fraud scheme has been uncovered, forensic experts can assist organizations with the next steps by collaborating with attorneys, law enforcement, or insurance providers. Forensic accountants help management evaluate the strength of allegations and provide necessary information for their decision making (e.g., termination or pursuing prosecution). Forensic accountants can support the organization during prosecution by developing strong evidence to increase the likelihood that a state or federal prosecutor will take the case. Prosecution is often required to recover damages from an insurance provider and is a strong deterrent to prevent other issues within an organization. Forensic teams can also work with attorneys to prepare reports and exhibits, then provide expert testimony at trial if needed. When fraud is initially discovered, an organization should always consider the possibility that additional fraud lurks below the surface. The right forensic accounting team can help you uncover additional stolen assets and protect you from future losses. Don’t let the iceberg of fraud cause your business’s ship to sink because you didn’t employ the right people and tools. Madison Grody Austin Starkey

21


AEB

Automated Emergency Braking (AEB): New technology, new questions

AEB systems are rapidly being incorporated into new cars in the U.S. With new technology comes new questions about the effect of AEB activation on vehicle and occupant dynamics.

R MARC A. PARADISO, M.S., P.E. specializes in accident reconstruction, vehicle crash analysis, and failure analysis. He has a background in vehicle dynamics, vehicle simulation and analysis, performance structure design and analysis, and consumer product design. He may be reached at mparadiso@exponent.com.

esearch in Advanced Driver Assistance Systems (ADAS) is active and technologies are rapidly moving from the concept car to the family car. In 2015, the National Highway Transportation Safety Administration (NHTSA) coordinated a voluntary pledge by 20 auto manufacturers to equip most light-duty cars and trucks with a particular ADAS technology, low-speed Automated Emergency Braking (AEB), including forward collision warning (FCW) and crash imminent braking (CIB), by September 2022 [e.g., https://www.nhtsa.gov/press-releases/nhtsaannounces-update-historic-aeb-commitment-20-automakers]. While manufacturers have various names for these systems, all Automated Emergency Braking (AEB) systems are designed to prevent or reduce the severity of low to moderate frontal crashes in some common driving scenarios.

Figure 1. Left: Cropped still image from on-board video of a test vehicle approaching the IIHS ADAC Advanced Emergency Braking System Stationary Target at the moment of initiation of the AEB (Test 1531-0001, © www.iihs.org). Right: The AEB Vehicle Target utilized by the IIHS and Euro-NCAP, and a variety of other targets, are manufactured by Messring GmbH (Photograph from www.Messring.de/en).

AMY COURTNEY, PH.D., CAISS provides technical expertise in the area of injury biomechanics, including orthopaedic, spine, and traumatic brain injury, blast injury, and ballistics. She addresses issues related to traumatic events, motor vehicle safety, and product safety. She may be reached at acourtney@exponent.com

22

THE EFFECT OF AEB ACTIVATION ON VEHICLE DYNAMICS AND OCCUPANT KINEMATICS AND BIOMECHANICS

When AEB is activated, braking forces are automatically initiated or added to a driver’s input, and the vehicle decelerates. As the term “emergency” suggests, activation initiates suddenly. When the moving vehicle decelerates, occupants initially tend to continue moving with the pre-AEB activation speed and direction of the vehicle. Therefore, when AEB activates, occupants initially tend to move forward relative to the interior of the vehicle. This relative motion results in forces on the human body through interaction with restraints

Winter 2021 | Tennessee Defense Lawyers Association | Issue 9, Volume 1


such as the lap and shoulder belt. A driver may also experience reaction forces through the arms from hand contact with the steering wheel or through the legs from foot contact with the pedals or floor. A driver may be surprised by the activation of AEB. After all, if they had anticipated the need to stop, they likely would have done so. (Note that surprise is different from physiological “shock.”) After the fact, they may realize that they experienced some forces and be concerned about possible injury. Unexpected forces may or may not be likely to result in injury depending on the magnitude and direction. Claims might arise from activation of AEB systems, whether or not a subsequent collision occurs. How can insurance adjusters and litigators get an objective perspective on the likelihood that a specific incident involving AEB activation contributed to property damage or personal injury? What if a frontal collision occurs despite AEB activation? How much had the vehicle slowed prior to collision compared to no AEB? How has activation of the AEB affected the risk of injury from the subsequent collision? For a short time after AEB activation, the occupants’ positions may be different from a nominal driving or properly seated passenger position, which may introduce additional questions. Accident reconstruction and biomechanics experts can help answer questions such as the following: How large are the decelerations in vehicles when the AEB system is activated? How do these compare in magnitude and duration to a frontal crash at a similar speed? What magnitude and direction of forces act on the driver and occupants? Is there potential for injury from AEB activation?

THERE IS A GROWING KNOWLEDGE BASE REGARDING EFFECTS OF AEB ACTIVATION

In 2013, the Insurance Institute for Highway Safety (IIHS) tested AEB systems in a dozen vehicles, and they have tested more vehicles each year since. In addition to reporting whether a frontal collision is prevented, time and acceleration data are gathered as AEB systems slow vehicles from an initial speed of 12.5 mph or 25 mph. Several trials are performed at each initial speed according to a rigorous test and data acquisition protocol. Because of the growing body of data from IIHS testing of AEB systems, vehicle specific data may be available to evaluate a claim. Alternatively, looking at AEB data from several vehicles from the same manufacturer may be informative. If an incident involves an impact subsequent to AEB activation, modern event data recorders (EDRs) may store data even without airbag deployment (non-deployment events). Some newer EDR systems may indicate whether the AEB was activated, and an accident reconstructionist may be able to use other data from the EDR to inform how the AEB affected the vehicle’s motion. Biomechanical data relevant to the vehicle decelerations and to AEB activation specifically have been published, helping to objectively quantify the kinematics and loading that result from AEB activation. In addition, the vehicle data can be used to identify additional biomechanical studies relevant to a specific situation. AEB systems are an active area of research, and the knowledge base is growing. For example, at the 2020 annual meeting of the Association for Advancement in Automotive Medicine (AAAM) in October, new research was presented related to AEB activation, including computer modeling

of occupant dynamics and data gathered with live human volunteers.

SCENE CHARACTERISTICS MAY INFLUENCE APPLICABILITY OF AVAILABLE DATA

In the IIHS testing of AEB systems, a specific, repeatable protocol is followed for scientific rigor as well as comparability between vehicles. The conditions include fair weather, a dry, flat roadway, and daylight. But road conditions are not always like that. How do suboptimal conditions, a grade, or a different road surface affect the efficacy and occupant experience when AEB is activated? Vehicle-to-vehicle or vehicle into traditional hard barrier crash tests are destructive, and therefore expensive. However, if relevant data are not already available, specific issues related to AEB activation may be amenable to evaluation through nondestructive vehicle testing using standard sensors and techniques, with or without an inflatable target that does not damage the test vehicle (Figure 1). Alternatively, an accident reconstructionist may be able to use available data from AEB testing along with what is known about incident-specific conditions to determine the effect of AEB activation in that situation. New technology like AEB is inevitably accompanied by questions and claims about performance. Research is ongoing, and AEB systems are being refined. However, we do have a growing body of data and tools to evaluate issues that may arise in currently deployed systems.

REFERENCES

Insurance Institute for Highway Safety (IIHS). Autonomous Emergency Braking Test Protocol (Version I), October, 2013. Mark Paradiso Amy Courtney

23


TENNESSEE CHAPTER The following attorneys are recognized for

Excellence in the field of Alternative Dispute Resolution CALENDAR

CALENDAR

NAME

BASED IN

PHONE

NAME

BASED IN

PHONE

Kreis White

Brentwood

(615) 309-0400

Hon. Janice M. Holder(Ret.)

Memphis

(901) 527-3765

Richard Marcus

Chattanooga

(423) 756-0414

Loys A. “Trey” Jordan III

Memphis

(901) 526-0606

David W. Noblit

Chattanooga

(423) 265-0214

Hayden Lait

Memphis

(901) 527-1301

Dan L. Nolan

Clarksville

(931) 647-1501

Minton P. Mayer

Memphis

(615) 248-3605

Mark C. Travis

Cookeville

(931) 252-9123

Jerry O. Potter

Memphis

(901) 525-1455

John T. Blankenship

Franklin

(615) 627-9390

Fred Collins

Milan

(731) 686-8355

Robert L. Arrington

Kingsport

(423) 723-0402

Paul T. DeHoff

Murfreesboro

(615) 631-9729

Hon. Daryl Fansler (Ret.)

Knoxville

(865) 546-8030

Gail Vaughn Ashworth

Nashville

(615) 254-1877

Paul D. Hogan Jr.

Knoxville

(865) 546-2200

Barry L. Howard

Nashville

(615) 256-1125

Dana C. Holloway

Knoxville

(865) 643-8720

James D. Kay Jr.

Nashville

(615) 742-4800

James H. London

Knoxville

(865) 637-0203

Mark S. LeVan

Nashville

(615) 843-0308

Sarah Y. Sheppeard

Knoxville

(865) 546-4646

Gayle Malone Jr.

Nashville

(615) 651-6700

William D. Vines III

Knoxville

(865) 637-3531

Michael L. Russell

Nashville

(615) 850-8472

Howard H. Vogel

Knoxville

(865) 546-7190

Tracy Shaw

Nashville

(615) 921-5204

Allen S. Blair

Memphis

(901) 581-4100

Matt Sweeney

Nashville

(615) 726-5774

Hon. George Brown (Ret.)

Memphis

(901) 523-2930

John R. Tarpley

Nashville

(615) 259-1366

John R. Cannon Jr.

Memphis

(901) 328-8227

I.C. (Jack) Waddey Jr.

Nashville

(615) 850-8752

Check preferred available dates and schedule appointments online directly with Tennessee’s top-rated neutrals - for free. NADN is proud creator of the DRI Neutrals Database

www.DRI.org/neutrals For more info, watch video at www.NADN.org/about

24

Winter 2021 | Tennessee Defense Lawyers Association | Issue 9, Volume 1


Tennessee Defense Lawyers Association

A subscription to the TDLA Newsletter is included in the annual dues.

TDLA Membership Application

Please note: Individual Membership is not transferable.

I am a defense attorney and first time member of TDLA and I am a member of DRI.* In-House Counsel (as defined below,** please check if applicable) Young Lawyer (admitte d to the bar for ten years or less) I am not a member of DRI, but I am interested in a DRI membership. Male

Female Name First time admitted to the Bar in in

Title

state/province

Firm Address

month/day/year

.

bar number

Number of years licensed to practice in Tennessee. City

State/Province

Zip/Post Code

< 5 years

Country

Telephone

5 – 15 years Fax

Over 15 years

Email Primary area(s) of practice In order to maximize the educational and networking opportunities for its members, TDLA has established sections which focus more narrowly on specific practice areas. The list of these appears below. TDLA believes that belonging to one or more sections greatly enhances the value of your membership in TDLA and we encourage you to join those that interest you. Membership in a section is free of charge, requires no additional commitment or responsibility on your part, and you may belong to as many sections as you wish. Please indicate which sections you wish to join by marking the corresponding box(es) below.

Employment & Workers Compensation Section

Optio nal

Number of attorneys in your firm

1–2

Professional Negligence & Healthcare Section 3–10

TDLA is committed to the principle of diversity in its membership and leadership. Accordingly, applicants are invited to indicate which one of the following may best describe them:

11–20 African American Native American

21–50

Torts Section

51–99

100+

Asian American Caucasian Date of birth

Young Lawyers Section

Hispanic Other

month/day/year

Referred by

Name of referring TDLA Member attorney (if applicable)

I devote 51% or more of my professional time to the representation of business, insurance companies or their insureds, associations or governmental entities in civil litigation. I have read the above and hereby make application for individual membership. Signature

Date

All applications must be signed and dated.

Please return application to: TDLA PO Box 282, Lookout Mtn, TN 37350 P: 423.314.2285 E: office@tdla.net | w w w.tdla.net * DRI = Defense Research Institute ** In-house counsel is defined as a licensed attorney who is employed exclusively by a corporate or other private sector organization, for the purpose of providing legal representation and counsel only to that corporation, its affiliates and subsidiaries.

25


COMMITTEES

TDLA Committee Members BENCH/BAR COMMITTEE AJ Parker

TERM UNTIL 2024 Rainey, Kizer, Reviere & Bell 201 4th Ave. North, Suite 1850 Nashville, TN 37219 (615) 613-0442 ajparker@raineykizer.com

Dylan J. Gillespie

Term until 2023 Hickman, Goza and Spragins P. O. Box 16340 Memphis, TN 38186 (901) 881-9840 dgillespie@hickmanlaw.com

Devin Lyon

Term until 2022 Arnett, Draper & Hagood, LLP 800 S. Gay Street, Suite 2300 Knoxville, TN 37929 (865) 546-7000 dlyon@adhknox.com

INTEREST ON LAWYER TRUST ACCOUNTS (IOLTA) COMMITTEE

IF YOU ARE INTERESTED

Mabern E. Wall

Hodges, Doughty & Carson, PLLC 617 W. Main Street Knoxville, TN 37902 Phone: (865) 290-1532

in becoming more involved

WORKERS’ COMPENSATION ADVISORY COMMITTEE Lynn Vo Lawyer

issue of interest to share

Travelers llawyer@travelers.com

with our membership,

LEGISLATIVE COMMITTEE: TORTS SECTION Bradford D. Box

Rainey, Kizer, Reviere & Bell, PLC 209 E. Main St. Jackson, TN 38301 (731) 423-2414 bbox@raineykizer.com

in TDLA or if you have an

Michael L. Haynie

Manier & Herod PC 1201 Demonbreun St., Suite 900 Nashville, TN 37203 (615) 244-0030 mhaynie@manierherod.com

please contact your section co-chair or committee member.

LEGISLATIVE COMMITTEE: PROFESSIONAL NEGLIGENCE & MEDICAL MALPRACTICE SECTION Christopher A. Vrettos

Gideon, Cooper & Essary, PLC 315 Deaderick Street, Suite 1100 Nashville, TN 37238 (615) 254-0400 (615) 254-0459 (fax) christopher@gideoncooper.com

Drew H. Reynolds

Spears, Moore, Rebman & Williams, P.C. 601 Market Street, Suite 400 Chattanooga, Tennessee 37402 (423) 756-7000 dhr@smrw.com


LEGISLATIVE COMMITTEE: EMPLOYMENT & WORKERS’ COMPENSATION SECTION Lynn Vo Lawyer

Katherine “Kitty” Boyte

Travelers llawyer@travelers.com

Constangy, Brooks, Smith & Prophete, LLP SunTrust Plaza 401 Commerce Street, Suite 1010 Nashville, Tennessee 37219 (615) 320-5200 kboyte@costangy.com

EMPLOYMENT AND WORKERS’ COMPENSATION SECTION CO-CHAIRS Marcia McShane

Tennessee Department of Human Services Assistant Commissioner in the Public Information and Legislative Office 505 Deaderick Street Nashville, Tennessee 37243 (615) 320-5200

Geoffrey Lindley

Rainey, Kizer, Reviere & Bell, PC 209 E. Main Street Jackson, TN 38301 (731) 423-2414 glindley@raineykizer.com

PROFESSIONAL NEGLIGENCE AND HEALTHCARE SECTION CO-CHAIRS Christopher A. Vrettos

Drew H. Reynolds

Gideon, Cooper & Essary, PLC 315 Deaderick Street, Suite 1100 Nashville, TN 37238 (615) 254-0400 (615) 254-0459 (fax) christopher@gideoncooper.com

Spears, Moore, Rebman & Williams, P.C. 601 Market Street, Suite 400 Chattanooga, Tennessee 37402 (423) 756-7000 dhr@smrw.com

TORT SECTION CO-CHAIRS Sean W. Martin

Carr Allison 736 Market Street Suite 1320 Chattanooga, TN 37402 (423) 648-9832 swmartin@carrallison.com

Hal S. “Hank” Spragins, Jr. Hickman, Goza & Spragins, PLLC P.O. Box 16340 Memphis, TN 38186 (901) 881-9840 (Ext. 105) hspragins@hickmanlaw.com

YOUNG LAWYERS SECTION CO-CHAIRS Rachel Bishop

Stites & Harbison 401 Commerce Street Suite 800 Nashville, Tennessee 37219 (615) 782-2292 rbishop@stites.com

Michael Petherick

Carr Allison 736 Market Street Suite 1320 Chattanooga, TN 37402 (423) 648-9862 mpetherick@carrallison.com

AMICUS BRIEF COMMITTEE Gary Wilkinson

Law offices of Gary Wilkinson wilking2@nationwide.com

Devin Lyon

Arnett, Draper, and Hagood dlyon@adhlawknox.com

Christina Hadaway

Hickman Goza & Spragins P.O. Box 16340 Memphis, TN 38186 (901) 881-9840 chadaway@hickmanlaw.com

Chancey Miller

Carr Allison cmiller@carrallison.com

Derek Mullins

Carr Allison dmullins@carrallison.com


PRESORT STANDARD US POSTAGE

Tennessee Defense Lawyers Post Office Box 282Association Tennessee Defense Lawyers Association

PAID

CHATTANOOGA, TN PERMIT NO. 371

Lookout Mtn, TN 37350

TDLA Trial School

January 21-22, 2022 DoubleTree Hotel Downtown Nashville Davidson County Courthouse Register today on our website at www.tdla.net

Tennessee Defense Lawyers Association