Officers of the Knoxville Bar Association
KBA Board of Governors
Melissa B. Carrasco
Joan M. Heminway
Ian P. Hennessey
William A. Mynatt, Jr.
T. Mitchell Panter
M. Samantha Parris
Courtney Epps Read
Vanessa Samano
Charles S.J. Sharrett
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.
All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Tasha Blakney (522-6522).
James T. Snodgrass
James R. Stovall
Alicia J. Teubert
Hon. Zachary R. Walden
Dicta is the official publication of the Knoxville Bar Association
Publications Committee
Executive Editor Cathy Shuck
Executive Editor Sarah Booher
Executive Editor Melissa B. Carrasco
Executive Editor Wade H. Boswell, II
Brandon Allen
Sherri Alley
Anita D’Souza
Elizabeth B. Ford
Jennifer Franklyn
Joseph G. Jarret
F. Regina Koho
Matthew R. Lyon
Robin McMillan
Summer McMillan
Angelia Morie Nystrom
Katheryn Murray Ogle
Laura Reagan
Ann C. Short
Eddy Smith
Grant Williamson
Managing Editor Tasha C. Blakney
KBA Executive Director
Practice Tips Saving a Cause of Action
Legal Update Winning Just Might Be Everything and the Only Thing
Schooled in Ethics
for Recusal
Counsel Managing Political Discussions at Work
Tournament a Smash!
Century Lawyer
Siri, Should I Hire this Candidate?
How to Thrive in Law & Life
to Bolster Well-Being and Resilience Through Religious and Spiritual Practices
In Limine: Profiling Future JDs
Cuellar
to Be a Lawyer
Privilege of Learning
Legal Sightseeing
Bites
There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 865-522-6522 or send an email to membership@knoxbar.org.
The ADR Section plans regular CLE throughout the year. Save the date for the annual CLE program “Mediation: Practice & Ethics Update,” scheduled for December 17. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarret (566-5393) or Betsy Meadows (540-8777).
The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on November 9, and volunteer registration is available at www.knoxbar.org. Save the date for the annual CLE program “Bankruptcy Case Law Update 2024,” scheduled for December 20. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Greg Logue (215-1000), Kevin Newton (588-5111), or Shanna Fuller Veach (545-4284).
The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).
The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (457-5640).
The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (691-2777).
The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (804-3741), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).
The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Save the date for the annual CLE program “TN Family Law Update 2024” on December 10. Plan to attend the KBA Family Law Section Christmas Social scheduled for December 13 from 5-7 p.m. at the Herston Law Group downtown. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Blair Kennedy (539-3515) or Laura Wyrick (297-5511).
The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Ron Mills (215-2050) or Mitchell Panter (545-4167).
The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).
The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2022 will automatically be opted-in to the section. If you like to get involved in planning section activities, please contact Section Chairs Dalton Howard (546-0500) or Mari Jasa (546-7770).
The Senior Section will meet next on Wednesday, January 15, at Calhoun’s on Bearden Hill. The program title is “The Volunteers: Tennessee Basketball” and will feature Buck Jones, a Tennessee Hall of Fame member and longtime scorekeeper for Vols Men’s and Women’s basketball. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes a buffet lunch. If you have suggestions for future luncheon speakers, please contact Section Chairs Wayne Kline (292-2307) or Sam Rutherford (659-3833).
The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936), Brittany Dykes (214-7869), or Stan Young (209-8034).
PRESIDENT’S MESSAGE
By: Carlos A. Yunsan University of Tennessee College of Law
And . . . cut! As the remaining leftovers from last week’s festivities quickly vanish from the fridge, I now confront the reality that I can no longer procrastinate on Christmas preparations and that the honor of serving as president of our Knoxville Bar Association will end in just a few days. In the words of past president Loretta Cravens, “What A Year It Has Been!” Let me try to bring this amazing chapter to a respectful pause.
At last year’s annual meeting, I asserted that even as our beloved executive director extraordinaire Marsha Watson’s time at the helm of KBA was coming to an end, we were left in good hands. Today, I can confidently say that I was right. As most—if not all—of you have personally experienced, Tasha Blakney has carried the baton with great energy, innovation, and vision. From a CLE journey abroad (a first for the KBA!) to my native Panama to a record-breaking Law Day celebration, a “breakfast and learn” with the Knox County legislative delegation, and a noholds-barred CLE bout in the wrestling ring, Tasha and the staff have put together a plethora of opportunities for us to both connect and expand our horizons. Of course, these “highlights” barely scratch the surface of the countless educational opportunities, social events, and service projects the KBA brought us throughout the year. (By the way, you still can register for the annual Ethics Bowl on Friday, December 6.)
And yet, not even one of these opportunities came to fruition without individual members “showing up.” Each time one of us chose to leave the office a little early and/or get home a little late because of a committee meeting; to volunteer for the Constitution Day school outreach or for the Minority-Owned Business Legal Advice Clinic because you recognize the responsibility that comes with the power of our profession; to call or email a colleague to share how much you learned from their DICTA article because you were educated or moved; or to go to an early morning or after-hours event because it was a chance to connect—as a human—with your colleagues, the KBA was a success. I applaud you, and I also offer my sincere gratitude to every committee, section chair, and bar leader who made a personal investment to move us forward.
But success in this regard shall not be taken for granted or rested upon. There will be challenges ahead. Bar associations across the country are figuring out how to respond to reduced engagement from their members and related budgetary constraints. The ultimate effects of rapidly evolving AI on the profession are unknown, but its impact is certain. The need for increased access to robust legal services is pressing. The shift in the way we perceive and take ownership for our wellbeing as lawyers is nascent and must be nourished to survive. Many of the barriers
that have long perpetuated inequities in our profession and the legal system persist. And challenges to the Rule of Law continue to sprout up in ways we could not have imagined just a few years ago. In a nutshell, the old paradigms will no longer suffice to propel us forward. On that note, I am proud of the Board of Governors you selected. They have “gotten their hands dirty” in the business of working to figure out how the KBA may once again meet current and impending challenges squarely. They understand: “Success is not final, failure is not fatal: it is the courage to continue that counts.”2
With that in mind, I am looking forward to serving as Immediate Past President next year under the leadership of President-Elect Jonathan Cooper. His fairness, wisdom, and willingness to recognize and tackle tough issues have already been of great service to the KBA during his time on the Board of Governors, and I can hardly wait to see where that will take us. I am also thrilled that the KBA will once again sponsor a CLE abroad journey in February, this time to beautiful and historic Colombia! If you have the opportunity, don’t delay and register today. You will not regret it! But before we completely abandon 2024 for the prospects of 2025, I must urge you to show up at least one more time this year. Our annual meeting and elections will be held on Friday, December 13. You know the drill: 8:30 a.m. at the City-County Building. Several Board members will be rotating off, and it’s up to you to select a slate of new Board members to help shape the Association moving forward.
Friends and colleagues, we are indeed fortunate. The KBA is more than an outstanding professional association. It is a place to belong for every attorney in Knoxville and its surrounding areas. It is indeed family to many of us, providing an interface for deep, meaningful friendships that can withstand the test of time and the rigors of the profession. But there is still plenty of work ahead for all of us. And so I end this last column of my tenure as president where I began approximately a year ago. We must continue engaging with one another. We must continue expanding our horizons, growing, learning. Each of us has faced days where the kind words of a colleague kept us going. Each of us has been inspired by the vision, courage, or tenacity of a friend. Your encouragement, generous words, and support have meant the world to me and have made serving this year as president the honor of a lifetime. Thank you—and let’s keep it going, for the road goes ever on!
1
2 This quote has often been attributed to Winston S. Churchill but, more recently, his authorship of the same has been disputed.
By: Travis McCarter Green, Waters, Ogle & McCarter
It is with bittersweet joy that I am pleased to introduce you to my law partner of many years, Adrienne Waters Ogle, who has been appointed by Governor Bill Lee as the newest Circuit Judge for the Fourth Judicial District. As a Sevier County native who has never lived anywhere else, I can say without reservation that my loss of a law partner will be the Fourth District’s great gain. In this article, I will endeavor to introduce you to Judge Ogle so that you will know who she is and what to expect from her as a jurist, but as a duly licensed attorney, I must first disclose my bias.
Personally and professionally, I have the highest esteem for Judge Ogle. She was one of two people (along with our partner Michael Green) who saw enough value in me to take me on as a partner in a law firm and put my name on the door, even though I had virtually no book of business to bring with me. I did not know what to expect from her, as we didn’t know each other well, despite attending law school together at the University of Tennessee.
But I quickly learned that she was everything you would want your lawyer to be: intelligent, tenacious, savvy, and compassionate. She was also everything you would want your law partner to be: loyal, trustworthy, hard-working, and supportive.
someone who died in an accident, crying with them and consoling them, genuinely devastated by their loss. I’ve seen her at the office at midnight getting a demand package out to an insurance company because an injured client was out of work and might miss a house payment if the case didn’t settle quickly. I grew tremendously as an attorney during the time we worked together and count it as no small loss on my part that she will no longer be on my team. She was a great partner, great boss, great attorney, and became a great friend –because she cared.
She was extraordinarily patient with me as I learned how to maneuver the pitfalls and traps that are inherent in personal injury law, frequently fielding a late-night phone call or email from me seeking assurance that I had not blown a statute of limitations or committed some other fatal error. She was unconditionally supportive of me, frequently lecturing me about how I was the best trial attorney she had ever seen if I so much as mentioned the possibility of losing a case or a motions hearing in her presence. In a profession that is frequently seen as impersonal and money-driven, she seemed keenly aware of the humanity of her partners, her staff, and her clients.
Being a person’s law partner provides a unique perspective. It allows you to gain insight into who someone really is because you get to see them both inside and outside the courtroom. Over the past six years, Judge Ogle and I have navigated all of the ups and downs of running a boutique law firm together, and I have been impressed by a great many things. But most of all, it has been her compassion for the people around her.
We had an internal slogan that we would repeat to each other: “We are good because we care.” While that started out as a way that we differentiated ourselves from larger law firms that seemed to employ a “turn-and-burn” strategy to settling personal injury cases, this mantra turned into the guiding principle of our practice because I saw the effect that genuine empathy had on us, our employees, and our clients. On many occasions, I have seen Judge Ogle heartbroken over the living conditions of the juveniles who have come before her as the Juvenile Magistrate. I’ve seen her meet for hours on end with the family of
It is for that very reason that I know Judge Ogle will be an extraordinary asset to the people of the Fourth District. Because she cared, she had more simultaneous jobs than any other attorney I’ve known, becoming a jack-of-all trades and master of them all. She was at once a partner in our personal injury practice, Juvenile Magistrate for Sevier County, and Municipal Attorney for the City of Gatlinburg, all while still excelling at the most important job of all: mom. She frequently came to the office after dance practice to finish a motion or help me prepare for a trial. I saw days where she handled depositions in the morning, City Court in the afternoon, and a piano recital at night. She worked tirelessly on behalf of our office, Sevier County, the City of Gatlinburg, and her family, and never complained.
It is not lost on Judge Ogle that she is the first female Circuit Court Judge in the history of the Fourth District, and our District could not ask for a better representative in that regard. As a father and step-father of teenage girls, it has truly been a humbling experience to witness what Judge Ogle has been subjected to as a member of our profession. I have seen opposing counsel be openly dismissive of her or speak to her in a condescending tone just because of her gender. I have had clients ask to speak to the lawyer because they assumed she couldn’t be one. I once heard another attorney tell her she was “too pretty to be a lawyer” (something no one has ever said to me or any other male attorney I know). She has faced each slight with grace and dignity, preferring to fight her battles in the courtroom and displaying the sort of even temperament that is required of anyone who takes the bench but will most certainly be required of a Judge who is tasked with setting the example for all who will follow after her.
She is not the type of person who will back down from that challenge or crack under scrutiny. During her interview with the Trial Court Vacancy Commission, she was asked directly how she would command respect as a female jurist. Her response was: “Put me on the bench, and I’ll show you.”
Judge Ogle has now been placed on the bench, and the Fourth District will get to observe the compassion, fairness, and sound judgment that I have seen. I have no doubt that Judge Ogle will serve the people of the Fourth District just as well as a judge as she served when she was a lawyer. She will be great. Because she cares.
By: Robin McMillan Co-author of the upcoming book People
There are those among us who had the pleasure of hearing Don Paine sing about Tenn. Code Ann. § 28-1-105, and several scholars have written about the statute. Colloquially known as the saving statute1, Tenn. Code Ann. § 28-1-105 provides that a cause of action may be ‘saved’ in certain circumstances even if the statute of limitations has expired.2 This article is intended to provide a brief refresher about things to consider before relying upon the saving statute.
Subsection (a) of the statute provides that a case may be ‘saved’ by refiling suit within one year:
If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff’s right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested. . ..3
Subsection (b) provides a one-year saving period for cases involving a tolling agreement rather than a rule or statute of limitations.4
Our Supreme Court has instructed that the saving statute must be given a “broad and liberal construction,” because the basic purpose behind enactment of the original version of the statute was “to aid the courts in administering the law fairly between litigants without binding them to minor and technical mistakes made by their counsel in interpreting the complexities of our laws of procedure.”5 For instance, in Henley v. Cobb, our Supreme Court held that the plaintiff’s failure to file suit in the proper venue did not prevent the plaintiff from using the saving statute.6
While the saving statute can be a useful tool, it was not intended to grant carte blanche allowing a plaintiff to circumvent statutes of limitations. It will not operate to save a cause of action not timely filed originally. Additionally, the saving statute will apply only when the original complaint and the new complaint involve the same parties and substantially the same cause of action. The most important consideration is whether the defendant was timely put on notice of the suit originally, either via service of process or via service pursuant to Tenn. R. Civ. P. 41.01.7 In Turner v. Aldor Co. of Nashville, Inc., the Tennessee Court of Appeals found that the saving statute did not apply in a situation involving a defendant not named in the original complaint because the complaint could not be considered substantially similar when it involved different parties.8 However, the requirement that the new suit involve substantially the same cause of action does not mandate that the original complaint and the new complaint be identical.9 The saving statute complaint may include new claims arising from the same cause of action.
It is also important to keep in mind that while the saving statute can be utilized to save a cause of action voluntarily non-suited pursuant to Tenn. R. Civ. P. 41.01, the saving period is limited to one year from the dismissal of the originally filed action.10 It is possible to take a second voluntary non-suit, as provided by Rule 41.01, and then re-file under the
saving statute, but only if one re-files within the one-year saving period triggered by the first dismissal. A second non-suit does not trigger a second saving period.
Caution should be exercised when relying upon the saving statute as its use carries with it serious potential pitfalls. For instance, the saving statute does not extend the time period provided by Tenn. Code Ann. § 20-1-119, which allows a plaintiff additional time to join a defendant when comparative fault becomes an issue. Thus, if a plaintiff has filed a new action under the saving statute, a defendant alleges comparative fault against a non-party, and the non-party asserts a statute of limitations defense, plaintiff will be unable to rely upon the extension provided by the saving statute to defend against the non-party’s motion to dismiss. Additionally, the saving statute cannot be utilized in cases filed pursuant to the Tennessee Governmental Tort Liability Act.11 Nor can it be used to refile an action to contest a will after a voluntary non-suit.12
1 Don Paine would quip that the statute was not a ‘savings’ statute like a bank account, but was instead a ‘saving’ statute. References to the statute in the case law, however, go both ways. See, e.g., Henley v. Cobb, 916 S.W.2d 915 (Tenn. 1996) (referring to the statute as “the saving statute”); Circle C Construction, LLC v. D. Sean Nilsen, 484 S.W.3d 914 (referring to the statute as “the savings statute”).
2 Tennessee is not unique in having a saving statute. See, Freeman v. CSX Transportation, No. M2010-01833-COA-R9-CV, 2011 WL 1344727, *13-15 (Tenn. Ct. App. Apr. 7, 2011) (discussing saving statutes from other states).
3 Tenn. Code Ann. § 28-1-105(a).
4 Tenn. Code Ann. § 28-1-105(b).
5 Henley v. Cobb, 916 S.W.2d 915 (Tenn. 1996) (quoting General Accident Fire Life Assur. Corp. v. Kirkland, 356 S.W.2d 283 (Tenn. 1962)).
6 Id.
7 Id. If a defendant has not been served with process, Rule 41.01 requires service of written notice of non-suit accompanied by a copy of the complaint.
8 Turner v. Aldor Co. of Nashville, Inc., 827 S.W.2d 318, 321 (Tenn. Ct. App. 1991).
9 Energy Sav. Products, Inc. v. Carney, 737 S.W.2d 783, 784 (Tenn. Ct. App. 1987) (allowing new claims, which “arose out of and were part of the conduct and transaction set forth in the original complaint.”).
10 Freeman v. CSX Transp., 2011 WL 1344727 at *17 (“Under any reading of the savings statute, a defendant’s liability from a potential refiling following a nonmerits dismissal extends for one year. If a plaintiff may wait until the last day of the savings year to refile its case, we see little reason why the savings statute should not also allow intervening suits within that same year.”).
11 Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001).
12 In re Estate of Barnhill, 62 S.W.3d 139 (Tenn. 2001).
By: David D. Ayliffe Tennessee Valley Authority Office of the General Counsel
A PRELIMINARY
“PREVAILING PARTY”
Lackey v. Stinnie, No. 23-621 (U.S. argued Oct. 8, 2024).
In the United States, a party to a lawsuit ordinarily is responsible for payment of its own attorney’s fees.1 This typical “American Rule” differs from the centuries-old practice in England where fee awards regularly are allowed to the prevailing party.2
In the early years of the Republic, Congress provided that federal courts, except in admiralty cases, should follow the practice of the states in which they were located with respect to fee awards, and in 1796, the Supreme Court ruled that, in federal cases, the prevailing party generally is not entitled to recover its attorney’s fees from the losing party unless Congress had provided otherwise.3
Over the ensuing 150 years, the American Rule became firmly entrenched, but from time to time, Congress made exceptions by expressly allowing for recovery of attorneys’ fees under a variety of federal statutes. In 1975, the Supreme Court, in Alyeska Pipeline, reaffirmed the continuing validity of the American Rule, holding that a prevailing party cannot recover its attorney’s fees without an express statutory authorization.4
Civil Rights Attorney’s Fees Awards Act of 1976
Congress responded to Alyeska Pipeline by creating another exception, 42 U.S.C. § 1988, authorizing federal courts in civil rights cases to exercise discretion to “allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”5 Congress did not define “prevailing party,” but it patterned Section 1988 on similar fee recovery provisions in the Civil Rights Act of 1964, which generally had been held by lower courts to permit a fee award only where a party “prevailed on the merits of a claim.”6
The Supreme Court first considered the question in 1980, in Hanrahan v. Hampton. 7 The Court ruled that, while a party sometimes may qualify as prevailing without having first “obtained a favorable final judgment following a full trial on the merits” or even when an interlocutory award results in relief on the merits of a claim, Congress meant to authorize a departure from the American Rule only when a party has prevailed on the merits of at least some of his claims.”8 Two years later, the Court nebulously suggested that there may be “various ways” to frame the standard but that “[a] typical formulation is that plaintiffs may be considered prevailing parties for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”9
Thereafter, in a series of cases, the Court clarified that a judgment constitutes relief only when “it affects the behavior of the defendant toward the plaintiff”10 and that a “material alteration of the legal relationship of the parties” is necessary.11 Ultimately, the Court distilled its formulation of the prevailing party standard as requiring civil right plaintiffs to “obtain at least some relief on the merits of [their] claim” such as an enforceable judgment against the defendant or other “comparable relief through a consent decree or settlement.”12
In 2001, the Supreme Court rejected the “catalyst theory” as
insufficient to confer prevailing party status. The Court held that, even if a lawsuit results in a voluntary change in the defendant’s conduct, the plaintiff is not a prevailing party without a judgment on the merits or a consent decree because the “necessary judicial imprimatur” of the change in the legal relationship of the parties is missing.13 A few years later, the Court held that a plaintiff who obtains a preliminary injunction but later is denied a permanent injunction after an adjudication on the merits is not entitled to a fee award because an ephemeral victory is not enough to confer prevailing party status.14
In 2016, the plaintiffs sued the Commissioner of the Virginia Department of Motor Vehicles challenging as unconstitutional a Virginia statute, Va. Code Ann. § 46.2-395 (repealed 2020), that required driver’s license suspension for failure to pay certain court fines. The plaintiffs sought both preliminary and permanent injunctive relief, and the district court granted a preliminary injunction, finding a likelihood of success on the merits of the plaintiffs’ procedural due process claim.15
The State did not appeal, freeing the plaintiffs to exercise their driving privileges. After the case was set for trial and while cross-motions for summary judgment were pending, the Virigina legislature suspended enforcement of the statute for one year, and the district court stayed the case. During the next legislative session, the Virginia General Assembly repealed the statute, which resulted in dismissal of the lawsuit as moot.16
The plaintiffs then sought attorney’s fees as the prevailing party, but they lost at the district court and initially on appeal because Fourth Circuit precedent held that winning a preliminary injunction is never enough.17 However, the Fourth Circuit granted en banc review to reconsider its bright-line rule, noting that it had become an outlier, and it held that, when a preliminary injunction results in concrete, irreversible relief on the merits of a claim and the case later becomes moot before final judgment, the plaintiff may qualify as a prevailing party.18
The Supreme Court granted Virginia’s cert petition and held oral argument on October 8, 2024. Virginia, supported by the United States, argued that the Court should hold that a preliminary injunction “does not make a plaintiff the prevailing party” because such a rule would be clear and easy to administer. Several Justices seemed skeptical, asking why a final judgment should matter if the plaintiffs had received precisely the relief they were seeking. The Chief Justice asked whether such a rule might create perverse incentives to continue pointless litigation just to obtain a fee award.19
Counsel for the drivers argued that the Court’s precedents should be read to hold that the “winner of an unreversed favorable judgment and tangible relief from the court is a prevailing party because here, “at gavel point,” Virginia repealed the statute resulting in a “material alteration of the legal relationship between the parties.” But this argument too faced
continued on page 11
By: Joe Jarret, Ph.D., J.D. Attorney, University of Tennessee
Back in 1985, I had a break in active-duty military service to earn my master’s degree in public administration at Central Michigan University on the G.I. Bill. To augment my income, I took a job as a short order cook in a restaurant named the “Downtown Restaurant.” Law school was still a few years away, but my internship with the City of Mt. Pleasant City Attorney’s office convinced me that I had a future in the law.
My friend Sam owned the restaurant. It had a brisk lunch and dinner trade, but serving breakfast was not on the menu. On one particularly cold, snowy day, I was doing a bit of lunch preparation, classes having been cancelled on account of the weather. Sam was busy attempting to unclog some of the restaurant’s plumbing. Quickly realizing the task was more complicated than he imagined, he informed me that he had to take off and rent an industrial pipe cleaner or “snake.” He asked me to keep an eye out for “Bert,” the postal worker who knew that Sam always had a hot pot of coffee on the counter waiting for him, mail or no mail. A few minutes after Sam left, I could hear someone pulling open the snow-covered front door. “’Tis not fit for man nor beast out there! Ha! I said it!.” It was Bert. “Where’s Sam?” he asked. “Went to pick up a snake” I responded. “Really?” He then thought for a moment and said, “I thought he already had a dog and a canary!” laughing at his own joke.
went. When done, I buttered them up and loaded up a platter with the omelet, ham, and a generous pile of potatoes. Toast was on the side.
I set the platter in front of Bert, who unceremoniously dug into the meal with a gusto one seldom shares with strangers. The meal never stood a chance. When finished, he smiled broadly, patted his ample tummy and said, “Son, that was the best durn breakfast I ever had!” A few minutes later, Sam arrived with his snake. “Sam!” Bert shouted. “You got no excuse not to serve breakfast anymore, I found you a cook!” Sam, a man with less appetizing things on his mind, agreed to study the matter. Bert, belly full, thanked me again and hoisted his bag, whistling while he went. I leaned against the counter, content in the fact that whatever I might accomplish in life, cooking someone the “Best durn breakfast” they ever had was something I’d always be proud of.
I explained our plumbing dilemma as I poured Bert a steaming cup of coffee. Thanking me he said, “Hey, do me a favor, will ya. Tell Sam to serve breakfast in here. He’d do a heck of a business. I’d be a regular! I guess I picked the wrong day to go to work without eating somethin’.” My thoughts then drifted to the preceding three years during which I spent most of three long winters in a main battle tank on the then West German/Czechoslovakian Border. I knew what I had to do. “I can whip something up for you if you’re game” I offered. “Game and insane” came the hearty reply.
I began pulling the makings for an omelet from the walk-in refrigerator. I fired up the flat grill, and after dicing an onion, a bell pepper, and a handful of mushrooms, I started sautéing the veggies, liberally seasoning them with salt, pepper, garlic powder and paprika. I then grabbed one of our luncheon ham steaks, and a baked potato that would serve as home fries after having been diced and seasoned. These also ended up on the grill. When the veggies were cooked through, I scrambled 3 eggs, poured them onto the mixture, and, just before the omelet was done, grated some cheddar cheese on top. It appeared my efforts were producing what must have been a hodgepodge of tantalizing scents due to the shouts of encouragement they evoked from the lone diner. Bert impressed me as a four-piece-of-toast man, so down the slices
resistance. The Chief Justice expressed concern about the difficulty lower courts would have to determine “what constitutes prevailing” for fee award purposes. Justice Barrett pointed out that preliminary injunctions often are decided on a compressed schedule and represent a “likelihood of success” rather than an actual ruling on the merits.20
Justice Gorsuch appeared receptive to the Government’s argument that this case presents a “policy call [] for Congress to make.”21 If Congress intended to confer prevailing party status where a final judgment on the merits is not obtained but the outcome is a tangible result altering the relationship of the parties, such as a voluntary cessation of the challenged activity, we should expect Congress to speak clearly, as it did by amending the Freedom of Information Act after the Court’s decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources 22
A decision in the case is expected later next year.
1 Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).
2 Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 248 & n.18 (1975) (summarizing the history of awarding attorney’s fees in English courts).
3 Id. at 248–50 & nn.19–20; see also Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306 (1796).
4 Id. at 260, 271. Alyeska Pipeline involved a challenge under the Mineral Leasing Act of 1920 and the National Environmental Policy Act to permits issued by the Department of the Interior for construction of the Trans-Alaska oil pipeline. Neither statute authorized an award of attorneys’ fees. Id. at 241–43, 246.
5 Hensley, 461 U.S. at 429.
6 Hanrahan v. Hampton, 446 U.S. 754, 758 n.4 (1980).
7 446 U.S. 754 (1980).
8 Id. at 756–58 (internal quotation marks omitted).
9 Hensley, 461 U.S. at 433 (emphasis added) (internal quotation marks omitted).
10 Rhodes v. Stewart, 488 U.S. 1, 4 (1988).
11 Texas State Tchrs. Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989).
12 Farrar v. Hobby, 506 U.S. 103, 111 (1992). In Farar, the Court held that winning nominal damages confers prevailing party status. Id. at 112.
13 Buckhannon Bd. & Care Home, Inc. v. WVa Dep’t of Health & Hum. Res., 532 U.S. 598, 600, 610 (2001).
14 Sole v. Wyner, 551 U.S. 74, 86 (2007).
15 Stinnie v. Holcomb, 77 F.4th 200, 203 (4th Cir. 2023) (en banc). The putative class plaintiffs alleged that the statute violated their rights under the Fourteenth Amendment’s due process and equal protection clauses. Id.
16 Id.
17 Stinnie v. Holcomb, 37 F.4th 977 (4th Cir. 2022) (citing Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002)), rev’d en banc, 77 F.4th 200 (4th Cir. 2023).
18 Stinnie v. Holcomb, 77 F.4th at 208–10.
19 Transcript of Oral Argument, Lackey v. Stinnie, No. 23-621, 2024 WL 4451599, at *5, 7–11, 20–21, 27 (U.S., Oct. 8, 2024).
20 Id. at *52–54, 63–64.
21 Id. at *39.
22 Id. at *45–46, 62.
By: Devin DeVore Easter & DeVore
Earlier this year, eight women in a TikTok video were asked if they would rather be alone in the woods with either a man or a bear. Almost every woman chose the bear. When asked why, reasons included the following: that no one would ask what they were wearing when they were attacked; that they would be believed when that attack had happened (if they survived the encounter); and that if they came across a bear, they would know its intentions (not the case for a man).
This question went viral, with many men being completely flabbergasted that women would choose a bear over them.1 This viral moment gives everyone in the legal profession an opportunity to also confront the issues that our female colleagues have to deal with every day.
To give some background, women in the legal progression rose from merely 3% in 1970 to 38% in 2022.2 As of 2021, a little over half of law students are women.3 Despite the higher and rising numbers of female law students, these numbers are still not transitioning to the legal profession. While law firms boast 47% of female associates, only 22% of equity partners and 12% of managing partners are women.4 Women of color are even more underrepresented, with a total of only 17.54% of law firm associates and only 4.9% of partners.5 This divide is reflected in male and female perceptions of gender diversity in the profession, as 88% of male attorneys believe their law firm acknowledges gender diversity as a priority, while only 54% of female attorneys could say the same.6
The judiciary landscape is not much to brag about, either. As of 2022, only 30% of federal judges are female.7 Female state supreme court justices are only 41%, despite the female population equaling 51% of the total United States population.8
The only area where female attorneys do hold a majority is in perceptions of negative workplace treatment. 53% of female attorneys reported being denied or overlooked for advancement or promotion, while only 7% of men felt the same way.9 54% of female attorneys also reported being denied a salary increase or bonuses, compared to only 4% of men.10 Most shockingly, a whopping 75% of female attorneys reported experiencing demeaning comments, stories, and jokes to only 8% of men, and 82% of female attorneys reported being mistaken for a lower-level employee, compared to 0% of men.11 Read that again. Not a single male attorney reported being mistaken for a lower-level employee, while 82% of female attorneys reported being confused for a lower-level employee.
I vividly remember my early days as a lawyer, walking into General Sessions Court, and being accused by a bailiff of not being an attorney. While he was well-meaning, he did not let me pass until I provided him with my bar card. My client, who had paid me to represent them, was sitting in the courtroom not too far away. I remember seeing their wideeyed stare as they witnessed their retained attorney being mistaken for a defendant. It was incredibly awkward and humiliating.
Yet almost every, if not every, female attorney could rattle off multiple similar stories without skipping a beat. Stories of appearing in court with their client and being mistaken by opposing counsel, clerks, and even judges as paralegals, court reporters, or law clerks. Stories of having to show their bar card to prove that they are an attorney, while their male colleagues, including those who are younger and less experienced, get to walk around the courtroom without anyone batting an eye. A story shared on the “Overheardcourthouse” Instagram account, and the thousands of comments from female attorneys sharing similar experiences, perfectly exemplifies this issue:
Older male attorney: “Your Honor, I’m here but I don’t know where
opposing counsel is. I haven’t seen anyone today.”
Young female attorney (standing right next to him): “I’m right here, your honor.”12
If women now make up almost a majority of law students and almost a majority of attorneys, why is there still an inherent assumption that if a woman approaches the bench, they are not an attorney? Why do we inherently assume that they are instead a paralegal, law clerk, court reporter, or intern? Why can’t we assume that when a woman walks into a courtroom wearing a suit with pleadings or files in hand, they, like us, are an attorney?
Sadly, the issue that 75% of female attorneys experience demeaning comments, jokes, or stories must also be discussed. Female attorneys within our own bar dealing with disgusting and vile comments from male colleagues is a feature, not a bug. As an example, a female colleague shared with me that when discussing a case, an older male attorney asked her if she had taken her medicine that morning before angrily hanging up on her. Another female colleague had a male attorney ask if they could celebrate settling a case by getting together and removing each other’s clothes. Such comments and others have come from opposing counsel as well as senior counsel. And how are female attorneys supposed to react? What are they supposed to do if the one making the sexual remark is the managing partner and there is no HR department to file a claim? They are expected to laugh it off or play along. Otherwise, they are considered prudish or uptight.
If you are reading this article and think that I am being hyperbolic, I challenge you to ask a colleague if they have ever been confused for someone who is not an attorney or have had a male colleague make a crude or sexual remark at their expense. You will be shocked at how many have a story to share. But assuming that female attorneys who walk into court are anything but an attorney is demeaning. Making crude or sexual remarks towards our female colleagues is not “just a joke.” It’s sexual harassment. It’s also a subconscious mechanism of ensuring that the power imbalance remains exactly the same.
As professionals, we have a duty to be more aware and cognizant of the reality that female attorneys deal with on a daily basis. We additionally need to keep in mind that our demeaning words and actions, even if subconscious, are patterns that need to be dissolved from our behavior.
1 Amaris Encinas, Man or Bear? Hypothetical Question Sparks Conversation about Women & Safety, USA Today (Apr. 30, 2024), https://www.usatoday.com/story/tech/ news/2024/04/30/man-bear-tiktok-debate-explainer/73519921007, last visited Nov. 10, 2024.
2 Jaline S. Fenwick, Women in the Law & Advocacy for the Path of Women Ahead, American Bar Ass’n (Nov. 15, 2023), available at https://www.americanbar.org/ groups/business_law/resources/business-law-today/2023-november/see-herhear-her-historical-evolution-women-in-law.
3 Id.
4 Id.
5 Christy Bieber, Women in Law Statistics 2024, Forbes (Mar. 20, 2024), https://www. forbes.com/advisor/legal/women-in-law-statistics, last visite Nov. 10, 2024.
6 Fenwick, supra n.2.
7 Id.
8 Id.
9 Bieber, supra n. 5
10 Id
11 Id.
12 OverheardCourthouse, Instagram Post (Sept. 5, 2024), https://www.instagram. com/p/C_iqPDov4Sw/?igsh=MWdkYnJieXNkdGY0OA%3D%3D. This exchange occurred in Davison County, TN.
By: Melissa B. Carrasco Carrasco Trump, PLLC
On December 2, 1777, Mrs. Lydia Darragh silently stood with her ear to the keyhole of her parlor door.1 On the other side of the door was a British officer, likely Major John André, and two other officers.2 Major André served as the Adjutant General and chief of intelligence for Sir Henry Clinton, who would become Commander in Chief of the British forces less than a year later.3
Major André was also a spy.4 He befriended Benedict Arnold and persuaded him to surrender West Point in exchange for payment of £20,000.5 Major André was also Arnold’s downfall. His capture and the notes from Benedict Arnold which were discovered in his boot, revealed the betrayal and led to Major André’s execution by the Continental Army.6 But, on December 2, 1777, Major André was not the only spy up late that night.
Lydia Barrington was born in Dublin, Ireland, and she and her husband William Darragh emigrated to the United States in 1753, when she was 24.7 They were Quakers and lived a simple life, settling down in Philadelphia, Pennsylvania, and raising their large family.8 But, when the colonies declared independence from England, the Darragh family could not participate in the war. Their Quaker faith prohibited it.9
The Quakers’ refusal to take up arms was regarded with much skepticism, if not outright hatred.10 Many were viewed as traitors by those who supported the Revolution, assuming the Quakers must be aligned with the British. In fact, months earlier the Continental Army arrested 20 Quaker men living in Philadelphia and sent them to indefinite exile in Virginia, leaving their families defenseless, all because they refused to take an oath swearing loyalty to the Continental Congress,11 something their Quaker faith also prohibited.12
Thus, when the British Army occupied Philadelphia, they did not view Lydia or her family as a threat. In fact, General Howe moved into the house across the street from them and began using their parlor as his conference room.13 So, it was not odd at all when British officials informed Lydia that they were going to be meeting that evening in her home. This time, however, they instructed Lydia that she and her family should go to bed and stay in their bedrooms the rest of the evening. They would wake her up when they were leaving so she could clean and lock up.14
The family did retire as ordered, but Lydia took off her shoes, slipped back downstairs, put her ear to the keyhole “and overheard an order read for all the British troops to march out late on the evening of the 4th and attack General Washington, then encamped at Whitemarsh.”15 Then, she went back to her bedroom and pretended to sleep, but “her mind was so agitated that she could neither eat nor sleep, supposing it in her power to save the lives of thousands of her fellow-countrymen, but not knowing how she was to convey the information to General Washington.”16
So, she did the most obvious and unsuspecting thing: grocery shopping. She asked General Howe for a pass to allow her to travel through British lines around Philadelphia to pick up some flour.17 Once she passed through, she found an American officer who directed her to a nearby house that also served as a small restaurant.18 Inside, she found Elias Boudinot, a New Jersey lawyer, member of the Continental Congress, and one of the original members of the House of Representatives (after it was formed, of course).19
After Dinner, a little, poor-looking insignificant Old Woman came in & solicited leave to go to into the Country to buy some flour—While we were asking some Questions, she walked up to me and put into my hands a dirty old needlebook with various
small pockets in it. [S]urprised at this, I told her to return, she should have an answer—On opening the needlebook, I could not find anything till I got to the last Pocket, where I found a piece of Paper rolled up into the form of a Pipe Shank. Upon unrolling it, I found information that Genl Howe was coming out the next morning with 5000 Men, 13 pieces of cannon, Baggage Waggons, and 11 Boats on Waggon Wheels. On comparing this with other information I found it true, and immediately rode Post to head Quarters.20
Lydia, however, did not know what had happened with the information she risked her life to provide. She bought her flour, returned home, and then waited.21 A few days later, the same British officer appeared at her house, took her to a private room, and locked the door behind them. He then asked if any member of her family had been up the night of the meeting. She informed him that they had all retired as requested, and he responded
I know you were asleep for I knocked at your door three times before you heard me. I am entirely at a loss to imagine who gave General Washington information of our intended attack, unless the walls of the house could speak. When we arrived near Whitemarsh, we found all their cannon mounted and the troops prepared to receive us; and we have marched back like a parcel of fools. 22
Lydia Darragh could not take an oath. Her faith prohibited it. But, she displayed the same courage and loyalty that would be expected from a person who took a solemn vow. Within two months, the Continental Congress passed a resolution allowing officers to pledge their allegiance via oath or affirmation.23 History did not tell us if Lydia’s conviction and courage inspired this small but significant change, but one thing is true: an oath is only as strong as the person making it, and character is stronger than any oath.
1 Bean, History of Montgomery County, 167, quoted in National Archives, Founders Online, To George Washington from William Dewees, Jr. 4 December 1777, https:// founders.archives.gov/documents/Washington/03-12-02-0496, last visited Nov. 7, 2024.
2 Id.
3 Washington Library, Sir Henry Clinton, https://www.mountvernon.org/library/ digitalhistory/digital-encyclopedia/article/sir-henry-clinton, last visited Nov. 7, 2024.
4 Intel.gov, Evolution of Espionage in America, John André: Officer, Gentleman . . .and Spymaster, https://www.intelligence.gov/evolution-of-espionage/revolutionary-war/ british-espionage/john-andre, last visited Nov. 7, 2024.
5 Id.
6 Id.
7 American Battlefield Trust, Lydia Barrington Darragh, https://www.battlefields. org/learn/biographies/lydia-barrington-darragh, last visited Nov. 7, 2024; Henry Darrach, Lydia Darragh, of the Revolution, PA Mag of hist. & Bio, 86-91, Vol. 23, No. 1 (1899).
8 American Battlefield Trust, supra n. 7; Darrach, supra n. 7.
9 Emma Hubert, Quaker Pacifism in the Context of War, Friends Committee on National Legislation (Mar. 8, 2022), available at https://www.fcnl.org/ updates/2022-03/quaker-pacifism-context-war.
10 Deanna Johnson, Revolutionary PHI: Exiled from Philadelphia: Quakers during the Revolution, American Philosophical Society, https://www.amphilsoc.org/blog/ revolutionary-phl-exiled-philadelphia-quakers-during-revolution, last visited Nov. 7, 2024.
continued on page 22
By: Bridget J. Pyman Arnett | Baker
December’s Hello My Name Is column features attorney Savannah McMillan, a Contract and Procedure Legal Analyst with the Knoxville Utilities Board. Her practice areas include Contracts, Terms and Conditions, as well as evaluating MBE/WBE/SBE programs (minority business enterprise, women business enterprise, small business enterprise). Savannah began her academic journey at CarsonNewman University, where she majored in Political Science with a Legal Studies minor. In 2023, she received her law degree from the University of Tennessee. Through her responses, it is apparent that Savannah’s professional path reflects her commitment to lifelong learning, community involvement, and dedication to excellence. Whether she is working to minimize risk for KUB’s ratepayers or volunteering with Scouting America, Savannah approaches each task with the same thoughtful dedication. Inspired by her mother’s trailblazing career in STEM, she brings that same determination to her legal work. These qualities, combined with her passion for ongoing personal growth, illustrate the values that she brings to the legal profession as she embarks on her career.
If you could instantly become an expert in something, what would it be?
Languages. I think being able to communicate around the world would be immensely helpful and interesting.
Tell me about the person who had the most significant impact on your career.
My mom. She’s been a role model for my whole life. She became an engineer in the 80’s and 90’s, when many women still were looked down on for trying to enter the world of STEM, but she never gave up and always proved people wrong. She’s a force, a joy, and a tremendously hard
worker. I’ve watched her do everything from getting patents to being the driving force of welcoming girls to Scouting, and every step along the way she’s been cheering me on to follow my dreams. She’s the one who first put the idea of going to law school in my head and helped me figure out what areas of the law I was interested in studying and practicing.
What do you find most meaningful in your work?
Since I work for a utility company, every contract we complete has a direct reflection on the costs sent to the ratepayers. KUB takes this very seriously and a big part of my job is making sure we don’t take on unnecessary risk, that we safeguard our customers’ information, and work with our community by working closely with minority, women-owned, and small businesses.
What skill or hobby are you currently learning, outside of work?
Spanish! It’s slow going, but I love it and try my best to speak it as much as I can without annoying my partner and my family.
Tell me about where you volunteer your time.
I’ve been a member of Scouting America (formerly the Boy Scouts of America) since I was 14 through a program called Venturing. Venturing is co-ed and allows youth, aged 14 through their 21st birthday, to experience adventure, leadership, and all the other amazing opportunities we know Scouting to provide. Since changing from a Scout to a Scouter, I’ve stayed involved by working at Jamborees (including the World Jamboree in 2019 held in West Virginia) and hosting over 33,000 participants; by being our Council’s International Representative; and being a Young Baden Powell participant. If anyone is interested in Scouting, please reach out!
The Awakening by Kate Chopin! I read it for the first time in high school for my AP Literature class and immediately fell in love with the main character, Edna. I’ve since read it multiple times and every time I read it, I find a new reason to love it all over again.
If you could give a new law student one piece of advice, what would it be?
Don’t let anyone tell you that you can’t reach your goals. I went into law school knowing I wanted to be in-house, and everyone told me that no one would hire a law student straight out of school to do in-house work. Well, with a bit of networking I landed at KUB, which was willing to give me a chance to prove that hiring an attorney was worth it. Your goals are yours for a reason and you can reach them so long as you don’t give up.
On a breezy but beautiful fall day, nearly 100 golfers set out to enjoy a day of good spirted competition, all in the name of doing good deeds.
Thanks to all the teams and to the generous sponsors who participated, the Barristers raised more than $6,000 for their charitable initiatives!
We also offer our congratulations to the winners:
First Place: Torres Law Firm
Second Place: Kramer Rayson
Third Place: Brock Shipe Klenk
Putting Drive Winner: Zach Lawson
Longest Drive Winner: Parker Rice
Closest to the Pin Winners:
Skylar Smith
Bryce Kendrick
Anthony DiFelice
Mark Stephens
We’re already looking forward to next year!
A few days ago, like most mornings, I was awakened by the alarm on my iPhone. I turned off the alarm and engaged in the unhealthy habit (one that I know many of you share) of immediately checking my emails and the news. As my eyes came into focus, the first thing I saw was a notification on my Settings app. I clicked on the app and was notified of a change in terms for users of iCloud storage services. My type-A personality simply wanted the red notification badge off my home screen, so I immediately clicked “accept.” I didn’t read the change in terms, didn’t know what they said, and honestly, didn’t care.
My experience of agreeing to a mutual (but non-negotiable) modification of contractual terms at 5:30 a.m. is typical of just about everyone who engages in commerce in the twenty-first century. We all sort of know we are agreeing to terms that might come up later. But the miniscule odds of that happening, combined with the administrative burden that comes with actually reading all those terms and conditions, leads us, quite rationally, to ignore them.
As lawyers, we are likely further aware that mandatory arbitration is a tool that businesses use to limit class actions and reduce litigation expenses. We might even know that the U.S. Supreme Court, in a series of decisions over the last fifteen years, has expansively interpreted the 100-year-old Federal Arbitration Act (FAA) to uphold mandatory arbitration provisions in many different types of agreements, including consumer,1 merchant/credit card,2 nursing home,3 and employment. 4 It is now well-accepted that if a contract includes a mandatory arbitration clause, the parties have given up their day in court for any disputes arising out of that contract, whether or not they negotiated or even read the clause.
in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or Devices under this or prior Agreements between us.
What would be your reaction to such a clause? Overbroad? Uncertain? Surely unenforceable? Well, what if I told you that the Fourth Circuit upheld this very clause in a case brought five years after the plaintiff entered into a cell phone agreement that included it? And that because of this clause, the court determined that the plaintiff had waived her right to litigate the matter, which arose not out of the cell phone agreement, or even against “ABC Corp.,” but out of an unrelated claim against a subsidiary5 that ABC Corp.6 acquired three years after the plaintiff entered into her cell phone agreement?7
What many lawyers do not know, however, is that by clicking on terms and conditions that include a mandatory arbitration clause, their clients might unknowingly waive the right to litigate claims that are unrelated to the contract, against unknown defendants, in perpetuity. Consider an example of such a clause: ABC Corp. and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
• claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
• claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
• claims that may arise after the termination of this Agreement.
References to “ABC Corp.,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors
You would probably respond that we have entered a new realm of mandatory arbitration that seems to have no end. And you would be right.
Contractual provisions like the one above have become known as “infinite arbitration clauses,” thanks to an influential law review article that identified their emergence during the 2010s.8 They have gained public attention in the last few months thanks to two cases against high-profile corporate defendants, both involving tragic facts.
Could Signing Up for Disney+ Prohibit a Wrongful Death Suit Against Disney?
In October 2023, Kanokporn “Amy” Tangsuan, a doctor from Long Island, and her husband, Jeffrey Piccolo, took their first trip to the Walt Disney World Resort in Florida. On their first night in Orlando, they had dinner at Raglan Road, an Irish pub-style restaurant at Disney Springs, which is a shopping and dining area located within the resort.9 Dr. Tangsuan, who had severe nut and dairy allergies, ordered a meal after allegedly receiving assurance from their server that her menu choice was allergen-free.10 Shortly thereafter, while walking around the shopping area, Dr. Tangsuan went into anaphylactic shock and, despite administration of an EpiPen, could not be revived.11
Several months after the tragic death of his wife, Mr. Piccolo filed a wrongful death suit against the operators of the restaurant and Walt Disney Parks and Resorts, Inc. Disney’s lawyers from White and Case filed a motion to compel arbitration,12 alleging that Mr. Piccolo had waived his right to litigate the wrongful death claim when he: (1) created a subscriber account to receive a month-long free trial of Disney+ in 2019, in which he agreed to arbitrate “all disputes…including any related disputes involving The Walt Disney Company or its affiliates…whether based on past, present, or future events,” and (2) purchased tickets to the Epcot theme park through the “My Disney Experience” app for the trip with his wife, which included similar terms.13
Given the brand of the Disney Parks as “happy” and “magical” places to vacation, one that the company itself carefully cultivates,14 many ob-
servers found Disney’s litigation strategy in this case particularly galling.15 Of course, litigation strategies and corporate brands are not always in synergy. However, the public backlash led Disney to withdraw its motion, waive its (purported) right to arbitration, and proceed with the case in court.16
Could Ordering a Pizza Through Uber Eats Prevent Your Claim for Injuries When Your Uber Crashes?
Shortly after the wrongful death suit against Disney hit the news, a personal injury case against Uber made similar headlines. John and Georgia McGinty had dinner out in March 2022 in their hometown of Princeton, New Jersey, and called an Uber to take them home. Their Uber driver allegedly ran a red light and T-boned another car. Mrs. McGinty suffered spine and rib fractures and other serious injuries, which required multiple surgeries and left her unable to work in her job as a lawyer for over a year. Mr. McGinty suffered fractures to his sternum, left arm, and left wrist; even after surgery, he still has not regained full use of his wrist.17
About a year after the accident, the McGintys sued their Uber driver, the other driver, and Uber itself in state court in New Jersey. Uber, like Disney, moved to compel arbitration based on an act wholly unrelated to the accident or even the ride-sharing app the couple had used to book their ride home that night. Apparently, two months prior to the accident, the McGintys’ minor daughter, using her mother’s cell phone, had ordered a pizza using the Uber Eats delivery service.18 In so doing, she clicked on a change in terms that Uber had made in December 2021, which included – you guessed it – an infinite arbitration provision.19
The trial court denied Uber’s motion to compel arbitration, but the appellate court in New Jersey reversed and held that the McGintys were bound to arbitrate their dispute. The court held that by clicking “agree” to the change of terms in the Uber Eats app, Mrs. McGinty (or her daughter) had unambiguously waived her right to a jury trial for all claims against Uber.20 Moreover, it did not matter whether Mrs. McGinty or her minor daughter had clicked “agree,” because the daughter had actual and apparent authority to consent to the terms on her mother’s behalf.21
The U.S. Supreme Court has yet to weigh in on infinite arbitration clauses. Two federal courts of appeal have done so, both in class action lawsuits brought against DIRECTV for aggressive telemarketing strategies towards plaintiffs who were on the “Do Not Call” list and also happened to be AT&T cell phone customers. The Fourth Circuit, in the case referenced earlier in this article, held that the plaintiff was bound by her agreement to arbitrate all claims against AT&T and its affiliates even though DIRECTV did not become AT&T’s affiliate until years after the plaintiff signed her cell phone agreement with AT&T.22 In a case with nearly identical facts, however, the Ninth Circuit held that there was no valid agreement to arbitrate between the plaintiff and DIRECTV.23 This circuit split could eventually lead to the U.S. Supreme Court taking up the matter, particularly as more federal appeals courts weigh in.
Professor David Horton of UC Davis Law School, whose 2020 article coined the phrase “infinite arbitration clauses,” has set forth a textualist argument against their application. The FAA, which provides the authority for strict enforcement of mandatory arbitration clauses, states in relevant part that a “written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable . . . .”24 Because the term “arising out of,” at the time the FAA was enacted 100 years ago, generally meant “connected with,” the statute does not require enforcement of arbitration in unrelated matters.25 This textualist argument for ending or placing limits on infinite
By: Matthew R. Lyon LMU Duncan School of Law
arbitration clauses might appeal to the current Supreme Court more than simply arguing their inherent unfairness.
For now, lawyers should be aware of this potential landmine for our plaintiff clients (or opportunity for our defendant clients). Mandatory arbitration clauses are not going anywhere, and until the Supreme Court places reasonable boundaries on them, the ways in which businesses and their attorneys will continue to develop creative ways to stay out of court are, well, infinite.26
1 AT&T v. Concepcion, 563 U.S. 333 (2011); DIRECTV, Inc. v. Imburgia, 577 U.S. 47 (2015).
2 American Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013).
3 Kindred Nursing Centers Ltd. P’ship v. Clark, 581 U.S. 246 (2017).
4 Epic Systems v. Lewis, 584 U.S. 497 (2018).
5 Actually DIRECTV.
6 Actually AT&T.
7 Mey v. DIRECTV, LLC, 971 F.3d 284 (4th Cir. 2020).
8 David Horton, Infinite Arbitration Clauses, 168 U. Pa. L. Rev 633 (2020).
9 Desheania Andrews & Katherine Donlevy, Dad Reveals Cruel Irony of NYU Doctor’s Tragic Disney Death Following Fatal Allergic Reaction, N.Y. Post (Feb. 28, 2024), available at https://nypost.com/2024/02/28/us-news/nyu-doctor-who-died-atdisney-went-into-medicine-because-of-food-allergy/
10 Emily Crane, Disney Wants NYU Doctor Allergy Death Suit Tossed Because of Widower’s Disney+ Subscription, N.Y. Post (Aug. 13, 2024), available at https:// nypost.com/2024/08/13/us-news/disney-wants-allergy-death-suit-tossedbecause-of-disney-subscription/
11 Id.
12 On file with author and available as a link in the following article: Tierney Sneed, Disney’s Not Alone in Saying Your Clicks Mean You Can’t Sue, CNN.com (Aug. 16, 2024), available at https://www.cnn.com/2024/08/16/politics/arbitration-signingaway-rights-disney-plus-wrongful-death-lawsuit/index.html. The wrongful death suit, styled Piccolo ex rel. Estate of Tangsuan v. Great Irish Pubs of Florida, Inc., was filed in state court in Florida.
13 Id.
14 On the date of this writing, the banner on the official website to book a vacation at the Walt Disney World Resort in Florida states, in large type: “Welcome to The Most Magical Place on Earth.” https://disneyworld.disney.go.com/
15 See, e.g., John J. Perlstein, Disney’s Not-So-Magical Lawsuit Could Have Major Implications For Wrongful Death Victims, FoRbes (Aug. 28, 2024), available at https:// www.forbes.com/sites/legalentertainment/2024/08/28/disneys-not-so-magicallawsuit-could-have-major-implications-for-wrongful-death-victims/
16 Emily Crane, Disney Backtracks on Tossing Wrongful Death Lawsuit by NYU Doctor’s Widower After Claiming Disney+ Subscription Gave Them Immunity, N.Y. Post (Aug. 20, 2024), available at https://nypost.com/2024/08/20/us-news/disney-backtrackson-tossing-wrongful-death-lawsuit-by-nyu-doctors-widower-because-of-disneysubscription/ (quoting Disney VP of Experiences Josh D’Amaro as stating that Disney “strive[s] to put humanity above all other considerations”).
17 McGinty v. Zheng, Docket No. A-1368-23, 2024 WL 4248446, at *3-4 (N.J. Super. Ct. App. Div. Sept. 20, 2024); see also Lola Fadulu, Their Uber Driver Crashed. A Pizza Order Unraveled Their Injury Lawsuit., N.Y. times (Oct. 4, 2004), available at https://www.nytimes.com/2024/10/04/nyregion/uber-eats-car-crash-injury-nj.html
18 Id.
19 McGinty, 2024 WL 4248446, at *1-3 (setting forth the December 2021 terms in full).
20 Id. at *7-8.
21 Id. at *8-9. The McGintys also raised an infancy defense to their daughter’s ability to consent to the terms; the court held that issue would be determined by the arbitrator. Id. at *9.
22 Mey, 971 F.3d at 289-91. This decision was 2-1, with the dissenting judge arguing that the plaintiff “never entered into an agreement to arbitrate her claims against DIRECTV.” 971 F.3d at 296 (Harris, J., dissenting).
23 Revitch v. DIRECTV, LLC, 977 F.3d 713, 717-18 (9th Cir. 2020). There also was a dissenting judge in this case, who tracked the rationale of the Fourth Circuit majority opinion. See id. at 719-20; id. at *724 (Bennett, J., dissenting).
24 David Horton, Accidental Arbitration, 102 Wash. U. L. Rev. ___, at *37 (forthcoming 2025), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4898026 (quoting 9 U.S.C. § 2).
25 Id. at *37-39.
26 For a brief but interesting discussion with Prof. Horton about the matters raised in this article, the author recommends the October 15 episode of Bloomberg Law’s “On the Merits” podcast, entitled “Despite Disney, ‘Infinite Arbitration’ Not Going Away.”
By: Bethany Westcott Wilson Kramer Rayson LLP
“Machine learning”1 is a topic to which I honestly never contemplated I would devote much (or any) thought. I certainly never thought I would need to know enough about artificial intelligence (AI) and how it works to competently give clients advice on how to use it without running afoul of the law. However, increasingly prevalent usage by employers means just that.
Many employers are now using AI for traditional HR tasks, such as recruiting and hiring, assessing employee productivity, and making decisions about employees. In fact, as of January 2023, an estimated “83% of employers, including 99% of Fortune 500 companies, now use some form of automated tool as part of their hiring process.”2 Other employers require employees to “speak” with an AI chatbot about their questions or concerns before they can speak with a human HR representative. This explosion in the use of AI is encouraged by the proliferation of massive HR platforms offering AI capabilities, like Workday’s Illuminate. Considering all this, AI use in HR is a topic that employment attorneys like me simply can’t ignore. This of course begs the question: if we can’t ignore AI use in HR, what on earth are we supposed to do with it?
When it comes to talking to clients, I have always been a “bad news first” kind of gal—so let’s get that out of the way. The use of AI in HR is a veritable smorgasbord of potential liability. One primary concern is that AI might make discriminatory decisions because, with AI, “what goes in must come out.” If an AI tool “learned” to function on biased and discriminatory information, that tool is likely going to make biased and discriminatory decisions. Not only that, but the fact that an AI tool was used to make the decision will mean that a plaintiff-employee’s attorney can easily discover a tidy little paper trail explicitly spelling out how the decision was biased and discriminatory.
Beyond the danger of Title VII and ADA discrimination, AI surveillance can also cause employers to run afoul of the Occupational Safety and Health Act (OSH Act) or the National Labor Relations Act (NLRA). For instance, AI surveillance may encourage unsafe practices if workers feel pressured to work at unsafe speeds due to the surveillance, which might cause an OSH Act violation. Alternatively, AI surveillance in non-workspaces like break rooms may have a chilling effect on employees’ Section 7 rights, thus running into issues under the NLRA.
Scarier yet, employers can get in trouble without even realizing it. The EEOC has made it abundantly clear that it will hold employers responsible for discriminatory decisions made by AI—even if the AI tool used was designed and/or implemented by an outside vendor. For instance, imagine an employer hires a software vendor to administer and score an applicant’s pre-employment test. As part of the test, the automated system assesses an applicant’s number of keystrokes, and “fails” applicants who don’t reach a certain number of keystrokes per minute. A blind applicant using speech-to-text software is then assigned a failing score based on the number of keystrokes (or lack thereof) and is not moved forward in the application process. At no point in time did the employer speak with or interact with the applicant, but the employer would still likely be on the hook for the discriminatory decision made by the system.
Now, you might find yourself wondering why use AI at all if there are that many land mines, but AI use has a lot of potential to improve HR practices. For instance, AI use can actually help combat discrimination in hiring and beyond. When trained properly and maintained carefully, AI tools can help increase objectivity and decrease bias in decision making. It can also provide a paper trail to help defendant-employers show that a particular decision was unbiased by detailing exactly what factors went into the decision. AI can also be used to provide better ADA accommodations. For instance, AI-enabled search may be a great accommodation for neurodiverse employees who may struggle with information overload or have difficulty navigating complex information architectures. It simplifies the process of locating relevant content. Alternatively, a blind employee may use AI to convert braille into digital text and vice versa, or they may choose to use screen-reading software.
AI can also be used to improve occupational safety and health by providing hazard detection, behavior recognition, stress & health warnings, and the like. For instance, AI surveillance can help determine that a worker is non-compliant with PPE requirements and immediately notify supervisors so they can rectify the situation.
At the end of the day, AI is like a hammer or saw—a useful tool that can be safely used if you are careful and follow safety guidelines. Some suggestions that can help keep employers safe when using AI for HR functions include:
• Regularly review AI tools and output to ensure Title VII and ADA compliance.
• Provide reasonable accommodations for individuals who would not be properly measured or assessed by AI.
• Provide employees with appropriate training about AI systems in use.
• Implement AI specific policies and procedures for employees, including procedures to allow workers to report issues or appeal AI-made decisions.
• Ensure human oversight—encourage personal review of key AI decisions like termination.
• Include indemnity provisions in vendor contracts.
At the end of the day, AI use in HR is simultaneously a scary and exhilarating frontier. As a “21st Century Attorney,” I look forward to facing that challenge with my clients.
1 “Machine learning (ML) is a branch of computer science that focuses on the using data and algorithms to enable AI to imitate the way that humans learn, gradually improving its accuracy.” IBM, What is machine learning (ML)?, https://www.ibm. com/topics/machine-learning (last accessed Nov. 6, 2024).
2 Andrea Hsu, Can bots discriminate? It’s a big question as companies use AI for hiring, NPR (Jan. 31, 2023, 5:27 PM), https://www.npr. org/2023/01/31/1152652093/ai-artificial-intelligence-bot-hiring-eeocdiscrimination.
By: Judy M. Cornett University of Tennessee College of Law
Have you ever considered filing a motion for recusal? If so, you should hope that the trial judge grants the motion. It is difficult to get a denial of recusal reversed on appeal due to the procedural formalities required in filing the motion as well as the high standard for disqualification.1
Motions for recusal are governed by Tenn. Sup. Ct. R. 10B, which must be strictly followed.2 First, recusal must be sought “by a written motion filed promptly after a party learns or reasonably should have learned of the facts establishing the basis for recusal.”3 There is no brightline definition of “promptly,” but the Court of Appeals has ruled that motions filed 2½ months,4 6 months,5 and more than one year6 after the basis for recusal became known were filed too late.
Second, the motion must state, “with specificity, all factual and legal grounds supporting disqualification of the judge.” The most frequently invoked standard is Rule 2.11(A) of the Code of Judicial Conduct: “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned . . . .”7 This objective standard is intended not only to provide litigants with a fair trial but also to preserve the public’s confidence in the judicial system.8 Thus, recusal is required where there is merely the appearance of impropriety – “it is unnecessary to prove actual bias.”9 To satisfy this standard, the movant “bears the burden of presenting evidence that would prompt a reasonable, disinterested person to believe that there is a reasonable basis for questioning the judge’s impartiality.”10
Situations that will not satisfy this standard include the following:
(1) Judge repeatedly ruled against the movant,11 although “in rare situations, the cumulative effect of the ‘repeated misapplication of fundamental, rudimentary legal principles that favor[ ] [one party] substantively and procedurally’ can be the basis for recusal.”12
(2) Judge filed a BPR complaint against the movant’s attorney in an earlier case.13
(3) Judge, along with all other judges in the district, is a defendant in a lawsuit by movant challenging a court policy banning cell phones.14
(4) Judge and adversary’s attorney are friends.15
(5) Adversary’s attorney made campaign contribution to judge but was not actively involved in campaign.16
(6) Judge formerly represented the movant17 or the movant’s expert witness18 when representation was not recent, prior case was unrelated to current case, and judge’s involvement in prior case was minimal.
Third, the motion must contain a verbatim statement “that it is not being presented for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation.”19 It must also be “supported by an affidavit under oath or a declaration under penalty of perjury on personal knowledge and by other appropriate materials.”20 Failure to comply with either one of these requirements will justify denial of a motion to recuse.21
Given these requirements, it’s difficult to obtain reversal of a judge’s denial of a motion to recuse. In my next article I will discuss how to appeal the denial of a motion to recuse and will analyze two (rare) successful appeals.
1 Of 61 cases responsive to a Westlaw search in the All Tennessee State Cases database, “recusal & da(2024)” run on October 21, 2024, only two resulted in reversal of a trial judge’s denial of a motion to recuse.
2 Stoneybrooke Invs., LLC v. McCurry, No. E2024-00253-COA-T10B-CV, 2024 WL 837942, at *2 (Tenn. Ct. App. Feb. 28, 2024).
3 The motion must be filed “no later than ten days before trial, absent a showing of good cause which must be supported by an affidavit.” Tenn. Sup. Ct. R. 10B.
4 Del Vicario v. Miller, No. M2024-00475-COA-T10B-CV, 2024 WL 1793301, at *1-2 (Tenn. Ct. App. Apr. 25, 2024).
5 Harris v. Allen, No. W2023-01794-COA-T10B-CV, 2024 WL 137453, at *2 (Tenn. Ct. App. Jan. 11, 2024).
6 John Doe Corp. v. Kennerly, Montgomery & Finley, P.C., No. E2023-00236-COA-R3CV, 2024 WL 2723762, at *8-9 (Tenn. Ct. App. May 28, 2024).
7 Tenn. Sup. Ct. R. 10, Rule 2.11(A). Another basis for disqualification is Tennessee Constitution art. VI, § 11: No Judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity or consanguinity, within such degrees as may be prescribed by law, or in which he may have been of counsel, or in which he may have presided in any inferior Court, except by consent of all the parties. . . . See also Tenn. Code Ann. § 17-2-101 (listing five additional bases for disqualification).
8 Lusk v. Lusk, No. E2024-00226-COA-T10B-CV, 2024 WL 734764, at *3 (Tenn. Ct. App. Feb. 22, 2024).
9 Carroll v. Foster, No. E2024-00525-COA-T10B-CV, 2024 WL 1794402, at *5 (Tenn. Ct. App. Apr. 25, 2024).
10 Lusk, 2024 WL 734764, at *3.
11 Sukapurath v. Raghavan, No. W2024-01106-COA-T10B-CV, 2024 WL 3949068, at *3 (Tenn. Ct. App. Aug. 27, 2024).
12 Sutton v. State, No. M2024-00760-COA-T10B-CV, 2024 WL 3308169, at *13 (Tenn. Ct. App. July 4, 2024).
13 Lusk, 2024 WL 734764; accord Pennington v. Pennington, No. W2023-01691-COAT10B-CV, 2024 WL 380702 (Tenn. Ct. App. Feb. 1, 2024).
14 Kelly M. v. Agness M., No. E2024-00629-COA-T10B-CV, 2024 WL 2564454, at *5 (Tenn. Ct. App. May 23, 2024).
15 In re Conservatorship of Milem, No. W2023-01743-COA-T10B-CV, 2024 WL 326863, at *6-7 (Tenn. Ct. App. Jan. 29, 2024).
16 Id.
17 Kelly M., 2024 WL 2564454.
18 Carroll, 2024 WL 1794402.
19 Tenn. Sup. Ct. R. 10B, § 1.01.
20 Id.
21 Robert R. Batson, Sr. Revocable Living Trust v. Batson-Smith, No. M2024-00739COA-T10B-CV, 2024 WL 2933352, at *2-3 (Tenn. Ct. App. June 11, 2024) (denial of recusal motion affirmed where it omitted verbatim statement) (alternative holding); Stoneybrooke Invs., 2024 WL 837942, at *2 (denial of recusal motion affirmed when motion was unaccompanied by affidavit made on personal knowledge and on oath or declaration made under penalty of perjury); accord Sukupurath, 2024 WL 3949068, at *2 (denial of recusal motion affirmed when motion did not include verbatim statement or affidavit) (alternative holding).
To celebrate the holidays and elect our new Executive Committee Officers, the Barristers will be hosting a holiday party and elections on Tuesday, December 10, from 5-7 pm at Printshop Beer Co. (1532 Island Home Ave.). Jimmy Snodgrass will become Barristers President at the conclusion of the meeting, and the candidate elected Vice President will serve as Barristers President in 2026.
The slate for 2025 includes the following candidates: Vice President:
Courteney Barnes-Anderson, Tennessee Valley Authority
Jordan Houser, University of Tennessee College of Law
Secretary/Treasurer:
Mariel Bough, VeraSafe
Grant Williamson, Bradley Arant Boult Cummings LLP
Isaac Westling, Spicer Rudstrom, PLLC
Members-at-Large (Vote for 2):
Lucas Fishman, Fishman Consulting
Jon Fromke, Bernstein, Stair & McAdams LLP
Victoria Glasscock, Egerton, McAfee, Armistead & Davis, P.C.
Members are asked to register on the KBA website before 5 pm on Tuesday, December 10. Please note that the annual holiday party will take the place of the December meeting.
The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on December 11, 2024. Sign up at knoxbar.org/Volunteer.
Attorneys and law students gathered at Ebony & Ivory to make new friends and test their trivia knowledge! The Barristers Diversity and Membership Committees thank TCV Trust & Wealth Management for sponsoring. And congratulations to the trivia winners!
1st Place - Team Licensed Yesterday
2nd Place - Team Triple D
3rd Place - Team Attractive Nuisances
By: Jimmy Snodgrass Kramer Rayson LLP
Upon starting to write this article, I did think it was quite a bold idea to write about politics in a magazine that is circulated to my employers, former employers, coworkers, and entire profession. I will reserve the right, however, for any future public political discussions in the event that I need to write 1,000 words about potential College Football Playoff rankings.
After months of being unable to avoid political discussions or commercials, including in the workforce, many wonder what rights employers have on the ability to regulate political speech in the workplace. The easy answer is that the First Amendment right to free speech applies only to intrusions by the government, and therefore, private sector employees do not have a right to free speech at their workplace.
Tennessee does not prohibit discrimination based on political affiliation in the Tennessee Human Rights Act or other state statutes, with one exception. Under Tenn. Code Ann. § 2-19-134(b),“[i]t is unlawful to discharge any employee on account of such employee’s exercise or failure to exercise the suffrage, or to give out or circulate any statement or report calculated to intimidate or coerce any employee to vote or not to vote for any candidate or measure.”1 Additionally, employers cannot “coerce or direct any employee to vote for any measure, party or person . . . [or] to threaten the discharge of such employee if the employee votes or does not vote for any . . . . measure.”2 However, several states have implemented statutes prohibiting discrimination based on political affiliation or political speech.
As one example, the D.C. Human Rights Act includes “political affiliation” as a protected trait for the purposes of employment, public accommodation, housing, and educational institutions.3 “Political affiliation” is defined as “the state of belonging to or endorsing any political party.”4 In a recent example, a Fox News producer asserted that he was fired for “opposing Fox’s false reports of voter fraud in the 2020 election and inaccurate coverage of the riot at the Capitol on January 6, 2021.”5 The District Court granted Fox’s motion to dismiss under Rule 12(b)(6), holding, at most, the complaint suggested that the plaintiff may have been fired due to his political disagreements with management, but that the D.C. Human Rights Act protected “political affiliations,” rather than “political positions or perspectives.” The Court held that the plaintiff could not show that he was discriminated for affiliating with a “political party.”6
A 2012 Texas Review of Law and Politics article by Eugene Volokh, a prominent First Amendment expert and Professor at the UCLA School of Law, summarizes other state and local statutes potentially implicating employees disciplined or terminated for political activities in the following categories:
1. Engaging in Any Off-Duty Lawful Activity-Colorado and North Dakota
2. Engaging in Activity That Doesn’t Create “Reasonable JobRelated Grounds for Dismissal”-Montana
3. Exercising “Rights Guaranteed by the First Amendment”Connecticut
4. Engaging in “Recreational Activities”-New York
5. Engaging in Political Activities-California, Colorado, Guam, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, West Virginia, Seattle (Washington), and Madison (Wisconsin)
6. Holding or Expressing Political Ideas or Beliefs-New Mexico and (to Some Extent) Montana;
7. Belonging to, Endorsing, or Affiliating With a Political PartyDistrict of Columbia, Iowa, Louisiana, Puerto Rico, Virgin Islands, Broward County (Florida), Urbana (Illinois).7
In any attempt to address an employee’s political speech, employers must ensure that they do not run afoul of the National Labor Relations Act. This could potentially apply if employees are discussing politics in the context of their working conditions, such as their thoughts on a candidate based on their support for a union or fair wages for employees. Current NLRB General Counsel Jennifer Abruzzo has expressed on multiple occasions her interest in expanding the definition of protected concerted activity to include political statements. However, this may be impacted by the new Trump administration.
Ultimately, employers may wish to develop a policy regarding political expression in the workplace, which also could intersect with a social media policy or policy regarding employees’ off-duty conduct. However, as always, it is important to apply these policies consistently, train managers how to handle political discussions, and ensure that any policy does not run afoul of the NLRA. As an example, an employer could prohibit displaying political signs or wearing political attire at work, but it would need to ensure that the policy is enforced equally to all employees.
Lastly, I would note that under Tenn. Code Ann. §2-1-106, any person who is entitled to vote in an election held in Tennessee can take a reasonable amount of time off from work, up to three (3) hours, in order to vote. Any employees who are absent from work to vote cannot be subject to any penalty or reduction in pay. However, there are exceptions if the employee’s shift begins three or more hours after the opening of the polls or ends three or more hours before the closing of the polls.
1 Tenn. Code Ann.§ 2-19-134(b).
2 Id.
3 See D.C. Code § 2-1401.02(25).
4 Id.
5 Donner v. Fox News Network, LLC, No. 23-CV-3401 (CRC), 2024 WL 1758689 (D.D.C. Apr. 24, 2024).
6 See id.
7 Eugene Volokh, Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. L. & Pol. 295 (2012).
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Jimmy Snodgrass at jsnodgrass@kramer-rayson.com.
By: Emily Heird, LPC/MHSP Vantage View Coaching
“No matter what the world thinks about religious experience, the one who has it possesses a great treasure, a thing that has become for him a source of life, meaning, and beauty, and that has given a new splendor to the world and to mankind.”
–Carl G. Jung, Psychology and Religion: East and West
As we are in the full swing of the holiday season, many of us are reminded of the importance of connection, reflection, and gratitude. Many people connect more deeply with their faith and spiritual practices as the holidays are celebrated. For lawyers, this time of year can be both joyful and demanding, as year-end deadlines, client expectations, and family commitments all converge. Amid the season’s busyness, turning to practices rooted in religion and spirituality can offer a unique source of comfort, grounding, and resilience. In fact, research increasingly reveals the significant impact spirituality can have on mental well-being and stress reduction, especially in high-stress professions. For legal professionals, embracing these practices may provide a powerful path to renewed energy, purpose, and peace—both during the holidays and in the year to come.
Spirituality and the Brain: Insights from Neuroscience
Modern neuroscience has shown that the human brain responds in remarkable ways to spiritual practices. Using fMRI technology, scientists have observed that when people engage in religious or spiritual activities, a specific part of the brain called the parietal cortex becomes more active. This region, responsible for processing spiritual thoughts, is activated across all cultures, whether someone is practicing prayer, meditation, or other forms of religious engagement. This universal neurological response suggests that humans may be hardwired to benefit from spirituality, regardless of specific beliefs or traditions.
Research also highlights how spirituality activates the brain’s reward system, similar to how positive experiences like social connection and accomplishment do. Engaging in spiritual practices can thus foster feelings of well-being and even eustress—a positive, motivating form of stress. For lawyers, who are often faced with distressing challenges, turning to spirituality and faith-based practices may provide a reprieve, helping to reset the nervous system and build resilience.
The Role of Spirituality in Well-Being: Evidence and Research
Studies indicate that spirituality can have a measurable effect on both physical and mental health. According to the Human Flourishing Program at Harvard, people who actively engage in religious practices tend to report higher life satisfaction, lower stress levels, and reduced rates of depression and anxiety. The program has published findings showing that spirituality fosters a sense of meaning and purpose, which is essential for mental resilience, especially in demanding professions.
Arthur Brooks, a professor at Harvard and a prominent writer on well-being, emphasizes that religion and spirituality provide unique psychological resources. He notes that spirituality offers “transcendence” and “meaning,” which can sustain individuals through life’s challenges. For lawyers, who often work long hours and face emotionally charged situations, having a sense of spiritual purpose can provide grounding and help to alleviate the anxiety that comes with their roles.
Why Spirituality Enhances Well-Being and Lessens Stress
Spirituality has several mechanisms by which it supports mental health and reduces stress. First, it fosters connection—with oneself,
with others, and, in some traditions, with a higher power. This sense of connection counteracts isolation, a common challenge in high-pressure fields like law. Second, spiritual practices often encourage self-reflection, allowing individuals to step back from their daily pressures and engage in perspective-taking, which can help lawyers navigate their work with greater clarity and composure. Third, having a sense of being connected to something greater than ourselves can result in positive emotions, such as peace, awe, contentment, gratitude, and acceptance.
Additionally, spirituality encourages emotional regulation by offering practices like prayer, meditation, or mindfulness, which are known to downregulate the nervous system. For instance, Harvard studies have found that regular engagement in prayer or meditation activates the body’s parasympathetic response, which lowers blood pressure, slows the heart rate, and can counteract the fight-or-flight responses triggered by workplace stress.
Examples of Spiritual Practices to Integrate into Daily Life
1. Mindful Meditation or Prayer: Spending even five to ten minutes a day in meditation or prayer can significantly reduce stress. This quiet time allows individuals to focus on gratitude, seek inner peace, or simply reflect on their day. Research shows that these moments of calm can improve emotional resilience, equipping legal professionals to handle stress more effectively.
2. Spiritual Reading and Reflection: Reading texts from a spiritual tradition can provide comfort, insight, and a fresh perspective. Books, scriptures, or even inspirational quotes can serve as reminders of values like compassion, patience, and humility, which are beneficial when dealing with difficult cases or clients. Reflecting on these themes can help lawyers ground themselves and reduce the emotional toll of their work.
3. Community Engagement: Belonging to a spiritual or religious community has been shown to reduce stress and promote wellbeing. Communities offer a sense of belonging, encouragement, and shared purpose. Lawyers can find strength in these connections, which can remind them of the importance of balance and mutual support.
4. Nature-Based Spiritual Practices: Many people find spirituality in nature. Simple practices like walking in nature or engaging in mindful observation of the environment can connect one to something larger than oneself. The calming effects of nature have been well-documented, and they can be a way for legal professionals to decompress from the stresses of work.
5. Journaling with a Spiritual Focus: Keeping a gratitude journal or a reflection journal that incorporates spiritual thoughts can provide a sense of continuity and personal growth. Writing can be a way to process daily stressors and reframe them in a positive light, aligning with spiritual beliefs or values.
Incorporating spirituality into one’s life is a deeply personal choice, and it’s important to note that spirituality can look different for everyone. For lawyers, engaging in spiritual practices can offer a unique way to manage the stress and emotional demands of their work. Whether through traditional religious practices, meditation, or connection with nature, spiritual practices support well-being by offering purpose, encouraging emotional regulation, and fostering resilience.
By: Carol Anne Long UT Law Director of the Career Center
Please tell me about yourself!
I grew up in Indiana, very close to Chicago. My family moved quite a bit, but we always stayed in the state. I thought I’d go somewhere else for college, but I stayed close to home and attended the University of Notre Dame. I majored in Environmental Science and Film while I was there, and I loved every minute!
So how did you make the decision to go to law school, and why did you pick UT Law?
I worked for a few years in informal science education after graduating. It was fun and challenging in a lot of different ways. After a few years, I started to grow more passionate about other things, specifically eliminating barriers to access for kids to be able to participate in the programs that I ran. Law felt like a more tangible way to address some of those barriers.
I was between UT and one other school, but several things swayed me. I have many friends in Chattanooga and the Asheville area. Knowing I’d have a support system close by was a big perk. It made the most sense financially and Admitted Students Day really brought everything together for me!
Tell me about your law school experience so far: what activities and classes have you participated in and enjoyed?
Overall, I’ve really enjoyed law school! It can be tough being constantly busy, but I feel so fortunate for all the opportunities that have come my way. One of the opportunities I’m most grateful for is working as a Legal Process Fellow for Professor Rebecca Eshbaugh. It’s been wonderful to get to know some members of the 1L class really well and to help guide them through the research and writing process. Being
11 Id.
12 See Quakers in Britain, https://www.quaker.org.uk/faith/our-values/truth-andintegrity#:~:text=Quakers%20have%20always%20refused%20to,the%2018th%20 and%2019th%20centuries, last visited Nov. 7, 2024.
13 American Battlefield Trust, supra n. 7.
14 Id.
15 Bean, supra n. 1.
16 Id.
17 Id
18 Id.; see also Excerpt from Journal of Elias Boudinot, quoted in National Archives,
a member of Tennessee Law Review has also kept me very busy this semester. I’ve solidified a lot of research and editing skills which will be so helpful moving forward in my career, and I’ve enjoyed digging into the issue that my Case Note covers. Course-wise, I am really enjoying Constitutional Law, and I am looking forward to taking Civil Rights Actions next semester.
So outside of law school, what do you enjoy doing?
Free time is hard to come by in law school, but when I do find some, my favorite things to do are to play guitar or piano or go rock climbing. Throughout law school, I’ve also managed to keep up with the book club I’m in! My favorite reads have been The House in the Cerulean Sea and Parable of the Sower.
What type of law do you want to practice, and where would you like to end up?
I am particularly interested in civil rights litigation. I spent my 1L summer at the ACLU of Tennessee in Nashville, and it was such a dream! I’d love to end up back at that office or another public interest organization.
What is your dream job, and why?
I have been following the work of the Southern Environmental Law Center since before I applied to law school. That organization focuses on the intersection of environmental and civil rights law, which are two of my biggest passions. I also really admire the way the organization collaborates with the community members at the center of the issues their work focuses on. I’ll be working at their Nashville office this summer, and I am incredibly excited!
“When I apply for a job, I wish I could tell you . . .”
...how much my heart is in it. I have only applied to positions that I feel personally connected to and truly passionate about. If I applied, it’s because I want to be there and contribute to the work that is being accomplished.
Finally, what is your ultimate “why” with respect to being an attorney?
I think a more just world involves creating access to knowledge and resources to navigate the legal system. As a lawyer, I hope to facilitate that and to put some of that power into the hands of citizens to move towards a system that serves everyone better.
Founders Online, To George Washington from William Dewees, Jr. 4 December 1777, https://founders.archives.gov/documents/Washington/03-12-02-0496, last visited Nov. 8, 2024.
19 Britannica.com, Elias Boudinot (Oct. 20, 2024), https://www.britannica.com/event/ American-Revolution, last visited Nov. 8, 2024.
20 Excerpt from Journal of Elias Boudenot, supra n.18.
21 Bean, supra n.1.
22 Id.
23 See Resolution, February 3, 1778, available at https://www.loc.gov/resource/ bdsdcc.03801/?st=gallery.
By: Sanjay Raman City of Knoxville Law Department
The privilege of being a lawyer extends beyond the individual practice of law; it encompasses the rich opportunities for learning and collaboration that exist within the legal community. As attorneys, we are part of a profession that values mentorship, knowledge sharing, and the continuous development of skills. This unique environment fosters growth not only for ourselves but also for aspiring attorneys who seek guidance and insight into the legal world.
One of the greatest privileges of being a lawyer is the opportunity to learn from seasoned practitioners. The legal profession is diverse, with attorneys specializing in various fields, each bringing a wealth of experience and knowledge. This diversity provides endless opportunities for continued growth and development.
As an attorney early in my career, I have benefited immensely from the insights and generosity of attorneys throughout the Knoxville Bar. Whether through formal mentorship programs or informal conversations over coffee, the opportunity to discuss legal strategies, unique legal issues, and case management techniques has been invaluable. These interactions not only enhance my understanding of the law but also provide practical insights that can only be gained through years of experience.
Equally important is the privilege of sharing knowledge with others, particularly aspiring attorneys. It’s easy to get caught up in the day to day of practicing law and forget how difficult it can be to enter this profession. As legal professionals, we have a responsibility to support the next generation of lawyers, helping them navigate the complexities of their journey. This can take many forms, from participating in mentorship programs to hosting workshops and seminars.
Engaging with aspiring attorneys is not just about imparting knowledge; it is about fostering a sense of community and collaboration. By sharing our experiences—both successes and challenges—we can help demystify the legal profession and provide realistic perspectives on what it means to practice law. This exchange of ideas creates an environment where young lawyers feel empowered to ask questions, seek guidance, and pursue their own paths within the legal field.
The privilege of being part of the legal profession also means contributing to a culture of collaboration. In law, no attorney operates in a vacuum. We often find ourselves working alongside colleagues from different practice areas or collaborating on interdisciplinary teams. This collaborative spirit enhances our ability to learn from one another and develop well-rounded perspectives.
Through teamwork, we can tackle complex issues that require diverse expertise. By pooling our knowledge and resources, we not only enhance our own skills but also provide better outcomes for our clients and the communities we serve. This collaborative approach reinforces the idea that the legal profession is not just about individual success, but about collective progress.
The legal community is filled with opportunities for professional development, ranging from continuing legal education programs to
networking events and legal conferences. These platforms allow us to stay current with developments in the law and to learn from experts in various fields. As we navigate our own careers, it is essential to remember that the knowledge and experiences we possess can have a profound impact on the next generation of aspiring lawyers. By encouraging young attorneys to attend seminars, workshops, and networking events, we can help them build connections and expand their knowledge base. Sharing insights gained from these experiences not only enhances our own understanding but also contributes to the growth of those we mentor.
The privilege of being a lawyer is deeply rooted in the opportunities for learning, sharing, and collaboration that define the legal profession. By learning from experienced colleagues, sharing our knowledge with aspiring attorneys, and fostering a culture of collaboration, we can create a vibrant legal community that supports growth and development at all levels. Embracing this privilege not only enriches our own journeys but also ensures that the legal profession, and specifically our Knoxville Bar, continues to evolve and thrive for years to come.
Our focus is to preserve capital, manage its growth and provide our clients with peace of mind and financial independence.
We work closely with attorneys to ensure the coordination of our clients’ personal and financial goals.
By: Sarah M. Booher Department of Human Services
Are you bored with Mickey and his little girlfriend yet? Already have plans to hop the pond for family vacation? If you’re like me and you just can’t ever completely separate yourself from law and order, here are ten stops you can make in your global travels to satisfy that legal tickle in your traveling brain.
1. Boca della Verita (Rome, Italy): Who needs an oath and a Bible when you have the Mouth of Truth? More than five feet wide and weighing in at nearly 3,000 pounds, this marble mask depicting the sea god Oceanus can currently be found in the portico of the Santa Maria in Cosmedin church. It will bite off the hand on any liar who places their hand in its mouth or the hand of anyone who lies while their hand is in its mouth. Originally, though, it might have just been a drain cover. <shrug>
2. Tribunal de las Aguas de Valencia (Valencia, Spain): With roots dating back to the 10th century, the Water Tribunal of the Plain of Valencia is the world’s oldest court and the oldest democratic institution in Europe. Every Thursday, nine representatives meet at the Door of the Apostle to discuss various water issues, primarily the distribution of water. It was designated an intangible cultural heritage site by UNESCO in 2009. If you’re looking for the Valencia orange, however, you’ve gone too far – it’s from California.
3. Memorium Nurnemberger Prozesse (Bavaria, Germany): Still operational, the Nuremberg Palace of Justice houses the memorial and museum of the Nuremberg Trials, which took place in Courtroom 600, the jury courtroom on the courthouse’s top floor, from 1945-1949. Divided into 3 sections – history, legal prosecution, and the legacy – the interactive museum commemorates the trials of the Nazi regime before the International Military Tribunal that were instrumental in the creation of the International Criminal Court in the Hague in 2003.
4. Robben Island (Cape Town, South Africa): A thirty-minute boat ride off the coast of Cape Town, Robben Island was once a leper colony in Table Bay. Later, it was the home of anti-apartheid political prisoner (and future South African president) Nelson Mandela for 18 of the 27 years he was imprisoned (1964-1991) for his activism as part of the African National Convention. Although the last of the prison permanently closed to prisoners in 1996, the museum is now open daily and Mandela’s 8 ft x 7 ft jail cell is on the tour.
5. Hofoi House (Reykjavik, Iceland): Built in 1909, the house was originally built to be the home of the French consulate and was the largest private estate in the city at that time. It was sold to the Icelandic government in 1952 and is rumored to be haunted by the spirit of a young woman, but it makes our list because it was the site of 1986 political summit meeting of U.S. President Ronald Reagan and Soviet General Secretary Mikhail Gorbachev. Although the two-day meeting ended with no official agreement, it is now considered to be the beginning of the end of the Cold War.
6. The Inns of Court (London, England): Barristers in
England and Wales must belong to one of four Inns of Court in London: Gray’s Inn, Lincoln’s Inn, Inner Temple, or Middle Temple.1 Since the 14th century, these buildings have allowed barristers to lodge, train, practice their profession, and even worship. Today, the Middle and Inner Temples operate as their own local authorities, but Gray’s and Lincoln’s are subject to the City’s jurisdiction. Very few apartments remain, and the Inns are mostly offices now.
7. Murals of Northern Ireland: I was studying abroad in the Republic of Ireland and Northern Ireland when the Twin Towers were hit (probably an experience that warrants its own article one day), and the murals in public spaces across NI (most concentrated in Belfast and Derry, however) relating to the Troubles were such a beautiful comfort to me until I returned home in December.2 The earliest murals in Ulster celebrated King William III’s victory at the Battle of the Boyne in 1690. However, nearly 2,000 murals have been documented since the 1970s, when Sinn Fein leadership moved into mainstream Irish politics, and commemorate events like the hunger strikes or the Ballymurphy Massacre, honor key figures in their history like Bobby Sands, or speak to future hopes of peace and justice for the area.
8. Peace Palace/Just Peace Festival: The Peace Palace in The Hague is home to the Permanent Court of Arbitration, the UN International Court of Justice, and The Hague Academy of International Law. Owned and managed by The Carnegie Foundation, the first stone of the palace was laid in 1907 as part of the Second Peace Conference, and the palace opened in August 1913. Its library is one of the most prestigious law libraries in the world, and guided tours and library visits are offered around the working palace and courts’ schedules (usually approximately 2 weeks in advance).
9. Omaha Beach (Normandy, France): On June 6, 1944, the Allies invaded German-occupied France in order to secure 8 kms of beachhead, but very little went as planned during Operation Overlord. The weather was awful, the topography was unforgiving, there was no existing equipment for such an invasion, and most of the 13,000 bombs dropped that day missed their targets. Still, despite thousands of casualties, Allied Forces prevailed and today you can pay your respects at the beach through a war memorial monument, a museum, an American cemetery, and a walk around the beach.
10. The Duomo (Florence, Italy): Lovers of true crime podcasts can’t sleep on the second largest cathedral in the world. Brothers, conspiracy, assassination attempts, and a scandal firmly rooted in the marriage of church and state. This destination gets bonus points for being an architectural marvel.
In the timeless words of the great John Steinbeck, “people don’t take trips – trips take people.” What worldly wonder took you?
1 Solicitors have had their own Inns of Chancery since the Elizabethan era.
2 For a fantastic documentation of the Troubles, I strongly recommend Say Nothing: A True Story of Murder and Memory in Northern Ireland by Patrick Radden Keefe.
By: Angelia Morie Nystrom Vice President for Advancement and Chief Legal Counsel East Tennessee Foundation
The holidays are upon us. It is early November, and I have already received three holiday party invitations. I’m particularly excited about this because Hugh and I have been without a fully-functioning kitchen for about four months. Cooking has been out of the question for most of this time. At this point, we have tried about half of the restaurants in Knoxville, and the DoorDash drivers now know our cat and dog by name.
I’m really looking forward to these parties… and particularly the food since I’ve not cooked a complete meal since August. I’ve been relegated to coffee, frozen pizza, yogurt, and Pop-Tarts. To prepare, I’ve compiled a list of holiday party eating tips (ironically with some help from fitness guru Laura Dion-Jones). Here are my top ten tips:
1. Avoid celery and carrot sticks… unless they are next to chicken wings. Anyone who puts celery and carrots on a holiday party buffet table knows nothing of the holiday spirit. If you see celery and carrot sticks by themselves, leave immediately. Go to where they’re serving bourbon balls, cracker candy, and other treats you only find at the holidays. (Shout-out to Kacie McRee, who does bourbon balls better than any place in Kentucky!)
2. Drink the eggnog…and quickly. It’s rare. You cannot find it any other time of year. I was never a fan until Adrienne Anderson extolled the virtues of Weigel’s eggnog for one of my columns about ten years ago. She told me that she had been known to buy it and then drink it in the parking lot in her car. She was so convincing that I decided to try it… and I discovered she was right. It is great! My personal favorite is the eggnog from Homestead Creamery, which is available at The Fresh Market. They also have a custard that is only available during the holidays. It is like drinking melted ice cream, and we alternate between the custard and eggnog during the holidays at our house. They are both rich and creamy with amazing flavor. Expert tip: both are a great substitute for coffee creamer in the mornings. Who cares that it has 10,000 calories in every sip? It’s a once-a-year thing.
3. If something comes with gravy, use it. That’s the whole point of gravy. Gravy does not stand alone. Pour it on. Over the years, I have learned that chefs make their creations so that flavors complement each other. If gravy is included, use it. It is there for a reason. I spent many years ordering food plain to avoid extra calories. Big mistake. Quit worrying about calories and fat. Enjoy the experience of eating. God gave us good food for a reason. Be thankful and enjoy.
4. Do not have a snack before going to a party in an effort to control your eating. The whole point of going to a holiday party is to eat food that you did not prepare. Hosts work hard to create a menu, and it is insulting for you to not enjoy what they have prepared. So, eat the food! Try new things. Enjoy old favorites. And say “thank you” to the host for the opportunity to fellowship and enjoy the food.
5. If you come across something really good at a buffet table, like frosted Christmas cookies, position yourself near them and don’t budge. If they were made by Stephanie Daniel, guard them like your life depends on it. Have as many as you can before becoming the center of attention. Christmas cookies are
like a beautiful pair of shoes. If you leave them behind, you’re never going to see them again.
6. The same logic applies to pies and cakes. Try a little of each. If ice cream or whipped cream are available, use them. They are there for a reason. And that reason is for your enjoyment. When else do you get to have more than one dessert? Labor Day?
7. Eat fruitcake. Fruitcake has been much maligned for a very long time, but it has all the flavors of the season packed into every bite. If you don’t want fruitcake per se, try fruitcake cookies. My grandmother made those every year and wrapped them in brandy-soaked cheesecloth. They were amazing, and I looked forward to them every year. After her death in 1994, I thought that I would never have them again. A few years ago, though, my mom started making them. Last year, that was the only thing I asked for from her for Christmas. She made a large box for me and for my friend Emily. I ate mine… and also ate Emily’s. I truly ate my weight in them… and have zero regrets. (I did give Emily a “substitute” gift from my mom, but those cookies were mine. No one was the wiser.)
8. Under no circumstances should you exercise between now and New Year’s Day. You can do that in January when you have nothing else to do. This is the time for long naps, which you’ll need after circling the buffet table while carrying a 10-pound plate of food and that vat of eggnog.
9. If you don’t feel terrible when you leave a party or get up from the table, you haven’t been paying attention. Food this good only happens once a year, so don’t let it pass you by. Re-read tips; start over, but hurry, January is just around the corner.
10. One final tip: Say “yes” to all the parties. Go with an open mind and a grateful heart. Life is short. Enjoy friends and family every opportunity that you get. None of us are promised tomorrow, and life can change in an instant. Be thankful and live life without regrets. That includes enjoying the food.
Hopefully, I’ll be back in my kitchen by next month. Until then, though, be warned: I may be guarding a buffet table at a gathering near you!
Since opening in 2017, Abridged Beer Co. has become a staple in the Knoxville brewery community and continues to expand from its original brewpub in the Bearden area.
Abridged Beer Co. offers a striking blend of modern industrial style with a hint of vintage charm, thanks to its setting in a repurposed 1950s auto garage. Inside, the décor leans sleek and polished: stainless steel fixtures gleam against clean white tile walls, while smooth concrete floors and counters add to the contemporary aesthetic. The garage doors, a nod to the building’s former life, allow natural light to flood the space and provide a natural segue to the contrasting atmosphere of the outdoor patio.
When you step outside, the vibe shifts from polished and sleek to something more earthy and warm. In the patio area, you’ll find wooden tables and barrels that provide a warm contrast to the cool interior. Leafy green vines line the canopies overhead, while string lights cast a soft, magical glow over the seating. The brewery’s layout is equally versatile, featuring long communal tables ideal for large gatherings alongside smaller, round tables for a more intimate evening out. Thoughtful touches, like heaters on standby for East Tennessee’s unpredictable weather, ensure comfort whether you’re bundled up or still in your latesummer/early-fall gear.
For families and dog lovers, a grassy area adjacent to the patio is a welcoming touch, perfect for children and pets to enjoy while the adults relax over a drink. Abridged strikes a balance between stylish and laidback, offering a welcoming space that feels as suited to a lively night out as it does to a quiet drink among friends.
The Brews
Abridged’s selection is as varied and thoughtfully crafted as its inviting atmosphere. With up to 24 taps, all dedicated to their own creations brewed on site, Abridged offers something for every palate. Fans of the classics will find familiar favorites like Toppy Rock, a hazy IPA with a bold hop profile, and Rifleman, a crisp American light lager. But the offerings don’t stop there—whether you’re into hoppy IPAs, smooth lagers, or rich ales, Abridged’s range covers it all.
For those seeking something more adventurous, Abridged doesn’t disappoint. Try the Coffee Sleight of Hand, an indulgent oatmeal stout crafted in collaboration with local favorite K Brew Coffee, or one of their unique oak-aged sours. The Bacchanalia, featuring Tennessee sunbelt grapes, and the pear-infused Trial Separation both offer a tangy twist. Even gluten-free drinkers are catered to with sours like the Haute Couture, which mixes raspberry, blackberry, currant, and vanilla for a burst of fruity flavor or Fine & Dandy, a concord grape and vanilla blend. (This one is dangerous. Think grape-flavored cream soda, but add 6.5% ABV.)
Though we already visited the Abridged food truck at Xul in the January 2024 edition, it’s worth restating here that you absolutely have to try the Abridged Burger, but don’t, under any circumstances, take off the fried brussels sprout petals. Just trust me. For those that object to
By: Parker Bohne LMU
red meat, the Abridged Burger is also offered as a chicken sandwich. Another favorite on the menu is the fried chicken sandwich topped with amber beer maple syrup—the savory and sweet combination is perfect for people like me that are always looking for a sweet treat.
How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to membership@knoxbar.org.
As part of this year’s focus on celebrating our bar association’s diverse membership and exploring creative ways for members to connect, network, and experience fulfillment in the practice of law, we would like to highlight the accomplishments and contributions of KBA members who are making a difference in the legal arena and beyond. Send links to news to posts or articles, pictures, or just a blurb about what’s going on to membership@knoxbar.org.
Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.
In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing
THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:
Emily Carnder Carnder Law
C. John Chavis
Hagood Moody Hodge PLC
Kelli Holmes
Tarpy, Cox. Fleishman & Leveille, PLLC
Lucille McGee
LMU Duncan School of Law
Camellia Saunders
Law Office of Camellia S. Saunders, LLC
Donna H. Smith
Donna H. Smith, Family Mediator
milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.
Please note the following changes in your KBA Attorneys’ Directory and other office records:
Christi W. Branscom
BPR #: 014521
Partners Development
502 W. Summit Hill Drive, Suite 603 Knoxville, TN 37902 Ph: (865) 524-7777 cbranscom@partnersinfo.com
Hannah M. Clyde BPR #: 041385 MG Law, PLLC 117 Court Ave. Sevierville, TN 37862 Ph: (865) 429-3600 Hannah@gwofirm.com
Colton B. Hobbs BPR #: 040623 Herrera, Reilly & Associates, PLLC 700 Town Creek Parkway, L109 Lenoir City, TN 37771 Ph: (931) 629-4415 coltonhobbs@outlook.com
David L. Hull
BPR #: 013279
204 N. Rose Street Lenoir City, TN 37771 Ph: (865) 816-9950 lanierhull@gmail.com
Aubrey Maples BPR #: 039350 UNLV Immigration Clinic P.O. Box 71075
Las Vegas, NV 89170 Ph: (702) 895-3000 aubrey.maples@unlv.edu
Brian J. Alford
Jana D. Arrington
Paul M. Arrowood
Trenton E. Banks
Elizabeth M. Baum
Hallie Benefiel
Jonathan A. Bogens
Holly Boutcher
Jordan A. Branchman
Josiah J. Bratton
Joanna Busigin
William Carr
Hayden K. Charles
Christopher D. Conway
Joshua T. Demmons
Caitlin Galloway
Soriya Gast
Kayla R. Gil
Anhelika K. Hall
Walker R. Hinds
Sydney Kirk
Elise F. Kloster
Ava R. Kremling
Brandon Kriplean
Dimend K. Little
Ronald Lynch, Jr.
Geneva D. Mazhandu
Saul Mekmaysy
Anna Milonas
Paul F. Mrochinski
Olivia G. Murphy
Nicklaus A. Proctor
Mary K. Roark
Max R. Romeo
Andrew Russell
Quincy Sackey-Mensah
Alexis G. Sands
Brittany Scanameo
Breanna Tamoga
Isabella M. Turner
Elijah J. Uecker
By: Hon. Kristi M. Davis Tennessee Court of Appeals
My children are in college now, but when my oldest was about six months old, I remember taking him with me to an in-chambers motion hearing in Hamblen County. He had an ear infection (one of about ten that he endured his first year), so his mild fever necessitated a pick-up from day care. I was worried but felt like the best I could do was give him some Motrin and take him with me. If you know then-Chancellor, now Court of Appeals Judge Frierson, then you know I needn’t have worried. Judge Frierson was perfectly gracious and understanding, as he always is, and the hearing went smoothly.
Now with two almost-grown children, I am past that stage of caring for littles while practicing law, but I remember the struggles well. There’s the toddler/young child stage, where you are just constantly exhausted trying to keep these little creatures fed and clothed. Dinner every night? Ok, I guess I can do that. Keep the house clean and the laundry done? Fine. Attend depositions and motion hearings, keep current clients happy, bring in new clients, and keep my time every day? Yes, I can do it, but I’m really tired! I see people exercising. I probably need to do that, too. When? 5:00 before everybody is up? That does not sound reasonable when I just want to sleep a little longer. Somehow, you get through it. Then come the middle school and teenage years when they are involved in every activity under the sun, and you are a professional chauffeur. Sure, I can pick up Kid A and get him to practice, and then Kid B has a volleyball game in Maryville at 5:30, and then Kid A will need to be picked up from practice. And dang it, they all want to eat dinner again, but nobody can eat at the same time, so it’s another night of Chick-fil-A. Every.Single.Day. You think you’ll get a break on the weekends, but no, because Kid A and Kid B are both in travel sports, so weekends are spent dividing and conquering, oftentimes in such exotic places as Louisville, Kentucky and Greenville, South Carolina, for tournaments. And this goes on for several years until, magically, they turn sixteen, get a driver’s license, and you never see them again. (That’s a bit dramatic but not too far off base).
As they say, time is a thief. But when you’re in the thick of it, it feels like you’ll never see the other side. And so I thoroughly enjoyed reading Law Moms: Juggling Motherhood, Ambition and Personal Fulfillment, 1
knowing that I am on the other side and have lived to tell the tale. The book is a collaborative work by eight incredible women who share two commonalities -- motherhood and the law. When I read the bios of each of the authors, I was impressed by how much they have accomplished, professionally and personally. The book is easily digestible -- each author writes about a particular time in her life when the juggling was especially hard, and each essay is only about eight to ten pages, so this is a fairly fast read. Struggles include dealing with an adopted child with significant trauma and resultant behaviors, battling alcohol dependence, and coping with the death of a parent or parents who have health problems and need assistance.
I appreciated each author’s vulnerability and willingness to break the façade of perfection a lot of us feel we must portray. One mom was asked to participate in a children’s theater production with her child one summer. The role? “[A] busy lawyer … who doesn’t have time for her children.” Ouch. One of my favorite lines from the book was the following: “It was revealed to me, however, that I couldn’t give one hundred percent to all of the important things in my life all at the same time.” This flies in the face of what women of my generation were told, i.e., that you can have it all! I hate to be the bearer of bad news, but you can’t. At least not all at once. And there is great relief in letting go of this fantasy. If all you do is tackle the emergencies of the day, you’ve done enough. The beauty of Law Moms is that it doesn’t try to offer any solutions because I think we all know there are none. Rather, it is comforting to know that we are not alone on this journey. That our struggles are the same struggles our law mom colleagues face every day. By sharing our stories, both of success and failure, we realize that yes, this is hard, but yes, we can do it in perfectly imperfect fashion. One of the authors, Laura Ramos Jones, poignantly concluded “that there is no magic pill or hidden book of secrets on how to do it all and do it successfully. There is not even one on how to survive. You must find your own recipe for balance and stress relief, finetuning through trial and error, to be able to withstand the weight of your own spectacular dreams.” That and several nights of Chick-fil-A. Godspeed, warriors!
1 Susan Arenella et al., Law Moms: Juggling Motherhood, Ambition and Personal Fulfillment (2024).
By: William E. Maddox Law Office of William E. Maddox, Jr., LLC
At a recent event, Judge Bauknight asked me to say a few words about my pro bono experience, specifically as a bankruptcy attorney. Before speaking, I went back and pulled the files of all the folks I have met at the bankruptcy legal clinics. I was hoping to find some grand elaborate thread of commonality and make some wise and sage sweeping pronouncements and conclusions. I, of course, could not. The clients and the ones who ended up not being clients from these clinics are just like my other clients. Diverse in background in every way. Each one with a different story.
But here is one thing that struck me upon review, and I think this is really important: almost everyone I meet, in the clinic or in my office, almost always, right out of the gate, says something along the lines of “Mr. Maddox, I have never been in this shape before,” or “Mr. Maddox, I have never met with a bankruptcy attorney before.” What I am struck by is how often the folks I meet at the clinic, almost to a person, say “I have never met an attorney before.” Not just a bankruptcy attorney but an attorney of any kind.
I think that is very significant and it is very humbling at the same time. Yes, they are seeking help with their financial situation. But often, and more importantly, they are seeking an advocate. They are seeking someone to say, “Yes, you are in a bad spot financially, but this does not make you a bad person.” Somone to say, “I am here to help you. I am on your side.”
So much of what they are hearing from those outside of that clinic is not positive. They are being told by friends never to file bankruptcy or else they will never own a car or house. Ever. They are being told by collection agents that warrants are being served and the police are bringing them to their door. They often find that their own bank does not provide any protection from creditors or even any advance warning from creditor action.
They are not being told that they have options. They are not being told that life does not end with bankruptcy. They are not being told that debtors prisons ended about 350 years ago in this country. They are not being told about exempting your personal property, including bank accounts, in state court from creditor actions.
They do not usually know any attorneys, nor do they know they have access to any. They are usually in this situation due to lack of a support system. They are usually on their own.
2020 was a rough time for the entire country, including the legal profession. It was especially tough for those of us in the bankruptcy bar. Personally, my business ground to a standstill and I had some personal issues that also came to a head that year. I was blessed, however, with a support system that sustained me through those tough times. Left to my own devices I am not sure where I would have ended up without that
support system.
I met Rose in the last clinic of 2022. She was a single mother with no family support. She was working her tail off at a fast food restaurant. She was encumbered with some personal unsecured debts, but her main issue was car payment well in excess of what she could afford. She was in a bind. She needed that car for work, but paying for the car took up so much of her paycheck. A lot of my Chapter 7 clients tell me that if they can get relief from their other debts, they can afford the car payment. Not so with Rose. I told her, “Let’s file Chapter 7 and see if they will negotiate down that car.” It was an older car, very upside down, with a usurious interest rate. I told her we often will get these high interest rate lenders to come down. “You would do that for me?” she asked. We were successful in negotiating down the lender so she could keep the car, and we were able to get her a discharge on the rest of her debts.
Advocacy. Rose did not have an advocate anywhere in her life.
I met Donald in the clinic in 2023. He was retired but did not know (until he heard Judge Bauknight speak in her clinic introduction, talking about Chapter 7) that he was in fact judgment proof. He had been told by countless friends and what I call “street lawyers” that he would lose his house and truck if he filed bankruptcy. Fortunately, he still brought himself to the clinic to listen to the judge. It was revealed in my discussions with him that his house was a $4,000 mobile home with no land. His truck was a 1999 Ford pickup. Yes, he was judgment proof, but not if he did not know how to exempt those assets in state court, which is something his “street lawyers” had not mentioned to him. His physical health was literally suffering from the harassment of creditors and fear of losing his home.
Advocacy. Donald did not have an advocate.
What I hope I have accomplished in meeting these folks is to dispel the notion that lawyers are not for them. That there is some mystique and prestige associated with the legal profession that makes representation unattainable for Rose and Donald. I’m just me. When I go to the clinics, I am not in a coat and tie. The judge is not wearing her robe. It seems trivial but trust me, it goes a long way into getting these clinic attendees to relax and open up with me and to trust that the legal system is available to them and that they will be treated fairly.
Once you see that realization hit them that 1) I’m not a failure, 2) this guy can help me, and 3) there is a law designed to help people like me…. that is very rewarding for this bankruptcy attorney to witness. “I’ve got a lawyer now. I’ve got someone on my side. I have an advocate.”
Thank you to Judge Bauknight for putting on this quarterly clinic and thank you to all my colleagues in the bankruptcy bar who donate their time and expertise.
Two old friends met one last time in the basement of a house. Despite the quiet, the darkness, and his approaching death, Dennis Francis rallied his inner light for my father’s visit. He was sleeping when my father entered the room overlooking a lake. My father, four years older than Dennis, wondered if waking his old friend was the right move. He gently nudged Dennis. The character so many of us have come to know and love stirred from beneath the blankets and somnolent medication to barely open one eye and then the other. “Do you know who I am?” my father asked. In barely more than a whisper, Dennis said, “You are Robbie Pryor’s father.” Always the politician, even in his mortal predicament, Dennis knew the right thing to say to bring a smile and a boost in spirit of the listener. He received the desired reaction and put Bob Pryor at ease in an otherwise difficult situation.
Dennis and David Valone’s law practice has been next door to Pryor, Priest & Harber for as long as I can remember. We are the sixth floor. He was always over here, generally in our kitchen reading our newspaper or hanging out with our lawyers and staff. The office supply and IT guys still believe he is a partner in our firm. He was beloved. Many a time I would pass Steve Gillman’s office and there he’d be, his wild gray hair and playful nature making their presence known. Dennis regularly roamed the halls looking for a conversation, usually to talk about his beloved Buffalo Bills or to share stories. “What’s the gossip?” was his calling card. Sometimes he would offer just a wink and nod. He was always trying to capture a moment with my father. “How’s the old man?” he’d ask. Then he’d tell me how my father was the best trial lawyer he’d ever seen. He loved my father, but, in keeping with Dennis’s modus operandi, he also knew he would capture my agreement, elicit a smile, and boost my spirit. Dennis wanted to brighten your day. It was his gift. He loved people and was a keen observer of the human condition. My father and Dennis shared many stories over the years. Each and every one of them got better with the retelling. If I close my eyes, sitting in my office, I can hear their voices next door, mostly revisiting the same stories I’ve heard for years with a new slant or more excitement, each feeding off of the other in the telling. Laughter is the dominant instrument in the replaying of the symphony.
By: Robbie Pryor Pryor, Priest & Harber
knowledge –– “The Ship of Love,” Dennis would casually bark out in passing. “The Nutmegs,” Bob replied. Dennis would say, “I thought I had you on that one.” In the basement, Dennis talked about growing up eating chicken wings in Buffalo, bartending in Ft. Lauderdale, and attending Indiana State University, where he received a degree in “Driver’s Education,” claiming that it was the degree received when you’ve been kicked out twice. He spoke of meeting Gary Wade on the steps of UT’s College of Law, their lifelong friendship, and the warm feelings he had for many lawyers he’d had the pleasure of working with. The Irish twinkle that was his constant companion joined them in that dark room, and for a moment death was held at bay. He laughed. And then he talked about Bentley and Grayson, Dennis’s grandsons that he was raising with his wife, Theresa. Grayson and Bentley.
On the last occasion I was visited by Dennis, he brought Grayson (just months old) into my office to meet me. Bentley, the older of the two, commonly would dash down our halls. We talked about the hardship and the privilege of parenting, something he’d been required to revisit in the fourth quarter of his life. I snapped the photo the following week as Dennis played with Grayson in the lobby of Two Centre Square. I was in a hurry. Always in a hurry. If only I’d known it was the last time I’d see him. He failed to tell me he was sick or dying. He knew it wouldn’t brighten my day. I don’t know why I snapped the photo as I was getting on the elevator. I suppose, even in my haste, I wanted to preserve this goodness, this beauty, this exercise of duty and love for all to see. I’m happy to share it with you.
As they sat together that final time, a matter of days before his passing, Dennis and his old friend revisited some of those stories. My father prompted the blanketed barrister to talk about his joys and his magical life. They loved 50’s and 60’s rock-n-roll and doo-wop music - two rock-n-roll historians versed in the names of disk jockeys and songwriters from the era. They took great comfort that they were teenagers, separated by half a continent, listening to the same songs. It was common back at the office for Dennis to offer a brief test of musical
Within the bank of stories Dennis often shared over the years was one involving his first encounter with Cormac McCarthy. He shared it with local television after McCarthy’s death last year. Google it. Watch it all the way through. They first met in 1971 while Dennis was in law school, living in his car and tending bar at The Place. McCarthy, who would become one of the great American novelists, entered with a friend and both ordered beers from Dennis. When he raised his beer to toast, McCarthy said, “God’s mercy.” Dennis, all but 26 years old, immediately replied “…on the wild Ginger Man,” a reference to J.P. Donleavy’s novel, The Ginger Man. McCarthy looked stunned then said, “My life is complete. I’ve met a literate bartender.” That was the beginning of a friendship that lasted until McCarthy’s death in 2023. My father loved that story. My father loved Dennis.
When it was time to say goodbye, the older man, a little slow in his step, stood to take his leave, placed his hand on Dennis’s arm, and with a tremble in his voice, said, “God’s Mercy.”
In a strong whisper, it came –– “On the wild Ginger Man,” replied a smiling Dennis. Goodbye my friend. You will be missed.
