DICTA.August 2016

Judicial News - Profile: Justice Roger Page . . . Page 7 Schooled in Ethics - The Appearance of Impropriety . . . Page 21

A Monthly Publication of the Knoxville Bar Association | August 2016

BREACHES? WE DON’T NEED NO STINKING BREACHES! LEGAL UPDATES ON BREACH NOTIFICATION AND BEST PRACTICES

AROUND THE BAR By: Angelia Nystrom University of Tennessee Institute of Agriculture

PURSUING JUSTICE AND PROMOTING THE PUBLIC GOOD Former U.S. Attorney Doug Jones’ Prosecution of the 16th Street Baptist Church Bombing Cases

By the early 1960s, Birmingham had earned a national reputation as a tense, violent and racially segregated city, in which even tentative racial integration of any form was met with violent resistance. The city had no African-American police officers or firefighters, and few of the city’s African-American residents were registered to vote. Violence was a regular occurrence, and the city had earned the nickname “Bombingham.”

By 1963, Birmingham was a powder keg, ready to explode.

In the spring of that year, the famous “children’s marches” were organized by Dr. Martin Luther King, Jr. and others to integrate the public facilities of downtown Birmingham. Civil rights leaders and marchers protesting segregation faced Birmingham Public Safety Commissioner Bull Connor’s high pressure fire hoses and police dogs.

Dr. King delivered his “I Have a Dream” speech. That same summer, the U.S. Court of Appeals for the Fifth Circuit ordered Birmingham’s public schools to integrate, and a federal judge approved Birmingham’s desegregation plan. On September 10, 1963, two African-American students enrolled in Graymont Elementary School in Birmingham.

On September 15, 1963, hate prevailed over everything.

In the early morning hours that day, four members of the Ku Klux Klan – Thomas Edwin Blanton, Jr., Herman Frank Cash, Robert Edward Chambliss, and Bobby Frank Cherry – planted a minimum of 15 sticks of dynamite under the steps of the church, close to the basement. Five young girls – Sarah Collins, Addie Mae Collins, Denise McNair, Carole Robertson, and Cynthia Wesley – were in the ladies lounge, preparing for a youth-led worship service. At approximately 10:22 a.m., the explosion from the home-made bomb blew a hole measuring seven feet in diameter in the church’s rear wall, and a crater five feet wide and two feet deep in the ladies lounge, where the girls were preparing for the service. At 10:22 a.m., four innocent lives were brutally snuffed out. Only Sarah Collins survived.

On that day, Doug Jones was a nine-year-old, living in the suburbs of Birmingham.

The shockwave created by this senseless tragedy was felt around the world and proved to be a pivotal point in the struggle for civil rights in this country. “Once that happened, I think so much of America’s consciousness woke up and said, ‘Oh, my God – this is not just a question of culture anymore, it’s a question of hate.’ When you remember those deaths and the bombing, what you really think back and do remember is the changes and the catalyst. I think it was one of the things that caused Congress to act and caused the American people to start changing their hearts and minds,” says former U.S. Attorney Doug Jones.

Although the identities of those involved were widely known among law enforcement, witnesses were reluctant to talk, and physical evidence was lacking. Consequently, the first prosecution did not occur until 1977, when Alabama Attorney General Bill Baxley brought charges against Chambliss for the murder of Denise McNair. Chambliss was found guilty by the jury and sentenced to life in prison. Doug Jones saw the trial unfold.

“As a second year law student, I cut classes and watched from the balcony of the courtroom as the trial of Robert Chambliss unfolded. It was one of the most amazing things I’ve ever seen. The history, the power, that the law can change things for good, that public-service lawyers can have an effect on the world around you. I never imagined that twentyfour years later, I would stand in the same courtroom as the United States Attorney for the Northern District of Alabama and finish prosecuting the Sixteenth Street Baptist Church bombing cases,” says Jones.

In the early 1990’s, the FBI discreetly re-opened their investigation into the bombing, resulting in the unsealing of some 9,000 pieces of evidence previously gathered by the FBI and which had been unavailable to Bill Baxley. In May 2000, the FBI publicly announced their findings that the bombing had been committed by Chambliss, Cash, Blanton and

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Cherry. At the time of the announcement, Herman Cash was deceased; however, Blanton and Cherry were still alive. Both were arrested.

U.S. Attorney Doug Jones was the prosecutor.

The Blanton and Cherry trials took jurors on a journey through history. Some of the jurors had lived during the time of the bombing, while others had only learned about it in school. The prosecution used black-and-white video footage and photographs to walk jurors through the black-and-white world of 1960s Birmingham, a constant, albeit subtle, reminder throughout the trial of a once-segregated city.

The juries’ historical journey started in Birmingham in 1957, when Rev. Fred Shuttlesworth attempted to enroll his children in the all-white Phillips High School. He and his wife were met by an angry mob, about ten of whom proceeded to attack Rev. Shuttlesworth in front of the school, all of which was captured on film. Witnesses identified one of the attackers as Bobby Frank Cherry, then a near-thirty year old Ku Klux Klan member who resorted to violence to stop integration. Jurors then learned through photographs and testimony that 1963 and the months leading up to the bombing were pivotal times in Birmingham.

The Blanton jury heard evidence of the defendant’s hatred for blacks and his membership in the KKK. Tapes were played of conversations between Blanton and an informant in which he joked about “bombing my next church.” Blanton and Chambliss were identified as holding some type of satchel next to the steps of the church in the weeks leading up to the bombing. Finally, the jury heard Blanton himself, on tape, admitting to being part of the meetings where the bomb was planned and made.

In the Cherry trial, there were witnesses, including an ex-wife, a granddaughter, and a former co-worker, who gave compelling testimony about his admissions to them over the years.

In both trials, the prosecution’s case concluded with their most powerful witness – Sarah Collins Rudolph, the lone survivor of the bombing. She testified about going into the ladies lounge. She stated that, as she went to wash her hands, she turned around and saw Addie Mae tying the sash of Denise’s new dress. The explosion then trapped her beneath the rubble, unable to move and see.

While testifying on the witness stand, Jones asked what happened after the explosion. “I called out for my sister…. Addie, Addie, Addie,” she said, her words echoing in the courtroom.

“Did she answer you back?” “No,” she said softly.

“Did you ever see her alive again?” “No,” she said as she wiped back tears. The prosecution rested.

On May 1, 2001, the jury convicted Thomas Edward Blanton, Jr. of murder for his role in the bombing. A year later, on May 22, 2002, another Birmingham jury convicted Bobby Frank Cherry, who was the last surviving suspect in the crime.

Reflecting on the cases, Doug Jones says, ““It is impossible to express the emotion felt by the prosecution team and the satisfaction gained from being a part of these cases. I have said many times that I wish every lawyer, at least once, could work on a case that meaningful to so many people. The Blanton and Cherry cases remind us that we as lawyers work in a service profession.”

The Birmingham bombing holds a special place in civil rights history because of the randomness of its violence, the sacredness of its target, and the innocence of its victims. Because of the work of investigators and the prosecution team led by Doug Jones, the killers of four innocent little girls were brought to justice.

Doug Jones reflects, “Our job is to seek justice for our clients no matter what the obstacles or delay. Justice delayed does not have to mean justice denied.”

We will welcome Former U.S. Attorney Doug Jones as the keynote speaker at the KBA’s Annual Supreme Court dinner on September 7. You will not want to miss this very special evening.

DICTA

August 2016

In This Issue

Officers of the Knoxville Bar Association

Cover Story

August 2016

16 Breaches? We Don’t

Need No Stinking Breaches!

Critical Focus President Wayne R. Kramer

President Elect Amanda M. Busby

Treasurer Keith H. Burroughs

Immediate Past President Tasha C. Blakney

Secretary Wynne du Mariau Caffey-Knight

KBA Board of Governors Dwight Aarons E. Michael Brezina III S. Dawn Coppock Lisa J. Hall Dana C. Holloway

Rachel P. Hurt Carrie S. O’Rear M. Samantha Parris Cheryl G. Rice Keith D. Stewart

Hon. Steven W. Sword Taylor A. Williams John E. Winters

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Around the Bar

Pursuing Justice and Promoting the Public Good

President’s Message

The Power of Language

Judicial News

Profile: Justice Roger Page

Practice Tips

10 Tips For A Successful Mediation

The Knoxville Bar Association Staff

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Legal Update

Dedmon V. Steelman

Practice Tips II

An Attempt to Level the Playing Field?

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Marsha S. Wilson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

Lacey Dillon Programs Administrator

Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org

Tracy Chain LRIS Administrator

Brittany Headrick LRIS Assistant

Volume 43, Issue 7

Dicta

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 Marsha Wilson (522-6522).

Dicta subscriptions are available for $25 per year (11 issues) for non-KBA members.

August 2016

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Editor

J. Nicholas Arning, Jr. Cathy Shuck Chris W. McCarty Lee Nutini

Heidi A. Barcus Melissa B. Carrasco Casey S. Carrigan Kathryn St. Clair Ellis Elizabeth B. Ford Mark S. Graham Rachel P. Hurt Joseph G. Jarret F. Regina Koho David E. Long

Matthew R. Lyon Christina F. Magrans Jeffrey T. Malotte Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Melissa C. Reinders James K. Scott Ann C. Short

Managing Editor Marsha Wilson

KBA Executive Director

DICTA

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Management Counsel: Law Office 101

Your Employee Wellness Plans May Need a Check-Up

Schooled in Ethics

The Appearance of Impropriety

Conventional Wisdom 6

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15

19

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Hello My Name Is

LaKenya Middlebrook

Outside My Office Window

A Lifetime of Achievement

Tempus Fugit - Time Flies

The Vision to See

Well Read

The Inequality Equalizer

Long Winded

All the Way

Lawyer Hobbies

Kevin Teffeteller: Acting the Part

Bill & Phil’s Gadget of the Month

Battle of the Pros: iPad Pro 12.9 v. iPad Pro 9.7

Guilty Pleasures

Finding Adventure in the Great Outdoors

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Legal Mythbreakers

Just Another Saturday Night in Dodge City

Common Ground 4 18 18 18 27 29 30 31

Section Notices/Event Calendar Barrister Bullets Word Play Legally Weird Ask McLawyer Bench & Bar In the News Pro Bono Project Last Word

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event

EVENT CALENDAR & SECTION NOTICES

Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current.

Alternative Dispute Resolution Section The ADR Section has CLE programs planned for the fall of 2016. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720).

Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel 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. The Section is planning “power hours” for Pro Bono Week, October 23 – 29, 2016! If you would like to help in planning this event and/or are willing to commit time during Pro Bono Week, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123).

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Section The Government & Public Service 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 would like further information on the section, please contact Leah McClanahan (545-4260) or Daniel Sanders (215-2327).

Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Joanie Stewart (215-2515).

Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on September 14, 2016 at Calhoun’s on the River. The featured speaker with be Tim Priest who will discuss the upcoming Vols football season. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307.

Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).

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calendar

August

n 6 Saturday Bar n 9 Juvenile Court CLE n 9 Professionalism Committee n10 Barristers Monthly Meeting n 11 Lunch & Learn n 11 Judicial Committee n 15 Interprofessional Relations Committee n 15 Diversity in the Profession Committee n 15 Barristers Access to Justice Committee n 16 Summer Fun CLE n 17 Board of Governors Meeting n 18 In Chambers CLE n 18 Veterans Law CLE n 20 Saturday Bar n 23 Membership Services Committee n 24 KBA/Barristers Happy Hour n 25 Corporate Counsel CLE n 25 Barristers Volunteer Breakfast

September n 6 Access to Justice Committee n 7 Veterans Monthly Legal Clinic n 7 Supreme Court Dinner n 8 Lunch & Learn n 13 Professionalism Committee n 14 Senior Section n 14 Barristers Meeting n 17 Saturday Bar n 17 KBA Tailgate n 19 Interprofessional Relations Committee n 19 Diversity in the Profession Committee n 19 Barristers Access to Justice Committee n 27 CLE Committee n 29 Barristers Volunteer Breakfast

Plan Now to Attend the Annual Supreme Court Dinner

on September 7, 2016

August 2016

PRESIDENT’S MESSAGE By: Wayne R. Kramer Kramer Rayson LLP

THE POWER OF LANGUAGE

While I suspect that the language we speak and the words we use have always been important, the power and impact of our words have, in my view, never been more significant than in the early part of the twentyfirst century. We communicate faster and our words reach more people than has ever before been the case. Email, Instagram, Twitter, Facebook and text messaging are a part of daily life. Letters we used to write to one person and received days after they were written have become blast emails received and forwarded by untold numbers of people. Wellthought-out sentences have been replaced by 140 characters filled with abbreviations and symbols to the point of almost a different language.

There is a tendency to hit the “send button” before we think and to email, text or tweet rather than call or actually meet someone face to face.

Where it all goes or how it will evolve is impossible to predict.

But the speed and the broad impact our words have today render our language, what we say, and how we say it extremely critical. As we move into the heat of late summer and the early stages of what will no doubt be a very contentious presidential campaign, it strikes me that reflection upon what we say, when we say it and how we say it is worthy of our time. Indeed, I would suggest that there is no other profession more in tune with the importance of words than those who spend their time with the law and legal issues. One word misplaced, left out, accidently included or even spoken with a particular inflection, can change everything. It can affect the outcome of litigation, the interpretation of a statute, the meaning of a contract, lease or Will. More importantly, it can either enhance or destroy relationships with clients, colleagues, friends or family. We must be aware of the words we use, with whom we use them, when we use them, and the desired result.

As with most matters, taken to an extreme, sensitivity about language can be counter-productive, but make no mistake about it, as with almost all things, there is an evolution in language about which we must be aware and with which we must be sensitive. That is our world in 2016. Whether it is a matter of gender, race, religious belief or sexual preference, the words we use to describe or address any issue or even to tell a story, send a signal and can either unite or divide us as human beings. While the term “political correctness” has fallen somewhat into disfavor for some in recent years (perhaps because the term is overused), the underlying concepts as it relates to language are nevertheless important. How we refer to our friends, neighbors, family, colleagues and even our enemies paints a picture and creates a dynamic that can have a long-lasting impact either in a positive way or by creating damaging scars that are slow to heal.

For those of us who are in my station in life (baby boomers), it is not hard to recall many terms used to describe people, places and things which were generally accepted in the 1950s and 1960s which are inappropriate or otherwise simply out of date today. “Miss” and “Mrs.” have largely been replaced by “Ms.” Females were “girls” not “women.”

A “cell” was a “Jail.” A “cloud” was something white and puffy in the sky, not internet storage. A “web” was related to spiders, not computers.

“Spinster” and “Old Maid” were common parlance. Indeed, there is a laundry list of words used to describe race, gender, and age accepted in August 2016

the past which are simply no longer appropriate. And rightly so. They created stereotypes and stigmas that were counterproductive and often demeaning in ways we failed to recognize.

No doubt, language acceptable and understood today will become either unacceptable or outdated in the years ahead. To make light of the importance of words is to ignore the reality that we now live in a diverse, evolving culture with many perspectives, communicating with speed in an expansive way like no other time. Although a particular word or phrase may not be offensive to either you or to me, it certainly may be to others, just as language used by others may be offensive to you and me. And modern vocabulary in 2016 will likely be antiquated in 2050.

As lawyers, we fret over every word like no other group. In a certain way, we are more obsessed with language than anyone. That is why we, of all people, must think before we write, pause before we speak and reflect before we rant. If we do that, we will be better lawyers and better individuals. Our communities will be better places in which to live and our respect for, and feelings about, each other will take us to new heights.

In the end, the recognition of the importance of the words we use and the language we speak merely recognizes that we are all in this together.

And that is a good thing.

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HELLO MY NAME IS

. . .

L A K E N YA M I D D L E B R O O K

By: Katie Ogle Haynes Meek & Summers

When one first meets LaKenya Middlebrook, it’s impossible not to feel calm and at ease. It also quickly becomes evident that the family lawyer undoubtedly conveys the same mindful demeanor to her clients among even the most chaotic of circumstances. LaKenya practices law that involves highly charged emotional situations involving dependency and neglect and child custody issues, and notes that we as attorneys need to be ever cognizant that law and policy directly affect people’s lives, both positively and negatively.

A graduate of the University of Kentucky with a degree in history, she credits her undergraduate background for significant preparation for her career as an attorney. “There was a lot of focus on policy for me – how it was developed, what influences its development, as well as considering the totality of the circumstances to ask questions of ‘how’ and ‘why’ before coming to a rash decision on an issue.”

While LaKenya is passionate about legal issues affecting her clients, and devotes many hours of her day advocating for them, she also finds time to give back to her community through involvement in several charitable organizations. Among the groups to which she belongs, LaKenya serves as the Chair of the Board of Directors for Girl Talk, Inc., a Knoxvillebased development and mentoring program. Through Girl Talk, LaKenya has mentored young women to feel ready for college and the career world, and gain valuable leadership skills through her experiences.

She also serves as the community schools mentor at Sarah Moore Green Elementary School.

In addition to her significant involvement with Girl Talk, Inc.,

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LaKenya is a member of the CAC Community Leadership Class of 2016, active in volunteering with the United Way, and is also part of the African-American Outreach/Faith Outreach efforts for the Bernie 2016 campaign. LaKenya’s community involvement isn’t a recent acquisition, either. In law school, she managed to balance involvement in the Black Law Students Association, first as their secretary and eventually as president, with her roles of young adult ministry leader, youth dance ministry coordinator, and academic tutoring coordinator at her church. She credits the importance of remaining connected to her community passions and the things and people that keep her grounded as motivation for her ability to manage all of these titles.

In her spare time, she is a self-described “BIG sports fan,” and even though she is a Kentucky alumna, the Knoxville native supports her Big Orange Tennessee football roots. However, when basketball season rolls around, LaKenya is loyal to the Wildcats.

Much of LaKenya’s legal practice is presently devoted to family law, but she would like to expand into other areas affecting social change on both a local and national scale. “I would eventually like to become more involved in policy assessment and development,” says the local attorney. The areas of early education, social justice, voter access, and campaign finance are some that she specifically feels would be of interest to her.

Regardless of her career path, LaKenya is certainly making her mark here in Knoxville, and we appreciate her involvement with the Knoxville Bar Association.

DICTA

August 2016

JUDICIAL NEWS By: Broderick Young Arnett Draper & Hagood

JUSTICE ROGER PAGE

On February 22, 2016, Justice Roger Page became the first Justice to ever be confirmed to the Tennessee Supreme Court by the Tennessee General Assembly. Two months later, Justice Page’s swearing-in ceremony was conducted in the small, West Tennessee town of Mifflin.1 This choice was not only a reflection of where Justice Page began in life, but in many ways, where he has always been. I recently had an opportunity to speak with Justice Page about his journey from Mifflin to our Court of last resort, his upbringing, and his interests outside of the law.

Justice Page grew up in Mifflin, in Chester County, Tennessee. He began his education in a one-room school, consisting of eight grades, thirteen students, one teacher, and no indoor plumbing. He attended Chester County High School and attended college at UT Martin. UT Martin had a pre-pharmacy program which, depending on academic achievement, allowed a student to begin pharmacy school prior to completing an undergraduate degree. Accordingly, Justice Page attended two years at UT Martin, and three years at the University of Tennessee College of Pharmacy.

Midway through pharmacy school, a pharmacy law class caused him to consider dropping out of pharmacy school and going to law school instead. Some common sense advice from the Dean of the Pharmacy School convinced him to complete his degree and use his pharmacy practice to finance his legal education. He followed this advice and graduated with what was then a Bachelor of Science in Pharmacy in 1978.

After a few years of pharmacy practice, he was able to save up enough money to start law school at the University of Memphis in 1981 and graduated 4th in his class in 1984. He then served as a law clerk for Judge Julia Smith Gibbons who was then with the United States District Court for the Western District of Tennessee. Judge Gibbons educated him about how to be a lawyer by encouraging him to observe skilled practitioners in her court, the first of which being Leo Bearman, Jr.

Upon completing his clerkship, he accepted a job at a prestigious Atlanta law firm, then ustice Page known as Peterson, Young, Self compared private & Asselin. While he very much practice to being a enjoyed his work at the firm, it

judge, “it’s like being wasn’t long before he became homesick for West Tennessee and a general practitioner returned to Jackson, Tennessee but you can’t turn down to work with the firm of Holmes, any cases. I would finish Rich, Sigler & Page. It was a a murder case one week general practice firm, engaging in real estate, bankruptcy, personal and start a med-mal case injury, workers’ compensation, the following week.” estate work, and the occasional criminal appointment, as at that time Madison County did not have a public defender’s office. While he was fond of his practice, he nevertheless decided to accept an opportunity to join the state attorney general’s office in 1991, where he worked until becoming elected Circuit

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Court Judge for Madison, Chester, and Henderson Counties in 1998.

Early in his tenure on the Circuit, he tried primarily civil cases, but overtime his trial ratio skewed more towards criminal cases. Justice Page compared private practice to being a judge, “it’s like being a general practitioner but you can’t turn down any cases. I would finish a murder case one week and start a med-mal case the following week.”

Justice Page was appointed to the Tennessee Court of Criminal Appeals in 2011. While he enjoyed his time on the Court of Criminal Appeals, he admits to having missed the civil side of the law and appreciates that aspect of being on the Supreme Court. He is grateful for the welcome he has received from his fellow Justices and is also excited by Justice Sharon Lee’s new approach to the Court’s hearing schedule of cases. When enough cases build up in a given location, then Justice Lee will confer with the other Justices and convene in that location to hear them, rather than wait for the next scheduled term.

Justice Page’s family has some understanding of the magnitude of his new position, as his wife is Davidson County Chancellor Carol McCoy, and both of his sons are lawyers. But perhaps Justice Page’s most passionate interest, outside of his family and the law, is Major League Baseball. Every year he makes an effort to see his longtime favorite San Francisco Giants play at AT&T Park, and a bucket list item of his is to eventually see a game in every Major League stadium.

He is also a life-long, avid University of Tennessee Volunteers fan.

Despite his ascension through the Courts, Justice Page remains based in Jackson, Tennessee. His office now is the same office he worked out of as an appellate judge and only about a thousand yards from where his office was when he began his judicial career as a Circuit Court Judge for Madison, Chester and Henderson Counties.

Let your heart not be troubled grammarians, if you don’t know West Tennessee is a proper noun, you don’t really know Tennessee.

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OUTSIDE MY OFFICE WINDOW By: Robert E. Pryor, Pryor, Priest & Harber robertpryorjr.blogspot.com

Jr.

A LIFETIME OF ACHIEVEMENT

“The best trial lawyer I’ve ever seen.”

That is what the man told me about my father on a June day in 1985. I was 16 years old and extremely disappointed in my decision to drive to the Hyatt Regency where the Tennessee Trial Lawyer Association Annual Convention was in full bloom. I’ve always loved being around my father, but when you are a teenager with keys to a car on a summer day there are better options. Way better. He was presenting a seminar that day, and I believe he forgot a note or a briefcase and had me bring it to him. He then suggested I “hang around” a bit. The lawyer made a direct path to me to deliver his opinion of my father after he found out I was “Bob Pryor’s Boy.” It became a theme as my younger siblings and I aged through high school and college. We would often talk to each other about someone who’d sought us out, people who went out of their way to tell us what a great lawyer our father was. We had no appreciation for the compliment. We just always thought he was the best.

He often took me to the office with him when I was a little boy.

The Law Offices of Gilreath, Pryor & Rowland had a full-sized plastic skeleton in the library and bottled Coca-Cola in the fridge, so it was a pretty neat place to hang out for a kid. I would sit in the chair in front of his desk and think he was the greatest lawyer ever born and the best Dad a kid could have. Maybe it was because he failed to monitor my sugar and caffeine intake. I was young. We make these things up in our head as children. Sometimes we are right and sometimes our childish innocence and idealism are crushed somewhere along the way. It turns out that maybe I was right, at least on this subject.

I guess we all want to or have to be like our fathers in some way.

Genetics cast their mark with exacting certainty, sometimes to our benefit, sometimes to our detriment. Unfortunately, I inherited his lack of speed and vertical jump, gifts that kept me from my rightful place among NBA greats, but forced me to develop an interest in representing people. I focused on and enjoyed watching him speak publicly, try cases or tell jokes. I laugh when people say I walk like him, talk like him, and have similar mannerisms. I’ve always marveled at him in a public setting.

I tried to incorporate his voice inflection, his hand gestures, and his style of speech, but my eventual ascension to the profession had nothing to do with genetics or a desire to be a “great” trial lawyer. I just wanted to

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hang out with my Dad every day. And, I have. For twenty years he has been my mentor, friend, and law partner. He has taught many lawyers, including me and those in our firm, the skills, tactics and methods of a litigator. The bar is set high. As a lawyer, I’ve realized that his standing in the courtroom and among his peers isn’t because of dramatic pauses or a well-placed voir dire question. It has little to do with leading questions on cross or a perfectly drafted interrogatory. It is because of his compassion for people and his ability to communicate with them. He has a heart for all people, especially those that have been wronged.

On June 16th I was given the honor of presenting him with the award for Lifetime Achievement at the TTLA Annual Convention in Destin, Florida. My mother, Norma, his wife of 51 years, was present, as were all three of his children. I’m the oldest of the three. I had great trepidation in writing this piece to praise my father. Who needs a sappy piece about a father by a son? But it is a rare award and something our Bar Association should not only know about, but take pride in. He is one of us.

After my introduction he made his way to the podium and leaned over to speak into the microphone. I think microphones were created for him. His remarks were funny, inspiring, and tinged with humility and grace. I wish I had a transcript. His words would inspire us all to recommit to the law, to continue learning, and to be passionate about what we do. You would be convinced that ours is still an honorable profession, that there is art in oratory, and that the legacy of true achievement is family, friends and the respect of your peers. You would strive to mentor others and humbly seek the advice and teachings of those you respect in the profession. You might even stop by Pryor, Priest, Harber, Floyd & Coffey and share a moment with him, ask his opinion on a case, or just have a good laugh. His door has always been open to anyone who wanted to walk through it, and at 73 years of age you will still find him there, daily, doing what he loves. Should you walk through it, you might find me, “Bob Pryor’s Boy,” now with graying hair, sitting across the desk from him, still believing he is the greatest trial lawyer I’ve ever seen and the best Dad a kid could have. Thank you for this indulgence.

PRACTICE TIPS By: Sarah C. Easter McKellar & Easter

Laura Metcalf

Law Office of Laura E. Metcalf Founders of Tennessee Mediation School, LLC

10 TIPS FOR A SUCCESSFUL MEDIATION

“The supreme art of war is to subdue the enemy without fighting.”

“The greatest victory is that which requires no battle.”

Theses two quotes are from The Art of War, written by Sun Tzu, a well-known military strategist and philosopher born circa 544 BC. To those familiar with his works, he is also a hero of alpha males and females worldwide. However, these are also basic tenets of successful alternative dispute resolution. Throw in, “pigs get fat, and hogs get slaughtered,” and you are ready to coach your litigants to a successful settlement! All kidding aside, when approaching mediation in the family or general civil context, here are ten easy steps for the mediator to use in crafting a durable and mutually beneficial agreement.

1. Ensure Investment in the Process Remind parties this is their money, time and process. When someone sits across from you with their arms crossed, refusing eye contact, and huffing and puffing like an angry bear, take a minute to CONNECT. Ask questions, or get the backstory on the table immediately. Ask what they need to be more comfortable with the process. Establish trust by building rapport. That may be accomplished by a variety of means, from use of humor to anecdotal asides that make you and the process more approachable. Remind the litigants that you are just a facilitator.

2. Focus on Decision-Making Authority Although you need to be careful not to undermine the attorneys, empowering litigants is key. Remind them that they are the ones who have to live with these decisions and that is why the power of the final say has been vested with them. The attorney is there to give the litigant legal advice and counsel, but often times attorneys can overlook practicalities in favor of technical “wins” or strategic positioning. Sure, Sunday night exchanges of the kids may mean fewer overnights, but if they drop-off at school on Monday morning instead, there may be less opportunity for discord and stress if the parties aren’t interacting in a positive way. Also remember that there is value to having closure, and only the litigant can decide when the balance is tipped between achieving a goal/position and ending or avoiding protracted litigation.

3. Defuse Emotions Use your sense of humor. Don’t be afraid to be a storyteller – this can distract from powerful emotions and serve to refocus attention.

After a party gives me all the terrible qualities their spouse possesses, I like to throw out, “then it sounds like you should get divorced!”

People get very emotional about their children and frequently have exaggerated fears for the children’s well being in the other spouse’s care. Remind them of all the resources available to help them transition to a cooperative, two-household family.

4. Focus on Litigant’s Goals There is frequently a point in the mediation when a party feels they have “given too much” or the other side is “getting everything he wants.” That is categorically untrue in most situations, but you may want to step back and refocus on the actual goal, or “endgame” for that party. If a working parenting plan is the most important goal, August 2016

then compromising on collaterals should be less important. You may have to validate a seemingly irrelevant issue or fear in order to focus on big picture ideas or settlements.

5. Ascertain Availability of Necessary Information Depending on where the parties are in the discovery process, there may be documents necessary for settlement that have not been obtained. It is generally fairly easy to get retirement account updates or heath insurance figures during the mediation. However, if a critical document is unavailable, you can try to resolve as many other issues that you can, and then reconvene. You can even set deadlines for information exchange within the interim mediated agreement.

6. Build a Deal Start immediately seeking areas of agreement and simultaneously determine the areas that will be the hardest to resolve and judiciously find ways to weave a compromise. Durable agreements require maneuvering the moving parts into a working order. Pin down “concerns” into plans, qualifiers and conditions. This is guaranteed to move the agreement forward.

7. Brainstorm Constantly throw out suggestions. Frequently, parties may have an idea for settlement that is completely unfair or lopsided!

Brainstorming with the parties is an excellent way to come up with possible solutions that the parties actually like. Throwing out several structures can serve to get people in the mindset to compromise.

Even bad ideas get the wheels turning.

8. Persuade, But Remain Neutral A good mediator gets the clients to settle their cases by getting them to THINK about their case, not concentrating on how they FEEL about the case. Be persuasive with the litigants about the value of settlement. Walk them through the court process, and the financial and emotional costs of litigation. You can persuade parties to think rationally without pushing a specific agenda, position, or structure.

9. Be Patient It is very fulfilling as a mediator when at the end of a session, an attorney says, “I can’t believe it! I didn’t think there was any way to get this settled!” That is uniformly a result of good brainstorming and patience. Litigants and attorneys will throw up roadblocks, whether intentional or not. Don’t react emotionally – focus on the structure and repeatedly return to the pro/con discussion to regain momentum.

10. Memorialize the Agreement Whether it is a bare-bones, bullet point agreement, or a full marital dissolution agreement and parenting plan, get it in writing! Yes, everyone is tired, but an unsigned agreement rarely gets worked out the next day. People talk to their family and friends and reconsider (allowing those pesky emotions to take back over) and attorneys have generally moved on to the next fire burning on their desk. Plus, memories of important details get lost. An agreement on even a few simple issues and a “return to mediation” provision can provide significant clarity in moving forward.

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L E G A L U P DAT E By: Hannah S. Lowe Trammell, Adkins & Ward, P.C.

DEDMON V. STEELMAN: THE TENNESSEE COURT OF APPEALS ADDRESSES WHETHER THE RATIONALE OF WEST V. SHELBY COUNTY HEALTHCARE CORP. APPLIES TO PERSONAL INJURY LITIGATION

The Tennessee Court of Appeals recently released Dedmon v.

Steelman, which addressed the issue of whether the Tennessee Supreme Court’s decision in West v. Shelby County Healthcare Corp. is limited to the Hospital Lien Act, or whether it also applies to personal injury actions.1 The opinion, authored by Brandon Gibson, with Andy Bennett joining, and Joe Riley concurring, was much anticipated by those of us who practice in personal injury litigation, with amicus curiae briefs having been filed on behalf of both the Tennessee Association for Justice and the Tennessee Defense Lawyers Association.

Jean and Fred Dedmon (“Plaintiffs”) sued John Cook (“Defendant”) for damages for injuries arising out of an automobile accident.2 They alleged Mrs. Deadman had incurred medical bills in the amount of $52,482.87, which were attached to the complaint.3 Defendant’s answer denied the medical bills were reasonable or necessary.4 Plaintiffs later deposed one of Mrs. Dedmon’s treating physicians, who testified the bills were reasonable and necessary.5

Relying upon the Tennessee Supreme Court’s reasoning from West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014), Defendants6 filed a motion in limine asking the court to exclude “evidence of unreasonable medical charges.”7 Defendants argued West defined the meaning of “reasonable” medical expenses, and the bills attached to the physician’s deposition should be excluded, with the amounts accepted by the medical providers in satisfaction of the bills deemed the “reasonable” medical expenses instead.8 Defendants argued Plaintiffs should be prevented from introducing proof of any medical expenses in excess of the amount accepted by Mrs. Dedmon’s medical providers as payment in full, which reduced the medical bills actually incurred to $18,255.42.9

Plaintiffs argued West was limited to the Tennessee Hospital Lien Act and did not define reasonableness of medical bills in personal injury cases.10 Plaintiffs argued extending West to personal injury litigation would violate the collateral source rule, and that they were permitted under Tennessee law to prove the reasonableness and necessity of their medical expenses through expert testimony, which they had done.11

The trial court granted Defendants’ motion and ordered that Plaintiffs be prevented from introducing evidence of “unreasonable medical charges.”12 Plaintiffs sought permission for an interlocutory appeal, which was granted by the trial court and subsequently accepted by the Tennessee Court of Appeals.13 The sole issue on appeal was whether the Supreme Court’s decision in West is limited to the Hospital Lien Act, or whether it also applies to personal injury actions.14

On appeal, the court discussed existing Tennessee law on damages, noting that “an injured plaintiff may recover ‘reasonable and necessary medical expenses’ associated with the treatment of the injury.”15 An injured plaintiff has the burden of proving the medical expenses are necessary and reasonable through expert opinion testimony.16 Additionally, a plaintiff may rely upon certain presumptions by complying with Tennessee Code Annotated § 24-5-113(a) and (b).17

The court considered other jurisdictions, noting that “[i]n recent years, […] the issue of what constitutes a reasonable medical charge or expense has been the subject of increased litigation due to the increased involvement of governmental payors, the complexity of health care reimbursement provisions, financial pressures on hospitals, and the significance of medical expense recovery in personal injury litigation[,]” and that “[t]he ‘charge master’ or billed rate is vastly different than the amount actually paid by insurers.”18 California holds that an injured person may not recover an undiscounted sum stated on a provider’s

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bill that was never paid by or on behalf of the injured person.19 West Virginia holds that a plaintiff may recover the reasonable value of medical services necessarily required by the injury, not just those expenses actually incurred.20 Ohio takes a middle ground approach, permitting both the amount billed and the amount paid to be allowed into evidence to enable the jury to determine the reasonable value of medical services at either of those amounts or somewhere in between.21

The appellate court then examined the West decision.22 It noted that “Tennessee trial courts have reached opposite conclusions as to the impact of West on Tennessee tort law.”23 Considering both parties’ arguments, the Court of Appeals concluded that the Tennessee Supreme Court had not intended “for its holding in West, standing alone, to control all determinations of reasonableness with regard to medical expenses under Tennessee law.”24 The Court next considered Plaintiffs’ argument that Defendants are barred from introducing evidence of any discounted medical bills under Fye v. Kennedy,25 and ultimately concluded that Fye does not control the issue of whether the amount accepted by a medical provider bears on the reasonableness of the medical expense.26

The Court concluded that because a Tennessee plaintiff may introduce expert testimony regarding reasonableness and necessity of medical bills – and because Plaintiffs had done so in this case – Plaintiffs’ expert’s testimony was admissible and should not have been excluded; therefore, reversal was appropriate.27 However, the court further found that “existing law in this state also makes clear that Defendants are permitted to offer proof contradicting the reasonableness of the medical expenses” – provided the collateral source rule is not violated – which ultimately results in a hybrid approach whereby the jury may hear both the undiscounted and the discounted amounts.28 The Court closed by expressing the “hope that the Tennessee Supreme Court review the case and consider the excellent arguments presented by both the parties, the amicus curiae on appeal, and the concurring opinion.”29

The concurrence expresses “concerns relating to modern billing practices of medical providers and their effect upon present-day personal injury litigation.”30 Were it not for existing case law, Judge Riley would apply the West rationale to personal injury litigation, particularly because “so-called actual charges or non-discounted charges today are fictional and no longer represent reasonable charges.”31 Judge Riley did “not believe [the majority’s] hybrid method will prove workable[,]” but he concurred with the majority because the intermediate court is “bound to apply the long-standing existing case law.”32

It remains to be seen whether the Tennessee Supreme Court will respond to the Court of Appeals’ invitation to review this case and decide whether West applies to personal injury actions. For now, the hybrid approach applies in Tennessee.

1 Dedmon v. Steelman, No. W2015-01462-COA-R9-CV, 2016 Tenn. App. LEXIS 386 (June 2, 2016).

2 Id. at *2.

3 Id. 4 Id. 5 Id. at *3.

6 Mr. Cook died during the litigation, and the plaintiff filed an amended complaint naming as defendants the representatives of Mr. Cook’s estate, Debbie Steelman and Danny Cates, Sr. Therefore, I refer to “Defendants” through the remainder of this article.

7 Id. 8 Id. at *3-*4.

9 Id. at *4.

(Continued on Page 11)

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Photo Ops

Fireflies 2016 KBA members and their guests visited Elkmont on June 11th to see the synchronous fireflies.

Legal Update

(Continued from page 10)

Id. at *5.

Id. at *5-*6.

12 Id. at *6.

13 Id. 14 Id. 15 Id. at *9 (citing Stricklan v. Patterson, No. E2008-00203-COA-R3-CV, 2008 Tenn. App. LEXIS 647 (Tenn. Ct. App. 2008); Roberts v. Davis, No. M2000-01974-COA-R3-CV, 2001 Tenn. App. LEXIS 598 (Tenn. Ct. App. 2001)).

16 Id. at *9.

17 Id. at *10-*11. See Tennessee Code Annotated § 24-5-113(a) and (b).

18 Id. at *11-*12 & n.5.

19 See Howell v. Hamilton Meats & Provisions, Inc., 257 P.3d 1130, 1133 (Cal. 2011).

20 See Kenney v. Liston, 760 S.E.2d 434, 446 (W. Va. 2014).

21 See Robinson v. Bates, 857 N.E.2d 1195, 1200 (Ohio 2006).

22 Id. at *14-*17. In West, the hospital had received payment from the injured person’s health insurer, but also sought to enforce a hospital lien for the full amount of the unadjusted bill. The Tennessee Supreme Court held that the hospital’s non-discounted 10 11

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charges reflected in the liens should not be considered reasonable charges for the purpose of the Hospital Lien Act for two reasons: (1) the amount of the charges is unreasonable because it does not reflect what is actually being paid in the market place; and (2) the hospital had voluntarily entered into contracts with the various third party payors to accept less than the non-discounted charges. West, 459 S.W.3d 33, at 44-45.

23 Dedmon, 2016 Tenn. App. LEXIS 386 at *23-24. The parties submitted in their briefs four opinions finding that the West reasoning applied only within the Hospital Lien Act and four others that found that it applied to personal injury litigation.

24 Id. at *24.

25 See Fye v. Kennedy, 991 S.W.2d 754 (Tenn. Ct. App. 1998).

26 Id. at *27.

27 Id. at *26-*27.

28 Id. at *30-*31.

29 Id. at *31.

30 Id. at *33-*34.

31 Id. at *34 and 38. See West, 459 S.W.3d at 44-45.

32 Id. at *40.

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PRACTICE TIPS II By: John P. Dreiser Law Offices of Tony Farmer and John Dreiser

AN ATTEMPT TO LEVEL THE PLAYING FIELD? A RECENT BILL ALLOWING AN AWARD OF ATTORNEY FEES ON TEMPORARY WORKERS’ COMPENSATION ISSUES.

In 2013, Governor Bill Haslam signed into law the Tennessee Workers’ Compensation Reform Act of 2013. Its provisions applied to accidental injuries occurring on or after July 1, 2014. As noted on one workers’ compensation insurance website, “[t]his is the most significant, far-reaching revision of the workers compensation law in Tennessee since the original act was passed in 1919.”1 Some would say that is even a bit of an understatement! A very real consequence of the Reform Act, whether intentional or not, is that injured workers have been unable to find competent legal representation. Though I do not have statistics regarding the percentage of non-represented employees appearing before the Tennessee Bureau of Workers’ Compensation (“TBWC”), I am confident that my anecdotal hunch is not overestimated.

Why did this occur? The Reform Act of 2013 had several provisions that singly and in combination prevented attorneys from taking most “new law” workers’ compensation cases. Some of the provisions include: • • • • •

(d)(1) In addition to attorneys fees provided for in the section, the court of workers’ compensation claims may award reasonable attorneys’ fees and reasonable costs, including reasonable and necessary court reporter expenses and expert witness fees, for depositions and trials incurred when the employer: (A) Fails to furnish appropriate medical, surgical, and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus to an employee provided for in a settlement, expedited hearing order, compensation hearing order, or judgment under this chapter; or (B) Wrongfully denies a claim by filing a timely notice of denial, or fails to timely initiate any of the benefits to which the employee is entitled under this chapter, including medical benefits under § 50-6-204 or temporary or permanent disability benefits under § 50-6-207, if the workers’ compensation judge makes a finding that such benefits were owed at an expedited hearing or compensation hearing.

More restrictive definition of accidental injuries, including repetitive trauma injuries; Treating physician has been given a very special status in terms of opinions on causation, impairment rating, and restrictions; The notion of vocational disability has almost disappeared completely; For return to work cases, there is almost no question regarding the amount of money a claimant or injured worker is entitled to; and The removal of liberal construction of the statute in favor of the injured employee.

All of these factors combine to decrease or eliminate available workers’ compensation benefits to an injured employee. Without a predictable and large enough pool of possible benefits, attorneys cannot represent most injured employees. Historically, attorneys could fight on behalf of injured workers for denied benefits (whether temporary or permanent) because the potential resulting settlement or verdict would be large enough that a 20% attorney fee could justify the necessary work on the entire claim. However, under the new law it is nearly impossible for an attorney to recover a sufficient fee on the backend of a successful case to justify all of the work involved. The result has been obvious and drastic. The regulatory scheme requires that all corporations be represented by counsel.2 Most denied claims involve an unrepresented injured worker versus an experienced attorney representing the employer/ insurance company. The playing field has been anything but level.

The crisis of unrepresented injured workers being led to slaughter before the TBWC has not gone completely unnoticed. Enter SB No. 2582/HB 2416. Section 2, dealing with T.C.A. § 50-6-226, states in pertinent part:

SECTION 2. T.C.A. § 50-6-226(d), is amended by deleting the subsection in its entirety and substituting instead

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the following:

(2) Subdivision (d)(1)(B) shall apply to injuries that occur on or after July 1, 2016, but shall not apply to injuries that occur after June 30, 2018.

Will this amendment help level the playing field? Important questions remain about how effective the statute change will be in incentivizing competent counsel to wade back in the waters and represent injured workers. First and foremost is the requirement that the workers’ compensation judge find that there was a wrongful denial of benefits.

There is no guidance as to what action or inaction defines a wrongful denial of benefits. Is this simply benefits were denied and the TBWC determines the benefits were owed or is an element of bad faith required?

It will take a number of cases to flesh out the statutory meaning of SB No. 2582/HB 2416 since the plain wording of the statute is arguably ambiguous.

There is also no guidance as to the amount of attorney fees that can or will be awarded by the TBWC. Will rates be set by judicial discretion pursuant to Supreme Court guidance or by Administrative policies, rule, or regulation?

Lastly, the underlying fundamental changes discussed above that discouraged representation of injured workers are still present and may still prove to be too a high hurdle to overcome with this modest change.

My sincere hope is that the pendulum swing has slowed and might start to swing back so that the grand bargain of workers’ compensation now undermined will be honored and restored.

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MANAGEMENT COUNSEL: LAW OFFICE 101 By: Cathy Shuck Of Counsel, Wimberly Lawson Wright Daves & Jones, PLLC

YOUR EMPLOYEE WELLNESS PLANS MAY NEED A CHECK-UP

What could be more wholesome and straightforward than an “employee wellness plan”? We all want to be “well”; what is the harm in our employers helping us? In the view of the EEOC, the IRS, and the federal Departments of Labor (DOL) and Health and Human Services (HHS), however, the road to employee wellness is fraught with peril.

The agencies have issued hundreds of pages of regulations and guidance to keep wellness plans from running afoul of a plethora of laws, from the ADA to the ACA, from GINA to ERISA to HIPAA.1 It’s enough to make a benefits manager chuck her employer-issued fitbit into a highcalorie alcoholic drink.

What’s a Wellness Plan Again?

A wellness plan is any employer-sponsored effort to help employees become more healthy. A wellness plan may or may not be attached to a group health plan. It can be as simple as offering discounted gym memberships or as complicated as requiring ongoing biometric monitoring.

For purposes of regulation, the world of wellness plans is divided into “participatory” wellness plans and “health-contingent” wellness plans. The key is whether the employee has to achieve something in order to get a reward, typically a discount on insurance premiums. If not, then the plan is fairly straightforward. If there is a reward involved, then the plan is subject to complex and sometimes contradictory regulations.

Participatory Wellness Plans

Generally, participatory plans either do not provide any type of “reward” or do not require an individual to satisfy any sort of health standard. These are the straightforward wellness plans. Examples include discounted gym memberships or free health education seminars.

Another example would be offering anyone who takes a voluntary health screening some sort of reward, such as a gift card or a t-shirt, without tying the reward to the outcome of the screening. In other words, everyone gets the reward, no matter how good or how bad their screening results are.

These types of wellness programs are subject to HIPAA’s nondiscrimination requirements, as amended by the ACA. They are also subject to confidentiality and voluntariness requirements in the EEOC’s GINA and ADA regulations. Generally, as long as the programs (1) are voluntary; (2) are reasonably designed to promote health or prevent disease; (3) protect participants’ health information; and (4) are available to all similarly-situated individuals regardless of health status, they pass muster. Additionally, if the wellness plan is offered in conjunction with a group health plan, any reward must be less than 30% of the value of selfonly coverage under the plan.

Health-Contingent Wellness Plans

Health-contingent plans are more complicated. These plans require an individual to satisfy a health-related goal or standard in order to obtain a reward under the plan. For example, participants might be required to take part in a regular walking program, participate in monthly health coaching sessions, complete a smoking-cessation class, or lower their cholesterol level.

For the last few years, HIPAA and ACA nondiscrimination rules have provided that health-contingent wellness plans are acceptable if: (1) the program is voluntary; (2) individuals have an opportunity to qualify for the reward at least once per year; (3) employees receive adequate notice of the program; (4) the reward does not exceed 30% of whatever tier of coverage the employee is enrolled in (up to 50% for tobacco programs); (5) the program is reasonably designed to promote health or prevent disease; and (6) the program is available to all similarly-situated employees.

The EEOC threw a wrench into the scheme with the issuance of its ADA and GINA regulations in May 2016, limiting the value of rewards in all cases to 30% of the value of self-only coverage. However, if there is an incentive for both an employee and a spouse to participate, each participant can be eligible for a reward of up to 30%.

Note that the ADA and GINA regulations only apply to wellness plans that require employees and/or dependents to disclose current or past health status or respond to disability-related inquiries or medical examinations. Therefore, if a wellness plan imposes a tobacco surcharge on health insurance coverage without requiring any type of nicotine testing or screening, the ADA and GINA are not implicated (because smoking status is not protected under either law). In those cases, the incentive may be up to 50% of the tier of coverage in which the employee is enrolled.

Assessing the Fitness of Your Wellness Plan

What started as a relatively simple idea for improving employee health has become quite complicated. If you offer any type of healthrelated incentives at your workplace, be sure to assess your program carefully in light of the various applicable regulations. Note that the rules applicable to wellness plans involving tobacco-related questionnaires, testing, or programs are particularly complex. The newest regulations are effective for Plan years beginning on or after January 1, 2017.

1 See 78 Fed. Reg. 33158 et seq. (June 3, 2013) for IRS, DOL, and HHS joint regulations implementing the Patient Protection and Affordable Care Act (ACA) amendments to the HIPAA and ERISA regulations applicable to wellness programs, and a discussion of those regulations and amendments. See 81 Fed. Reg. 31126 et seq. (May 17, 2016) for EEOC amendments to the Genetic Information Nondiscrimination Act (GINA) and Americans with Disabilities Act (ADA) regulations, addressing employer-sponsored wellness plans.

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 Cathy Shuck at 541-8835.

August 2016

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TEMPUS FUGIT – TIME FLIES By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

THE VISION TO SEE

A few centuries ago, Herculaneum was a bustling coastal town in southern Italy. In August, its population of around 4,000 residents was swollen with an influx of elites on holiday fleeing the heat of Rome.1 But, it was about to get a lot hotter.

On August 24, A.D. 79, the people of Herculaneum began to feel tremors, and within moments, saw their beloved Mount Vesuvius erupt in clouds of destructive gas, hot ash, and rock fragments. Herculaneum was about 4.5 miles north of the mountain, so, unlike Pompeii, it survived the initial eruptions. But, by the next day, the town succumbed to the searing ash and pyroclastic surges, and then was covered in layers of volcanic mud.2

Herculaneum lay hidden from sight for over a thousand years until it was re-discovered in 1709 and excavations began in the mid-1700’s.3 Although archeologists have uncovered all kinds of priceless artifacts, papyri, and paintings,4 one of the most fascinating is a mural of a person and a dog.5 But, this mural does not depict just another “boy and his dog” story. In the mural, the man is clearly blind, and the dog is acting as his guide.6

Fast forward to the early 1900’s where a German doctor, Dr. Gerhard Stalling, sought a way to provide independence and hope to the thousands of WWI veterans who lost their sight to poison gas.7 He opened the first guide dog school in 1916, and the idea started to grow.8

In 1927, American dog breeder, Dorothy Leib Harrison Wood Eustis, who herself was working to develop a strain of highly intelligent and loyal German Shepherds, visited a guide dog school in Germany.9 She was fascinated and wrote an article about it for the Saturday Evening Post.10 A young Tennessee man studying at Vanderbilt University heard about the article. His father read the article to him because he could not see – at least with his eyes. 11

Morris Frank picked up a pen and wrote a letter to Ms. Eustis to ask for more information.12 He said he wanted to bring guide dogs to the U.S. She invited him to visit her home in Switzerland where she was training police dogs. She thought she could train a guide dog, and he couldn’t think of a reason to say, “no.”

So, in 1928, Morris made the long journey to Switzerland, and that is where he met Buddy, a young, female German Shepherd.13 Here is how Frank described the meeting: As I put my hand down on Buddy, I knew that she was going to be my declaration of independence and give me back the freedom that I so long desired to go and come as I pleased, and that she also would be the pioneer of the guide dog movement in the United States for the blind men and women who neither wanted charity nor pity but wanted to live a normal life with normal people.14 Frank went on to found the Seeing Eye, an organization dedicated to “making the entire world accessible to people who are blind.”15 In 1931, The Seeing Eye relocated from Nashville, Tennessee to Morristown, New

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Jersey and is now the oldest existing guide dog school in the world.16 It is also a leader in research on canine genetics and disease control.17

Buddy was Frank’s companion and guide for the next 10 years. Her last act of service was making an airplane trip with Frank from Chicago to Newark. She lay patiently at his feet the entire flight and was so well-behaved that United Air Lines officially “grant[ed] to all Seeing Eye dogs the privilege of riding with their masters in the cabins of any of their regularly scheduled planes.”18 It was her last trip, but Buddy opened another door of independence both for Frank and for all of those who rely on companion animals.

After Buddy passed, she was one of the few dogs honored with an obituary in the New York Times. This selective group included Sergeant Stubby, the most decorated war dog in World War I, was one of the others.19 Buddy had earned her place as well.

What brought together a German doctor, an American dog breeder, and a Tennessee college student? Vision. The doctor saw a problem and thought of an idea to help. The dog breeder saw an idea and wrote an article. The college student saw an opportunity and wrote a letter. Each added hard work to the vision, and together, their vision and efforts have brought independence to thousands. It just goes to show that, from A.D. 79 to the present, people with vision still make a difference.

1 Natasha Sheldon, The Destruction of Herculaneum: Vesuvius Claimed More Than One Victim (Apr. 14, 2014), http://decodedpast.com/destruction-herculaneum-vesuviusclaimed-one-victim/7992.

2 Id. 3 Encyclopedia Britannica, Herculaneum, http://www.britannica.com/place/Herculaneum (last visited June 26, 2016) 4 Id. 5 Int’l Guide Dog Federation, History of Guide Dogs, http://www.igdf.org.uk/about-us/ facts-and-figures/history-of-guide-dogs (last visited June 26, 2016).

6 Id. 7 Guide Dogs, History of the International Guide Dog Movement, available at http://www. guidedogs.org.uk/aboutus/guide-dogs-organisation/history/#.V3BE4LsrKM8.

8 Id. 9 Encyclopedia Britannica, Dorothy Leib Harrison Wood Eustis, http://www.britannica.com/ biography/Dorothy-Leib-Harrison-Wood-Eustis (last visited June 26, 2016).

10 Id. 11 TN History for Kids, Morris Frank (and Buddy), http://www.tnhistoryforkids.org/people/ morris_frank (last visited June 26, 2016).

12 Mr. Frank’s letter is available here: http://www.seeingeye.org/assets/pdfs/history/ morris-franks-letter.pdf.

13 Id.; see also Encyclopedia Britannica, Dorothy Leib Harrison Wood Eustis.

14 Taken from the video, Morris Frank in his Own Words (Nov. 17, 2011), available at www. seeingeye.org.

15 The Seeing Eye, History, http://www.seeingeye.org/about-us/history. html?referrer=http://www.bing.com/search?FORM=U313DF&PC=U313&q=morris%20 frank%20and%20the%20seeing%20eye (last visited June 26, 2016) 16 Id. 17 Id. 18 Kate Kelly, Buddy the First Seeing Eye Dog (July 19, 2011), http://americacomesalive. com/2011/07/19/buddy-the-first-seeing-eye-dog/#.V3BTZrsrKM8 (last visited June 26, 2016).

19 Ann Bausum and David E. Sharpe, Sergeant Stubby: How a Stray Dog & His Best friend Helped Win World War I and Stole the Heart of a Nation (2014).

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BREACHES? WE DON’T NEED NO STINKING BREACHES! Legal Updates on Breach

Notification and Best Practices

Hacking and cybersecurity are no longer simply fodder for bad Angelina Jolie movies.

Major hacks/breaches happen thousands of times a day throughout this country and the world. In recent years, the focus of those hacks has moved away from credit cards and bank accounts to personal information (e.g., dates of birth, social security numbers, etc.).

Such information can allow a hacker to open new accounts, file fraudulent tax returns, and operate entirely as another “you.”

This means we are also seeing more attacks on the holders of such personal information, including hospitals, insurance companies and, unfortunately, law firms. As Keith Lee put it in a 2015 piece for Above The Law, “law firms are seen as soft, ripe targets for hackers.”1 So, the questions we should all be asking are: (1) how do we respond when breached; and (2) how do we prevent a breach in the first place?

The answer to our first question recently became more complicated due our friends in the Tennessee Legislature. For a number of years now, Tenn. Code Ann. § 47-18-2107 has been on the books. It outlined the procedures for informing citizens/customers/clients after a “breach of the security of the system.”

This meant the “unauthorized acquisition of unencrypted computerized data that materially compromises the security, confidentiality, or integrity of personal information maintained by the information holder.” Further, “[a]ny information holder shall disclose any breach of the security of the system, following discovery or notification of the breach in the security of the data, to any resident of Tennessee whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person.”

In 2016, however, the Tennessee Legislature – via Senate Bill 2005 and House Bill 1631 – passed a number of significant amendments to Tenn. Code Ann. § 47-

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18-2107. As just one example, the word “unencrypted” was deleted from the abovedefinition of a “breach of the security of the system.” Under the prior definition, a breach of encrypted data would not require notification.

This safe harbor benefited “information holders” who at least took steps to encrypt (protect) their data. The same safe harbor no longer exists.

Under the statute’s prior version, notification was required within “the most expedient time possible and without unreasonable delay.” Now a breach notification must be made “immediately, but no later than forty-five (45) days from the discovery or notification of the breach, unless a longer period of time is required due to the legitimate needs of law enforcement[.]”

Such a deadline does not allow much time to identify a breach, determine who was effected, and cultivate a proper notice to those persons. What happens if you miss the deadline or otherwise fail to provide proper notice of a breach? Any “customer of an information holder” – which we all know would include a legal client – “who is injured by a violation of this [statute], may institute a civil action to recover damages and to enjoin the person or business entity from further action in violation of this section.” So, I certainly recommend providing notice when required, and also calling your malpractice carrier to ensure a related claim would be covered under your policy.

If anything, I am hopeful the aboverequirements under Tenn. Code Ann. § 47-182107 will make everyone concentrate on the primary question: how do we prevent a breach in the first place? To help you answer that question, I will now turn it over to my friend Bill Dean, Director of Computer Forensics and Security Assessments at Sword & Shield Enterprise Security, Inc.

While it is a great compliment for Mr.

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McCarty to suggest that I have the pixie dust to prevent a data breach, it simply isn’t true. Preventing a data breach is similar to preventing an accident, you can’t. Your only option is to reduce your risks as much as possible through various controls. Even then, you cannot completely eliminate the risk.

For the majority a business sectors, there are compliance drivers that require them to implement and test information security controls. If a merchant handles credit/debit card information, PCI is their governing compliance. If an organization handles and stores electronic protected health information (ePHI), HIPAA sets the controls. You get the idea. What is important to understand is that compliance is the minimum set of risk controls that should be in place as it is only a beginning. Being compliant does not mean you are secure. Remember all of those companies that experienced data breaches (Target, Home Depot, etc.)? They were all “compliant”.

Law firms are one of the few business sectors that do not have a specific compliance requirement around information security. Law firms arguably have some of the most sensitive information. Our cybersecurity adversaries are well aware of the valuable information maintained by law firms and are aggressively seeking to obtain it. One documented example this year was that “hackers had gained access to the computer networks of law firms working on M&A deals, including Cravath, Swaine & Moore and Weil, Gotshal & Manges.”2 Another was the well-known Panama Papers breach that exposed 11.5 million documents that details financial information on more than 214,488 offshore accounts and their owners.

Those examples are from this year alone.

While law firms were one of the last to embrace the need for sound information security, recent studies indicate that it is becoming a priority but momentum has been slow. Marsh’s 2014 Global Law Firm Cyber

August 2016

COVER STORY By: Bill Dean Sword & Shield and

Chris McCarty Lewis Thomason

Survey found that nearly 80 percent of law firms consider cyber security and privacy to be one of their firm’s top 10 risks, but 51 percent said they have not taken measures to reduce cyber risk. Let’s get you above the stats and discuss some real world security controls to reduce your data breach risk.

While the concepts of information security may seem complex and intimidating, it isn’t and shouldn’t be perceived this way. To demonstrate, let’s use simple analogies with things we currently understand. For starters, do not rely solely on your IT personnel (internal or external) to declare your environment “secure.” Information security is a very niche skill set. While you may have loved the awesome job the general contractor did building your house, you would not want to also use them to design the add-on garage.

That is the job for an architect.

Second, you should know the type of valuable information you have and where it is stored. This may seem like a daunting task, but it is crucial. How can you protect sensitive information if you don’t know what it is or where it is? Each of us knows what valuables we have in our homes: jewelry, electronics, souvenirs, firearms, etc. You also know where it is located. In some instances, you also have additional protections for some of it (safes, gun cabinets, safety deposit boxes, etc.). Lastly, you also know when these valuables are “mobile” such as watches, diamonds, wallets, etc. This is the same foundational approach to information security. What types of sensitive electronic information do you have (i.e. credit cards, ePHI, patent designs, M&A information, etc.)? Once the type of sensitive data is determined, where is it stored and who can/ should access it? Consider placing additional controls around this sensitive data by limiting the access to only those that need it. Lastly, do you know when it is on mobile devices and removable media? If it is mobile (phones, tablets, backup tapes, USB drives) encrypt it, end of story. Encryption is built-in, fast, and easy. There is no excuse not to do so.

We rely on strong locks to protect our homes. This would be the equivalent to the passwords that you use to access your devices and sensitive information. Would you want to use a lock that is known to be easily “picked” in under a minute? Then don’t use easily guessable passwords. The beauty of passwords that you can make them as complex as possible and you should change them no less than

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every 90 days. In addition, there may be times that you have a house lock and an alarm code needed for entry. In information security, this is similar to what we call multi-factor authentication. It is something you have (key/ password) and something you know (alarm code). How awesome it would it be to design how advanced your home locks are and the ability to change that lock to a new one whenever you choose? That is the flexibility you have with passwords.

For our homes, most of us choose not to stay up all night watching each and every entry point into our home for threats.

Therefore, we install alarm systems and contract someone to monitor our homes for us.

The same capabilities exist for your computer networks. There is limited (many times only one) connections to the Internet that poses a threat to you (this is where the bad guys are).

Information security technologies such as intrusion detection and intrusion prevention systems are designed to monitor these Internet connections to detect and react to threats by sending alerts or blocking the activity altogether. For those that want additional expertise and 24/7 monitoring, companies known as managed security service providers (MSSPs) provide around the clock monitoring and protection.

The biggest vulnerabilities to the security of most any environment are people. People want to be helpful and, in doing so, provide a risk that can circumvent every security control put into place. For example, someone calls one of your children at home for “assistance”.

They indicate that they are employed with the security company that monitors your home and have received some alerts from that address.

They then convince the helpful party to disable the alarm system, “confirm” the alarm code, and encourage them not to lock the back door as that is likely the problem. Your alarm system is now useless. Think this type of pre-texting success is fictitious? We have about a 30% success rate in getting credentials with phone calls similar to this. Within minutes, we are on your network. This is similar to users opening a spear-phishing email attachment that installs backdoors on your network; your controls now provide little to no protection. The adversaries know this is their best chance and social engineering is their primary approach to infiltrate your network to steal sensitive data.

While we do everything possible to reduce the risk to our valuable physical assets,

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we oftentimes purchase insurance policies to transfer the remaining risk. This same option exists when it comes to information security and data breaches. Cyber liability insurance is currently an exploding aspect of the business insurance market and is worth looking into to transfer some of this cyber risk.

One last note is of value is the understanding regarding the significance differences between a computer security incident and a data breach. A computer security incident is where a computer system or group of systems may have been compromised or their data has been altered (think ransomware). A data beach is when sensitive information has been obtained by someone without authorization to do so. A data breach event often triggers a disclosure situation.

While this is a good starting point for information security controls, some of you may be thinking “what about anti-virus and patching?” Yes, those are important and likely the most foundational steps you can take.

However, everyone knows to do this and it isn’t enough. Trust me.

1 Keith Lee, Is Your Law Firm a Target for Hackers?

(Spoiler: Yes), Above the Law (March 5, 2015).

Cravath Admits Breach as Law Firm Hacks Go Public, The Am Law Daily (March 30, 2016).

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W O R D P L AY

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By: Peter D. Van de Vate Finkelstein, Kern, Steinberg & Cunningham

Plan now to attend the Barristers monthly meeting on Wednesday, August 10, at 5:00 p.m. at the Bistro at the Bijou.

Everyone is welcome. Get updates on the Barristers on Facebook at www.facebook.com/knoxvillebarristers.

The Athletics Committee has scheduled the Barristers annual charity golf tournament for Monday, October 24 at Holston Hills.

Registration information included as a DICTA insert.

The Access to Justice Committee helped recruit volunteers for the Grandparents as Parents Legal Advice Clinic sponsored by the Office on Aging. The clinic, which was led by Deb House of Legal Aid of East Tennessee, was a success. Barristers Allison Starnes-Anglea and Daniel L. Ellis both volunteered.

Tentatively, the goal is to hold this clinic four times a year with support from Barrister’s volunteers. Contact Kathryn Ellis at kellis@laet.org or Daniel Ellis at dellis@ellisandellislaw.com for more information.

The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. The Barristers Volunteer Breakfast Committee always need volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. Volunteers meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community. This is a great chance to partner with members of your firm, or law school classmates or friends or use it as an opportunity to involve staff in your office too. Sign up at http://www.knoxbar.org/JobPlacement/volunteer-breakfast-sign-up. For more information, please contact Committee Chairs Paul Wehmeier at pwehmeier@ adhknox.com or Kati Goodner at kgoodner@lewisthomason.com.

“Loggerheads”

I suppose that when negotiating ends up at loggerheads, we go to trial. The term has two nautical definitions. One is the name for a squat, sturdy wooden post used to control the line after a handlaunched harpoon was delivered into a whale; the other is the name of a fist-sized iron ball attached to the end of a long handle. The ball was heated in the galley fire and then dipped in a bucket of pitch to get it to a consistency with which the pitch could be used for caulking. It also made a fine weapon for hand-to-hand combat. Shakespeare used it to infer thickheadedness or uncompromising stupidity in The Taming of the Shrew: “you loggerheaded and unpolished grooms.”

L E G A L LY W E I R D By: Latisha J. Stubblefield Pilot Travel Centers, LLC

One of the many evidentiary hearsay conundrums is the dying declaration. In Tennessee, a dying declaration is admissible where the declarant made the utterance while believing that his/her death was imminent and concerning the cause or circumstances of what the declarant believed to be impending death. (Never say I never tell you anything substantive in these articles. … Now let’s get to the interesting part.). A prosecutor in Michigan is faced with a bizarre instance of a dying declaration.

The supposed dying declaration would be relayed to the court and jury not through another individual who heard the homicide victim’s last words, but from the victim’s pet parrot.

Martin Durham, the homicide victim, was shot multiple times and killed in Sand Lake, Michigan in May 2015. Durham’s wife, Glenna Durham, has been charged with first-degree murder in connection with her husband’s death. Glenna was found the same day with a self-inflicted gunshot wound to the head after Durham’s murder, but Glenna survived. Glenna is maintaining her innocence and denies any involvement in her husband’s murder, despite multiple suicide notes, purportedly in Glenna’s handwriting, being found in the home and the fact that the couple had been arguing over finances, their home foreclosure, etc. Unfortunately for Glenna, since Durham’s murder, Durham’s 19-year-old African grey parrot, Bud, has been repeating a conversation between a male and female, which ends with the man pleading, “don’t f***ing shoot.” Christina Keller, Durham’s ex-wife, who now owns Bud, explains that Bud is mimicking Durham’s voice when he relays the conversation. Bud is repeating what are believed to be Durham’s final words several times a week.

The Newago County prosecutor, Robert Springstead, and his team are studying Bud’s words and trying to determine whether they would be admissible in court. Parrots have the unique capability of forming words to communicate with humans and with one another. Experts say that parrots can’t necessarily be trained or untrained, which makes them one of the few potential witnesses in the animal kingdom. The bigger issue, of course, is whether the parrot can offer testimony at all. There is no precedent in the U.S. for testimony being offered by an animal. The rules of evidence don’t really provide for testimony from non-humans. And it seems unlikely that one could demonstrate that Bud knows and can distinguish right from wrong, and could put a claw on the Bible to take the oath to tell the truth, the whole truth, and nothing but the truth. At this point, everyone is waiting to see if the prosecutors in this case can figure out a way to get in Bud’s parroting. Who knows. Maybe Bud will open the door for other varieties of feathered, hairy, clawed, or four-legged animal witnesses.

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August 2016

WELL READ By: Lee T. Nutini Judicial Law Clerk, United States District Court

BOOK REVIEW: THE INEQUALITY EQUALIZER

The author, Jena E. Abernathy, an executive recruiter based in Atlanta, Georgia, offers “tough love” career advice in her new book The Inequality Equalizer. Guided through the author’s personal experience, the first step the reader takes is understanding what appears to be Ms. Abernathy’s vision of the business world: that there are only two types of people out there – “pedigrees” and “junkyard dogs.” Pedigrees, as you might guess, are the privileged, well-connected, Ivy League-educated individuals who find networking and business dinners to be boringly easy. On the other hand, junkyard dogs are those professionals who were raised up “in the School of Hard Knocks,” as Ms. Abernathy puts it.

She writes that the junkyard dog may not know which fork is the salad fork, and they most certainly don’t know when to request a black versus a white napkin at lunch (hint: pick the color that matches what you’re wearing). The remainder of Ms. Abernathy’s advice is colored by this dichotomous worldview.

A self-described junkyard dog, Ms. Abernathy’s goal in her book is to serve up a large, cold helping of reality. She notes at the outset that her career advice might be “a little harsh” and that her “first bit of advice . . . is to get real.” Ms. Abernathy does indeed “get real” throughout the book, offering up anecdotes from startling business situations she’s witnessed in years passed. Spoiler alert: most of them involve foul language or female go-getters who apparently can’t seem to dress appropriately in the office.

As the book progresses, the reader discovers certain “inequality equalizers” that are essentially immediate ways to compensate for your flaws as a junkyard dog or a pedigree. A few of the best inequality equalizers are recommendations on how to dress professionally, to read the right publications to keep up with business leaders, and – my personal favorite as a lawyer – to prepare intensely so it is clear to everyone in the boardroom that you did your homework. As Ms. Abernathy points out, if you do your homework, you’ll have an outsize influence because most people will agree with you just because it looks like you are prepared.

Junkyard dog or pedigree, these “inequality equalizers” bridge the gap between your natural skills and the skills of the businessperson you want to become.

A side note: when I first picked up the book, I had to stare at the title quizzically, wondering if I was missing something or if it really did seem redundant. Aren’t all equalizers something that equalizes an inequality? Is an “inequality equalizer” any different than an equalizer?

Alongside this curiosity, there were other small flaws in the book. At times, Ms. Abernathy’s advice borders on being too traditional (e.g., arrive earlier and stay later than your co-workers; dress for the job you want, not the job you have, etc.) so as to be unhelpful to the young, eager reader hoping to identify nuanced ways to succeed in business.

At other times, her advice contradicts itself, such as when she stresses the importance of putting on a “mask” at work but later emphasizes authenticity.

These flaws aside, there are some gems throughout the book that would help even the savviest of business leaders. For example, Ms. Abernathy provides insight on when to use your assertiveness to speak up in a meeting versus when to “lean back” and avoid being noticed for August 2016

all the wrong reasons. I particularly enjoyed the discussion on when and how to better say “no” to time-wasting projects when you’re trying to get ahead at work. I loved Ms. Abernathy’s recommendations on how to negotiate a “no” into a “yes, if ” project – meaning that it can look far better to your colleagues to avoid turning down a task by saying that you can accomplish a task “if ” certain conditions are met. As lawyers, we all struggle with a full plate at the office, and turning down work can cause anxiety because our business is just as much about being personable as it is productive.

Because she builds on her advice as she writes, Ms. Abernathy’s book can often seem stream-of-consciousness, but her “get real” talk is refreshing and relatable. I thought that she really hit her stride in a later chapter on mentoring, particularly when she offered detailed tips on how to be a good mentee, such as by avoiding forcing the relationship and properly timing requests for help. Ms. Abernathy was similarly on-point earlier in the book when she discusses properly timing the “ask” when building relationships through networking.

All in all, I recommend picking up a copy of The Inequality Equalizer and flipping straight to these sections. These tips and others will help you polish your inner junkyard dog or toughen up your inner pedigree, and I recommend either approach for any well-read lawyer hoping to polish her business acumen.

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August 2016

SCHOOLED IN ETHICS By:

Judy M. Cornett

UT College of Law

THE APPEARANCE OF IMPROPRIETY

As I write this column, news reporters are commenting on the fallout from the meeting between Attorney General Loretta Lynch and President Bill Clinton in Phoenix, Arizona, on June 25th. It seems that Lynch’s jet was landing in Phoenix around the same time Clinton’s jet was scheduled to depart. Clinton crossed the tarmac to Lynch’s plane and paid a visit to the Attorney General and her husband.

According to Lynch, they discussed “grandchildren and his travels and things like that.”1 The problem with the meeting is that Lynch heads up the executive department that is currently investigating whether Clinton’s wife, Hillary Clinton, violated the law by using a private email server while serving as Secretary of State. The meeting has provided ammunition to Hillary Clinton’s political opponents, who complain that the “fix is in” at the Justice Department. It has also led Democrats to “express[] uneasiness with the appearance the meeting created.”2 Lynch herself declared, ““I certainly wouldn’t do it again.”3 David Axelrod, former senior advisor to President Obama, opined that it was “foolish to create such optics.”4

Some readers will remember that the forerunner to Tennessee’s Rules of Professional Conduct, the Code of Professional Responsibility, DR 9-101, required that a lawyer shall “avoid[] even the appearance of impropriety.” Ethical Considerations 9-1 and 9-2 explained the rationale behind this rule:

Of course, I knew that my opposing counsel and the ALJ were friends outside of work, and I knew that both were ethical enough not to let their friendship influence the case. But as I tried to explain these facts to my client, I realized that she might reasonably question the impartiality of the justice being dispensed because these individuals did not avoid the appearance of impropriety.

Should we be concerned with what kind of optics we’re creating? If we want the public to believe that we are part of a system that depends on zealous advocates and impartial decisionmakers, then our words and actions should be consistent with that. We all know that clients sometimes become irate if we agree to opposing counsel’s request for a continuance – they may believe that we are “in cahoots” with the other side. But the Rules of Professional Conduct encourage professional courtesy: “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics of preclude the treating of all persons involved in the legal process with courtesy and respect.”10 And in reality we know that “what’s sauce for the goose is sauce for the gander”: if we grant a continuance to opposing counsel, then when we need a continuance, opposing counsel will agree.

Here’s what Ethical Consideration 9-2 had to say about this situation: On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client. While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism.

Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession. Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. . . .

When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.

The prohibition on the appearance of impropriety was eliminated in the Rules of Professional Conduct. The drafters intended the Rules of Professional Conduct to be more concrete and specific than the Code, to set out more clearly the conduct that is prohibited and permitted, to do away with vague and fuzzy standards like “the appearance of impropriety.”5 Unlike lawyers, however, Tennessee judges are still required to avoid “the appearance of impropriety.”6

The closest thing to the “appearance of impropriety” in the Tennessee Rules of Professional Conduct is “conduct prejudicial to the administration of justice” in Rule 8.4(d). That Rule, like the appearance of impropriety standard, has been used as a catch-all provision to cover misconduct such as making an unauthorized endorsement on a check,7 failing to provide the Board with client billing records,8 or failing to discontinue representation of two clients with conflicting interests despite a court order to do so.9 To the extent the drafters wanted to replace a vague, fuzzy standard with a clear, concrete one, they do not seem to have succeeded.

As the Loretta Lynch – Bill Clinton meeting in Phoenix shows, lawyers should still avoid the appearance of impropriety. Why? Because laypersons involved in the justice system, or just observing its workings, lose confidence in that system if they believe it is rigged, if they believe it is governed by personal favor rather than impartial application of legal rules. Every lawyer has an anecdote about the appearance of impropriety. Here’s mine: Back when I practiced law, I represented a client in a state administrative proceeding. After the hearing, before the Administrative Law Judge left the room, my opposing counsel walked up to him and said, “Are we still on for lunch?” and the two of them left the room together, laughing and joking. I will never forget the look my client gave me – a mixture of puzzlement, consternation, and despair.

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It’s up to us to educate our clients about professional courtesy. But our task would be easier if each of us would be conscious of the optics we’re creating. If what we do or say as lawyers could undermine public confidence in the impartiality of justice – and if there’s no countervailing duty to our own client – we should avoid the appearance of impropriety.

In my own example, all the opposing counsel had to do was leave the hearing room alone and catch up with the ALJ further down the hall.

The appearance of impropriety standard is gone, and it won’t be back. But that doesn’t mean that we should ignore the optics we’re creating as we represent our clients. If you have a choice, choose the behavior that promotes public confidence in the legal system: avoid the appearance of impropriety.

1 N.Y. Times, July 1, 2016, available at http://www.nytimes.com/2016/07/01/us/politics/ meeting-between-bill-clinton-and-loretta-lynch-provokes-political-furor.html?emc=edit_ th_20160701&nl=todaysheadlines&nlid=71790341&_r=0 (last visited July 5, 2016).

2 Id. 3 N.Y. Times, July 2, 2016, available at http://www.nytimes.com/2016/07/02/us/politics/ loretta-lynch-hillary-clinton-email-server.html?emc=edit_th_20160702&nl=todays headlines&nlid=71790341&_r=0 (last visited July 5, 2016).

4 Id. 5 See Bruce A. Green, Conflicts of Interest in Legal Representation: Should the Appearance of Impropriety Rule Be Eliminated in New Jersey-Or Revived Everywhere Else?, 28 Seton Hall L. Rev. 315, 317-18 (1997).

6 Tenn. Code Jud. Conduct Canon 1 (“A Judge Shall Uphold and Promote the Independent, integrity, and impartiality of the Judiciary, and Shall Avoid Impropriety and the Appearance of Impropriety.”).

7 See Board of Prof. Responsibility v. Curry,266 S.W.3d 379 (Tenn. 2008).

8 See Board of Prof. Responsibility v. Reguli, 2015 WL 9464846, at *10 (Tenn. Dec. 28, 2015).

9 See Cody v. Board of Prof. Responsibility, 471 S.W.3d 420 (Tenn. 2015).

10 Tenn. R. Prof. Conduct 1.3 comment [1].

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August 2016

LONG WINDED By: Jason H. Long Lowe, Yeager & Brown

ALL THE WAY

Recently, Carol Anne and I watched the HBO original drama All The Way, starring Brian Cranston as Lyndon Baines Johnson, and detailing the events surrounding the passage of the 1964 Civil Rights Act. If you haven’t seen it, I strongly recommend watching it. It paints a portrait of a very important time in the history of our country, gives insight into one of the most fascinating persons of the 20th century, and Brian Cranston, among others, is simply superb in his performance. It is well worth a couple of hours.

For me, the movie was an especially big event. I marked the premiere on my calendar and was looking forward to it for months.

Some of you may know that I, along with half the known world, was a political science major in college (seemed easier and more interesting than physics). My faculty adviser was a man named Merle Black, who literally wrote the book on southern politics. (I can remember a time when I just wanted to be Merle Black, with a better first name).

Professor Black grew up in 1940s Texas and, as a young boy, followed the congressional, senatorial, and later vice-presidential campaigns of LBJ. Needless to say, he was a devotee of the former president and he instilled that admiration in his students, particularly me.

Even now, some 25 years later, whenever political biographer Robert Caro comes out with a new volume in his neverending series on Johnson, I drop everything I’m doing, get a copy and read it cover to cover, stopping only for food and bathroom breaks.

Lyndon Johnson was unique in American politics and history. Almost Machiavellian in his approach, he was guided by a sense of what he knew was right, but his tactics in achieving his ends were often crass and ruthless. Moreover, he was perhaps the most skilled politician of his day. He knew exactly what path would best achieve his ends and followed that path with rigor and discipline. He rose from humble beginnings (as a child, he was probably the most impoverished person ever to rise to the office of President) and lived out a true Horatio Alger story (at the time he left office he was then reported to be the wealthiest man ever elected President).

What is most striking to me about LBJ was his ability to work with people. He rose to power at a time when our country was bitterly divided over the issue of race. Brown v. Board of Education had been decided nearly a decade before he was sworn in as president, yet our country was no closer to realizing the dream of equality. President Kennedy had been assassinated and the country was mourning. Lyndon Johnson seized that opportunity and promised that the best tribute to our fallen president was passage of his civil rights platform. It was a daunting challenge, as civil rights bills had been introduced many times before and had always been beaten back with ease.

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LBJ was not deterred. He did something unheard of in today’s political climate. He reached across the aisle and aligned himself with northern republicans. This southern democrat, who spent a lifetime building his power base by working closely with other southern democrats like Senator Richard Russell of Georgia, began working with the opposition to build a coalition. He pleaded, threatened and cajoled his peers. He brokered deals, made compromises, appealed to reason, appealed to vanity and pulled out every other trick in the book to pass what he knew to be important legislation. In bucking the southern democrats and pushing through the legislation, he caused a seismic shift in our country’s political structure that is still felt today. The south was once a unified democratic block of votes, now it is the republican stronghold. That all began with LBJ and the Civil Rights Act. Still, his desire to do what was right overrode his concerns for party loyalty and dogma.

LBJ has been on my mind quite a bit recently. I believe our country, politically, is just as fractured today as it was in the 1960s. There seems to be little or no civil discourse on issues as far ranging as gun control, same-sex marriage, and immigration, to name a few. It does not seem that anyone is willing to compromise for the greater good. Politics has become a game of winning and not a game of governing.

Whoever is elected President in the upcoming elections will enjoy the highest negative ratings we have ever seen for a newly-elected President.

There will be no mandate. Our president will have a very difficult time governing even under the best of conditions and the current mindset of our elected officials will make that even more challenging.

I am not sure when “compromise” became a dirty word. However, it seems like, in our current political climate, to compromise means to be weak, to be fearful. That is a sad state of affairs because the whole concept of a political state is built upon the notion of compromise.

People come together and sacrifice for the good of the whole and, in that way, receive a benefit from the sacrifice. I worry that we have devolved into a tyranny of the majority, whatever that majority may be, and people speak past, or over, one another rather than to one another.

Say what you will about LBJ, he certainly had numerous faults, but the man knew how to govern. He knew how to compromise and get others to do the same. He had a vision for our country and he was not afraid to ask people to sacrifice for that vision. Most importantly, people were willing to do it. We need more politicians like that. We need leaders who are not afraid of compromise. I hope that leader emerges in this election cycle. In the meantime, watch All the Way. Even if you don’t agree with my assessment, it’s really good entertainment.

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LAWYER HOBBIES By: Katie Ogle Hodges, Doughty and Carson, PLLC

Kevin Teffeteller: Acting the Part

Raymond Burr as Perry Mason. Andy Griffith as Matlock. Sam Waterston as Jack McCoy on Law & Order. We can all rattle off a list of legal dramas past and present, and recall in an instant the lead actor who gave an impassioned closing argument to a jury, or a particular moment in a series that was closely akin to an actual experience as a practicing attorney.

Perhaps for some of us, our initial interest in the law was sparked when we saw a spectacled Gregory Peck portray scrupulously honest Atticus Finch in “To Kill a Mockingbird.” Suffice it to say, there is certainly a connection between drama and the law. Many practitioners could only imagine starring in “A Few Good Men,” but local attorney Kevin Teffeteller lists this credential on his acting resume. In fact, its what led him to join the Foothills Community Players (FCP) organization several years ago. Kevin had been involved in the drama program when he was in high school, and continued this involvement with the theater into his college years. “Several of my friends were involved in school performances,” he recalls, “so I initially got involved just to spend time with them.” As is the case with many of our own hobbies, Kevin’s acting was put on the back burner after he graduated college and pursued law school. When Kevin discovered the opportunity to get back onstage with the FCP group around four years ago, he was once again bitten by the acting bug. In fact, he completed his sixth production with the company this spring with the show, “Twelve Angry Jurors,” and hopes to continue acting with the players in performances this upcoming fall.

With all of these acting opportunities under his belt, Kevin does say there is one role that was more memorable to him than others. “I really enjoyed playing Owen in “The Foreigner.” Owen is the bad guy in the show who truly gets what he deserves in the end. It was fun to play such a loud, over the top type character that is so different than who I am.”

Kevin has also had the opportunity to portray the role of voluntarilycommitted patient “Dale Harding” in the FCP’s rendition of “One Flew Over the Cuckoo’s Nest” in November 2014. “This was probably my most difficult role,” noted the child support enforcement attorney by day. “There are so many heavily emotional scenes that this character is Kevin Teffeteller portrays Owen Musser in the Foothills Community Players’ involved in during the course of the story.” production of “The Foreigner.”

Certainly life as an attorney is busy enough without the side acting gig, and leads one to wonder just how Kevin Teffeteller manages it all.

“The most difficult part of any show is time management,” he says. Undoubtedly, his hobby requires far more commitment than most. To prepare for a show, he and the other members of the group spend at least three nights per week rehearsing, with each rehearsal lasting around three hours. These nine-hour sessions also don’t include the time spent memorizing lines independently. However, Kevin says that all of this time is earnestly spent. “It is great fun, and the adrenaline rush from walking onstage is hard to describe.” Much like the daily practice of law, live theater is often unpredictable. As Kevin notes, “…the lights may not come on exactly when they are supposed to, an actor may flub a line, or there may be some wardrobe malfunctions backstage - but I think that is part of what makes it so much fun.”

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DICTA

August 2016

B I L L & P H I L’ S G A D G E T O F T H E M O N T H By:

Bill Ramsey Neal & Harwell

Phil Hampton

Founder and CEO, LogicForce Consulting

BATTLE OF THE PROS: IPAD PRO 12.9 V. IPAD PRO 9.7

We love to buy gadgets as soon as they hit the market. We are fully aware that you pay extra for being an early adopter. Guess we enjoy being broke (and also being the first kids on the block with the new toy). So, it should come as no surprise that we bought Apple’s big screen 12.9” iPad Pro as soon as it hit the market.

THE IPAD PRO 12.9.

We must admit, we were a bit disappointed when we started fooling with it. Yes, the iPad Pro 12.9 was the biggest, fastest Apple tablet ever made. You can buy a really nice keyboard to go with it, and we did. You can also buy a pressure-sensitive stylus/pencil to take notes, sketch, and really create great art. We bought that too. The giant screen is beautiful, and the quad speakers are incredible. The large screen really works well with split screen apps that are now available in the new iOS 9 series. You can watch movies on the right-side of your screen and edit documents on the left, for example. In other words, you can play and work at the same time; which we don’t necessarily recommend but do occasionally enjoy.

But, we were not as overjoyed with our new pricey toy as we thought we would be. First, by the time we added additional storage, a cellular modem, a Bluetooth keyboard and the pencil, the price tag was creeping up north of $1,200. For that price we could buy a very nice fully functional laptop (keyboard included). In addition, the large size makes the iPad Pro 12.9 seem less portable. Its size almost defeats the purpose of having an iPad. (At least we felt that way after we bought it.) The 12.9” display is so large you really need to carry it in a laptop bag, and it just does not have the portable, compact feel that made the original iPad and its successors so popular. So, while the iPad Pro 12.9 is powerful and has a great deal of potential (especially for graphic designers and media creators), it is not a laptop killer in our opinion.

THE IPAD PRO 9.7.

We’re not sure if the Apple execs heard our complaints about the 12.9” iPad Pro, but we took it as a nod in our direction when they subsequently announced a smaller iPad Pro, the 9.7. Gadget nerds like us and our money are soon parted. So, when the new iPad Pro 9.7 became available, we had to buy one immediately as well. And, as usual, we were excited in anticipation of delivery of our new gadget. We were certain that the new, smaller iPad would be more portable and more in line with the iPads we had come to know and love, while providing all the “Pro” advantages. Unfortunately, we had become spoiled. After using the iPad Pro 12.9, the screen on the 9.7 seemed tiny (yes, we know we complained that the 12.9 was too big; forgive us for being tech divas). With the 9.7 we began to feel like we were just looking at an iPhone screen. In fact, it was very hard to tell the difference between a regular iPad or iPad Air 2 and the iPad Pro 9.7. Yes, the iPad Pro 9.7 has a faster, more power processor than the iPad Air 2. Yes, Apple has updated the iPad Pro cameras. Yes, you can take great selfies and great pictures with the high-resolution camera that comes with it. Yes, you can even record videos in 4k resolution.

Nevertheless, for just regular users it is very hard to tell the iPad Pro 9.7 apart from the iPad Air. The displays are nearly identical. They run the same software. They use the same apps. There just does not seem to be a great advantage to having an iPad Pro 9.7 versus having a regular iPad (especially the sleek iPad Air 2).

IPAD PRO 12.9 v. IPAD PRO 9.7.

Returning to the comparison of the iPad Pro 12.9 to the iPad Pro 9.7 (yes, we got a bit sidetracked), we believe the iPad Pro 12.9 is actually a superior product. The high resolution and the four-speaker system take greater advantage of the faster processor and superior display on the iPad Pro models. In addition, you have more screen real estate to use the split screen feature that is bundled into iOS 9 (now 9.3.1). Of course, you can use the split screens feature on any iPad, but it just works better on the larger screen. The bottom line is that while the 12.9” iPad Pro is a bit more cumbersome to carry, you get spoiled once you have used the larger screen. You do not want to return to a smaller iPad model. So, in our opinion, the iPad 12.9 is the winner (but barely) over the iPad Pro 9.7 or just a regular iPad.

But, here is a word to the wise and thrifty. If you are not a spendthrift like us, our best advice is to buy neither “Pro” model and stick with an iPad Air 2. Save your money.

August 2016

DICTA

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G U I LT Y P L E A S U R E S By: Angelia Nystrom University of Tennessee Institute of Agriculture

FINDING ADVENTURE IN THE GREAT OUTDOORS

Ralph Waldo Emerson once wrote that “the health of the eye seems to demand a horizon.” For many lawyers, the horizon line extends only as far as the office door. And some of us have been fine with that.

As a kid in Jefferson County, summer weekend days were spent picking up sticks that had fallen from the pecan trees in the backyard (and if you know anything about pecan trees, you know they lose a lot of limbs) and working in the gardens at various relatives’ farms. (My dad had a saying, “If you don’t pick it, you don’t eat it.”) It was hot. It was dirty. And I hated every minute of it.

At twelve years old, I vowed that I would someday have a job where I had continuous air conditioning and would never have to go outside again. The practice of law seemed like a good option; and for a number of years, I shunned the Great Outdoors. In fact, my only foray into the Great Outdoors was a bike trip down the Virginia Creeper Trail, which I not-so-affectionately dubbed “The Virginia Creeper Hell.” As I have gotten older, though, I’ve started to need a horizon—a sight line that goes beyond the office.

Recently, Hugh and I were invited on a five-day sailing trip around the Abaco Islands. We were told that we could bring no more than a duffle bag, would not have air conditioning or WiFi, and that we would be responsible (at least somewhat) for catching our own food. Although I was excited to spend a week with friends, I approached the trip with a bit of trepidation. While the website for the charter company suggested that you “take a photo on each day to watch the stress melt away,” I wasn’t quite sold on the idea. I had no idea what to expect.

As it turns out, though, it was one of the best trips I have ever taken.

It was everything that was promised… and then some. The ocean was clear (you could see all the way to the bottom), and it was so calm that we were able to paddleboard from the boat to the neighboring islands.

We visited sparsely inhabited islands, where our footprints were often the only ones that were visible. We did catch our own food (although not every day), and it was some of the best seafood I have ever eaten.

My favorite part of every day came in the afternoon, when we lifted the anchor, hoisted the sails, and moved to a new location. Each day, I would sit on the top of the boat, with the wind blowing on my face and basking in the beauty of the sand, sea and sky.

I spent an entire week without makeup and without ever drying my hair. If I had on shoes, I was over-dressed. And it was bliss.

While I found peace in the ocean, Annette Winston says that she finds peace in the beautiful mountains that we call home. “This year, 2016, has been my year to renew my appreciation for the Great Smoky Mountains National Park. I have taken on the Superintendent’s Challenge, and currently have 57 miles on my log. Spending time outdoors every day became a habit when I got a dog in 2010. Our hourlong daily walks have reminded me, though sometimes in itchy ways, that it is restorative to one’s soul to be outside.”

Annette continues, “Something else happened that took me back to the Smokies. A new friend decided she wanted to try hiking; and since I had some experience, she goaded me into going with her. We started with an easy hike, Rainbow Falls. She immediately was hooked. Whenever both of us are available on the weekend, we will drive to Sevier County, find a trailhead, and start walking. We try not to let anything (other than grandchildren) interfere. In these few short months, we have added another hiking buddy, and taken my niece and her boyfriend with us when they were visiting over a weekend. Lately we’ve started discussing planning how to do all the trails. Our longest hike so far is a mere 11

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miles, but neither of us were very taxed by that, so we will be doing longer ones, I’m sure. I’ve discovered new trails already, and look forward to discovering many more I have yet to traverse.”

“There is an inner peacefulness you feel in the woods that extends into your week after you return. It is hard to explain to someone who hasn’t tried it. The effort of slogging up a mountain (really, up and down and up and down and up and down) reinvigorates one in a way that most other types of exercise cannot do. Work harder and the relaxing is all the more rewarding,” says Annette.

It has been rewarding to get out—to step outside and seek adventure in the Great Outdoors. Whether you expand your horizon in the mountains or on the sea, I’ve learned that you can find peace and happiness along the journey to that horizon.

DICTA

August 2016

ASK MCLAWYER

Question Presented: McLawyer, I have a cost problem that I hope you can help with. I won my case at the state trial court, and that judgment was appealed. I also won at the court of appeals. Now my client wants to seek the recovery of discretionary costs. Can I do that at this point?

Discussion and Analysis:

Unfortunately, you are probably “out of luck” at this point if you did not file your motion to seek discretionary costs during the appeal. The prevailing party in a lawsuit has to file a motion for discretionary costs within 30 days of entry of the judgment by the trial court even if the judgment is not final because an appeal is taken.

Tenn. R. Civ. P. 54.04(2) states, “Costs not included in the bill of costs prepared by the clerk are allowable only in the court’s discretion.

Discretionary costs allowable are: reasonable and necessary court reporter expenses for depositions or trials, reasonable and necessary expert witness fees for depositions (or stipulated reports) and for trials, reasonable and necessary interpreter fees not paid pursuant to Tennessee Supreme Court Rule 42, and guardian ad litem fees; travel expenses are not allowable

discretionary costs. Subject to Rule 41.04, a party requesting discretionary costs shall file and serve a motion within thirty (30) days after entry of judgment. The trial court retains jurisdiction over a motion for discretionary costs even though a party has filed a notice of appeal.” (emphasis added).

Because the trial court retains jurisdiction to hear the motion for discretionary costs, the deadline to file the motion is not tolled by the appeal. This point is illustrated via footnote by Chief Justice Lee in Stanfill v. Mountain, 301 S.W.3d 179 (Tenn. 2009). In Stanfill, the prevailing party moved for discretionary costs during the pendency of the appeal, but the motion was filed 41 days after entry of the trial court judgment. The Tennessee Supreme Court found that this motion for discretionary costs was not timely filed and notes, “Had we affirmed summary judgment in this appeal, the award of discretionary costs . . . would still have been vacated because [the moving parties] filed their motion 41 days after the trial court’s entry of judgment. The trial court should have denied the motion for discretionary costs as untimely.”

Stanfill v. Mountain, 301 S.W.3d 179, 195 n. 11 (Tenn. 2009).

Importantly, if the party that wins the appeal was not the successful party at the trial court, then the new winning party has some additional time to file the motion for discretionary costs pursuant to Tenn. R. Civ. P. 54.04(2). However, because you won at the trial court, the appeal does not extend your deadline for the Rule 54 discretionary costs motion.

“Ask McLawyer” is dedicated to answering questions on procedure, evidence and trial tactics in a variety of venues and subject matter. Should you have a question for McLawyer, please address the question to Ask McLawyer, c/o Marsha Wilson, KBA, 505 Main Street, Suite 50, Knoxville, TN 37902 or mwilson@knoxbar.org. Your question will then be submitted to McLawyer for potential response in this column. McLawyer is an anonymous neutral counsel dedicated to answering questions of procedure from members of the Knoxville Bar Association.

Photo Ops

Senior Section On June 15th, members of the KBA Senior Section donned their seersucker and listened to Bill Haltom discuss civility and professionalism.

August 2016

DICTA

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LEGAL MYTHBREAKERS David E. Long and Brad A. Fraser By:

Leitner, Williams, Dooley & Napolitan, PLLC

JUST ANOTHER SATURDAY NIGHT IN DODGE CITY

On April 27, 2016, Governor Haslam signed SB1736, Pub. Ch. 947 into law, effective July 1, 2016. The new statute, Tenn. Code Annotated sec. 39-17-1359 allows businesses, public and private, to prohibit persons from carrying guns into the business if they post prominently and substantially the language included in sec. 1359. While the statute refers to it in some areas as “posting”, subsection 1(e) refers to it as “notice or signage”. I will simply call it a “Notice.”

SB1736 and Amendment No. 1 to SB1736 clearly discourage such businesses and persons from posting a Notice prohibiting legally permitted firearms on its premises. As amended, this statute forces businesses to gamble on the prohibition by posting such a Notice. If a business or person posts the Notice, substantial responsibility is placed on the business or person if the gun permit holder is injured as a result of having to store their weapon off premises (e.g., in his car). Apparently based on the language in the law, the prohibitions already on the books, such as those contained in T.C.A. sec. 39-17-1301, et. seq, are unaffected.

SB1736 is summarized as follows: (a) The law is intended to balance gun owner rights of self-defense and property rights of the government and private property owners; (b) Any person or entity allowed to post the prohibition to carry on the business property assumes “absolute custodial responsibility for the safety and defense of the permit holder while on the posted property” and any other property the permit holder has to traverse in order to pick up their confiscated firearm; (c) The assumed responsibility for the permit holder extends to conduct of other invitees, trespassers, employees of the business or person, vicious animals, wild animals and “defensible” manmade and natural hazards; (d) Any handgun permit holder who is “injured”, injured bodily or killed, incurs economic loss or expense, or any compensable loss as a result of businesses/persons posting the “no gun” sign, will have a cause of action against the posting entity or person. The permit holder “shall” be entitled to reasonable attorney’s fees, expert witness costs, and other costs necessary to “bring” the cause of action. The statute of limitations on such an action is two years, and (e) Any notice under 39-17-1301 now has to also post that the person or entity assumes absolute custodial responsibility of the safety and defense of the permit holder for banning firearms on the premises. In order to prevail in a lawsuit, the permit holder has to show: (1) the permit holder was permitted to carry; (2) the business/person posted the prohibition (Notice); and (3) the Notice was not required to be posted by state or federal law, but was posted by the person or entity’s choice.

Amendment No. 1 goes further by protecting a person or entity from civil liability if they do nothing. It removes “from any civil liability with respect to any claim” any business/person that fails to adopt a prohibition pursuant to T.C.A. sec. 39-17-1359. The exceptions are gross negligence and /or willful or wanton misconduct.

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The phrase “absolute custodial responsibility” is not defined further, but it smells suspiciously like strict liability. The responsibility for defensible natural disasters is undefined as well. I suppose one could potentially argue that not allowing the permit holder to pop off a few rounds at an approaching tornado makes the business liable. Amendment No. 1 also has the intended effect of providing an incentive against liability for allowing guns on commercial premises. In other words, do nothing and you’re okay. If Joe (gun owner) is prohibited by Sam (business owner) from carrying on the business premises, and Joe aims at Bill (robber) but accidently shoots Sally (innocent customer), Sam is immune from being sued. Of course, Sally can sue Joe, but I’m pretty sure Joe’s insurance company will deny coverage for the intentional act exclusion, subject to the expected declaratory judgment action.

Prior to SB1736, if found 1% negligent, Sam would have been jointly and severally liable for Joe’s act. See Lindsey v. Walgreen Co., No. E2010-00244-COA-R9-CV, 2010 WL 4671007, (Tenn. Ct. App. Nov. 18, 2010); Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001). Under the new statute, if Sam posts a Notice, he now has “absolute custodial responsibility” for Sally. Ironically, if Sam posts no Notice forbidding firearms on the property, he is immune for the most part.

Moreover, how does this law affect other issues, such as employee rights to carry firearms on their employer’s premises? T.C.A. sec. 3917-1315 allows employees to store firearms in their vehicles while on employer property if certain conditions are met. The potential OSHA issues, however, are daunting. For instance, T.C.A. sec. 50-3-105(2) places a duty on employers to assuming employees remove or deal with “recognized hazards” likely to cause death, serious injury, etc. in the workplace. OSHA considers workplace violence a key problem, and administratively reviews such matters under the “general duty” clause embodies in section 5(a)(1) of the OSHA Act. In the absence of a specific Tennessee statute or federal statute prohibiting employee gun possession directly, how does SB1736 affect the ability of employers to control workplace violence? How does it affect employer defenses regarding safety standards and those defenses in workers’ compensation cases? Are they now simply liable under workers’ compensation without further protection? Economically, how does this affect risk pool analysis and the future of workers’ compensation premiums if every employee permit holder in the local convenience store comes to work “packing”?

Justice Oliver Wendell Holmes, Jr. stated “bad facts make bad law.”

I propose also that bad history and reactionary politics do the same.

Right or wrong, there is a perception in this nation among many that the government is not protecting us from terrorism. The reaction to this and other reactions due to increasing political polarization in this country results in often bizarre creations. SB1736 creates a private police force but one without the training necessary to deal with emergency situations. In this legislation, one can almost see some legislators reacting to situations like Orlando with the thought only a couple of people would be shot before a permit holder put the terrorist down. I suggest, however, panic is neither a good general nor a great leader. One needs to consider the potential effect of SB1736 on a body of law, both statutory and common law, and the long term issues it will certainly create.

DICTA

August 2016

BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations.

NEW LOCAL RULE Please note that Howard Hogan, the Clerk & Master of Knox County Chancery Court, has provided proposed revisions to the Local Rules of Practice for Knox County Chancery Court.

To review the proposed changes, please go to the News Item on the home page of the KBA website at www.knoxbar.org. The proposed changes are scheduled to become effective August 1, 2016.

FIRM ADDS NEW ATTORNEYS Trammell, Adkins & Ward, P.C. is pleased to announce that James C. “Chris” Cone, N. Craig Holloway, and Katie J. Lamb have joined the firm. Mr. Cone will continue his 25-years litigation practice representing insurance carriers and their insureds while Mr. Holloway and Ms. Lamb will focus their practices primarily in the area of insurance defense and general litigation matters. Please join Trammell, Adkins & Ward, P.C. in welcoming these outstanding attorneys to the fold.

JARRET RECEIVES PUBLIC RISK ARTICLE OF THE YEAR KBA member Joe Jarret received the Article of the Year award during the Public Risk Management Association’s Annual Conference in Atlanta in June. The judging committee selected the article “Overzealous Zoning: Challenges for the Public Risk Manager” due to its relevance to the public sector risk management profession.

NEED GUIDANCE IN A SPECIFIC PRACTICE AREA? One of the best kept secrets of the Knoxville Bar Association is our Mentor for the Moment program. We want to let the secret out and make sure that our members use this wonderful resource. It’s really simple to ask a question of our helpful volunteer mentors. Log in to the members’ only section of www.knoxbar. org or check out the list in the KBA Attorneys’ Directory and begin your search! Our easy-touse website allows you to search by last name or by subject area experience.

AFFILIATED ORGANIZATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, August 11, 2016, at 12:00 pm. In the U.S. Attorney’s Office, Knoxville, Tennessee. Prof. Judy Cornett of the University of Tennessee College of Law will present a one hour program on the topic of Summary Judgment in View of Rye. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 985-0706 for additional information and/or lunch reservations.

August 2016

GRANT FUNDING ANNOUNCED The Administrative Office of the Courts will have funds available through the Access and Visitation Grant for the development of or continuation of initiatives that will address the needs of self-represented divorcing, divorced, or never married parents and focus on services to help them resolve any or all issues concerning parenting and visitation in child support cases or cases involving child support issues. These initiatives may include but are not limited to any of the following: self-help centers, pro se clinics, unbundled legal services, and mediation programs. Proposal applications and attachments must be received at the AOC office via fax, email or mail by 4:30 pm on Friday, August 12, 2016. Notification of grant awards will be sent on or about Wednesday, August 31, 2016. The 2016-2017 Access and Visitation Grant Funding proposal information and application can now be found at http://www.tncourts.gov/programs/ rfpsgrants.

OFFICE SPACE AVAILABLE: • A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants.

Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049.

• Office Building for Sale at 616 W. Hill Avenue. The 3,442 SF building is centrally located and is available for $465,000.

Review the listing at www.kaarcie.com/ listing/299773149. Contact Daniel Odle, Conversion Properties, at (865) 246-1331.

• Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft.

Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

WELCOME NEW MEMBERS THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:

Liz Anne Bowden The Law Offices of James A.H. Bell, P.C. Jessica L. Burton UBS Financial Services James C. Cone Trammell, Adkins & Ward, P.C. Keith L. Edmiston Edmiston Foster Jason Frederick Emert Valeria E. Gomez Volunteer Immigrant Defense Advocates (VIDA) Stephen T. Hastey U.S. Administrator Claimes Matthew Hollingshead-Cook Katie Jones Holbrook Peterson Smith PLLC Roy S. Merritt Law Office of Steve Merritt Christina A. Moradian Tennessee Valley Authority – Office of the General Counsel Will Parz Will Parz Law Office Corbin H. Payne Norton & Luhn, P.C. Law Student Members: Evan W. Sharber

The 2016 KBA Attorneys’ Directory will be available for pick up in August!

One free copy of the directory will be reserved for each KBA member and additional copies are available for $20 if purchased by a KBA member. As in the past, the Attorneys’ Directory will be mailed to members whose office is located outside of downtown Knoxville. If your office is outside of downtown Knoxville but you have three or more attorneys, we ask that you arrangements to pick up your copies at the KBA Office, which is located in the basement of the Supreme Court Building at 505 Main Street, Suite 50.

Save with our special offer! Buy 9 copies, get the 10th copy FREE!

DICTA

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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System

PRO BONO PROJECT By: Kathryn Director

Ellis

“TO EVERYTHING – TURN, TURN, TURN”

To everything there is a season, and this summer is the season for change at Legal Aid of East Tennessee. Everyone at LAET is working hard to make sure our changes ultimately benefit our clients, as well as those of you in the private bar who work with us in court and through our Pro Bono Project, I thought it might help for you to know about these changes.

We have had two attorneys retire, have hired three new attorneys, and have had two attorneys significantly change their positions and duties. For those of you who like numbers, from June 30 to July 1, our number of attorneys increased by one, our ratio of female to male attorneys changed from 7:1 to 5:4, and the average age of our attorneys dropped by 10 years. Personally, the people matter more than the numbers. So, allow me to tell you about who is going, who is coming, and who is moving on up.

So Long, Farewell, Auf Wiedershen, Adieu

We are bidding a fond farewell to Deborah Herzel and to Terry Woods. Deborah has been with LAET for nearly 29 years and has spent a good amount of that time as our Title III attorney working with senior citizens in our community. In 2013, Deborah received the John J. Duncan, Sr., Award for Senior Advocacy, which honors those uphold the support and advocacy of seniors and programs for seniors, from the Office of Aging. Deborah’s wealth of knowledge about legal issues related to senior citizens is incredible and her presence at the Knoxville office will be missed throughout LAET. Terry, likewise, has impressively served our community not only through direct contact with clients, but also through her service as Pro Bono Project Director. Terry has been with LAET for 16 years and in that time has developed amazing relationships with many of you in the private bar. The rest of us at LAET hope to be able to maintain those relationships and to build even more on the foundation so adeptly laid by Terry.

Luckily for us, and for you, both Deborah and Terry are continuing to work at LAET on a part-time basis for the next few months to help those of us who are accepting the challenge of following in their footsteps to get our footing.

Hello (Hello, Hello)

On the same day Deborah and Terry retired, LAET had three new attorneys join our Knoxville-area staff. Alex Brinson, George Shields, and Zachary Arnold are three bright young attorneys who we believe are rising stars. Each of them comes to us from small local firms (thank you!) and they have already proven themselves to be excellent attorneys. Alex is our new attorney at the Knoxville Family Justice Center, George is “replacing” Deborah as our new Title III attorney, and Zachary is filling our Maryville office where we have not had an attorney since August 2015.

Alex will be handling primarily Orders of Protection and domestic violence-related divorces for clients in Knox County. He will be working with the other agencies at the Family Justice Center to help ensure that victims of domestic violence in our community receive the help they need to navigate the civil legal system. If you are near Greg McMillan’s court on a Thursday, stop by the LAET table to say “hello” to him and to welcome him to our team.

George will be in our main office on Gay Street and is already dutifully training with Deborah on a daily basis to learn all he can about the legal needs of our community’s seniors. George is not unfamiliar with LAET, as he worked with us for an entire year while he was attending the UT College of Law. During his time as a clerk with us, George often worked with Deborah and she is very excited that he is assuming the Title III position because she is confident that he will serve “her clients” well.

Zach is taking on the role of family/consumer/housing/anything-that-walks-in-the-door attorney in our Maryville office. Luckily, he is young and quick on his feet! The rest of us will continue to handle cases in Blount County along with Zach, so he isn’t going to be all alone, but he will soon become the face of LAET to our Blount County friends and clients.

Well, We’re Movin’ On Up

Finally, for now, Robert Downs and Kathryn Ellis (yes, I’m now talking about myself in the third person) have taken on new roles and duties.

For nearly four years, Robert has been LAET’s attorney at the Family Justice Center (where Alex Brinson is now working). LAET recently got new funding from the United Way of Greater Knoxville that enabled us to create a new position. Robert will now be working in the main office on Gay Street and will be helping Knox County clients with issues related to housing and consumer matters. If you’re used to seeing Robert in Fourth Circuit on Thursdays though, don’t worry!! He will still be there to help Alex out with Orders of Protection most weeks.

I have not moved anywhere, but I am now attempting to fill the HUGE shoes left behind by Terry Woods. I will still be working with domestic violence victims in Knox, Blount, Loudon, and Sevier counties, but I will also now be serving even more of our clients by getting all of you to help out the Pro Bono Project.

If you have volunteered to take Pro Bono cases for Terry in the past, I hope you will do so for me in the future. If you have been a Saturday Bar volunteer for Terry in the past, I hope you will continue to volunteer for me. And, if Terry had not yet managed to bring you into the Pro Bono fold, I’ll be tracking you down soon!

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 502 S. Gay Street, Suite 404 • Knoxville, TN 37902

phone (865) 525-3425 e-mail:kellis@laet.org fax (865) 525-1162

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DICTA

August 2016

Q: A:

THE LAST WORD

David, please tell DICTA’s readers about how Balter Beerworks came about, and how a longtime litigator becomes a local “brewing legend.”

By:

Jack H. (Nick) McCall

DAVID N. WEDEKIND Of Counsel, Hodges, Doughty & Carson, PLLC, and founder of Balter Beerworks

I went “of counsel” with Hodges, Doughty & Carson five years ago for various reasons, none of which are pertinent to this subject. Although I enjoyed the practice of law and trying lawsuits for many years and enjoyed the camaraderie of our firm, it was time for me to move on. One of the things I wanted to accomplish was to find a way to work with my son, Blaine. Much of how Balter “came to be” has to do with the vision of Blaine; he is the youngest of Gail’s and my three children, all of whom live here in Knoxville. My daughter, Angie, and her husband Andrew Jedlicka work for RIVR Media, so they were in a great place. My daughter Sarah is married to Caleb Verzyden, a Canadian lumberjack; they own and operate Tennessee Tree Service.

Blaine had worked in commercial real estate for a year but brewing was what he had long been interested in.

He worked the “midnight shift” for George Sampson at Cherokee Distributing, learning the ropes of the beer industry. As I said, he was really interested in the brewing side of the business.

Interestingly, one of my best friends as a 1L at Memphis Law School was Allen Corey. He and his team at SquareOne Holding Company have been the key to our success. Allen transferred to Vanderbilt Law School and became a successful transactional lawyer at Miller & Martin in Chattanooga. After 15-20 years as a lawyer, he was one of the founders of Big River Brewing Company. It took off; Big River grew to several locations and was quite successful. Subsequently, his group connected with Dan Gordon and Dean Biersch.

Their group bought into Gordon Biersch Brewing Company. Allen became the CEO of the company and moved its headquarters to Chattanooga. Gordon Biersch flourished and became the largest brew-pub operator in the country; it built, owned and operated over 70 brew-pubs in and out of the country but principally in the western U.S. About three years ago, Allen sold his ownership in Gordon Biersch and started a consulting firm, SquareOne Holding Company.

So, what does all of this have to do with Balter?

In 1988, I went to Tempe to watch the Vols win the National Championship and visited Gordon Biersch; it had great food, beer, service and operations – what you need to succeed in this business. I was hooked on the idea of craft beer in Knoxville but fully engaged with practicing law at that time. About four years ago, Blaine took an interest in craft brewing and home-brewing and, in fact, brewed a beer at my house and then we set up shop in his garage. Blaine was keenly interested in not just distributing beer but in making it. His friend Will Rutemeyer was the guy with the brewing experience with whom he had been home-brewing with yet some other buddies.

In 2013, I was visiting a friend (coincidentally, the same guy who helped connect Allen and me together at law school), King & Spalding lawyer Clay Gibson, telling him what Blaine had in mind. Clay said: “You need to call Allen.” I thought, “Aw, he’s too busy; he doesn’t have time for this!”

Clay updated me that, although Allen had sold his stake in Gordon Biersch, he was still in the game, so we called Allen. Blaine’s initial vision was focused on the production side of the business. When Allen asked Blaine about his vision--to “make great beer, the best in town”--and just focus on the beer, Allen quickly set us straight. Allen’s recommended recipe? To be successful with the beer, you also need detailed operations, great service, culture and great food.

Meanwhile, a property at Broadway and Jackson, where an old BP station was located, was on the market. Blaine and I took a look; we decided that while we might be shooting ahead of the bird, we needed to secure the site since it was a matter of time before that neighborhood would be redeveloped. We bought the site in a separate entity and now rent it back to Balter. Next, we contracted with SquareOne. Allen’s team delivered an enormously talented, high-energy consulting group, including experts in operations and a crack chef. Plus, Allen has been in the business himself for over twenty years. It was a real “soup to nuts” experience--especially for this recovering trial lawyer of about 25 years. We could not have done it without the SquareOne team. They are pros.

Construction ended up being a more arduous process than anticipated. We were originally to open in July 2015; work began in earnest 90 days before the target date, but the site conditions proved to be more challenging than expected. We engaged Tim Trapp, an architect from Boulder, Colorado (he’s worked on 35-40 brewpub designs) and a great local architect, John Sanders. They created a space unique to Knoxville. Strauss Construction of Chattanooga rebuilt an old gas station into a top-notch brewery and kitchen.

After missing the July 2015 original target date, we ran through a total of five “drop-dead” deadlines before our opening on February 8, 2016. We now have a great staff of over 65 employees. We hired Jason Strobel, a talented local chef; our general manager with prior experience at Big River Brewing, Mark Chilcoat; and our brewmaster, Will Rutemeyer, a former TVA engineer. We sent the management team to Carolina Brewing in Chapel Hill for 90 days of training in a full brewpub/restaurant environment. This paid huge dividends, as Carolina Brewing has the kinds of systems and operations that we have adopted at Balter. Implementing the right systems is the key to success.

“Balter” is an Old English word that means “to dance without particular grace or skill, but with enjoyment.” You’ll see it on the back of our servers’ T-shirts.

Knoxvillians have been surprised at how good our beer, food and service are. We have four flagship beers, which we plan to maintain at all times.

Brewing is an art; while the process may not seem complicated, the trick is to get and keep consistency. Will Rutemeyer brings his engineering mind and skillset to ensure we maintain the same flavor and quality every time. He’s an incredible brewer and is highly detailed at what he does. The German-style Kölsch is currently our biggest seller with the Firebelly IPA a close second. The Coffee Oatmeal Porter has a big following, as does the Maypop APA and the 86-Rye brown ale.

If there’s one thing I learned about balancing life and practicing law, it is that taking time out to have lunch is a good idea. I hope the legal community will come have lunch with us and for those who have not been to Balter, I think you will find there’s plenty of parking around to get in and out quickly. In addition, after a day in the trenches, a rousing victory or a crushing defeat, a cold beer and a great meal will be a perfect ending to the day. Prost!

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com .

August 2016

DICTA

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