DICTA.August 2019 by Knoxville Bar Association

A Community’s Response to the Opioid Crisis: Baby Steps: Treating the Smallest Victims in the Tennessee Opioid Epidemic . . . Page 7 Schooled in Ethics: New ABA Ethics Opinion on Fee Sharing Between Successive Counsel in Contingent Fee Case . . . Page 21

A Monthly Publication of the Knoxville Bar Association | August 2019

, s d ran

s k r a M s u o m a F

, s e c a l P , B s r l e a t n e c o c a i r r t u a c Fi c u r r i n g C h e r v e a s S o – R e e n t s C a n S ve Wo r ks i t m a e e l r E C d r n o a f s r e i f i t Iden

DICTA

August 2019

In This Issue

Officers of the Knoxville Bar Association

COVER STORY

August 2019

Fictional Brands, Famous Marks – Recurring Characters, Places, and Elements Can Serve as Source Identifiers for Creative Works

CRITICAL FOCUS President Wynne du Mariau Caffey-Knight

President Elect Hanson R. Tipton

Treasurer Cheryl G. Rice

Secretary Jason H. Long

#StigmaFree Tennessee Along the Road Best Traveled

This is an attempt to collect a debt…

KBA Board of Governors Hon. Suzanne H. Bauknight Jamie Ballinger-Holden Loretta G. Cravens Kathryn St. Clair Ellis Elizabeth B. Ford

Rachel P. Hurt Allison S. Jackson Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller

T. Mitchell Panter Robert E. Pryor Jr. Mikel Towe

The Knoxville Bar Association Staff

10 11

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

Leslie Rowland LRIS Assistant

The More You Know – A New KBA Survey

Civil False Claims Act Update

New ABA Ethics Opinion on Fee Sharing Between Successive Counsel in Contingent Fee Case

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 Watson (522-6522).

publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Jennifer Dobbins Elizabeth B. Ford Joseph G. Jarret F. Regina Koho

Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe

Managing Editor Marsha Watson KBA Executive Director

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. August 2019

DICTA

Legal Update

Schooled in Ethics

Speaker Profile

SERVANT LEADERSHIP IS NOT A TITLE: Renowned Speaker Vicki Clark to Address KBA Supreme Court Dinner

Draft Like an Egyptian

Paraleagley Weird

10 12 14 18

Dicta is the official

Member Service

WISDOM

Volume 47, Issue 7

Management Counsel: Law Practice 101

Put it down! It’s more than just good manners.

21 Jonathan Guess Database Administrator

A Community’s Response to the Opioid Crisis

Tammy Sharpe CLE & Sections Coordinator

Practice Tips

Baby Steps: Treating the Smallest Victims in the Tennessee Opioid Epidemic

Marsha S. Watson Executive Director

President’s Message

Immediate Past President Keith H. Burroughs

Around The Community Legally Weird

Hello My Name Is

Jarrod Blue

Of Local Lore & Lawyers

West Hughes Humphreys: Judge of the Blue & Gray

Vite et crede

Indomitable Perspective

Bill & Phil Gadget of the Month

Well Read

Teamwork: Is there an app for That?

“The Elements of Style” by William Strunk Jr. and E.B. White

Your Monthly Constitutional

In Our Own Back Yard

Long Winded

What I Did Last Summer

Barrister Bites

Summertime, and the Livin’ Is Easy

COMMON GROUND

4 20 23 29 30 31

Section Notices/Event Calendar Barrister Bullets Bar Hopping Bench & Bar in the News Pro Bono Project Last Word

SECTION NOTICES & EVENT CALENDAR

event calendar

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. To have your name added to the section list, please contact the KBA office at 522-6522.

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE programs “Mediating Business or Commercial Disputes – Understanding the Business Owner’s Agenda and Playbook” on September 9 featuring Brian Quist and “Are we there yet? The Evolution of the Mediation Process” on October 14 featuring Dana Holloway. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held on August 10, and volunteer registration is available at www.knoxbar.org. Join the Bankruptcy Law Section for the upcoming CLE program “Bifurcated Fees and Unbundling of Services in Chapter 7: Access to Justice” on September 10 featuring Hon. Suzanne Bauknight. In conjunction with the CLE, the “Second Annual Celebration of the Pro Bono Debt Relief Clinic” will also be held on September 10. The celebration and reception will be held from 3:00 p.m. - 4:30 p.m. on the Fourth Floor of the Howard H. Baker Jr. United States Courthouse. If you have a program topic or speaker suggestions, please contact the Bankruptcy 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. Join the Corporate Counsel Section for their “Corporate Ethics & Updates” annual extended CLE on August 15 at Chesapeake’s West. If you would like to get involved, 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. The section plans regular CLE throughout the year. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Hedrick (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. Join the Employment Law Section for the CLE program “Getting to Yes! How to Make Your Employment Mediation a Success” on October 15 featuring Chad Hatmaker. 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. Join the Environmental Law Section for the CLE program “Avoiding a Legal Disaster in the Wake of a Natural Disaster” on October 1 featuring Catherine Anglin. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and 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. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. Join the Government & Public Lawyers section for the upcoming CLE programs, “One Lawyer’s Journey in Public Service: A Funny Thing Happened on the Way to the Forum (Building)” on August 27 featuring Doug Overbey and “Scary Ethical Issues for Government Lawyers” on October 31 featuring Sandy Garrett. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. Join the Juvenile Court & Child Justice section for the CLE program “Adoption Law Made Simple” on August 20 featuring Meghan Bodie. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (6961032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2017 will automatically be opted-in to the section. For information about the Section, please contact Section Chairs Erica Green (525-5134) or Jimmy Snodgrass (545-4228).. Senior Section The KBA Senior Section will meet next on September 4, 2019 at Calhoun’s on the River. The program title is “The 2019 Volunteers: A Football Preview” and will feature Tim Priest. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioner & Small Firm section for the CLE program “Efficiently Managing E-Discovery” on August 13 featuring Stephen Johnson and Cullen Wojcik. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258). .

DICTA

n n n n n n n n n n n n n n n n

August 1 2 5 6 7 8 13 13 14 14 15 19 20 21 22 27

Video Replay CLE Video Replay CLE Brews for Backpacks Law Office Tech Committee Meeting Summer Fun CLE Judicial Committee Solo & Small Firm CLE Professionalism Committee Meeting Veterans Legal Advice Clinic Barristers Monthly Meeting Corporate Counsel CLE Diversity in the Profession Committee Meeting Juvenile Court Section CLE Board of Governors Meeting Lunch & Learn Gov’t Section CLE

September

2 Law Office Tech Committee Meeting 4 Senior Section Luncheon 4 Supreme Court Dinner 9 ADR Section CLE 10 Pro Bono Debt Relief CLE & Reception 10 Professionalism Committee 10 Access to Justice Committee Meeting 11 Veterans Legal Advice Clinic 11 Barristers Meeting 12 Lunch & Learn 13 Wellness Conference 16 Diversity in the Profession Committee Meeting 18 Board of Governors Meeting 18 Summer Fun CLE 24 CLE Committee Meeting 25 Cannabis CLE

Mark Your Calendar Supreme Court Dinner September 4, 2019 August 2019

PRESIDENT’S MESSAGE By: Wynne Caffey-Knight Elmore, Stone & Caffey, PLLC

#STIGMAFREE TENNESSEE ALONG THE ROAD BEST TRAVELED Along the way this year, we have talked about removing the stigma of addiction as a first step in traveling the road to resolution. Shelley Moore-White, Director of Critical Care Services at East Tennessee Children’s Hospital, reminds us of this truth in this month’s column as she writes about the most vulnerable and innocent victims of the opioid crisis. In researching more about the issue, I came across New York attorney Lisa Smith’s powerful memoir, Girl Walks Out of a Bar, sharing her personal journey of recovery from drugs and alcohol. In my subsequent email exchanges with her, she shared that she and her husband are moving to California, where she will no longer practice law. Instead, she will devote herself fulltime to helping others, and in particular attorneys, with their well-being. The Bar to which we are admitted to practice sets a very high bar governing every aspect of our professional lives, and in may ways, our personal lives as well. And rightly so. But with that looms the inevitable specter of high stress. Succumbing to that stress carries its own stigma. To my mind, servant leaders lead best by being real, open, and willing to talk about hard issues that can tear away at a person’s ability to be their best and strongest selves. To equip themselves to help others, they need to also help themselves. Consider my dear friend. Several years ago, she was at a point in her life that should have been her happiest. The practice was exploding, she was newly married, she had a beautiful new home, and her loved ones were happy and healthy. To the outside observer, she appeared strong and competent as she maintained her professional demands. Client interests were protected and served well. Inside was another matter, and that only caused a spiraling of the stress inherent to the huge demands of being an attorney. It did not help that one client was particularly self-destructive and the attorney felt helpless to prevent the impending sabotage to her client’s case. Maybe attorneys should not internalize their client’s problems, but if we are at all compassionate, that is just part and parcel to being admitted to the Bar.

in videos at flayld.org/stigmafreeyld-campaign. I am so enamored with their commitment that I borrowed from their tag line. And I would be remiss if I did not mention the equal dedication of the KBA Lawyers Concerned for Lawyers Committee with help only a phone call away to Jim Cornelius at 292-2515 or John Butler at 244-3925. In September, your Knoxville Bar Association is holding a day-long Balancing the Scales of Work and Wellness Expo. There will be programming on how a lawyer’s deskbound schedule impacts physical and mental health, detecting signs of toxic stress and strategies for addressing it, self-care strategies for mental health issues, and prioritizing healthy life-style choices. Covenant Health will be on site providing free health screenings. Executive Director Marsha Watson asked me to serve as a guinea pig for the confidential online health survey members can take to prepare for those screenings. My results were interesting. I have some work do to, but I am also in a really great place. The Expo is designed to promote our physical and mental wellbeing with increased productivity. I hope you will also join us at the Supreme Court Dinner to hear Vicki Clark explain her life of servant leadership. We are also hosting the Minority Law Student Reception and Diversity Program with speaker Janice Brown, who thrives to help attorneys transform their practice while living authentic lives. September is going to be a great month for our Bar association. I end with this: if you need help, call a colleague. Call me. If a colleague reaches out for help, answer the call and step up immediately to be supportive. We all know how to keep confidences and we will do so, but also know that there is no shame in needing or asking for help at times. Better health and supporting one another are first steps along the road best traveled.

To avoid dealing with the internal issues, my friend threw herself further into work. Like Hansel and Gretel’s path, it was not a good one to traverse. The first casualty was sleep. All is well that ends well. In a few weeks, she acknowledged something had to change and this would require putting aside any perceived stigma about embracing help. You already know my friend’s name is Wynne. When I bounced the idea for this message off several colleagues, I was met with nothing but enthusiasm and a number of similar personal stories that include how the stigma of being vulnerable at times interfered with their well-being or asking for help. Every one of them expressed this message was timely and hoped I would write it. Apparently, the Florida Young Lawyers Division has just launched its #stigmafreeyld campaign with the message that it is both okay and healthy to seek help for stress or mental health issues. You might check out the website where Bar members share their experiences August 2019

DICTA

SPEAKER PROFILE By: Angelia M. Nystrom, JD, LLM University of Tennessee Institute of Agriculture

SERVANT LEADERSHIP IS NOT A TITLE: RENOWNED SPEAKER VICKI CLARK TO ADDRESS KBA SUPREME COURT DINNER Warren Bennis once said, “Leaders are made, not born. Each of us contains the capacity for leadership.” Not all leadership is created equal, however. While the traditional notion of leadership is directional (meaning, “I tell you what to do, and you do it”), Robert Greenleaf coined the term “servant leadership” in 1970 to describe an aspirational leadership style that focuses primarily on the growth and well-being of people and the communities to which they belong. He stated, “The first and most important choice a leader makes is the choice to serve, without which one’s capacity to lead is severely limited. A servant leader is a servant first. ” Renowned motivational speaker Vicki Clark agrees. “Too many people believe servant leadership is a giant group hug. That is simply not true,” she says. “A true servant leader is invested in the people that he or she serves. It is difficult – it’s not your traditional directional leadership. A good servant leader listens, is persuasive and builds community.”

caring world. By and large, most people go to law school because they value justice and fairness; those are the people who are natural candidates for servant leadership. But sometimes, they are the people for whom it is the hardest.”

y and large, most people go to law school because they value justice and fairness; those are the people who are natural candidates for servant leadership.”

I asked Clark what traits that she believed were necessary for servant leadership. She related, “A servant leader must be empathetic – willing to put themselves in someone else’s shoes. You cannot lead from your own reality.” She continued, “A servant leader must also listen to understand – not just respond. You need to listen to what is being said as well as what is not being said.”

Vicki is a sought-after speaker who has devoted the last 30 years of her life to building capacity in organizations and inspiring community and business leaders. A noted speaker, facilitator, consultant and trainer, she has extensive experience in the nonprofit, government and private sectors. Her work includes numerous specialty areas, including inclusion and diversity, board development, strategic planning, effective Join us on Wednesday, September 4th communications, and leadership for the Annual Supreme Court Dinner for development within organizations. a chance to hear Vicki Clark. Recently, I sat down with Clark to discuss her upcoming speech to the KBA membership and invited guests at the KBA Supreme Court Dinner on September 4. “I am so very excited to come back to Knoxville,” she says. “When I was there last year to speak at the Diversity program, I was taken with how thoughtful and eager everyone was to elevate the Knoxville Bar and Knoxville community to an even higher place. I’m really excited to share some insights into servant leadership with the group.”

Clark and I then discussed the hallmark of servant leadership: humility. She reiterated that a great servant leader is the leader who serves others over his or her own self-centered thinking. She shared her belief that those served should, while being served, become healthier, wiser, freer, more autonomous, and more likely to become servants themselves. She shared that servant leadership can and should be accomplished: one person at a time; one decision at a time; and one encounter at a time.

Clark acknowledges that servant leadership is more difficult in certain professions – especially professions that are highly competitive and where order and structure are paramount. “Servant leadership is not just for non-profits and religious organizations,” she says. “We are all called to be servant leaders. Servant leaders are servants first . Servant leaders are those leaders who work hard to create a just and caring world.”

To illustrate this, she recounted a story about a homeless man in New York who lived in one of the homeless encampments. “One day, he was talking to the others in his group, and one of the men shared that it was his birthday and that he had never had a birthday party. The man who was listening went to one of the nearby bakeries. He told the shop owner that he didn’t have any money but that he would like one of the cupcakes that she was going to throw out for one of the men in the homeless camp. He shared that it was the man’s birthday and that he had never had a party. The store owner asked how many men were there. He told her that there were twelve. She started packing up 12 cupcakes. ‘But we only need one—it’s only one person’s birthday,’ the homeless man told her. She said, ‘No. It’s a party so everyone needs one.’ From that day forward, the shop owner packaged the goods that she was going to have to throw away in order to comply with health regulations for the men in the homeless camp. The man who first asked for the cupcake was a true servant leader. He thought of someone else before he thought of himself. But the shop owner also became a servant leader as a result of the example he set.”

She believes that attorneys are ideal candidates for servant leadership. “I’ve met a lot of attorneys. They are the perfect servant leaders because they are trained to fight for justice and to create a just and

Clark concluded with the sentiment that true servant leaders see people for what they can be, and they see the value in everyone. “I never had to unscrew anyone’s lightbulb to make mine shine.”

We opened our conversation with my asking her thoughts on the different types of leadership. Vicki related a story about her mother, a public school secretary. “When you think of the public school secretary, you think of a true servant. They tend to be the problem-solvers - the people that everyone goes to for help. That was my mother. She was definitely a leader, but she was not a servant leader. If you know anything about school politics, you know that the school secretary is the one person who really runs the school. My mom was the leader, but she was a leader who told everyone what to do and when to do it. She was a directional leader - and definitely not a servant leader.”

DICTA

August 2019

AROUND THE COMMUNITY By: Douglas Gordon City of Knoxville Law Department By: Amy Butner PhD Candidate: Ancient Egyptian Art History at Emory University

DRAFT LIKE AN EGYPTIAN The Ancient Egyptians of Cleopatra’s era entered into contracts that looked a lot like the contracts that we enter into now. We know this because a few of the pieces of pottery or papyrus on which they were recorded survived to this day. All the contract elements are the same, and this fact is a testament (literally) to the universal truth that these certain elements must be included for a binding agreement to exist. My friend Amy Butner told me about Ancient Egyptian contracts years ago. Amy is a UTK grad, has a M.A in Ancient Egyptian Language and Culture from the University of Leiden, the Netherlands, and is currently pursuing a Ph.D. at Emory studying Ancient Egyptian Art History. She is also the Consulting Curator of Egyptology at the McClung Museum of Natural History and Culture. I encourage you to go to the museum and see their amazing collection.

A warranty for a warranty deed!

Until relatively recently, we did not record deeds in the central repository we refer to as the office of the Register of Deeds. Instead, we kept the chain of deeds to our houses in our houses. To that end, Egyptian contracts typically included, “Yours are its documents in every place in which they are. Every writing which has been made concerning it and every writing which has been made for me concerning it, and every writing to which I am entitled …” Each contract was typically written down by three different priests. This eliminated the need for a jurat and reduced the risk of a scrivner’s error. See below:

The Egyptian contracts to which Amy introduced me to were written in “Demotic,” which is a Greek word that means “popular.” It was developed from earlier Egyptian scripts, and it was later replaced by Greek and then by Coptic. Here are portions of two real estate sales contracts:

The Ancient Egyptians also had rules concerning whether a lessee or lessor had the responsibility for having a lease drafted. If the lessee paid rent at the “normal” time (harvest time,) then the lessee had the lease drafted. If the lessee paid rent when the lease was drafted, then the lessor had it drafted. In other circumstances, the indebted party paid to have the lease drafted. Generally, in lower Egypt, lessees paid in advance, while in upper Egypt, leases were paid after the term.

•

The contract starts with a date that ends with the symbols:

•

We assign a number to each year, but the Ancient Egyptians identified a year by the name of the reigning pharaoh and the name of the head priest. Every year, the pharaoh appointed a new head priest. So, as long you knew the succession of pharaohs and priests, you knew when a contract was executed. Every contract started by saying essentially, “In the year of Eponymous Priest ____ of Pharoah ______;”

We have the following lease terms concerning rent:

• •

Next, the seller and the buyer are identified.

The symbol follows the name of the buyer.

•

follows the name of the seller, and

Next, the contract stated the consideration exchanged between the parties. One contract stated, “You have paid me, you have caused that my heart be satisfied with the money for the house…” Another contract stated, “I have sold it to you for the burial of Senkhonsis daughter of Phibis, her mother being Stibon, and for the coffining of Phibis, her father, and for the coffining of Stibon, his wife…” Descriptions of real property looked very much like our descriptions, and typically said something like “to its south is the property of ____, to its east is the property of _____” and so on until it ended with the phrase “Completion of the boundaries of this entire house.” A conveyance of real property would typically also include the following: “I have given it to you, it is yours, it is your house, built and roofed.” “I have no claim at all against you in respect of it. No man at all, myself included, shall be able to exercise authority over it except you from this day forward. The one who shall come against you in respect of it in any manner at all, in my name or in the name of any man at all, I will cause that he be far from you and I shall cause that it be cleared for you from every right, every writing, every claim, everything on earth, on every day.” August 2019

• •

I have leased to you 3 arouras of land... in the temple domain of the Ram. You are to stock them with cattle and equipment and you are to carry out all the tasks of the farmer with your equipment. . . You are to pay me the rent of the aforementioned lands at the rate of 11/3 artabas of wheat to 1 aroura of land, which amounts to 4 artabas of wheat. The rent for the aforementioned... land for the one year is to be all in seed-grain which is pure, unadulterated and measured by the receiving measure of Pharaoh... ...delivered to me at my house which is in Philadelphia (Darb elGerza) in year 16, Pakhons or Payni, compulsorily and without delay. As for the seed-grain which you fail to deliver in its aforementioned time of delivery, you shall deliver it increased by one half in the month after the stipulated month, compulsorily and without delay. I am to remove every matter of Pharaoh concerning which one will have a claim on you in the name of the fields in the aforementioned time. Other lease terms:

• •

If I hold back the aforementioned lands from you or if any man in the world casts you out from them, I will cause them to be far from you. If I do not cause them to be far from you, I shall give you 100 silver, their half making 50 silver, making 100 silver again, in one day in five days of not causing them to be far from you, which I shall do compulsorily and without delay.

DICTA

(Continued on page 8)

DRAFT LIKE AN EGYPTIAN (Continued from page 7)

•

We also have copies of marriage contracts:

• • • • • •

Which have included the following terms: • • • •

If I leave you as wife and prefer another woman as wife to you, I will give you money, 5 deben equaling 25 staters. . . Here is a list of your bridal-property which you have brought with you . . . If you are within, they are within with you; if you are outside, you are outside with them. The time of desiring to go which you shall appoint, I am to give to you the like of the property which you have brought to my house with you or their value in money again.

So now you know. When you draft a disclaimer concerning hyena attacks, always require the gardener to bring a spear. By the way, this article was printed using Garamond font. Using Times New Roman seemed insensitive. Some sources:

One of the most interesting documents was a gardening contract between Talames, daughter of Imuthes (garden owner,) and Peftumont, son of Udjaf (the gardener.) •

If you intend to be gardener for me in my garden, then you are to give water to it. You are to give 28 drawings of water to it, in the proper measure of 28 drawings.

Photo Ops TRIVIA NIGHT

KBA Trivia Night on June 3rd at South Coast Pizza was a big success. All of the teams missed the last question so the team Barely Legal, which included Checovia Foster, Joseph Welker, Jennifer Bolt, Emily Horton, and Megan Noble, won first prize since they wisely wagered the fewest points.

You are to connect the dyke to my garden against the drawing which you shall cast; and you are to put it behind the gardens; and you are not to cause me to compel you to do it. And I am to ask you for your dung three times daily; and I am to probe it with a stalk of flax. The new reed which I shall find in it, I am to take for it one obol to the new reed. If you are a satisfactory and a good man, a man who cultivates my garden by labour, I will cause that you know it at your first wages. If you wish it in wheat, I will give it to you. If, however, it be agreed to by me to give to you gold-pieces I will give them to you in gold of the infamous Queen. If you do not want them in gold, but you want them in refined bronze, I will give it to you. When you are come to my garden, you are to wear a … on your head because of the sunshine, and a pair of work shoes on your feet because of the stones; you are to gird yourself away from their strength with a leather apron because of… you are to bring a spear in your hand because of the hyena; you are to bring a sword in your hand because of the wolf.

“A Demotic Land Lease from Philadelphia: P. BM 10560” by Cary J. Martin www.jstor.org/stable/3821487 “Notes on Demotic Egyptian Leases of Property” by George R. Hughes www.jstor.org/stable/543478 “A Late Demotic Gardening Agreement” by Richard A. Parker www.jstor.org/stable/3854527 “A Demotic Marriage Document from Deir el Ballas” by Richard A. Parker www.jstor.org/stable/40000975 “A Demotic Property Settlement from Deir el Ballas” by Richard A. Parker www.jstor.org/stable/40000988

LEGAL ADVICE CLINIC

The June 1st Faith and Justice Legal Advice Clinic was held at Immaculate Conception Catholic Church, 414 W. Vine Avenue, Knoxville, TN 37902. Twenty lawyers and six law students served thirty-six clients.

DICTA

August 2019

PRACTICE TIPS By: Courtney Walker Hodges, Doughty and Carson

THIS IS AN ATTEMPT TO COLLECT A DEBT… Since the Supreme Court of the United States issued its 1995 opinion in Heintz v. Jenkins, lawyers across the nation have known that that if they seek to collect consumer debts for their clients- even when doing so through litigation- then they might qualify as a “debt collector” under the Fair Debt Collection Practices Act (“FDCPA”).1 But, how often must a lawyer collect “debts” as defined by the FDCPA in order to qualify as a “debt collector” under the Act? As one should expect, it depends. According to the definition section of the FDCPA, a “debt collector” is “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”2 On a Wednesday morning at 9:00 am in the Old Knox County Courthouse, it is not uncommon to see one lawyer with twenty to thirty consumer debt cases on the docket. For them, the answer is pretty clear- the principal purpose of their law practice or of their firm is most likely collecting consumer debts. The question becomes more difficult to answer, however, when a lawyer or law firm has only a relatively small consumer debt collection practice. According to the Act, the answer depends on whether the law firm or lawyer “regularly collects or attempts to collect” consumer debts. The Second, Fifth and Tenth Circuits have all adopted a multifactor test to determine when a lawyer “regularly” collects consumer debts.3 Courts in those Circuits consider the following factors when deciding whether a lawyer or law firm “regularly” engages in consumer debt collection activity, so as to qualify as a “debt collector” under the FDCPA: the absolute number of debt collection communications issued, and/or collection-related litigation matters pursued, over the relevant period(s), (2) the frequency of such communications and/or litigation activity, including whether any patterns of such activity are discernable, (3) whether the entity has personnel specifically assigned to work on debt collection activity, (4) whether the entity has systems or contractors in place to facilitate such activity, and (5) whether the activity is undertaken in connection with ongoing client relationships with entities that have retained the lawyer or firm to assist in the collection of outstanding consumer debt obligations.4

the FDCPA.7 In its opinion, the Court pointed out the following facts to support the conclusion that the law firm was not a “debt collector”: the firm did not hire any paralegals or use specific software for consumer debt collection work; the lawyer at issue only handled twenty-nine consumer debt collection cases that year, representing only 7.4% of his law practice; and neither the law firm nor the lawyer at issue handled consumer debt collection matters for a major client on an ongoing bases. Ultimately, the Court held that “to find that an attorney or law firm ‘regularly’ collects debts for the purposes of the FDCPA, a plaintiff must show that the attorney or law firm collects debts as a matter of course for its clients or for some clients, or collects debts as a substantial, but not principal, part of his or its general law practice.”8 In conclusion, the consensus across the Circuits is that there is no magic number of consumer debt collection cases, percentage of an overall practice or bright-line rule that will make an attorney or a law firm a “debt collector” under the FDCPA. Courts within the Sixth Circuit will decide each case by balancing the facts with the purpose and design of the FDCPA and the plain meaning of the term “regularly.” A word of caution, though. The FDCPA provides a range of damages for successful FDCPA lawsuits which includes monetary damages, attorneys’ fees and more – ouch! In the end, if you think your law practice or law firm might be considered a “debt collector” under the FDCPA, an internal audit and review of the factors applied both within the Sixth Circuit and outside of the Sixth Circuit might be necessary. Heintz v. Jenkins, 514 U.S. 291 (1995). 15 U.S.C. § 1692(a)(6). 3 Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 58 (2d Cir. 2004); Hester v. Graham, Bright & Smith, P.C., 289 F. App'x 35, 41 (5th Cir. 2008); James v. Wadas, 724 F.3d 1312, 1317 (10th Cir. 2013). 4 Goldstein, 374 F.3d at 62–63. 5 Schroyer v. Frankel, 197 F.3d 1170, 1174 (6th Cir. 1999) (citing Black's Law Dictionary 1286 (6th ed.1990). 6 Id. 7 Id. at 1176 8 Cite at 1176. 1 2

The Sixth Circuit, however, has not explicitly promulgated such a test. Instead, the Sixth Circuit looks to the language and design of the FDCPA as a whole and to the plain meaning of the word “regularly.” As defined in Black’s Law Dictionary, the term “regularly” means “[a]t fixed and certain intervals, regular in point of time. In accordance with some consistent or periodical rule of practice.”5 Further, “regularly” means “[u] sual, customary, normal or general … Antonym of ‘casual’ or ‘occasional.”6 In Shroyer v. Frankel, the Sixth Circuit held that a law firm that handled 50-75 consumer collection cases annually, representing just 2% of the firm’s overall practice, did not qualify as a “debt collector” under August 2019

DICTA

A COMMUNITY’S RESPONSE TO THE OPIOID CRISIS By: Shelley Moore-White East Tennessee Children’s Hospital

BABY STEPS: TREATING THE SMALLEST VICTIMS IN THE TENNESSEE OPIOID EPIDEMIC The opioid crisis in Tennessee has reached an alarming peak. Along with the thousands of adult lives impacted by substance abuse each year, an increasing number of babies are now being born dependent on drugs – and that is unacceptable. East Tennessee Children’s Hospital first noticed the upward trend nearly a decade ago. Since 2010, the amount of infants treated for Neonatal Abstinence Syndrome (NAS) at our facility has increased significantly. Our position in the region made us the best outlet for this patient population, and the innovation of our staff helped us become a leader in the treatment of NAS. Over the past ten years, our neonatal intensive care unit has decreased the length of stay for patients with NAS from 30 days to 18 days. Thanks to advances in technology and bedside nursing ingenuity, babies are weaning off of addictive substances faster. Ten years into this blossoming crisis, we’ve discovered that treatment of the symptoms is no longer enough. That’s why, in 2017, East Tennessee Children’s Hospital developed the Grow With Me Clinic. This specialty care coordination program was designed to address the medical, developmental and emotional needs of patients born with NAS during the first five years of their life. By utilizing the resources already available at our facility (including nurse practitioners, child psychologists, social workers, registered dietitians, speech-language therapists, occupational therapists and a dedicated program coordinator), Children’s Hospital targets every facet of the child’s development. The goal of the program is to decrease and mitigate Adverse Childhood Experiences (ACEs) and to improve school readiness by reducing medical, behavioral, and emotional barriers encountered during early childhood. And we realize that achieving this goal requires additional focus on the caregiver. Given the young age of this patient population, establishing trust with the caregiver is crucial to this program’s success. The Grow With Me team embraces the fluid evolution of custody and home placement transitions that commonly occur with this population. By encouraging cooperation among caregivers -- especially during transitions -- the Grow With Me team is able to assess and promote positive child/ caregiver attachment and mitigate the impact that toxic stressors stemming from caregiver instability may cause. The Grow With Me program is continuously seeking to have a greater impact and to decrease and mitigate the impact of ACEs. In the

future, the program will administer ACEs and resilience screenings to the infant’s biological mother during the infant’s hospital stay or intake into the program. This will allow health care providers to open a dialogue and assist mothers, so that they may better recognize and understand how their personal ACEs impact their lives. Additionally, this will provide the support and tools they need to break the cycle of substance abuse for their child. ACEs screenings will be performed for the infant or child on their milestone clinic visits up to the age of five. There are many resources in our community that exist to help families battling with addiction and substance abuse. East Tennessee Children’s Hospital partners with these organizations to provide comprehensive resources for patients and caregivers. Some of these community partners include: IOP/addiction services with Helen Ross McNabb SilverLinings Program, Multi Agency Collaboration (MAC) program, Centers of Excellence (COE) for children in state custody for Child Parent Psychotherapy (CPP) and Parent Child Interaction Therapy (PCIT) referrals, Safe Baby Courts, University of Tennessee School of Social Work for infant mental health and early brain development staff training, Parents as Teachers and many other agencies. As a family-centered care provider, this program’s success has been measured by the improvement and engagement of the whole family – not just the patient. One mother whose child is participating in the program disclosed that through the ongoing level of support that the Grow With Me clinic has given her has made it possible for her to maintain her sobriety. For this mother battling with addiction and her own set of ACEs, our support of her personal goal was the incentive she needed to break her own cycle of addiction and develop an incredible attachment to her infant -- ensuring a positive outcome for her son. To date, the Grow With Me program boasts a 73% clinic show rate from a population of families who typically have trouble with trust and commitment. There are more than 280 families currently participating and over 360 referrals for patients, parents, siblings, legal guardians, and foster parents have been made. By continuing to develop and expand the Grow With Me program, East Tennessee Children’s Hospital aims to offer clinical insight into the long-term effects opioids have on early childhood development. But more than that, through education and outreach, we hope to improve the overall health of our children and break the cycle of substance abuse in East Tennessee.

STUFFED ANIMAL DRIVE – KNOX COUNTY JUVENILE COURT

The KBA Juvenile Court and Child Justice Section is asking members to donate a NEW stuffed animal to Knox County Juvenile Court. The Juvenile Court uses the stuffed animals to calm children who appear in their courtrooms. The Juvenile Court judges hand out thousands of stuffed animals each year and their current supply is getting low. Please help comfort a child during their time in court by donating a NEW stuffed animal. Donations can be dropped off at the Knoxville Bar Association, 505 Main Street, Suite 50 or at any KBA sponsored event. Please contact Tammy Sharpe, CLE & Sections Administrator, at the KBA office if you have any questions (tsharpe@knoxbar.org or 865-522-6522).

DICTA

August 2019

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Paul E. Wehmeier Arnett, Draper & Hagood, LLP

PUT IT DOWN! IT’S MORE THAN JUST GOOD MANNERS. If you have had a meal, been behind a driver, or walked on the same sidewalk as another human-being in the last decade, you likely have experienced a person distracted by a mobile device. If I am honest, you may have witnessed a mobile device distracting me during a meal or on the sidewalk. The Knoxville News Sentinel’s Tyler Whetstone reports that, in 2018, 24,600 crashes involved distracted drivers.1 With those statistics apparently in mind, the Tennessee General Assembly enacted 2019 Tenn. Pub. Acts 412 (“Act”) which amends Tennessee Code Annotated section 55-8-199 and expands the prohibition against certain uses of mobile devices in motor vehicles. Specifically, a person (not just a minor) shall not: (A) [p]hysically hold or support, with any part of the person’s body a: (i) [w]ireless telecommunication device . . .; or (ii) [s] tand-alone electronic device; (B) [w]rite, send, or read any text-based communication, including, but not limited to, a text message, instant message, email, or internet data on a wireless telecommunication device or stand-alone electronic device . . .; (C) [r]each for a wireless telecommunication device or stand-alone electronic device in a manner that requires the driver to no longer be: (i) in a seated position; or (ii) [p]roperly restrained by a safety belt; (D) [w]atch a video or movie on a wireless telecommunications device or standalone electronic device other than viewing data related to navigation of the motor vehicle; or (E) [r]ecord or broadcast video on a wireless telecommunication device or stand-alone device. This subdivision (b)(1) does not apply to electronic devices used for the sole purpose of continuously recording or broadcasting video within or outside of the motor vehicle.2

Any modern mobile device user is now subject to potential penalty of a Class C Misdemeanor for violations of the Act, but a potentially broader implication of the statute exists in the employeremployee context. As employers consider mobile device usage in workplace settings, they should not ignore the potential liability they may encounter when their employees are conducting work on a wireless telecommunication device or stand-alone device in company vehicles (or potentially during a commute to or from the workplace in an employee’s vehicle). Vicarious liability of an employer for its employee’s negligent operation of a motor vehicle is certainly a risk where an employee is found to a have violated public policy by using a mobile device while performing work in a motor vehicle (whether in the employer’s vehicle or in the employee’s vehicle for the employer’s benefit). Because the statute was effective July 1, 2019, now is a good time to review any workplace policies regarding employee mobile device usage in motor vehicles. If no policy exists, now may be the time to consider banning the use of mobile devices to complete company work (except for the purpose of trip navigation) in a motor vehicle (or setting other specific rules that comply with the Act regarding mobile device usage for work purposes). As with all workplace policies, enforcement and training will be key to reducing exposure. See Tyler Whetstone, Tennessee Law Banning Hand-Held Cellphone Use While Driving in Effect Monday, Knoxville News Sentinel, June 26, 2019 (available at https://www.knoxnews.com/story/news/local/2019/06/26/tennessee-handsfree-law-what-know-cellphone-driving-ban/1440405001/). 2 2019 Tenn. Pub. Acts 412. 3 See generally, 2019 Tenn. Pub. Acts 412. 1

The General Assembly did make exception for handsfree devices used in motor vehicles, the use of navigation equipment, and for limited interaction with a wireless telecommunication device or stand-alone device if the device is mounted on the vehicle’s windshield, dashboard, or center console and does not hinder the driver’s view of the road and the interaction is one swipe or tap motion of the driver’s finger without activating a camera, video, or gaming feature, or features or functions related to the transportation of persons or property for a fee. There is also an exception for wireless telecommunication and stand-alone device usage when communicating with law enforcement, medical providers, or other emergency personnel in response to emergency situations, or use by certain utility or emergency responding employees in their occupations.3 Violations of the Act’s prohibitions result in a fine not to exceed $50.00 dollars unless it is a person’s third offense or the violation results in an accident. In that case, the fine escalates to $100.00. If the violation occurs in a work zone where construction workers or department of transportation employees are present, or a school zone when flashers are in operation, the fine increases to $200.00. Certain court costs, not to exceed $10.00, may also be imposed.

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 2019

DICTA

L E G A L LY W E I R D By: Lisa J. Hall, Esq. Hodges, Doughty & Carson

Hopeful Paraleagle Girl Friday

PARALEAGLEY WEIRD

I don’t know if you have heard, but the job market is positively saturated with highly-qualified yet desperate individuals who will do anything to earn $10 (if they are bad) to $25 (if they are good) per hour to: write, file, arrange and maintain case files, draft pleadings, research, and assist clients in the “business end” of law. These individuals would obviously turn to Craigslist first in their quest to secure employment, and some lucky girl must have snatched up the position featured above, because the ad is sadly no longer available online. I specify “girl” because the ad mentions twice that the employer seeks a “girl Friday.” Good news, ladies, the employer “don’t care your dress size” so don’t let your dress size stop you from applying for this coveted position. Also, if you are a disbarred lawyer from Oliver Springs, you are officially not excluded as a potential candidate for this position (sorry, disbarred lawyers from Coalfield or Petros, you can just move it right along). If this advertisement causes you any concern that the employer may be engaged in the unauthorized practice of law, have no fear because they “know where the line is and stay inside what is lawful for us to do.” Included inside that line is apparently Westlaw research, which the ideal candidate must make sufficient use of to justify the employer’s Westlaw cost of $1,300/month. Make no mistake, the employer is not a lawyer but merely a “business consultant” who only assists clients in the business end of law, and “legal questions are referred to a lawyer.” As you know, Westlaw is known for its value to business consultants who only assist clients with their business, making certain they do not provide guidance on any legal questions. Not only should you be familiar with research and writing, but you must have “externally good skills at research.” You should also be on time, able to work without supervision and be “very detail orientation.” Oddly, this business consultant firm that does not engage in the unauthorized practice of law wants to keep its business private: “Loyalty and confidentiality is a strongest thing you can bring to the table.”

Even though the advertisement’s title is “Paraleagle girl Friday needed immedately,” the job is not limited to paralegals or paraleagles: “Lawyers welcome to apply, lots of hungry out there.” Yes, the employer is open to paralegals or lawyers (even of the disbarred Oliver Springs variety), but I have to think that you have an edge if you are a certified paraleagale. Please do not confuse paraleagle with “paralawyer,” which was the title held by Deck Shifflet in The Rainmaker by John Grisham (portrayed by Danny DeVito in the movie). “Paraleagle” is a new and revolutionary occupation conceptualized by an unidentified business consultant firm in Jefferson City, Tennessee (or in another location in which its private and confidential unauthorized practice of law can be preserved). A paraleagle is a very detail orientation loyal and confidential crackerjack Girl Friday of any dress size or age with externally good skills at research. A good paraleagle can earn up to $25/hour but a bad paraleagle may only earn $10/hour. That may seem low to you, but friends, there is lots of hungry out there. Go get ‘em, paraleagles. But don’t tell anybody.

DICTA

August 2019

MEMBER SERVICE By: Loretta

G. Cravens

Cravens Legal Co-Chair, Membership Service Committee

THE MORE YOU KNOW – A NEW KBA SURVEY Thirty years ago, NBC launched The More You Know public service campaign, featuring short facts delivered by celebrities, each ending with The More You Know logo.1 “The More You Know has addressed the nation’s most pressing social issues and remains a trusted voice for sharing knowledge to improve lives.”2 Now, I am no celebrity, and the KBA is a different acronym with a slightly smaller footprint, but it is true that the more we know the more we, as a bar, grow. That is why, on behalf of the KBA and the Membership Service Committee, and my co-chair Taylor A. Williams, it is my honor to officially announce the KBA’s first comprehensive Economics and Law Office Management Survey. One of the key functions of the Membership Service Committee is to continually evaluate and improve upon the valuable services and resources – like the annual attorney directory – that the KBA members receive from their membership. In furthering that mission, the Membership Service Committee believes that this survey will provide KBA members with valuable information regarding the economics and management of the legal profession in our local community. The survey is based on a previous survey conducted by the Florida Bar Association. It is designed to gather information about the practice, economics, and business of law. To ensure confidentiality, we have contracted the Bar Services Division of the ABA to administer the survey and conduct it in a manner that completely protects the privacy of each respondent, even from the KBA. Our hope is that the results of this confidential survey will help the KBA better meet the needs of membership, develop new services and offerings, and be a useful tool for improving our most educated bar. The Economics and Law Office Management Survey is not something that we have rushed into. The Membership Service Committee has invested nearly two years of research, discussion, revision, and effort into ensuring this survey will serve KBA members and the profession prior to submitting it to the Board of Governors for approval. The committee is confident that we have tailored the survey as narrowly as possible to obtain comprehensive and accurate results while safeguarding members privacy.

August 2019

In mid-August, each KBA member will receive an email with a unique link to complete the survey. We have endeavored to make it as convenient as possible to complete the questions applicable to you as easily as possible. We recognize we are asking each KBA member to invest time, your most valuable commodity, by completing this survey; therefore, you will be able to complete the survey on your own schedule. You can begin the survey and return to it as needed until completed without losing your answers. Please provide this public service to your bar and complete the survey. The survey will remain open until September 13. The data set gathered will only be valuable if a high percentage of our membership participates, so we really need every member to complete the survey. As an incentive, the survey administrators will select one participant at random to receive a special gift from the KBA. You will be receiving much more information about the survey over the next few weeks, so be on the lookout in your inbox and in KBA publications and announcements. We really do not want to nag, but we will also be reminding you frequently about the survey. So, I implore you to hit us with some knowledge and complete the survey. The more the KBA knows, the more we grow. TheMoreYouKnow.com Id.

1 2

DICTA

HELLO MY NAME IS... By: Jennifer Franklyn Leitner Williams Dooley Napolitan

JARROD BLUE As a Contracts and Compliance Manager for the Institute for Advanced Composites Manufacturing Innovation (IACMI) – The Composites Institute, Attorney Jarrod Blue’s work involves complex and technical concepts that many of us will never encounter. As Jarrod describes his work: “The Composites Institute is managed by the Collaborate Composite Solutions Corporation and is a partnership of industry, universities, national laboratories, and federal, state and local governments, all working together to benefit national energy and economic security by co-investing to accelerate research and development in the advanced composites field.” Jarrod has always envisioned himself applying law in a scientific and technical field. He received his Bachelors of Science in Biology at Davidson College. After his receiving his undergraduate degree, he moved to Knoxville for the Master’s program in Ecology and Evolutionary Biology at the University of Tennessee.

When he isn’t working, Jarrod’s primary passion is travel. One of his favorite places to travel is New Mexico, and he is thrilled to have a future trip planned to Italy. He also frequently hikes in the Smokies (his most recent adventure was an overnight trek to Mt. LeConte). When Jarrod is at home in Knoxville, he enjoys trying new restaurants and cooking and baking at home. Jarrod gives back to his local community by engaging with Knox Heritage, a nonprofit organization that supports the preservation of historical properties. “The group fosters opportunities to network with people from a wide variety of backgrounds that share a mutual interest in preserving homes and businesses within the Knoxville community,” he says. Although the technical subject matter of his work may be different from many attorneys, as Jarrod sees it, his work is not far from the average day-to-day of any lawyer. “A lot of my job is about collaborating with different entities, managing diverse personalities, and networking those individuals together. One significant accomplishment from my work is that I implemented a new contracting mechanism to bring together the private sector and academic partners together to perform R&D work within a short window of time, while maintaining intellectual property and confidentiality of all participating parties. When my work is significant in bringing groups of engineers to work together and innovate, it is very rewarding.” The KBA is excited to welcome Jarrod and his unique perspective and enthusiasm for his legal career.

After he completed graduate school, Jarrod planned to integrate his science background with law by attending law school at UT to focus on environmental law. During his 2L year, he decided to take a chance by pursuing a different route to apply his interest in science and technology, and he accepted an internship at the Oak Ridge National Laboratory (ORNL). Jarrod says that his internship at ORNL exposed him to contracts and compliance work, and he fell in love with a field that brings together the best aspects of the public sector and the private sector. Jarrod also reflects that taking business law courses were especially significant in re-shaping his career to focus on contracts and compliance.

y mother constantly serves as my internal moral compass and my father serves a constant reminder of the importance of not allowing life to stress me out and that it’s important to enjoy life to the fullest.” Jarrod’s work is often challenging, but his friends and family keep him grounded. As a native of Charlotte, North Carolina, he frequently visits home and remains close to his parents. “My mother constantly serves as my internal moral compass and my father serves a constant reminder of the importance of not allowing life to stress me out and that it’s important to enjoy life to the fullest.” Jarrod describes.

DICTA

August 2019

L E G A L U P DAT E By: Ivan A. Boatner Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

CIVIL FALSE CLAIMS ACT UPDATE Cybersecurity is (or should be) at the top of every organization's risk register. Almost daily, the headlines provide examples of organizations' information systems being compromised. These breaches can result in the loss of invaluable data -- the organization's priceless trade secrets (or other confidential business information) as well as customers' sensitive information such as personally identifiable information and protected health information. The loss or compromise of such information due to cybersecurity failures can result in significant financial and reputational harm. For those doing business with the Federal Government, the recent order in United States ex rel. Markus v. Aerojet Rocketdyne Holdings ("Markus") raises the stakes.1 Brian Markus worked for Aerojet Rocketdyne, a missile defense and rocket engine technology company that holds contracts with the Department of Defense (DoD) and NASA, as their Senior Director of Cyber Security, Compliance, and Controls. Mr. Markus filed a qui tam action on behalf of the United States under the False Claims Act2 (FCA) alleging that Aerojet Rocketdyne repeatedly misrepresented its compliance with applicable DoD and NASA cybersecurity regulations.3 The consequences for violations of the FCA can be significant: (1) civil penalties of up to $22,363 per violation4, (2) three times the amount of damages5 (treble damages), and (3) potential debarment from future contracts with the Government.6 Markus is significant because it allowed Mr. Markus to pursue a theory that Aerojet Rocketdyne's alleged misrepresentations regarding compliance with DoD and NASA cybersecurity requirements induced the Government to enter into the contracts in the first place. This promissory fraud approach could result in liability for "each claim submitted to the government under a contract, when the contract or extension of government benefit was originally obtained through false statements or fraudulent conduct.”7 Although the focus of this update is on penalties associated with false claims relating to compliance with government cybersecurity requirements, the holding should cause those who submit proposals to the government to be even more vigilant when preparing and reviewing proposals that may result in receipt of government funds. For example, if an organization decided to pursue a government contract which required workers to engage in hazardous activities, the Government might be looking for a contractor with a strong safety culture and robust safety programs, policies, and procedures. If the winning company's proposal falsely misrepresented its safety record, culture, and program and the government relied on those representations in its decision to award the funds (whether it be a contract, cooperative agreement, grant, or other funding mechanism), FCA liability could ensue. August 2019

Another significant aspect of Markus is its analysis of the "materiality" requirement. A falsehood is material under the FCA if it has “a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.”8 Rocketdyne argued that the alleged statements were not material because they disclosed noncompliance with certain cyber requirements and the government paid them for their goods and services. Rocketdyne's argument was supported by the Supreme Court's decision in Escobar which held that “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.”9 Markus found Rocketdyne's argument to be a dud and held that the alleged false statements were material because, although Rocketdyne disclosed certain facets of noncompliance with the applicable cybersecurity requirements, it failed to disclose the full extent of its noncompliance. Full disclosure "could have affected the Government's decision to enter into and pay on the contracts at issue."10 As Shakespeare said: "Honesty is the best policy." In pursuing government contracts and performing on those contracts when you win them, it is the only policy.

United States ex rel. Markus v. Aerojet Rocketdyne Holdings, Inc., and Aerojet Rocketdyne, Inc., 2:15-cv-02245, Eastern District of California, 05/08/2019. 2 31 U.S.C. §§ 3279 et seq. The qui tam provision at 31 U.S.C. § 3730(b) allows individuals to file an FCA complaint on behalf of the government. The complaint must be filed under seal and served on the U.S. Attorney for the district where the case is filed and on the Attorney General of the Unite States. 3 The DoD regulations requires that contractors have “protective measures that are commensurate with the consequences and probability of loss, misuse, or unauthorized access to, or modification of information.” 48 C.F.R. § 252.204 7012(a). The NASA regulation likewise requires that contractors implement controls “protect the confidentiality, integrity, and availability of NASA Electronic Information and IT resources and protect NASA Electronic Information from unauthorized disclosure.” 48 C.F.R. § 1852.204-76(a). 4 31 U.S.C. § 3729(a)(1); 28 C.F.R. § 85.5 (2018). 5 31 U.S.C. § 3729(a)(1). 6 48 C.F.R. 9.406-2. 7 United States ex rel. Markus v. Aerojet Rocketdyne Holdings, Inc., and Aerojet Rocketdyne, Inc., 2:15-cv-02245, Eastern District of California, 05/08/2019, at p.6, citing U.S. ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1173 (9th Cir. 2006). 8 31 U.S.C. § 3729(b)(4). 9 Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2003 (2016). 10 United States ex rel. Markus v. Aerojet Rocketdyne Holdings, Inc., and Aerojet Rocketdyne, Inc., 2:15-cv-02245, Eastern District of California, 05/08/2019, at p.11. It should be noted that the U.S. Attorney of the District of Kansas recently announced an FCA settlement involving a recipient of funds under the Department of Health and Human Services Electronic Health Records Incentive Program whose patient data security did not meet applicable requirements. 1

DICTA

Fictional Brands, Famous Marks –

Recurring Characters, Places, and Elements Can Serve as Source Identifiers for Creative Works Consumers of pop culture associate STAY PUFT with marshmallows, CHEESY POOFS with snacks, and DUFF with beer. Each of these brands is decidedly fake. Yet their entry into the popular lexicon has added to the very real fame of Ghostbusters, South Park, and The Simpsons. Does this mean fictional brands merit trademark protection? Maybe so, according to several recent court decisions. In the real world, fictional brands may become source indicators – not of fake products, but of the creative works in which they serve as props and plot elements. Trademarks serve as indicia of the source and quality of goods and services. Laws like the Lanham Act protect the integrity of trademarks and, thereby, the interests of consumers.1 Given this history, extending trademark protection to fictional brands seems at first blush to overextend and even pervert the goals of the trademark regime. But U.S. law has long protected trademark holders from those free-riders who would unfairly seek to capitalize on the goodwill of others. The Lanham Act, for example, has from its enactment in 1946 prohibited anyone from using in commerce “any word, term, name, symbol, or device, or any combination thereof ” that “is likely … to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.”2 Congress ramped up such prohibitions with the Federal Antidilution Act (1996, 2006, 2012), which protects famous marks from “dilution by blurring” – the “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.”3 Older appellate decisions have taken on the question of whether specific elements from within a television show – as opposed to the title of the show itself – can receive trademark protection. In the 1980s, the Fifth Circuit found trademark protection extended to “certain characters, places, and elements” from the fictional comic book series Conan the Barbarian, and the Second and Seventh Circuits held trademark protection covered the distinctive colors and emblems of the GENERAL LEE muscle car featured in The Dukes of Hazzard television series.4 Protecting such creative elements from television shows that also identified the source of actual, commercialized entertainment products, the courts found, was consistent with the broader aims of trademark law.5 In the light of these decisions, then, it seems clear that the title character’s name, overall motif, and famous logos of a popular creative franchise are protectable trademarks. The consistent and prominent roles these elements played in their creative works, the courts found, demonstrated they served as source identifiers for the entertainment franchises.6 Drawing on these decisions, recent courts have expanded the trademark protection afforded to fictional elements of creative works even further.7 The Example of the Krusty Krab Restaurant The SpongeBob SquarePants animated television series debuted in 1999 and quickly wormed its way into the hearts of children and the ears of adults across the United States.8 For the past 15 years, it has been the most watched animated television show.9 SpongeBob, the square-pants wearing sea sponge of the title, lives in a pineapple in the underwater city of Bikini Bottom and works as a fry cook at a fast-food restaurant called The Krusty Krab.10 The show chronicles the adventures of SpongeBob

and his friends, co-workers, and fellow Bikini Bottomers.11 Today the franchise includes two feature films, a musical play, video games, a mobile app, and scores of licensed merchandise.12 In 2014, IJR Capital Investments, LLC (“IJR”) drew up plans to open a chain of seafood restaurants named THE KRUSTY KRAB.13 IJR’s principals knew about the SpongeBob SquarePants franchise but determined the name had not been used on an actual restaurant.14 So IJR filed an intent-to-use trademark application in the United States Patent and Trademark Office for the mark for “restaurant services.”15 No one opposed the application, which was allowed in August 2015.16 Then, as IJR was preparing to open its first location, it received a cease-and-desist letter from Viacom International, Inc. (“Viacom”), the owner of the SpongeBob SquarePants franchise.17 Viacom soon sued IJR for trademark infringement under state law and unfair competition under the Lanham Act.18 Viacom alleged IJR’s use of the mark was likely to confuse consumers by causing them to believe the restaurants were affiliated with, sponsored by, or connected to Viacom and the SpongeBob SquarePants franchise.19 The district court granted partial summary judgment to Viacom, holding it had established ownership of THE KRUSTY KRAB mark and demonstrated IJR’s unauthorized use of the mark was likely to cause confusion.20 The Fifth Circuit affirmed,21 determining Viacom’s use of THE KRUSTY KRAB mark was such that consumers would recognize it as an indicator of origin for particular goods or services.22 Borrowing guidelines from other cases, the appellate court focused on the role of THE KRUSTY KRAB element in SpongeBob SquarePants, rather than the overall success of the entertainment franchise.23 On one end of the spectrum, there are no trademark rights in the term ROMULANS – a fictional alien race from the Star Trek series – because the term was only used “from time to time” and not in a manner to distinguish any goods or services.24 On the other end, the fictional elements DAILY PLANET and KRYPTONITE figure prominently in the Superman franchise.25 Like the Superman example, THE KRUSTY KRAB appeared in over 80% of SpongeBob SquarePants episodes and played a “prominent role” in the franchise’s films, video games, and licensed merchandise.26 Thus, the court found the phrase was used as an identifier of the source for goods and services – a trademark. 27 The court also determined THE KRUSTY KRAB was sufficiently distinctive to support trademark protection.28 A trademark may be either inherently distinctive – such as when its “intrinsic nature serves to identify a particular source” (e.g., APPLE for computers29) – or it may acquire distinctiveness in the form of “secondary meaning” once the public comes to understand its primary significance as identifying the source of the product rather than the product itself (e.g., 5-HOUR ENERGY for energy drink30).31 The court found that THE KRUSTY KRAB mark had been in use since the SpongeBob SquarePants franchise began in 1999, appearing in over 160 episodes and serving as a “central element” in the fictional universe; that Viacom had earned hundreds of millions of dollars from two feature films and from its extensive licensing programs; that numerous, successful advertising campaigns had depicted the mark; and that THE KRUSTY KRAB was frequently referred to in popular press.32 This evidence established beyond dispute the mark possessed secondary meaning.33 The Fifth Circuit also affirmed the district court’s finding that IJR’s use of the mark created a likelihood of confusion.34 Under the Fifth

DICTA

August 2019

COVER STORY

Circuit’s traditional factors for assessing likelihood of confusion, the court found THE KRUSTY KRAB was a strong mark and IJR’s verbatim use of it spawned confusion.35 The involved goods and services were similar because Viacom’s fictional use of the mark and IJR’s intended actual use of the mark were both for restaurants, and it was common practice in the entertainment industry for franchises like SpongeBob SquarePants to commercialize real-world embodiments of their fictional elements.36 Case in point: Viacom’s subsidiary, Paramount Studios, licensed BUBBA GUMP SHRIMP CO. for seafood restaurants modeled after the fictional business created in the movie Forest Gump.37 Viacom also submitted anecdotal evidence of actual confusion and a consumer survey showing approximately one out of every three respondents associated IJR’s proposed THE KRUSTY KRAB seafood restaurant with Viacom, or believed it was operated by, affiliated or connected with, or approved or sponsored by Viacom.38 The court admonished against construing its holding as conferring blanket trademark protection of THE KRUSTY KRAB mark to Viacom, but warned any future restauranteurs that using the mark would constitute infringement “absent a showing that the restaurant was developed in a context sufficient to avoid any likelihood of consumer confusion.”39 The Limits of Protecting Fictional Trademarks The unfettered ability to trademark a fictional brand name would represent a significant change and reorient the traditional goals of the trademark regime. Yet the Krusty Krab case did not grant property rights in the mark in gross.40 Like the precedents on which it is based, the case stands for the proposition that fictional brands merit protection only if they are so ubiquitous to an entertainment franchise they may be viewed as inextricably linked to the franchise itself, and that such protection must be grounded in a likelihood of confusion – namely, that consumers will mistakenly believe a third-party’s goods and services sold under the fictional name are sponsored by or affiliated with the entertainment franchise.41 This result makes sense both equitably and in terms of trademark law, for it would protect consumers by allowing them to assume the goods or services provided under the marks are backed by the goodwill of the trademark owners. In the absence of any likelihood of confusion based on popular fame, however, there is no justification for extending the weight and authority of the trademark regime to a creative idea untethered from a real-world brand.

August 2019

By: Ian

G. McFarland

By: John

T. Winemiller*

Merchant & Gould Merchant & Gould

* Ian G. McFarland and John T. Winemiller practice out of Merchant & Gould’s Knoxville office, where John is the managing partner and Ian is an associate. They handle all manner of foreign and domestic trademark matters as part of their IP counseling and litigation practices. John also teaches Trademark Law at the University of Tennessee College of Law. They may be reached at imcfarland@merchantgould.com and jwinemiller@merchantgould.com. A longer version of this article appeared in Landslide, Vol. 11, No. 4 (March/April 2019), 38-42. 1 See 1 McCarthy on Trademarks and Unfair Competition (“McCarthy”) §§ 5.3-5.4 (5th ed.) (History of United States trademark legislation and Legislative history of Lanham Act) 2 15 U.S.C. § 1125(a)(1)(A). 3 15 U.S.C. § 1125(c)(2)(B). 4 Conan Props., Inc. v. Conans Pizza, Inc., 752 F.2d 145, 148, 150 (5th Cir. 1985); Processed Plastic Co. v. Warner Commc’ns, Inc., 675 F.2d 852, 859 (7th Cir. 1982); Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 77-79 (2d Cir. 1981). 5 See Conan Props., 752 F.2d at 150; Processed Plastic Co., 675 F.2d at 855-57; Gay Toys, 658 F.2d at 79. 6 See, e.g., Gay Toys, 658 F.2d at 79. 7 Viacom Int’l, Inc. v. IJR Capital Invs., L.L.C., 891 F.3d 178 (5th Cir. 2018); Lucasfilm Ltd. LLC v. Ren Ventures Ltd., 126 U.S.P.Q.2d 1515 (N.D. Cal. 2018). 8 Viacom Int’l, 891 F.3d at 183. 9 Id. 10 SpongeBob SquarePants (Viacom Media Networks May 1, 1999 – present). 11 Id. 12 Viacom Int’l, 891 F.3d at 183. 13 Id. 14 Id. 15 Id.; see also U.S. Trademark Application Serial No. 86/470,477 (filed Dec. 3, 2014). 16 Viacom Int’l, 891 F.3d at 183-84; see also U.S. Trademark Application Serial No. 86/470,477 (filed Dec. 3, 2014). 17 Viacom Int’l, 891 F.3d at 184. 18 Id. 19 Id. 20 See id. 21 Id. at 198. 22 Id. at 185. 23 Id. at 187. 24 Id. (citing Paramount Pictures Corp. v. Romulan Invasions, 7 U.S.P.Q.2d 1897, 1900 (T.T.A.B. 1988)). 25 Id. at 187-88 (citing Romulan Invasions, 7 U.S.P.Q.2d at 1897-1900; DC Comics v. Kryptonite Corp., 336 F. Supp. 2d 324, 332 (S.D.N.Y. 2004); DC Comics, Inc. v. Powers, 465 F. Supp. 843, 847 (S.D.N.Y. 1978)). 26 Id. at 188. 27 Id. at 189. 28 Id. at 191. 29 See 2 McCarthy § 11:13. 30 See Innovation Ventures, LLC v. N2G Distrib., Inc., 779 F. Supp. 2d 671, E.D. Mich. 2011), aff’d 763 F.3d 524 (6th Cir. 2014). 31 Viacom Int’l, 891 F.3d at 189-90. 32 Id. at 190-91. 33 Id. at 191. 34 Id. at 198. 35 Id. at 192, 198. 36 Id. at 193-94. 37 Id. at 194. Other examples of real-world commercialization of fictional brands include SEX PANTHER cologne from Anchorman (Anchorman Sex Panther Cologne 1.7 oz with Panther Bottle, https://www.amazon.com/Anchorman-Sex-Panther-Cologne-Bottle/dp/B00NMSZ3XG (last visited Nov. 19, 2018)) and DUNDER MIFFLIN paper from The Office (The Office Dunder Mifflin Paper (Ream), https://www.amazon.com/The-Office-Dunder-Mifflin-Paper/dp/ B006CDW350 (last visited Nov. 19, 2018)). 38 Viacom Int’l, 891 F.3d at 197. 39 Id. 40 In Boston Professional Hockey Association, Inc. v. Dallas Cap & Emblem Manufacturing, Inc., 510 F.2d 1004 (5th Cir. 1975), the Fifth Circuit held that Dallas Cap infringed Boston Hockey’s trademark by selling loose patches depicting the Boston Bruins’ logo, which could be sewn on to articles of apparel. See id. at 1010. The Court rested its holding, in part, on the fact that buyers knew “the source and origin of the trademark symbols were in [Boston Hockey].” Id. at 1012. Courts since have often criticized Boston Hockey for granting “an extraordinary extension of the protection heretofore afforded trademark owners.” Int’l Order of Job’s Daughters v. Lindegurg & Co., 633 F.2d 912, 919 (9th Cir. 1980). Even the Fifth Circuit, itself, has since rejected the “notion that a trademark is an owner’s ‘property’ to be protected irrespective of its role in the operation of our markets.” Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 389 (5th Cir. 1977). 41 The United States District Court for the Northern District of California reached a similar conclusion in Lucasfilm Ltd. LLC v. Ren Ventures Ltd., a case about the mark SABBAC, the name of the high-stakes card game played throughout the Star Wars series. Astute readers will recall that a young Han Solo won the Millenium Falcon starship from Lando Calrissian playing a game of Sabbac.

DICTA

OF LOCAL LORE & LAWYERS By: Joe Jarret Attorney at Law, University of Tennessee

WEST HUGHES HUMPHREYS: JUDGE OF THE BLUE & GRAY “I accepted the office of Judge of the district court under the Confederate government, and as my course of conduct has been much misunderstood and misrepresented, I wish to place on record some correction.” 1 And so began the amnesty petition of one West Hughes Humphreys, Tennessee district court judge who pleaded for forgiveness for his active role in the secession movement and his service to the Confederate States of America. As history would have it, Humphrey’s impeachment by the Union preceded that of President Andrew Johnson by two years, with the former less known, less reported upon, and less spectacular. Following in his father’s footsteps, the young Humphreys pursued careers in both law and state politics before his appointment, in 1853, by President Franklin Pierce to preside over all three of the Federal District Courts for Tennessee. He was quickly confirmed by the United States Senate and received his federal judicial commission. Despite having accepted a federal judicial commission, Humphreys openly supported the secessionist movement, ultimately accepting an appointment to the Confederate District Court of Tennessee on which he served from 1861 to 1865. If that fact wasn’t enough to draw the ire of the Union, Humphreys refused to convene the April, 1861 term of the federal court in Nashville. Instead, he convened the Grand Jury, and in so doing, concluded that Lincoln's proclamation, calling for the states to provide 75,000 militiamen in response to the Confederate attack on Fort Sumter, 2 was unconstitutional. He therefore counseled Governor Isham G. Harris of Tennessee not to dispatch troops despite the proclamation. The states, he opined, had a right to act in their own best interests and secession was one of many means of remedying the usurpations of central government. Humphreys also instructed the Grand Jury to decline issuing true bills against men resisting Lincoln's call to arms. Such a failure to respond to the President's demands, Humphreys surmised, was not treasonous because the conflict between the Confederacy and the United States was a struggle between separate nations.

The Road to Impeachment: On May 19, 1862 the United States House of Representatives voted to impeach Humphreys on the following charges: Publicly calling for secession; Giving aid to an armed rebellion; conspiring with Jefferson Davis; serving as a Confederate judge; confiscating the property of Military Governor Andrew Johnson and U.S. Supreme Court Justice John Catron; and imprisoning a Union sympathizer with "intent to injure him." 5 A trial date was set, and, despite the fact that an impeachment proceeding did not require the presence of the accused, the Senate was determined to secure Humphreys' presence, and dispatched the Sergeant-at-Arms of the Senate to Nashville to serve a subpoena on Humphreys to appear. When this attempt failed, Humphreys was tried in absentia, and for what was to be the shortest impeachment trial in United States History, was removed from office, and banned from holding future public office. He did, however, hold his Confederate judgeship until the end of the Civil War. 6 Three years after his impeachment, Humphreys filed an amnesty petition, pleading, in part, “I have at no time . . . ever been a disunionist [sic] . . . per se, but rather, I acted out of a sense of principle to the South, to Tennessee, and to the necessity of perpetuating the rule of law.” Despite his eloquence, his petition fell on deaf ears, notwithstanding the fact that a prominent member of the judiciary described Humphreys’ removal from the bench as a "farcical, empty insult, without significance for the broader issues of the war.” 7 With his estate depleted by war, Humphreys returned to practicing law, and directed his energies to the temperance movement. On October 16, 1882, he died outside of Nashville at the home of his son-in-law, John.8

West H. Humphreys to Andrew Johnson, September 21, 1865, Box 48, Tennessee, Amnesty Petitions, Records of the Adjutant General's Office, R.G. 94, National Archives; Hall, K. L. (1975); West H. Humphreys and the Crisis of the Union. Tennessee Historical Quarterly, 34(1), 48-69. 2 https://www.visitthecapitol.gov/exhibitions/artifact/proclamation-president-united- states-april-15-1861. 3 Brownlow's Knoxville Whig , September 14, 1861; Humes, Loyal Mountaineers, 123-24. 4 Id. 5 Aynes, Richard L. (1993). "The Impeachment and Removal of Tennessee Judge West Humphreys". Georgia Journal of Southern Legal History. 2: 71–98. 6 Hall, K. L. (1975). West H. Humphreys and the Crisis of the Union. Tennessee Historical Quarterly, 34(1), 48-69. 7 Id. 8 West H. Humphreys and the Crisis of the Union. Tennessee Historical Quarterly, 34(1), 48-69, at 69. 1

A Confederate Judge In June, 1861, Tennessee seceded from the Union, and Humphreys stayed busy as a judge of the Confederacy. The Confederate court became a major forum before which leaders of the new government paraded civilians suspected of retaining allegiance to the Union. One case that survived the record books occurred in October, 1861, when Confederate authorities brought John Bell Brownlow, the son of William G. Brownlow, Unionist editor of the Knoxville Whig, before Humphreys, charging him with distributing copies of Hinton R. Helper's “The Impending Crisis of the South”, a writing that denounced slavery and was considered by Southern leaders to be anti-Confederacy propaganda. Although Humphreys administered a substantial tongue lashing, he allowed the young offender to go otherwise unpunished. 3 He was, however, less tolerant with the elder Brownlow, who Humphreys sent to jail when the journalist refused to take an oath of allegiance to the Confederacy. 4

DICTA

August 2019

VITE ET CREDE By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

INDOMITABLE PERSPECTIVE James and John Dunlop were businessmen who lived and worked in Petersburg, Virginia. We do not know much about them, but we do know two things: (1) they were very particular about their money and (2) their lawyer knew how to make a federal case out of anything. The Dunlops had $2,000.00 in a bank in Philadelphia, and they wanted that money to be with them in Virginia. So they had their agents (Walker and Kennedy, if you must know) mail $2,000.00 in bank notes to them. The evidence on this point was very clear:

To be fair a lot was at stake. At the time, the penalty for absconding with mail was 10 years of jail time and 40 lashes with a whip. I told you. The Dunlops were very particular about their money. If you want to know what the U.S. Supreme Court thought about Francis Scott Key’s argument, you can read it for yourself in Dunlop v. Monroe, 7 Cranch 11 U.S. 242, 1812 WL 1508, 3 L.Ed. 329 (1812). Fair warning – you have to have a high tolerance for detailed discussions of the care and handling of mail. Key was only thirty-three years old when he argued this case before the U.S. Supreme Court. Only three months after the Dunlop opinion was issued, the War of 1812 would begin. Only two years later, Key would find himself on a prison ship off the coast of Baltimore, watching the British bombard Fort McHenry with shell after shell.

The Plaintiffs further produced to the jury evidence that they had $2,000 in bank notes in the hands of Walker and Kennedy, merchants at Philadelphia, and that that sum of money, in bank notes, was enclosed in a sealed letter and directed to the Plaintiffs, at Petersburgh in Virginia, the place of their residence, and put into the post-office at Philadelphia.1 Yes, the jury got to listen to Mr. Walker and Mr. Kennedy testify about how they had obtained the bank notes, carefully put them in an envelope, sealed the envelope, addressed the envelop to Mr. Dunlop, and then walked the envelope over to the post-office in Philadelphia. At this point, the jury may have been experiencing a growing sense of disappointment.

Perhaps it was the same tenacity that caused a young lawyer to take a case about lost mail all the way to a jury trial and then to the U.S. Supreme Court that led him to pen the following as he searched the morning sky for a glimpse of the Fort: On the shore dimly seen through the mists of the deep Where the foe’s haughty host in dread silence reposes, What is that which the breeze, o’er the towering steep, As it fitfully blows, half conceals, half discloses? Now it catches the gleam of the morning’s first beam, In full glory reflected now shines in the stream, ’Tis the star-spangled banner - O long may it wave O’er the land of the free and the home of the brave!

There was more. The Dunlops then produced evidence that the post-master in Philadelphia had forwarded the letter to the state of Virginia the very next day. The jury got to hear every, excruciating detail. It was admitted that the course of conveying the mail from Philadelphia to Petersburgh is as follows: the Virginia mail, tied with a string and wrapt in papers, is, with many other mails similarly secured, enclosed in a locked portmanteau,2 and sent by stage to the city of Washington, distant 144 miles. The transcript goes on to describe how, in Washington, and then in Baltimore, and then in Richmond, and Fredericksburg, the portmanteau was carefully unlocked, and only the mail for that city was removed. In fact, it was illegal to remove the mail bound for Petersburg from the portmanteau at any time between Washington and Petersburg.

This is the second stanza of Francis Scott Key’s Star Spangled Banner. It is the one stanza that never seems to be sung, but it is also the one stanza that so poetically captures Key’s indomitable perspective. Sometimes you have to keep looking until you can see; because seeing is believing.

1 Dunlop v. Monroe, 7 Cranch 242 (1812). 2 Portmanteau: a large trunk or suitcase made out of stiff leather and opening into two equal parts. Dictionary.com.

But, despite all of these precautions, that letter never arrived. The Dunlops’ theory was that Mr. Thomas Monroe, deputy postmaster for Washington D.C. or someone who worked at that office had either stolen the letter or was so negligent that they lost it. And that is how a jury got to hear hour after hour of testimony about addressing envelopes, the exact route the mail takes from Philadelphia, Pennsylvania to Petersburg, VA, and the importance of a locked portmanteau. Although it is not in the official record, there is a good chance that the jury went from disappointed to peeved to hostile fairly quickly because they found in favor of Postmaster Monroe. Undeterred, the Dunlops appealed, and then appealed again…all the way to the United States Supreme Court. At issue was whether the trial court erred in failing to instruct the jury that, if the Dunlops proved the letter was properly deposited at Postmaster Monroe’s office, and that there was some negligence in that office, and that the letter was missing, the jury should infer that the letter was lost due to Postmaster Monroe’s negligence. In other words, res ipsa loquitur meets the tabell rius. August 2019

DICTA

barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m. The next meeting will be held on August 14, 2019. There are many opportunities to get involved, and you are encouraged to contact Barristers President Mikel Towe (mtowe@ lewisthomason.com) or Vice President Allison Jackson (ajackson@ emlaw.com) for more information. STAFF THE VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/ Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral serves approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two (2) clinics, which will be held on August 14 and September 11 from 12:00 to 2:00 p.m. at the Knox Co. Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on May 8 or June 12 in the Event Calendar at www.knoxbar.org. SUPPORT THE VOLUNTEER BREAKFAST The Volunteer Breakfast occurs on the fourth Thursday of every month at 6:15 a.m. at the Volunteer Ministry Center (511 N. Broadway). We serve breakfast to about thirty to forty individuals and finish our work around 7:30 a.m. The Barristers Volunteer Breakfast Committee needs four or five volunteers to prepare and serve food each time, and sponsorships are $150.00. If you would like more information about volunteering or sponsoring a breakfast, please contact the Volunteer Breakfast Committee Co-Chairs, Paul E. Wehmeier at pwehmeier@ adhknox.com or Matthew Knable at knablelaw@gmail.com, or sign up at http://www.knoxbar.org/KBA-News/help-volunteer-ministries.

SEEKING TEAMS AND SPONSORS FOR CHARITY GOLF TOURNAMENT The Barristers and the KBA joined together to co-host the annual fourperson golf scramble on Monday, October 21, 2019 at the Holston Hills Country Club. Revenue from the tournament goes directly to funding various charitable endeavors of the Barristers, including the efforts of the Hunger & Poverty Relief Committee. Please see the DICTA insert for more details. If you know of someone who would like to sponsor, please contact the Athletics Committee co-chairs, James Parker (jparker@ hdclaw.com) or Patrick O’Neal (patrick.oneal@leitnerfirm.com). BREWS FOR BACKPACKS The Barristers Hunger & Poverty Relief Committee will host a School Supply Drive Event called “Brews for Backpacks” on Monday, August 5, 2019 from 5:45-7:45 p.m. at Printshop Beer Co. located at 1532 Island Home Ave. All donations go to benefit ChildHelp Foster Family Agency of East Tennessee. See the insert for details. GREAT TIME AT THE BARRISTER SUMMER PARTY The Barristers would like to thank everyone who came out to this year’s Summer Party at The Central Collective. Check out photos on the Knoxville Barristers Facebook page or in the gallery at www.knoxbar.org. SUMMER FUN CLE’S The Barristers CLE Committee is offering three summer fun CLE programs that offers something for everyone. Do you want to learn about ethics from the movie My Cousin Vinny? Don’t miss Don’t Sin Like Vin on July 24th with Jared Garceau and Alex Long at Total Wine in Turkey Creek. Join us in South Knoxville at Landing House on August 7th for Winning Your Case on Appeal: A Discussion on Hatfield. Rachel Hurt will tackle what it takes to be successful on appeal both procedurally and substantively. Are you a fan of the show The Office? Join Caitlyn Elam on September 18th at Schulz Bräu Brewing Company to learn about employment law issues from the perspective of Michael Scott. Finally, if you’d like to know more about the cannabis industry and check out Blühen Botanicals, join us on September 25th. Local lawyer and hemp farmer, Dan Pilkington will present Cannabusiness – What Lawyers should know about Cannabis Legalization. See the insert for more details.

The Barristers would like to thank the firm of Arnett, Draper and Hagood, LLP for sponsoring the May Volunteer Breakfast and the firm of Woolf, McClane, Bright, Allen & Carpenter for kindly sending volunteers to help serve breakfast at the Volunteer Ministry Center in June.

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records:

Erika J. Blalock-Houser BPR #: 035948 Erika Blalock-Houser, Attorney at Law P.O. Box 12941 Knoxville, TN 37912-0941 Ph: (865) 333-4898 Erika.Blalock.Houser@gmail.com

Kaye M. Ford BPR #: 028462 Law Office of Kaye M. Ford, LLC 1331 Remington Grove Ln. Knoxville, TN 37909-1298 Ph: (865) 343-0770 kaye@kmfordlaw.com

DICTA

Chelsea C. Moore BPR #: 035259 550 West Main St., Suite 950 Knoxville, TN 37902-2536 Ph: (865) 850-4768 ccmoorelaw@gmail.com

August 2019

SCHOOLED IN ETHICS By: Judy M. Cornett1 UT College of Law

NEW ABA ETHICS OPINION ON FEE SHARING BETWEEN SUCCESSIVE COUNSEL IN CONTINGENT FEE CASE When a client in a contingent fee matter fires his attorney without cause and retains another attorney, what are the ethical obligations of the client’s new attorney? On June 18, 2019, the ABA Standing Committee on Ethics issued Formal Opinion 487, addressing “successor counsel’s obligations under the Model Rules of Professional Conduct after taking over the case when there is a monetary recovery.” The committee articulated a number of duties imposed on successor counsel by Model Rule of Professional Conduct 1.5(b) and (c).2 Because Tennessee Rule of Professional Conduct 1.5(b) and (c) are identical to the Model Rules, this Opinion may prove to be persuasive authority in interpreting TRPC 1.5. First, because Rule 1.5(b) requires an attorney to communicate to the client “the basis or rate of the fee and expenses for which the client will be responsible,” current counsel in a contingent fee case should “advise the client, in writing, of the predecessor counsel’s potential claim on a recovery.” This communication can be made either in the fee agreement itself or in a separate document and will ordinarily be rather general because, at the outset of the representation, current counsel usually cannot be sure that there will be any recovery. Second, because Rule 1.5(a) prohibits an “unreasonable” fee, the total fee charged to the client must be reasonable. Therefore, “[a] client cannot be exposed to more than one contingent fee when switching attorneys, given that under the Rule 1.5(a) factors, each counsel did not perform all of the services required to achieve the result. Thus, neither the predecessor nor the successor counsel ordinarily would be entitled to a full contingent fee.” Third, client consent is required to any fee sharing between current and previous counsel. Therefore, if the client contests the fee claimed by his previous counsel, his current counsel is prohibited from disbursing the fee to the previous attorney. Instead, she must hold it in trust pursuant to Rule 1.15 pending resolution of the dispute. Fourth, because the client has the right to challenge any fee claimed by his previous attorney, the fee agreement (or a subsequent agreement) between the client and his current attorney should make clear the role of the current attorney in the event of such a challenge. Fifth, if a dispute exists between previous and current counsel about their respective shares of the recovery, and if the dispute will not impact the amount of the client’s recovery, the client may wish to simply remain indifferent. In this situation, current counsel “may need to raise the possibility of protracted proceedings that could burden a client who [will probably be a witness].” Also, “both counsel must, in adjudicating their own dispute over their respective shares of the contingent fee, take adequate steps to protect client confidentiality under Rule 1.6, as well as any confidentiality provisions in any underlying settlement agreement.”

counsel must advise her client that previous counsel might be entitled to a fee. According to an informal poll of several Knoxville attorneys, this issue is usually resolved by a phone conversation between the previous and current attorneys at the outset of the new representation. Typically, and perhaps uniquely to Knoxville’s collegial bar environment, the previous attorney will seek no fee from the ultimate recovery, but may ask that her expenses be reimbursed. Once the previous and current attorneys decide on an agreeable division of the contingent fee, that agreement is reduced to writing and transmitted to the client, whose informed consent is then obtained before the current representation proceeds. If previous counsel does seek a share of the recovery, Tennessee law is clear on how the previous counsel should be compensated. An attorney can be fired by the client at any time, but is still entitled to be paid for her services. If the previous attorney was fired with cause, she is entitled to the contractual fee or quantum meruit, whichever is less. But if the previous attorney was fired without cause, she is entitled to the contractual fee or quantum meruit, whichever is greater.3 At first blush, this rule suggests that a client might be subject to double contingent fees if previous counsel was fired without cause: Assuming that each attorney’s contract calls for a one-third contingent fee, the client could pay two-thirds of any recovery to his attorneys. This result, says the Opinion, is not permitted under Rule of Professional Conduct 1.5(a), which prohibits unreasonable fees.4 And, in practice, the previous attorney’s fee – whether contractual or in quantum meruit -- typically comes out of the current attorney’s contingent fee.5 ABA Formal Ethics Opinion 487 provides prudential guidance to Tennessee attorneys who accept representation in a contingent fee case after the client has discharged his previous counsel. In Knoxville, at least, good practice suggests that the prior and current counsel should agree on the division of any fee, and obtain the client’s informed consent, at the outset of the new representation, avoiding disputes at the conclusion of the case.

Thanks to the Knoxville attorneys, including fellow DICTA columnist Robbie Pryor, who spoke with me about Knoxville custom and practice with respect to successive representation in a contingent fee case. 2 The Committee noted that fee sharing between successive counsel does not implicate Model Rule 1.5(e), which governs fee sharing between attorneys who are simultaneously working together on the case. 3 Gupton v. Davis, 2012 WL 4358184, at *8 (Tenn. Ct. App. Sept. 25, 2012) (citing Adams v. Mellen, 618 S.W.2d 485 (Tenn. Ct. App. 1981)). 4 This result may also be prohibited by other laws regulating contingent fees. See, e.g., Tenn. Code Ann. § 29-26-120 (contingent fee limited to one-third of “all damages awarded to the claimant”). 5 See, e.g., Gupton v. Davis, 2012 WL 4358184 (Tenn. Ct. App. Sept. 25, 2012) (quantum meruit award to previous counsel deducted from current counsel’s contingency fee). 1

How does this Opinion square with current Tennessee law and practice? First, no Tennessee case or ethics opinion suggests that current

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. August 2019

DICTA

Photo Ops SUNFLOWERS

BAGS & WAGS YAPPY HOUR

On July 11th, a group of KBA members and their families walked through 70 acres of breathtaking sunflowers south of Ijams Nature Center.

Fifty members and their guests attended the Bags & Wags Yappy Hour sponsored by the New Lawyers Section at Bearden Beer Market on May 16. The event was sponsored by Thomson Reuters. First place in the corn hole tournament was won by Aaron Spencer and Randy Miller of Woolf, McClane, Bright, Allen & Carpenter and 2nd prize went to law students Lucas Fishman and Taylor Rakes. Both teams donated their winnings to Young Williams Animal Center. More photos can be found on the KBAâ&#x20AC;&#x2122;s photo gallery on the website or in our Facebook album.

DICTA

August 2019

BAR HOPPING By: Julia Hale Lewis, Thomason, King, Krieg & Waldrop, P.C.

Bar Hopping highlights one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Congratulations to Hon. Sharon Lee, Doug Dutton, Courtney Read, Susan Fuller, Harold Pinkley, Jr, and Troy Weston for correctly identifying the Loudon County Courthouse. Think you can name this courthouse? Email jhale@lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of Dicta. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue. Thank you to Matt McClanahan for this monthâ&#x20AC;&#x2122;s photo.

August 2019

DICTA

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 By: Phil Hampton Founder and CEO, LogicForce Consulting

TEAMWORK: IS THERE AN APP FOR THAT? We live in a world of apps, lots of apps. As the popular saying goes, if there is some activity in the office or home that you want to pursue, the usual response is: “is there an app for that?” We have our collection of favorite apps we use for personal productivity and to communicate with family and friends. But sometimes the sheer volume of available apps makes it increasingly difficult to keep our business-oriented project work organized and easily accessible. We use one app for e-mail, another for instant messaging or chatting, another for calendaring, yet another for file sharing, online meetings, project management, white boarding, … and the list goes on and on. Pretty soon we spend more time searching for content across multiple apps than we do working on the projects that the apps are supposed to be supporting. So, if you are like us and are beginning to feel the onslaught of app overload, take heart. There is an app for that too. Collaboration, or chat, apps are platforms that allow users on a team, or business group, to come together and collaborate using myriad apps yet keep all of the team activity neatly organized and easily accessible under the roof of the collaboration framework. Team collaboration tools, or apps, are not new; but their widespread acceptance and use in professional workplaces is a new phenomenon experiencing tremendous growth. Slack was really the first modern collaboration app we ever used seriously. Slack launched way back in 2013 and quickly rose to become the dominant application for collaboration and chat just as these types of tools were gaining widespread acceptance in the marketplace. We were initially skeptical when seemingly always-late-to-the-party Microsoft launched a Slack competitor, Microsoft Teams, in 2017. But, to our surprise, Microsoft Teams, owing much to the huge popularity of Office 365, has seen explosive growth over the last two years and now eclipses Slack in popularity in recent user surveys. In short, Microsoft Teams is an app that allows you to communicate and collaborate with members of multiple teams using various software tools seamlessly within the Teams application. If you are a Microsoft Office 365 subscriber, which we highly recommend, then you already have Teams and can begin using it without any additional cost. If, for some reason, you live on another planet and do not have Office 365, assuming you can still access the rest of the world via the internet, you can still download and use a free version of Microsoft Teams.

natural tool to extend the usability of the products that we have been using in our office for years. Most of us work regularly in Word, Power Point, and Excel; and, for the most part, the extent of our collaboration with colleagues involves e-mailing a document or spreadsheet as an attachment. As Bill is fond of saying, that type of “collaboration” is so “2000 late.” Now think forward to the 21st century. Think about working on a contract, brief, or presentation, and you need to get input and feedback from one or more team members. You simply click on the collaboration channel that has been set up in your Teams app and share the document with your colleagues who are authorized on that channel. You then have the ability to chat online, initial a video call, and even edit the document in real time with everyone that you invited participating. You do this without leaving your office, home, or even the beach (as Phil added this last edit while on vacation). Even more valuable is the ability to quickly access any and all activity that has transpired on a particular project, subject, or channel right within the Teams app. Whether the activity is a series of e-mail threads, meeting notes, call recordings, or online chat sessions, we don’t have to go searching through hundreds of apps to see how the activity was created. We have everything right there within the Teams app. While Teams is tightly integrated with Office 365, you are not restricted from using only Microsoft apps within the software. There is a huge array of apps that you or your team members can use right within the Teams interface. For example, if there is a particular YouTube video that we wish to share with our team members, we can simply link that video within Teams, and everyone can view the video without leaving the Teams app. We think we have found the solution to “death by a thousand apps.” We just didn’t realize it was going to be another app. But Microsoft Teams has become our favorite method for aggregating a host of useful tools all within a single interface that all our team members can use, regardless of their computing platform. Yes, we have successfully enabled every member of our team to be as cool as we are. (Whatever!) You can thank us later.

Since we both already have Office 365, we decided to start using the Teams apps for new projects rather than setting up new projects in Slack. Just like Slack, Teams can be used on any platform even though it is a Microsoft product. So, for our Apple team members who think Microsoft is just for geeks, we tricked them into using Teams because the iOS version of the app is slick and fully functional. There is both a stand-alone app version as well as an online web version (just like all the Office 365 apps that are available across the board on Microsoft, Apple, Android, and Google Chrome platforms). Since we were already familiar with the Channels organization within Slack, we very quickly acclimated to the similar organizational layout in Teams. Unlike Slack, however, Teams has an obvious deep integration with the rest of the Office 365 ecosystem that makes it a

DICTA

August 2019

WELL READ By:

Kelly Street London Amburn

“THE ELEMENTS OF STYLE”

BY WILLIAM STRUNK JR. AND E.B. WHITE As lawyers, we cling to our rules. We love our numbered lists and procedures, and for that reason alone, The Elements of Style by William Strunk, Jr. and E.B. White is a perfect fit. Continuously in print for over fifty years, this thin volume remains as relevant as ever, describing the techniques good writers use to make their work interesting, beautiful, or as the case may be, persuasive. Consider No. 17. 17. Omit needless words. Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all sentences short, or avoid all detail and treat subjects only in outline, but that every word tell. Many expressions in common use violate this principle.1

We’ve substituted death for posted, but we don’t have to stop there. We could apply No. 17 (“omit needless words”), and revise it again. “Defendant’s excessive speed caused the Plaintiff ’s death.” Notice that by revising the sentence according to The Elements of Style we have also eliminated the passive voice, changing “death . . . was caused” to “speed caused . . . death.” See No. 14 (“Use the active voice”) and also No. 20 (“Keep related words together”).

If you could choose to follow only one of the rules, No. 17 would be a fine choice; but there are others too. Some we know well (and often debate) - like No. 2, which suggests the use of a serial comma, as in red, white, and blue. Others are opaque. Have you ever struggled with the word “that” as opposed to “which” in a subordinate clause? If it keeps you up at night, rest assured. Strunk and White have a rule, and I won’t spoil it for you. HINT: I’m still not sure I understand it. Remember E.B. White? He wrote a novel about a pig named Wilbur who made friends with a spider named Charlotte. White possessed extraordinary gifts as a writer, but he also worked to improve the writing of others. At Cornell, he studied under Professor William Strunk, Jr., who taught English for forty-six years and was much-beloved by his students for his quirky style and his “little book” of rules, which he self-published in 1918. Approximately ten years after Strunk died, White revised and expanded the “little book” for a wider audience, and since then, millions of copies have been sold. In its current form, The Elements of Style serves foremost as a reference about style, not grammar. The authors presume our ability to write grammatically correct sentences; they confront instead the qualities that make for good writing. Consider No. 22, which suggests that we end our sentences with the most powerful or meaningful word. Let’s try to apply it to the sentence below. “Ms. Anderson’s death was caused by the Defendant’s failure to observe the proper speed limit as posted.”

What I love best about this book are the moments when we’re confronted with Professor Strunk himself, at his most poetical: like when he recommends that “every word tell” or opines about how to use the word clever. “Note that [clever] means one thing when applied to people, another when applied to horses. A clever horse is a good-natured one, not an ingenious one.” He also rewards us with humor. You can hear the English professor fussing at his students, see the chalk dust on his sleeve, when he writes, “The fact that is an especially debilitating expression. It should be revised out of every sentence in which it occurs.” And personally, he strikes a little too close to my southern way of speaking when he attacks the cherished verb, fix. Fix. Colloquial in America for arrange, prepare, mend. The usage is well established. But bear in mind that this verb is from figere: “to make firm,” “to place indefinitely.” These are the preferred meanings of the word.2 Lawyers spend their days in many different activities, but writing - perhaps as much as reading - is a task we all share. Writing serves as the primary vehicle for presenting our clients, and ourselves, to the legal world, and whether we deserve it or not, lawyers earned a reputation for terrible writing long ago. Indeed, concise prose often distinguishes the effective advocate from his or her peers. I had never owned a copy of The Elements of Style until this year, but since first reading it, I’ve returned, each time finding something useful I hadn’t seen before. It entertains as much as it informs, and I highly recommend it.

1 2

None of us would be surprised to read this sentence in a pleading. It’s grammatically correct, and we understand it well enough, but if we observe rule No. 22, we move the most powerful word to the end. That word could be different depending on our objective or our client, but for this exercise, let’s use death.

August 2019

“Defendant’s failure to observe the posted speed limit caused the Plaintiff ’s death.”

DICTA

William Strunk, Jr. & E.B. White, The Elements of Style 23 (4th ed. 2000). See also, mash. “He mashed the button on the stove to fix his dinner.” Strunk’s rules are silent on the verb mash. But one can imagine what he might say about this usage.

YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law

IN OUR OWN BACK YARD Constitutional law sometimes seems like something that happens out there, somewhere, to someone else. Think the Electoral College or the crisis at our southern border. But that’s not the case. The Constitution affects each us, every day, right where we live. Sometimes profoundly.

(including a teenaged Jerry Shattuck) in the halls. The harassment quickly ended. Baptist minister Paul Turner, a white man, escorted the Clinton 12 to school. He kept the children safe, but, on his way back to his church, he was chased and beaten by the mob.

If you’re of a certain age, you know all about East Tennessee’s great constitutional moment, which occurred in the late 1950s. But if you’re a young whippersnapper (say, under 40), or if you came to the area only as an adult, you may need a refresher.

A group of thugs forced their way into the high school. The Home Economics teacher, a diminutive woman, confronted them. They slammed her into a wall. A member of Clinton High’s marching band, Dennis Holland, ran, alone, toward the thugs. They ran away. Dennis soon received death threats. His family sent him to live with relatives in Florida.

The Clinton 12 were a dozen African-American high school students – Maurice Soles, Anna Theresser Caswell, Alfred Williams, Regina Turner Smith, William R. Latham, Gail Ann Epps Upton, Ronald Gordon “Poochie” Hayden, Robert Thacker, Minnie Ann Dickie Jones, Bobby Cain, Alvah McSwain, and Jo Ann Crozier Allen – who led the first court-ordered desegregation of a Southern public school after Brown v. Board of Education. It was a year before Little Rock. (Oak Ridge desegregated even earlier than Clinton, but it did so without a court order). Recently, Marilyn Hayden, the Director of the Green McAdoo Cultural Center, arranged for me to speak with retired lawyer Jerry Shattuck. We met at the Center, a memorial to the Clinton 12 constructed in a building that was once a segregated school for “colored” children. Jerry and I sat down in the former principal’s office, a tiny room that had also served as the school’s library. Jerry told me that a local legal challenge to segregation, McSwain v. Anderson County, had started before Brown, but ran smack into controlling precedent: U.S. District Judge Robert L. Taylor followed the “separate but equal” doctrine of Plessy v. Ferguson. But then, after Brown overruled Plessy, Judge Taylor ordered the school to desegregate, pursuant to Brown II, “with all deliberate speed.” Clinton did not need much time for deliberation. The school board came up with a plan, and, in the fall of 1956, Clinton High School implemented it, mostly without incident. There were protests, mostly small, mostly by outsiders, but the community followed the law. But then the protests grew. Segregationists from throughout the South made Clinton their rallying point. Thousands of rabid racists flooded the small town, recruiting like-minded locals, taunting and spitting on the Clinton 12 as they walked from the black part of town to attend school. Some students harassed the Clinton 12 at school, jostling them in the hallways, knocking their books to the floor. The international press took notice. It was a circus.

As at Lexington and Concord, the call went out. Local citizens stepped forward to stand with the police, to repel the invaders. But the invaders kept coming. Eventually, the newly-formed “White Citizens’ Council” decided to do more than scream and spit and beat innocent people. They decided to charge the police, to take their weapons, and kill them. Town officials had been in constant touch with state authorities, who were understandably reluctant to intervene. But when the racists attacked, Governor Frank Clement responded. In a scene reminiscent of a John Ford western, a convoy of cars roared into town, red lights flashing. A door opened and Greg O’Rear, the six-foot-eight head of the Tennessee State Police, rose and leaned his shotgun over his shoulder. “Boys,” he said, “it’s all over.” And it was. For a time. The next school year was uneventful. Black children and white children learned together. Jerry Shattuck graduated and went off to college at Princeton. Then, in the fall of 1958, two years after integration, the people of Clinton awakened to a series of explosions. Someone had dynamited the high school. It was gone. Instantly, East Tennessee sprang into action. Nearby Oak Ridge, Clinton’s perennial football rival, opened an old closed school. Volunteers cleaned and painted. Within a week, the school was ready. Buses took Clinton High’s integrated student body to Oak Ridge. As they emerged, Oak Ridge’s marching band greeted them with Clinton’s alma mater. The Constitution touches all of us, where we live, every day. But it means nothing unless good people stand up for it. In the late 1950’s, the good people of East Tennessee did just that. May we all be inspired by their example. And may we always remember the Clinton 12.

But most Clintonians responded with dignity and compassion. Clinton High’s principal posted his strapping young football team

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26

DICTA

August 2019

LONG WINDED By:

Jason Long London Amburn

WHAT I DID LAST SUMMER I don’t know if I have made this clear, but I despise Mark Zuckerberg. He is only 35 years old and worth a little more than $75 billion. Call it class envy . . . but really? $75 billion? Isn’t that excessive? More importantly, why? To my luddite mind, he produces no tangible product and provides no essential service, other than hosting a webpage. The product that he does produce is often subverted and misused. In fairness, he has tried to do good by bringing people together on Facebook. At the same time, he has made it easier for us to live more isolated lives. He has facilitated the spread of misinformation and given people a distorted sense of reality. We (yes, I do have an account) go to Facebook to post only the very best aspects of our lives (look at my great vacation, check out my successful children, isn’t this a fantastic dessert I am eating?). By doing so, we give the false impression that the highlights of our lives are the norm. We should all be more realistic about sharing what our lives are really like. With that in mind, and without the convenience of Facebook, let me tell you what I did last summer. My family did take one extended vacation to Chicago. We stayed downtown, in an overpriced hotel, and had to sleep all in one room together. That was easy when the kids were young. Now, JR is six feet tall and cramming all four of us into two double beds is a challenge. We took an architectural cruise of the city and learned that Mrs. O’Leary’s cow did not start the fire. We shopped on the Magnificent Mile, ate deep dish pizza and Italian beef sandwiches, took in a Cubs game, stood on top of the Sears Tower, and saw Hamilton on stage. I stayed up until all hours most nights drafting motions in limine which were due in a case that ultimately settled (the life of a trial lawyer). All in all, the Chicago trip was probably the highlight of our summer. We went to Dollywood Splash Country for the first time. We have been season ticket holders for Dollywood for a couple of years now, but this was the first year we took the proverbial “splash” and bought tickets for the waterpark as well. The one thing I will say about Splash Country is that, if you have body image issues, this is the place for you. There is zero modesty amongst the patrons, as they literally let it all hang out. For a man of my girth, this was my kinda place. Unfortunately, I don’t have near enough large tattoos in conspicuous places to truly be at home here. I have no problems with tattoos and support anyone who wants to express themselves through the use of body art. However, as with all things in life, moderation is key. All in all, the waterpark trip was a big success. Aside from a rather severe sunburn, we enjoyed the rides and it is impressively well done. For those of us who grew up in east Tennessee excited by Ogle’s Waterpark, Dollywood Splash Country is a far superior experience.

there is no respite from our propensity to perspire. I sincerely apologize if you have seen me in public and had to witness me slowly melting in front of your eyes. We have a family tradition of watching Jaws every 4th of July and did not miss the opportunity this year. Spoiler Alert - I will admit that it is a little disturbing to see your 9-year-old impassively watch a man get bitten in half by a fish. To be fair, I have distinct recollection of my dad taking us to see Jaws in the theater when I was a boy. If I have done the math correctly, that means that I was five years old when he took me to see Jaws on the big screen ( Jim Long – Parenting 101). The experience did not seem to phase me at the time, so perhaps it is just a genetic trait. I recently re-watched another summer movie, The Bad News Bears (original version with Walter Matthau). This is the foulest movie I have ever seen. Go back and watch the original sometime and you will see a bunch of preteen kids using the worst language you can image and throwing racial epithets around like candy. There is no way that this movie could get made in 2019. I have watched all of the Saw movies (I am embarrassed to say) and none of them shocked me like The Bad News Bears. That being said, it is a pretty brilliant comedy and really well done. You have to be willing to completely suspend any notions of political correctness, but if you do so it is one funny movie Finally, and perhaps most enjoyably this summer, we succeeded in getting the entire family interested in playing golf. There is something special for me in sharing what has always been a very large part of my life with the most important people in my life. We all take a special joy in watching our children succeed, but the shot of adrenaline I got when I saw my daughter make a birdie or my son break his personal record is very special and something I can never fully describe on Facebook. Anyway, now you don’t need to go to my Facebook page because you know pretty much everything we did this summer. It hasn’t been an over-the-top exciting, but it has been fun and we’ve grown closer as a family. I don’t have any great pictures to share (you would not want to see any pictures from Splash Country) but trust me when I say the images are burned in my mind. I don’t need Mark Zuckerberg or anyone who trolls Facebook to validate that things are going well in the Long family.

If you ask me what I did most during the summer of 2019, I would have probably answer “sweat.” We went from very temperate 70° weather to 90° weather in about a week and it does not seem to be letting up. While people of my size can find comfort in places like Dollywood,

sincerely apologize if you have seen me in public and had to witness me slowly melting in front of your eyes.”

August 2019

DICTA

BARRISTER BITES By: Angelia M. Nystrom, UT Institute of Agriculture

JD, LLM

SUMMERTIME, AND THE LIVIN’ IS EASY Most people know that I love to cook and entertain. When a friend asked last week what my easy “go-to meal” for the summer was, though, I had to bite my tongue to keep from saying, “Chick-fil-a drivethru.” Sadly, more often than not, during this busy summer, that would be a true statement. When Ella Fitzgerald sang “Summertime, and the livin’ is easy,” she surely was not eyeball deep in summer swim season and work travel. My real “go-to meal” was actually borne out of one of Hugh’s auction ideas when he was at Childhelp. He did lots of event-based fundraising and was always trying to come up with new and different auction items. I was rightfully skeptical one year when he told me that he and his buddies were creating an auction item for dinner for 20 that would be hosted and prepared by them. “It will be a summer supper,” he said. “We will do all the work,” he said. “You won’t have to do a thing.” I think we all know how that turned out. My favorite summer supper was borne out of that event, which ended up with Angelia cooking and serving. My “go-to meal” consists of a strawberry salad, grilled chicken with white barbecue sauce, grilled shrimp, tomato pie, grilled corn, and TennTucky cobbler. It is an easy meal, and most of the ingredients can be purchased in “ready to use” form. The salad consists of mixed greens (pre-bagged), sliced strawberries (I’m lazy, so I buy those already washed and capped), red onion (sliced), bleu cheese (already crumbled), toasted almonds, and Brianna’s poppyseed dressing. It is a colorful salad, and it looks like you slaved away slicing and dicing. What your family and friends don’t know won’t hurt them. For the chicken, I used the thin-sliced boneless, skinless chicken breasts. They cook quickly on the grill and do not dry out. I make a white barbecue sauce (Hugh’s recipe) with mayonnaise, apple cider vinegar, lemon juice, coarsely-ground black pepper, cayenne pepper, horseradish and Splenda. I can’t say that we have a specific recipe… just an ingredient list. I will taste-test it until the combination is right. Then, I fill up a squirt bottle with some of it and put the rest in a large Ziploc bag. I’ll add the chicken to the bag and let it marinate until I’m ready to cook. The mayonnaise-y mixture really helps keep the chicken moist during the grilling process. For the corn, I’ll usually get fresh corn (husks still on), pull the husks up, and then tie them with twine like a pony-tail. After removing the silks, I like to let the ears stand in a bucket of sea salt and ice cold water for about 10 minutes to keep them from burning on the grill. While the corn is “chilling,” I’ll usually mix a stick of butter, a couple of tubes of pureed cilantro, garlic powder, and fresh lime juice. I then brush it on the corn and grill it until it is finished. Bonus: I discovered that this mixture is really good on shrimp. I will often purchase the large, pre-cooked peel and eat shrimp, toss it in this mixture, and then toss them on the grill. They heat up in about 4 minutes and taste great. (You can also put them on a cooling rack in a cookie sheet and bake them in the oven at 450.) I have seen Trace eat 2 lbs of them at one sitting this way. My favorite part of the summer supper is the tomato pie. I’m from Jefferson County, but I had never heard of tomato pie until I met

Hugh. I like to tell people that I married him for his tomato pie recipe. It really is that good. To make Hugh’s tomato pie, all you need is a deep dish pie crust, tomatoes, mayonnaise, onion and shredded cheese. I bake the pie crust in the oven until it slightly brown, fill it half-way with sliced tomatoes (he will peel them… I do not… I’m lazy like that), and then add salt and pepper to taste. I then mix mayonnaise, a pureed white onion (to taste) and shredded cheese until it is a spreadable consistency. Top the tomatoes completely with the mayonnaise-cheese mixture and bake at 350 until it is brown on top. It is one of my very favorite things to eat. The easiest part of my go-to meal is dessert. This is a family favorite, and, although it is technically a cobbler, Trace calls it “pie” and often asks for it for breakfast. To make the TennTucky cobbler, mix one cup of sugar, one cup of self-rising flour, one cup of milk, and one stick of melted butter. Add it to a greased casserole dish (I use a clear one so I can see the bottom as it cooks). Sprinkle in frozen blackberries (or mixed berries that do not contain strawberries). Sprinkle the top with ¼ cup of sugar and bake at 350 until it is brown and bubbly (usually about an hour). It is great by itself or topped with vanilla ice cream. I’ve always heard that summer is supposed to be more relaxed, but that is not the case at our house. We seem to be busier than ever, and I am always looking for ways to do things faster and more efficiently without totally skimping on quality (although Chick-fil-a is pretty darned good). This “go-to meal” has allowed me to keep my sanity on even the most stressful of days. I must also note that all of the above (minus the salad) are just as good (or better) on day two or three. I’m hoping that summertime livin’ is easy for all of you. If it is not, though, maybe these easy recipes will make dinner easier and a little more enjoyable.

DICTA

August 2019

How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. SECOND ANNUAL CELEBRATION OF THE PRO BONO DEBT RELIEF CLINIC The Pro Bono Debt Relief Clinic is a Partnership with the United States Bankruptcy Court for the Eastern District of Tennessee, Legal Aid of East Tennessee, and the Knoxville Bar Association. The second annual celebration will be held on September 10, 2019 from 3:15 p.m. – 4:30 p.m. on the fourth floor of the Howard H. Baker Jr. United States Courthouse. Attorney volunteers from the past year of the program will be presented with appreciation certificates. Volunteers will speak briefly about their experiences at the clinic and share a story or two about the folks that they had the opportunity to help. A reception will follow. This year, Judge Bauknight will present a one-hour CLE program, “Bifurcated Fees and Unbundling of Services in Chapter 7: Access to Justice”, from 2:00 to 3:00 p.m. in the Main Assembly Room of the City County Building. Visit www.knoxbar.org for more details and click September 10 on the KBA’s Event Calendar to RSVP online. So that we may plan appropriately, RSVP by September 3rd to the Knoxville Bar Association. BASS, BERRY & SIMS EXPANDS LABOR & EMPLOYMENT PRACTICE Bass, Berry & Sims is pleased to announce the expansion of the firm’s Labor & Employment Practice Group with the addition of three attorneys. Timothy B. McConnell joins as a member in the firm’s Knoxville, Tennessee, office and Ginette R. Brown joins as an attorney in the firm’s Nashville office. In addition, Lymari Martinez Cromwell rejoins the firm as counsel in the Nashville office. ELDRIDGE INSTALLED AS TBF CHAIR David M. Eldridge was recently installed as the 38th Chair of the Tennessee Bar Foundation at its annual membership meeting in Nashville.

BENCH AND BAR IN THE NEWS He was first elected to the Board of Trustees in 2012, as an East Tennessee Trustee. He previously served as a member and later as Chair of the organization’s Grant Review Committee and membership selection committee. The Foundation is a philanthropic organization with a two-fold purpose: to honor attorneys who have distinguished themselves in the profession by selecting them for membership and to administer a grant-making program, on behalf of the Tennessee Supreme Court, which supports law-related public projects. Eldridge will serve until June 2020. MITCHELL PANTER JOINS LEWIS THOMASON Mitchell Panter joins Lewis Thomason as an associate. His practice centers on representing health care providers in professional liability matters and disciplinary investigations with Tennessee’s various health-related boards. He also assists providers with licensing and regulatory issues. In addition to his healthcare practice, Mr. Panter also represents businesses in complex commercial disputes involving trade secrets, restrictive covenants, and other breach of contract matters. PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association (“SMPA”) will hold its monthly meeting on Thursday, August 8, 2019, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Knox County Law Director Bud Armstrong will be presenting on Ethics. The presentation will provide 1.0 hour of CLE for paralegals. A lunch buffet is available at the cost of $12/person with reservations.

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: • West Knoxville-Bearden Office Space West Knoxville lawyer has office space for rent at 4008 Sutherland Avenue. The rent includes internet, ample parking and common area maintenance. Inquiries: leslieahull@gmail.com •

McKellar & Easter is seeking an attorney to rent office space in its West Knoxville location. Rent shall include access to the internet, phone lines, a fax line, and copy machines. Additional office space can be provided for a legal assistant or paralegal if necessary. Please email a resume and cover letter to ndm@helpingclients.com.

•

3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806.

SMPA ANNUAL PARALEGAL SEMINAR Smoky Mountain Paralegal Association Annual Paralegal Seminar will be September 27 – 28, 2019 at Wilderness at the Smokies. The speakers include: Steve Oberman, Oberman & Rice Law Firm; • Melissia Ball, Myers & Ball, LLP; Casey Arrowood, United States Attorney’s Office; Nick DeBord, City Bonding and Shawn Blanton, Papa’s Bail Bonds; Honorable William T. Ailor, Knox County Circuit Court; and Ann Long, LMU-Duncan School of Law. All Paralegals are invited to attend. For information email president@smparalegal. org. Please contact Caroline Sudlow, ACP, at president@smparalegal.org or (865) 215-3676 for additional information and/or lunch reservations.

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. One Level. Offices on either side occupied by long-term law firms. Very Affordable Rate with a 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:

NEW ATTORNEYS Darren V. Berg Matthew Hollingshead-Cook Stephen E. Roth America’s Collectibles Network Inc.

NEW LAW STUDENT MEMBERS

A. Grace Van Dyke James Breeding Henry Baysan PC

Wade C. Blair William L. Cathcart Toby C. Frost Rebecca C. Hanniford Katie Overton

Laura Wyrick Sobieski Messer & Elledge

Taylor Overton Roel D. Reyna Rachael R. Sams Ryan S. Smith Mark L. Wegzyn

Rodolfo Urquieta Cortes Torres Law Firm PLLC August 2019

DICTA

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

PRO BONO SPOTLIGHT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee

GET READY FOR A PRO BONO FALL TO REMEMBER! As the summer winds down, it’s time to start looking toward all the Fall has to offer – a new school year (Knox County classes start August 5), football (UT’s season kicks off August 31), pumpkin spice everything (last year Starbucks released their pumpkin spice latte at the end of August), leaves changing colors, a ton of Pro Bono opportunities, and this year’s Forging Justice Pro Bono Celebration (Friday, October 18 at 6:00). Because the Fall is also a time of year when everyone gets busy with children’s activities, sporting events, and the upcoming holidays, I wanted to go ahead and get a few things on your radar. First and foremost, please save the date for this year’s Forging Justice Pro Bono Celebration. This year’s event will be held on Friday, October 18, at 6:00 at Ironwood Studios (119 Jackson Avenue). This year, we will be honoring several of your colleagues and friends including Kevin Newton (Mayer & Newton), the Students of the UT College of Law Expungement Clinic, the Knox County Public Defender’s Community Law Office, and the law firm of Kramer Rayson. In addition, this year’s inductee into the Donald F. Paine Memorial Pro Bono Hall of Fame will be Lynn Tarpy (Tarpy, Cox, Fleishman & Leveille).

These are in addition to our monthly Veterans Advice Clinics (2nd Wednesday of the month from 12:00 to 2:00 at the Public Defender’s CLO) and Saturday Bar opportunities. Also, October is Pro Bono Month, so we will be holding our Knoxville Super Saturday Bar on October 5 (location to be determined) and our Blount County Super Saturday Bar on October 26 at the Blount County Library. Finally, if coming to a clinic isn’t your preferred way to volunteer, we never have a shortage of clients with cases we need to place for brief services or full representation. If you haven’t heard from us for a while, feel free to contact me and let me know what types of cases you are interested in helping with and I’ll see what we can find for you! As usual, none of what I have mentioned above would be possible without all of our great volunteers. Thank you for all you do to help LAET and our clients!

Want to Volunteer? Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt

If you are interested in being a sponsor for this year’s event, it’s not too late! You can contact me directly (kellis@laet.org) or you can go online and select your sponsorship level (https://app.etapestry.com/onlineforms/ LegalAidOfTennessee/2019FJSPONSOR.html). If you want to purchase tickets to this year’s event, you can do so online here -- https://app.etapestry.com/onlineforms/ LegalAidOfTennessee/2019ForgingJustice.html.

Mark Your Calendars:

Over the next several months, there will also be a lot of opportunities for you to volunteer at an advice clinic. All of our general advice clinics are attended by clients with issues covering nearly every legal topic, so all our welcome! If you are a bankruptcy attorney, we have Debt Relief Clinics scheduled for August 10 and November 9. Also, there will be a CLE offered by the KBA’s Bankruptcy Section on Tuesday, September 10 at 2:00 at the City-County Building in the Main Assembly Room. The CLE titled “Bifurcated Fees and Unbundling of Services in Chapter 7: Access to Justice,” which will be presented by United States Bankruptcy Judge Suzanne Bauknight will be free to attorneys who have volunteered at the Debt Relief Clinic or have accepted bankruptcy referrals from LAET since August 13, 2018. Immediately after the CLE, from 3:00 to 4:30, there will be a reception for Debt Relief Clinic volunteers and others on the Fourth Floor (Chambers area) of the Howard H. Baker, Jr., Courthouse. If you are an attorney who practices family law, debtor/creditor law, or housing law, you may be particularly interested in our Free Legal Advice Clinic being held on September 7 at the Knox County CAC’s L.T. Ross Building. This clinic is being co-sponsored by ETSU and the CAC Office of Aging’s Grandparents as Parents program. ETSU is the Families First (TANF) contractor with DHS for 24 counties in East Tennessee. They have found that their clients have continuous legal issues including evictions, housing, landlord-tenant problems, creditor problems, garnishments, possible bankruptcies, domestic violence, custody, child support, and others. Clients of the Grandparents as Parents program also have a wide range of family law and housing law matters they deal with regularly. For those of you interested in our Faith & Justice Clinics, but who are not always available on a Saturday, we will be holding a Tuesday clinic from 3:00 to 6:00 on November 19 at the Jewish Community Center.

* August 3 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville Office * August 10 (9:30-12:30) – Debt Relief Clinic at the Knox County Public Defender’s Community Law Office * August 14 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * August 17 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office _______________________________________________ * September 7 (9:00-12:00) – Free Legal Advice Clinic Co Sponsored by LAET, the CAC’s Office of Aging, ETSU, and the KBA at the L.T. Ross Building (2247 Western Ave., Knoxville) * September 10 (2:00-4:30) – Debt Relief Clinic CLE and Reception (CLE at the City-County Building Main Assembly Room; Reception at the Fourth Floor of the Howard H. Baker, Jr., Courthouse) * September 11 (12:00-2:00) – Debt Relief Clinic at the Knox County Public Defender’s Community Law Office * September 21 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

DICTA

August 2019

THE LAST WORD

Q: A:

By:

Jack H. (Nick) McCall

Judge Collier, how did you initially become involved in efforts to engage with the public regarding civics and government issues?

THE HONORABLE CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE

In 2014, I was an instructor at a seminar for about thirty federal judges from across the country. One part of the seminar called for attendees to think about, discuss, and identify the most significant or dangerous threats facing the federal judiciary. The judges were unanimous in saying that declining confidence in the judiciary was the most pressing, significant, and dangerous threat facing the courts. I had not given the matter any thought, but after hearing from the judges, I was struck by how accurate they were, and by how obvious the threat was. When I returned from the seminar, I did further research, and discovered that there had been a marked and continuing decline in public confidence in the courts, as reflected in numerous public polls. Those and similar polls also showed that public knowledge about the role and function of the courts was faltering. The convergence of those two trends – declining confidence in the courts and public unawareness about the courts – greatly concerned me. Courts at every level depend on the public’s confidence and voluntary compliance with court orders in order to function. For the most part, jurors and witnesses voluntarily show up for court, and parties and lawyers comply with court orders and live up to their discovery obligations on their own volition. With a decline in public confidence in the courts comes a risk that the same voluntary compliance will decline, or even end. I knew I could not make meaningful changes acting alone. The Chattanooga chapter of the Federal Bar Association hosted a series of meetings with community leaders to consider the challenge. Through speeches, such as one to the Chattanooga Kiwanis Club in 2015, and outreach to schools, I started seeking to empower other community members and leaders to themselves make a difference. By the fall of 2017, we created a Civics and Outreach Committee of the United States Court of Appeals for the Sixth Circuit. In spring of the next year, we formed a Civics and Outreach Committee of the Eastern District of Tennessee. Since then, efforts of the Civics and Outreach Committees have been varied and have targeted different segments of the public, from students and teachers, to everyday citizens, government officials, and professional groups. Q: What have some recent outreach efforts involved? We have partnered with the American Board of Trial Advocates and the Federal Bar Association to host Teachers Law Schools, for one example. At a Teachers Law School, teachers receive a full day

of programming from judges and local lawyers which helps them to incorporate information about the justice system into their classes. One year, we received eighty-nine applications from teachers across the state who wished to attend. We have also held public readings of the Constitution in each division on Constitution Day, September 17. In Chattanooga, we read from the courthouse steps, and any member of the public could volunteer to read a segment of the Constitution aloud, from state judges who attended, to those who were attracted to the event while walking down the street. And we have also partnered with the Federal Bar Association to host a student essay contest on a legal issue involving the First Amendment. The Western District of Tennessee has been active in its outreach and has a Courthouse Tours program and Teen Discourse and Decisions program for high school students. The Middle and Western Districts of Tennessee are also planning their own Teachers Law Schools. Our most recent effort in the Eastern District has been launching a new website that helps students, teachers, and the general public learn more about the federal judicial system. Q: Could you tell readers more about the website? The website is called “Connections” and is available at http://connections.tned.uscourts.gov/index.html. It is intended to provide information about the federal courts in an engaging format. Visitors to the website can read the country’s founding documents, learn about judges in the Eastern District of Tennessee, watch videos of judges telling stories of their different pathways to the bench, and evaluate landmark cases decided by the United States Supreme Court. Visitors can also try testing their own knowledge of United States government through taking a naturalization test, or through following a link to iCivics, a platform founded in 2008 by retired U.S. Supreme Court Justice Sandra Day O’Connor, which provides online civics games. There are resources for teachers and students, and information for lawyers about outreach events. And we have links to arrange visits to courthouses, or to request speakers at other events. Q: What continues to drive you in your pursuit to engage with others regarding civics education? Public service has been my main motivation. We enjoy abundant freedoms as Americans because we have free and independent government institutions that, when at their best, are deeply committed to protecting our safety, our rights, and the rule of law. But there can be no rule of law without a respected and independent court system. The two go hand in hand: the public will not allow the judiciary to be independent if it does not respect the judiciary, and the judiciary cannot perform its fundamental purposes and gain the respect of the public if it is not independent. It is my hope that expanded civics outreach efforts will foster appreciation for the judiciary, and, in turn, that the same appreciation will allow the judiciary to continue to fulfill its essential role in our democratic system of government.

“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 2019 DICTA 31

Prsrt Std US POSTAGE

PAID

P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 3 0 9