DICTA.January 2018

Legal Update: United States Supreme Court to Decide Whether the Government may Obtain Cell Phone Location Data Without a Warrant . . . Page 11 Schooled in Ethics: Top Legal Ethics Stories of 2017: In Tennessee and Beyond . . . Page 21

A Monthly Publication of the Knoxville Bar Association | January 2018

DEDMON V. STEELMAN: THE TENNESSEE SUPREME COURT HOLDS THE RATIONALE OF WEST V. SHELBY COUNTY HEALTHCARE CORP. DOES NOT APPLY TO PERSONAL INJURY LITIGATION

Photo Ops

GOVERNORS’ AWARD RECIPIENTS LUNCHEON

Back row: Mark Stephens, Robert R. Campbell, Jack B. Draper, W. Thomas Dillard, Randall E. Nichols, George W. Morton Jr. Front Row: Robert E. Pryor, Sarah Y. Sheppeard, Hon. Pamela L. Reeves, Thomas M. Hale, William D. Vines III, Bernard E. Bernstein

VOLLEYBALL TEAM WINS ETHICS BOWL XI

The following teams participated in the Ethics Bowl on December 1: GOLF: Andy Roskind and Melanie Wilson; HIKING: K.O. Herston and Annette Winston; RACING: T. Scott Jones and Sonny Schow; SOCCER: Steve Erdely and Carrie O’Rear; TENNIS: Jeremy Goolsby and Dallas Reynolds; and VOLLEYBALL: Amanda Busby and Emily Stulce. Special thanks to U.T. College of Law Professors Alex Long and Paula Schaefer for serving as program hosts and Judy Cornett for serving as the Ask a Professor Lifeline. Ethics Panel Participants included Chancellor John Weaver, Hon. Mary Beth Leibowitz and Hon. Charles A. Cerny Jr. The CLE Committee would like to recognize the following KBA members for their help in drafting the questions used in the Ethics Bowl: Deno Cole, Ann Barker, Chancellor John Weaver, Hon. Mary Beth Leibowitz, Hon. Charles A. Cerny, Jr., Ron Mills, Paul Wehmeier, Stacie Miller, Susan Herndon, Charles Young, Brad Brittian, Judy Cornett, Paula Schaefer and Alex Long.

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DICTA

January 2018

In This Issue

Officers of the Knoxville Bar Association

Cover Story

President Keith H. Burroughs

President Elect Wynne du Mariau Caffey-Knight

Treasurer Hanson R. Tipton

Immediate Past President Amanda M. Busby

Secretary Cheryl G. Rice

KBA Board of Governors Charme P. Allen Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis

Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear

T. Mitchell Panter M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe

16 Dedmon v. Steelman:

The Tennessee

Supreme Court Holds

The Rationale of West

v. Shelby County Healthcare Corp. Does Not Apply to

Personal Injury Litigation 5

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United States Supreme Court to Decide Whether the Government May Obtain Cell Phone Location Data Without a Warrant

Great Expectations – Maternity and Parental Leave

Top Legal Ethics Stories of 2017: In Tennessee and Beyond

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Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

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

Adelyn Bryson LRIS & Membership Assistant

Volume 45, Issue 1

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 Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long

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

Managing Editor Marsha Watson

KBA Executive Director

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

January 2018

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DICTA

Legal Update

Management Counsel: Law Practice 101 Schooled in Ethics

Conventional Wisdom Governor’s Award Profile

Penny J. White - 2017 Recipient Of KBA’s Highest Award

Outside My Office Window

The Tape

Legal Mythbreakers

Spoliation In Tennessee

Hello My Name Is

Erika Blalock-Houser

Attorney Profile

Doug Overbey - U.S. Attorney, Eastern Tennessee - A Rare Breed

Come Out, Come Out, Wherever You “Я”!

Wonderful Time of the Year

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Dicta is the official

Practice Tips

Mediation: The Opening Statement – Revisited

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Marsha S. Watson Executive Director

Critical Focus

President’s Message

Opportunities Ahead In 2018 And Beyond

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The Knoxville Bar Association Staff

January 2018

Legally Weird

20 Lawyer Hobbies

Service to Others 23 Of Thermometers and Thermostats

Civilly Right 24 Life Hacks

Making the Most of the Most 25

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4 6 19 29 30 31

Your Monthly Constitutional

All the President’s Nukes

Well Read

Book Review: Rebooting Justice

Long Winded

Annual Meeting Review

Bill & Phil’s Gadget of the Month

iPhone X

Common Ground

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

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event

EVENT CALENDAR & SECTION NOTICES

Section Notices

calendar

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

Alternative Dispute Resolution Section The ADR Section will be planning regular CLE throughout the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630).

January

Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). The next clinic is scheduled for Saturday, February 3, 2018 from 9:30 a.m. to 12:00 p.m. at the Knox County Public Defender’s Community Law Office. If you would like to volunteer for next clinic, please sign up by clicking on February 3 on the event calendar at www.knoxbar.org.

n 10 Veterans Legal Advice Clinic

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. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148).

n 24 Criminal Justice Section CLE

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

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

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

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

Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Section Chairs Mike Stanuszek (696-1032) 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 2016 will automatically be opted-in to the section. The goal of the section is to provide programming for new lawyers, including educational opportunities, social/ networking events, listserv, and e-community with a comprehensive file-sharing system. The section will allow attorneys to connect with other attorneys who may or may not be in the same practice area, but who are new to the legal field and facing similar experiences.. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500).

Senior Section The KBA Senior Section meets quarterly. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307.

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Professionalism Committee Meeting

n 10 Barristers Planning Meeting n 11 Lunch & Learn

n 11 Judicial Committee Meeting

n 17 Board of Governors Meeting n 22 Trivia Night

n 25 Volunteer Breakfast

n 29 New Lawyers Section Event n 30 CLE Committee Meeting n 30 Bar Leaders Event

February n 3

Debt Relief Clinic

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Law Office Tech Committee Meeting

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ADR Section CLE Lunch & Learn

Judicial Committee Meeting

n 13 Professionalism Committee Meeting n 14 Veterans Legal Advice Clinic n 16 Real Estate CLE

n 21 Board of Governors Meeting

Mark Your Calendar Law Practice Today Expo April 12 & 13, 2018

Solo Practitioners & Small Firms Section The goal of the Solo & 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. To have your name added to the section list, please contact the KBA office at 522-6522.

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DICTA

January 2018

PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.

OPPORTUNITIES AHEAD IN 2018 AND BEYOND

As I begin as President of the Knoxville Bar Association, I reflect

Over the last several years, I have observed a trend away from on all the positive opportunities I have had over the last three years as a civility among some lawyers of our Bar. The tone of communications member of the Executive Committee of the KBA. During that time, I and actions have become increasingly less professional. This behavior has have been able to evaluate the work of other bar associations, and I can degraded the professionalism of our Bar and our effectiveness to properly say without a doubt that we have the finest bar association that exists represent our clients. It has damaged many personal relationships today. With the leadership of Marsha Watson and her staff, Tammy among fellow lawyers. Practitioners outside the KBA have taken note Sharpe, Tracy Chain, Lacey Dillion, Jonathan Guess and Adelyn and have commented negatively toward this trend away from an era of Bryson, we are poised to continue to provide excellent services to our collegiately and civility among practitioners in our Bar. The KBA used to members and community. be regarded as a model association of collegiality and civility, but sadly we

As I have observed Amanda Busby, Wayne Kramer and Tasha have lost that distinction and need to win it back.

Blakney as my immediate predecessors, I have learned so very much

As a profession, we are called upon to be civilized in our interactions from them. I appreciate the leadership they with our clients, the public, and each other. and the Presidents before them have provided Slightly over 15 years ago in October 2002, he KBA used to be regarded the KBA adopted Guidelines for Professional the KBA to consistently expand and improve as a model association of upon the quality of the services, resources, and Courtesy and Conduct. Those Guidelines opportunities available to our members. I am are published on pages 301 though 304 of the collegiality and civility, but honored to serve as your President.

Knoxville Bar Association 2017 Attorneys’ sadly we have lost that distinction

Over the past month, I have reached Directory. The preamble published on page 302 and need to win it back. out to the approximately 55 Committee and states in pertinent part: Section Chairs to seek their agreement to serve

“A lawyer owes a client undivided in 2018. Routinely, I have been greeted with allegiance, the full application of the lawyer’s willingness and excitement to serve in these roles. In many of those calls, learning, skill, and industry, and the employment of all appropriate legal the staff of the KBA was recognized as key participants in assisting the means to protect and enforce the client’s legitimate rights, claims, and Committees and Sections, the back bone of our Association, to perform objectives. At the same time, in meeting a client’s goals, a lawyer must at extraordinary levels to excel in their work for the benefit of the KBA. be mindful of the need to maintain the highest degree of professionalism To all members of our Committees and Sections, I thank you for your possible. The law demands the utmost professionalism from its willingness and commitment to serve to continually make the KBA the practitioners so that it may be understood as a learned and respected very best it can be. profession serving public good by ensuring that our system of justice

But we have opportunity to do better and more for the benefit works fairly and efficiently.” of our profession. A new initiative that was introduced by Executive

The stated purpose of the Guidelines was to promote and foster Director Marsha Watson is a concept she envisioned called the KBA the ideals of professional courtesy, conduct and cooperation among New Lawyers Section. The membership of this Section will be made up all attorneys in both litigation and non-litigation, commercial and of newly licensed attorneys who have practiced no more than three (3) transactional settings. The KBA Professionalism Committee has years. KBA Members Samuel Louderback and Elizabeth Anne Bowden recently formed a subcommittee to revisit these Guidelines and make have agreed to be the inaugural Chairs of this Section. The Section is recommendations for revisions that may be appropriate. designed to allow attorneys to connect with other attorneys who may

All too often I see emails and other communications with a tone not be in the same practice area but who are new to the legal field and and demeanor unbecoming of any attorney that appears to be the product facing similar experiences and challenges. The New Lawyers Section of the temptation to “shoot off ” an aggressive communication that the will include educational opportunities, networking events, community writer would not (or should not) say face to face to the recipient. Other service projects, a listserv and an e-community with a comprehensive fileexamples include such things as the inclusion of a Notice of Hearing in a sharing system. The objective for this Section is to provide a soft-landing Certificate of Service, filing a Motion to Compel or Default on the first spot for new lawyers, encourage participants to get involved in other day that the responsive pleading is past due, and a Notice of Deposition activities of the Bar, provide Section Members nuts and bolts educational or Hearing without the courtesy of a call to the opposing counsel to programming options, promote a healthy work-life balance among new discuss when a response might be forthcoming or dates that might be attorneys, and to reinforce the concept of building personal relationships. convenient for a deposition or hearing. It is my hope that we as members I trust that this new Section will provide valuable resources to our new of this great profession reflect upon the Guidelines for Professional lawyers.

Courtesy and Conduct and make a concerted effort to embrace them

There are two other areas that we need to reevaluate and improve and apply them in our daily practice. Next month, I will address the upon for the good of our profession: (1) civility and (2) diversity and importance of diversity and inclusivity in our profession. I promise it will inclusivity. For this President’s message, I will focus on the topic of be a much more positive message. civility.

T

January 2018

DICTA

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BAR HOPPING By: Brady Cody Lewis Thomason

New for 2018, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. This week, we start off with an easy one:

Think you can name this courthouse? Email me at bcody@lewisthomason. com with your answer. Correct answers will receive a shout-out in the next issue of DICTA (or a signed photograph of local bar celebrity Chris McCarty, winner’s choice). 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.

Barristers Annual Elections and Holiday Party More than seventy-five Barristers attended the Elections and Holiday Party held on December 5, 2017. Mitchell Panter, Paine, Bickers LLP, will serve as the President of the Knoxville Barristers in 2018. See the Barristers Bullets note for a full report of the Annual Elections.

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DICTA

January 2018

GOVERNOR ’S AWARD PROFILE By: Bill Vines Butler Vines & Babb

PENNY J. WHITE - 2017 RECIPIENT OF KNOXVILLE BAR ASSOCIATION’S HIGHEST AWARD On December 8, 2017, at the annual meeting of the Knoxville Bar Association, Penny White was presented the Association’s highest award designated “The Governor’s Award.” This award is presented only to those attorneys felt by the Association’s elected Board of Governors to be exemplary both as community service and service as an attorney.

Penny is regarded as a true role model by attorneys throughout the State. In fact, during the December 8th annual meeting, Penny was attending a seminar in Nashville doing what she is so well known for – teaching other attorneys. Because of that, this year’s award was presented to Penny by surprise through a special video arrangement. She was interrupted during her presentation and honored with the award through a video feed between Nashville and Knoxville.

Penny is undoubtedly deserving of this recognition. She received her J.D. from the University of Tennessee in 1981 (selected Order of the Coif ) and would later earn a Masters of Law degree from Georgetown University. She began her legal career in private practice in Washington County, Tennessee, before serving as Circuit Judge in the First Judicial Circuit beginning in 1990. She was later appointed to the Tennessee Court of Criminal Appeals in 1992 and to the Tennessee Supreme Court in 1994. In 1996, she became the target of a campaign against her retention stemming from her vote on a capital murder case. Though she voted with the majority, she was the only justice subject to a retention vote in that year and was ultimately removed from the Court. Many attorneys feel quite strongly she was unfairly targeted.

Undaunted, Penny serves as the Elvin E. Overton Distinguished Professor of Law at the University of Tennessee College of Law. She is Director of the Center for Advocacy and Dispute Resolution at the College of Law and has made presentations as lecturer or visiting professor at numerous other colleges, including Washington and Lee, Yale, Harvard, the University of Mississippi, Georgia State University, Denver College of Law, and West Virginia College of Law. She also serves on the faculty of the National Judicial College and has authored many law review articles, books, and book chapters. Notably, she coauthored the benchbook for judges on Capital Trials and solely authored an award-winning book on the defense of capital cases. Her specialty is evidence. She recently stated to a group of attorneys that, for her, discussing evidence is like a Mediterranean cruise. She has lectured on evidence in 38 states!

Her list of prior awards would make any lawyer blush. Indeed, the presenter of this year’s Governor’s Award insisted that this – the highest award of the Bar Association – must be her last, as she has already received all the others! Her awards include the Advancement of Justice Award, National Judicial College (2014); the University of Tennessee Jefferson Prize (2012); the University of Tennessee National Alumni Association Outstanding Teacher Award (2012); the Knoxville Bar Association 2012 Dicta Award; the Harold C. Warner Outstanding Teaching Award (2010); the Forrest W. Lacey Award for Outstanding Contribution to the UT College of Law Moot Court Program (2013January 2018

14, 2012-13, 2005-06, 2002-03, 2001-02); the two-time recipient of the Carden Award for Outstanding Scholarship and Service to an Institution, and many others.

Despite her outstanding and note-worthy achievements, Penny is humble and unpretentious. She lives modestly in downtown Knoxville and walks to work. Her husband, Michael Okun, is an attorney specializing in labor and employment law. He is in private practice and has served as an adjunct professor at Wake Forest University, University of North Carolina, University of Tennessee and Elon University. Both Penny and Mike are passionate about the law and passionate about each other!

The Governor’s Award could have no better recipient than Penny White. An exemplary attorney and a paragon of enduring, faithful, and distinguished service, Penny is truly deserving of our Association’s highest honor.

DICTA

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

Jr.

THE TAPE

He sat on the edge of his bed and looked out the window on a rainy Seattle afternoon. He was a long way from Grainger County. Cancer can cause a lot of problems. It can cause you pain, fear, uncertainty, and, unwanted travel. For a boy from Rutledge, places like Seattle used to seem so far away, but he was looking for a miracle.

He was still absorbing the news that his donor was backing out. It was all just so ridiculous. It was a perfect time for self-pity, but he didn’t allow such things. He picked up the tape, wrote “Bob” on the front and back and then signed his name on the tab - “Zane.” He slid it into the tape recorder and hit “record.”

I knew Zane Daniel, but he was my father’s friend. Zane Daniel was everyone’s friend. My father always said Zane was one of the best things to ever come out of Grainger County. “Zane stories” float in unseen clouds that shadow our town and from time to time descend into the Lunchbox, the Brown Bag, the Bistro and other eating establishments where lawyers gather and talk and laugh. You can hear them in the hallways of the courthouse or falling from the lips of court reporters or court clerks. The introduction of his name brings a smile to every face who knew him. The stories live on - his famous “pickin parties,” his love of women, his courtroom antics. My father recently covered Zane’s life in a City View article. He captured the complete man - his rise as a prosecutor and prominent defense lawyer. He included stories of Zane’s faith and his parenting of two wonderful sons, most of it as a single father. Since attaining a suitable age, I have been regaled by Zane stories my entire adult life. But, when I hear his name, I think of one thing - the tape.

Zane died on August 1, 2006. The cassette tape arrived later that week. It came in a large envelope, delivered by the mail carrier on a regular business day. My father sat down at his desk and took it out of the envelope, tears immediately forming. He braced himself as he placed it into the tape player and pushed play. “Hey Bob, it’s Zane, of course…”

His voice was strong, country-fried and Rutledge through and through.

My father knew Zane had gone to Seattle for treatment and sent him an iPod full of old country songs, many of which they’d sung together late into the night with the likes of Don Coffey, Judge Carey Garrett, Rex McGhee, Red Rector, Tom Brown, and Jess Campbell. Bob Pryor, like so many, loved to be around Zane. He was the kind of person that could

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make you feel like you were the only one in the room. As a young lawyer, I recognized the effect Zane Daniel had on a room. Everyone lit up.

Everyone sought his attention, including my father. You just knew stories would be told and laughter was imminent.

When the tape arrived, I knew it was going to be special. As it rolled on, he thanked my father for music, and although he talked about the things he and my Dad would do once Zane “whipped this thing,” it was clear that Zane Daniel knew the score. It was the fourth quarter.

He told a couple of stories and jokes that would have best been told in the company of men, and he laughed as though he were in the company of his friends and not the nurses, doctors and hospital staff that came in and out of his room all day. Then, he moved on to the real mission of his recording. “Bob, I just wanted you to know that I appreciate your friendship. I ain’t never run into you when we didn’t have a good time.”

He talked about how the cancer had brought the important things in his life into focus. He spoke about his boys, Jeff and Todd, and how they had things under control in his law practice. He made it a point to reveal he’d told his sons that “If you ever need anything or have a question about the law, you call Bob.” I don’t know that my father ever received a higher compliment. Zane Daniel lived a life interrupted by tragedy and peppered with great success and blessings. He brought joy to many. In the end, something we all have coming to us, he looked out of his hospital window, and while talking to his old friend, Bob, offered an absolute truth - “Ain’t nothin more important than good friends.”

I’ll never forget listening to the tape with my dad. I have listened to it many times since that day in August of 2006 and continue to marvel at its courageous and happy message delivered in the face of adversity and death. By the time Zane signed off “I’ll be talking to you…take care and God bless. See you bro,” he’d transformed a unique and unbelievable goodbye message into a memorable moment of truth shared by father and son. I’ll always be thankful.

DICTA

January 2018

PRACTICE TIPS By: William D. Vines Butler, Vines and Babb, P.L.L.C.

MEDIATION THE OPENING STATEMENT - REVISITED

Lawyers are often troubled when deciding whether to make an opening statement at mediation. Is it in the best interest of their clients?

At our monthly ADR section meetings, the propriety of openings is a common topic of discussion, and mediators often disagree. Plausible arguments can be made on both sides of the issue. So let’s analyze.

We all come to voluntary mediation intent on making the process a success. So why is mediation successful? Why has mediation become such a predominant method of dispute resolution?

Certainly, there are multiple factors, but a major factor is clear. The process encourages communication. In an adversarial setting, where parties have been unable to resolve disputed issues, the mediation process opens channels of discussion not previously available.

Psychiatrists tell us that good communication fosters less conflict.

Arguably, with good communication, we would have fewer divorces, fewer partnership he process encourages dissolutions, and communication. In an even fewer wars! adversarial setting, where So what can we do to improve parties have been unable to resolve disputed issues, the mediation process communication in the mediation opens channels of discussion not process? One previously available. method is to make polite statements of position when all parties are present.

Sometimes parties suggest that they make no opening statement, and instead, submit a position paper to the mediator and ask him or her to present their position to the other parties. Is that the most effective way to encourage the communication necessary to resolve the case?

We need to put the mediator in the best position possible to facilitate meaningful discussion between the parties. To be successful in that task, the mediator must appear neutral and completely unbiased. If a party first hears the opposing party’s position from the mediator, the mediator may come across as biased, or at the very least, be viewed as the bearer of bad news!

If asked to be the first to present a party’s position, a mediator is forced to begin the breakout session by ticking off the other party’s claims (e.g. “How do you address the following claim if made?”). However, the mediator would be in a better position if he or she could say, “let’s discuss the points the other party raised in opening.” In that situation, the mediator could discuss the same points, in the same manner, while also remaining neutral and encouraging good communication.

Similarly, a mediator should not be told the ultimate goal of each party. Some parties, in perfectly good faith, may tell the mediator their bottom (or top) line and then say, “Now you get there however you can.”

This, of course, may cause the mediator to take on the uncomfortable position of serving as a party’s advocate. I personally ask not to be told the bottom line for this reason – plus, as we all know, a bottom or top line can change based upon good communication.

Perhaps the strongest argument against making an opening

statement is that it may “ice the discussion.” But does that really happen? If a polite statement made in opening would truly “ice” any further discussion between the parties, then the level of communication necessary to resolve the dispute may already be impossible. A patient mediator can usually keep the discussion on track and establish good communication, but to do that, all parties need to know and appreciate the position of the opposite party.

No rule is absolute. However, in most non-domestic civil disputes, an opening statement benefits the mediation process. It begins the communication necessary to resolve the disputed issues and helps the mediator help you.

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January 2018

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LEGAL MYTHBREAKERS By: David E. Long McAngus, Goudelock, & Courie

SPOLIATION IN TENNESSEE

In Tennessee, courts have both express and inherent authority to impose sanctions for spoliation.1 There are many sanctions that a court may impose on a spoliator, including: dismissal of the plaintiff ’s action, default judgment against the disobedient party, an adverse inference instruction against the disobedient party, or striking or precluding the admission of evidence presented by the disobedient party.2 Courts are given “wide discretion” to impose any sanction they deem appropriate as long as it “serves the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.”3

In Tennessee, prior to 2015, it was unclear whether a party could be sanctioned for spoliation of evidence if the spoliator did not lose or destroy the evidence intentionally. Courts of Appeals generally agreed with the statement “…an intentional act is a prerequisite for imposing a [sanction, such as] a negative inference against a party.”4 In a departure from the intent requirement, one Court sanctioned a party that unintentionally lost or destroyed evidence.5

In 2015, the Tennessee Supreme Court addressed the issue regarding spoliation of evidence in the case of Tatum v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734 (Tenn. 2015). In Tatum, the plaintiff was in a motor vehicle accident due to the failure of a new tire. Plaintiff brought a products liability case against the seller and the manufacturer.

At the advice of her insurance company, the plaintiff transferred title to the vehicle along with the tire, to the wrecker service. After doing so, she filed suit against the defendants. Among other theories of dismissal the defendants filed a motion for summary judgment requesting the court to dismiss her case due to spoliation. The trial court refused to award the sanction because it held the plaintiff did not intentionally destroy or otherwise spoliate the tire. The Defendants appealed, arguing the trial court abused its discretion. Defendants argued an intentional act was not a prerequisite to a finding of spoliation under Tennessee law.

The issue made its way to the Tennessee Supreme Court. The Supreme Court noted the judicial power to award sanctions for spoliation arose from two sources: the common law doctrine of spoliation, and the inherent authority and discretion of the courts. The Court noted that Tennessee courts have long applied the prerequisite of intentional misconduct in spoliation issues6 The courts had in the past held a trial court could draw a “negative inference” in those situations. Over the years, the Courts of Appeals began to apply other sanctions than the “negative inference doctrine” (common law), which included limiting introduction of evidence and in some rare instances, dismissing cases.7 At the same time, the Courts maintained they have inherent authority and broad discretion in fashioning a remedy and sanction for spoliation.

The Supreme Court explained the inherent authority to impose sanctions did not arise out of the common law; rather, it “…is rooted in the trial court’s inherent power to ensure the proper administration of justice.”8 As such, there is a large component of judicial discretion involved. A trial court’s decision is not set aside on appeal unless “…the trial court has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of the evidence.”9

The inherent authority to award sanctions is not replaced or encapsulated totally by the Tennessee Rules of Civil Procedure.

Tennessee Rule of Civil Procedure 34A (“Spoliation of Evidence”).

TRCP 34A deals with spoliation in filed civil cases. It applies the full range of sanctions available under TRCP 37, but only when the spoliation occurs in the face of a court’s discovery order. Since the Rules deal with spoliation after a lawsuit is filed, they do not address the courts’ inherent authority to deal with pre-litigation issues of spoliation. The Supreme Court noted it had upheld the inherent authority to award sanctions even when the Rules of Civil Procedure did not address the issue. It noted, even after the adoption of TRCP 34A, the courts have

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still utilized the prerequisite of intentional action, although the Rules are silent as to whether intentional conduct is required or not. The Court noted the need for a universal rule, and in so doing, held under TRCP 34A and under the court’s inherent authority, intentional action is no longer a prerequisite for imposing spoliation sanctions on an actor, either under the common law, the Rules or the inherent authority of the courts.10 The Court held Therefore intentional misconduct should not be a prerequisite to the imposition of some sanction under any approach. Rather, such determinations should be made on a case-by-case basis considering all relevant circumstances. Whether the conduct involved intentional misconduct simply should be one of the factors considered by the trial court….the determination of whether a sanction should be imposed for the spoliation of evidence depends on the unique circumstances of each case. Factors which are relevant to a trial court’s consideration of what, if any, sanction should be imposed for the spoliation of evidence include: (1) The culpability of the spoliating party in causing the destruction of the evidence, including evidence of intentional misconduct or fraudulent intent; (2) The degree of prejudice suffered by the non-spoliating party as a result of the absence of evidence; (3) Whether, at the time the evidence was destroyed, the spoliating party knew or should have known that the evidence was relevant to pending or reasonably foreseeable litigation, and, (4) The least severe sanction available to remedy any prejudice caused to the non-spoliating party.

A trial court’s discretionary decision to impose a particular sanction ‘will be set aside on appeal only when the trial court has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of the evidence.11

It is instructive to note the Supreme Court then upheld the trial court’s decision not to award sanctions against the plaintiff. It held the tire was destroyed as a matter of routine practice shortly following an accident, and interestingly cited the lower court’s ruling the destruction was not intentional. The Tatum case seeks to create a balance in spoliation doctrine while retaining in large part the emphasis on trial court discretion and a trial court’s need to fashion remedies at the trial level.

1 TENN. R. CIV. P. 34A; Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004); TENN. R. CIV. P. 34A.02; TENN R. CIV P. 37.02 2 See, e.g., Smartt v. NHC Health Care, 2009 WL 482475, *17-18 (Mar. 10, 2011) (stating that trial court’s instructions to the jury was correct framing of the doctrine of spoliation; the instructions stated that in the event the jury found the defendants had destroyed records with an improper purpose, then the jury should assume that the unavailable evidence would be unfavorable to defendants.).

3 Clark Constr. Grp, Inc. v. City of Memphis, 229 F.R.D. 131, 138 (W.D. Tenn. 2005).

4 Bronson v. Umphries, 138 S.W.3d 844, 845 (Tenn. Ct. App. 2003).

5 See, Cincinnati Ins. Co. v. Mid-South Driller Supply, Inc., 2008 WL 220287, *1 (Tenn. Ct. App. Jan. 25, 2008) (holding that “a trial court has the discretion to sanction a party . . . [for] destruction of evidence . . . irrespective of whether the destruction was inadvertent or intentional.”).

6 473 S.W. 3d at 740..

7 Id. at 742.

8 Id. at 742 (citations omitted).

9 Id. at 743, quoting White v. Vanderbilt University, 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999).

10 Id. at 746.

11 Id. at 746-47 (citations omitted).

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January 2018

L E G A L U P DAT E

UNITED STATES SUPREME COURT TO DECIDE WHETHER THE GOVERNMENT MAY OBTAIN CELL PHONE LOCATION DATA WITHOUT A WARRANT

Smartphones are ubiquitous in modern society. According to the Pew Research Center, roughly 77% of Americans currently own a smartphone.1 Among 18 to 29 year olds, that number rises to 92%.2 We use our smartphones everywhere – at school, at doctor’s appointments, while visiting friends, at political rallies, at church, and on vacation.

Every time we use our smartphone to access the cellular network, the cell phone sends a radio signal to the nearest cell phone tower, data which wireless companies collect.3 This term, the United States Supreme Court will decide whether the government may obtain cell phone location data collected by wireless companies without a warrant. The case, Carpenter v. United States, is likely to have significant implications for the Fourth Amendment and individual privacy in the digital context.

The case involves four men who the police arrested on suspicion of committing a series of armed robberies in the Detroit area in 2011.4 One of the men confessed that the suspects committed the robberies, supported by 15 other men who acted as getaway drivers and lookouts.5 He then gave the FBI his own cellphone number and the cellphone numbers of the other participants in the robberies.6 Subsequently, the FBI requested three orders from magistrate judges to obtain “transactional records” from cellphone companies for 16 different phone numbers.7 These records contained subscriber information, toll records, numbers dialed, and cell site location information (CSLI)8 that showed a cell phone user’s personal location at the time of the call.9 The magistrates granted the requests pursuant to the Stored Communications Act.10 This act allows the government to obtain telecommunications records when “specific and articulable facts show[ ] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”11 The government then used these cellphone records to convict Timothy Carpenter and Timothy Sanders, the petitioners in this case.12 Important to the government’s case at trial was the introduction of CSLI.13 Using this data, the FBI created maps showing that the petitioners’ phones were within two miles of the location of each of the robberies.14 Petitioners appealed, arguing that the government’s collection of the CSLI constituted a warrantless search in violation of the Fourth Amendment.15

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]”16 This amendment has been interpreted to protect the enumerated property-based interests as well as certain expectations of privacy.17 For an expectation of privacy to gain Fourth Amendment protection, “first, the person asserting it must have exhibited an actual (subjective) expectation of privacy; and second, that expectation must be one that society is prepared to recognize as reasonable.”18 Any intrusion on these protected categories by the government constitutes a search and generally requires the government to first obtain a warrant.19

The United States Court of Appeals for the Sixth Circuit ruled against Carpenter.20 It held that obtaining business records containing CSLI did not constitute a search under the Fourth Amendment.21 First, the Court said that there was no expectation of privacy in location data because CSLI does not expose the content of communications.22 According to the Court, “although the content of personal communications is private . . . the cell-site data – like mailing addresses, phone numbers, and IP addresses – are information that facilitate personal communications, rather than part of the content of those communications themselves.”23 Moreover, the Court asserted that there is no expectation of privacy in location data because “any cellphone user who has seen her phone’s signal strength fluctuate must know that, when she places or receives a call, her phone ‘exposes’ its location to the nearest cell tower and thus to the company that operates the tower.”24 Second, the Court stated that the defendants lacked a property interest in CSLI because it was contained in business records created by a third party, the wireless carriers.25 Therefore, according to the Court, obtaining the location data did not constitute a search for Fourth Amendment purposes.26 January 2018

By: Vera Dygert Boston College Law School

On appeal to the United States Supreme Court, Carpenter argues that individuals have a reasonable expectation of privacy in their CSLI, which “‘can reveal not just where people go – which doctors, religious services, and stores they visit – but also the people and groups they choose to affiliate with and when they actually do so.’”27 Carpenter also argues that cell phone users have a property-based interest in CSLI because federal law prohibits “service providers from disclosing that information without ‘express prior authorization of the customer.’”28 Finally, Carpenter argues that the third-party doctrine does not apply because it “cannot be said that cell phone owners knowingly and intentionally disclose their minute-by-minute movements in historical perpetuity.”29 Extending the third party doctrine to CSLI would mean that cell phone users would lack any reasonable expectation of privacy in communications, such as emails, that must be shared with service providers in order to be transmitted.30 In response, the government argues that the Fourth Amendment does not protect records about an individual that are created and held by a third party.31 According to the government, “[c]ell phone users voluntarily reveal to their providers information about their proximity to cell towers so the providers can connect their calls. Users cannot reasonably expect that the providers will not reveal that business information to the government.”32

Given the pervasive use of cell phones in modern society and the sheer number of data that they store and transmit, the Supreme Court’s decision will have profound effects on the manner in which cell phone location data are used in criminal justice.

1 Aaron Smith, Record shares of Americans now own smartphones, have home broadband, PEW RESEARCH CENTER (Jan. 12, 2017), http://www.pewresearch.org/facttank/2017/01/12/evolution-of-technology.

2 Id. 3 Carpenter v. United States, 819 F.3d 880, 885 (6th Cir. 2016). See also Brief for Petitioner at 3-4, Carpenter v. United States, No. 16-402 (U.S. argued Nov. 29, 2017) (Brief for Petitioner) (explaining how CSLI records are created); Brief for the United States at 2-3, Carpenter v. United States, No. 16-402 (U.S. argued Nov. 29, 2017) (Brief for the United States) (same).

4 Carpenter, 819 F.3d at 884.

5 Id. 6 Id. 7 Id. 8 When an individual dials a number on a cell phone, that cell phone establishes a radio connection with a nearby cell phone tower (or “cell sites”). Id. at 885. Wireless carriers typically collect the cell site data, “including the date, time, and length of each call; the phone numbers engaged on the call; and the cell sites where the call began and ended.

Id. 9 Carpenter, 819 F.3d at 884.

10 Id. 11 Id. (citing 18 U.S.C. § 2703(d)).

12 See id. at 885.

13 See id.

14 Id. 15 Id. at 884-85.

16 U.S. CONST. amend. IV; Carpenter, 819 F.3d at 886.

17 Carpenter, 819 F.3d at 886 (citing Katz v. United States, 389 U.S. 347 (1967)).

18 Id. (internal quotations omitted).

19 See id.

20 Id. at 884, 890.

21 Id. at 890.

22 Id. at 888.

23 Id. at 887. The Court cited to several cases that declined to extend Fourth Amendment protections to metadata used to route internet connections and IP addresses. See id. (citing United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010); United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008)).

24 Id. at 888.

25 Id. 26 Id. 27 Brief for Petitioner at 17 (citing Commonwealth v. Augustine, 4 N.E. 3d 846, 861 (Mass.

2014) (quoting State v. Earls, 70 A.3d 630, 642 (N.J. 2013))).

28 Id. at 11 (citing 47 U.S.C. § 222(f)).

29 Id. at 12.

30 Id. at 12-13.

31 Brief for the United States at 15-18.

32 Id. at 11.

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January 2018

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Cathy Shuck General Counsel, East Tennessee Children’s Hospital

GREAT EXPECTATIONS – MATERNITY AND PARENTAL LEAVE

Since the symbol of the New Year is a baby, this seemed like a good time to think about maternity and parental leave policies. Many small law firms and other small employers do not have a formal maternity leave or parental leave policy. These employers often do not think they need such a policy, because they assume that they do not have any employees who are considering parenthood. However, it is a good idea to consider what sort of leave the employer will support if an employee does need time off, either in connection with pregnancy and birth, or with adoption or fostering a child.

Legal Requirements

If an employer is covered by the federal Family and Medical Leave Act (FMLA), the employer must provide up to 12 weeks of leave to a parent (male or female) for the birth of a child and to care for the child, as well as for the placement of a child for adoption or foster care.1 The employer must also provide leave for pregnancy complications that meet the FMLA’s definition of a serious health condition.2 The FMLA only covers employers with 50 or more employees and therefore does not provide any entitlement to maternity or paternity leave to employees of smaller employers.3

Tennessee has a parental leave law, but it only applies to employers with 100 or more full-time employees at a particular “jobsite or location.”4 The law is often referred to as the “Tennessee Maternity Leave Act,” but leave is available to non-birth parents as well as to birth mothers. The law was amended in 2005 to be gender neutral, following a challenge to the constitutionality of the statute.5 Employers who are covered by the statute must provide up to four months of leave for “adoption, pregnancy, childbirth and nursing an infant.”6 Leave under the Tennessee law can run concurrently with the FMLA. Pay Replacement

A

2014 study by the Families and Work Institute found that only 58% of employers offered any type of pay replacement (other than sick time, PTO, etc.) for maternity leave.

replacement (other than sick time, PTO, etc.) for maternity leave. Only 14% of employers offered pay replacement for a partner’s parental leave.9 Practical Considerations

If your organization is not big enough to be covered by the FMLA, consider adopting a policy for granting job-protected time off to new and expectant parents, so that you will not be caught off guard if an employee shares his or her happy news with you. Without the FMLA’s 12-week requirement (or the Tennessee law’s four month requirement), the amount of time off can be at the discretion of the employer. Six weeks is the bare minimum amount of time necessary for childbirth and recovery. Additional time for bonding with an infant or newly-adopted child is important to support the new family. Keep in mind that while “maternity” leave includes physical recuperation from childbirth, and can be confined to employees who actually give birth, other types of leave – for adoption, fostering, and bonding – should be gender neutral, meaning that it is equally available to both parents.

While offering paid maternity and parental leave puts an employer in the minority, offering even a short amount of paid leave can be a big perk when trying to recruit and retain Millennials and is worth considering.

Finally, be sure to document your policy and communicate it to all of your employees and new-hires. Be clear about how and when an employee should request the leave. Make sure employees know that you support them in taking leave and that they will not be penalized in any way for taking time away from work to start or grow a family.

Knoxville is often touted as a family-friendly community; adopting family-friendly policies at work helps keep that reputation a reality for working parents.

29 U.S.C. § 2612(a).

See id.

3 See 29 U.S.C. § 2611.

4 Tenn. Code Ann. § 4-21-408(a), § -408(d)(2).

5 See 2005 Tenn. Public Acts ch. 224; see also Brian Lapps, “Maternity leave in Tennessee now includes men, adoptions,” Nashville Business Journal, Sept. 11, 2005.

6 Tenn. Code Ann. § 4-21-408(a).

7 See 29 U.S.C. § 2612(c); Tenn. Code Ann. § 4-21-408(c).

8 See, e.g., Pew Research Center, “Among 41 nations, U.S. is the outlier when it comes to paid parental leave,” Sept. 26, 2016, available at http://www.pewresearch.org/facttank/2016/09/26/u-s-lacks-mandated-paid-parental-leave/ (visited Dec. 9, 2017).

9 Kenneth Matos and Ellen Galinsky, 2014 National Study of Employers, available at http:// familiesandwork.org/downloads/2014NationalStudyOfEmployers.pdf (visited Dec. 9, 2017).

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Neither the FMLA nor the Tennessee leave law require that maternity or parental leave be paid.7 As such, most employers require employees using leave under the law to cover the time with earned time off such as sick leave or PTO. It is often observed that the United States is an outlier among industrialized nations in that we do not offer paid maternity leave.8 A 2014 study by the Families and Work Institute found that only 58% of employers offered any type of pay

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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.

January 2018

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HELLO MY NAME IS

. . .

ERIKA BLALOCK-HOUSER

By: Katheryn M. Ogle McDonald, Levy & Taylor, PLLC

When attorneys begin their first semester of law school, most are unsure of the area of law they ultimately want to practice. Many attorneys take a class that sparks a particular area of interest, or meet a mentor that guides them to a certain field. For newly practicing attorney Erika Blalock-Houser, her story is much different than most.

A graduate of Christian Academy Knoxville, Erika began her college career at the University of Tennessee as a biology major. After spending some time studying in this area, Erika began thinking about a change of course. “I had always been interested in the dynamics between families, and had experience working with children, so declaring my major in Child and Family Studies seemed like a natural fit for me.”

During her undergraduate career, Erika completed a practicum course through Knox County Juvenile Court. Here, she worked with the ASIST program to obtain psychological and mental health services for families who have involvement with the court. She also worked with the first time offender program that addresses the circumstances surrounding children who have been charged with a juvenile delinquency offense.

During her time in this internship, Erika became certain that she would pursue law school with the intention of becoming a Guardian ad litem.

Along the way, she also met attorney Sherry Mahar, who is widely known for her advocacy of Knox County’s at-risk youth. After taking the LSAT, Erika then began working as a clerk in Ms. Mahar’s law office. Here, she gained practical experience in the day-to-day happenings for an attorney who focuses on juvenile practice. “I learned to draft pleadings, and how to manage a law practice. Without this guidance, I wouldn’t have known how to practice as a juvenile attorney,” notes Erika.

In the spring of 2017, Erika graduated from law school and was sworn in to practice after passing the bar in October of that same year.

She has been serving as a Guardian ad litem since being sworn in, and truly feels as though she has met her career calling. Outside of work, Erika has also had a very eventful year. In the summer of 2016, she married Blake Houser, whom she has known all of her life.

Erika and her now husband met when they were toddlers and their families attended the same church. However, it wasn’t until the pair went to high school together that they began dating. Blake is currently in his fourth year of medical school and will be practicing internal medicine.

Family is very important to the young attorney, and she feels fortunate that both her family and her husband’s family make their homes in the Knoxville area. “We really try to take advantage of family time, whether it’s going on a hike in the Smoky Mountains or decorating our home, we make this time a priority.”

Erika and Blake also share their home with two cats, Hadley and Mila. Mila is a Maine Coon mix that the couple rescued from the Gatlinburg wildfires last year. In addition to the business of her law practice and spending time with family, Erika also has a love for travel and service to others. She has had the opportunity to visit England, Scotland, Wales, Belgium, France, Italy, and the Netherlands. When asked which destination was her favorite, Erika was hard-pressed to choose just one. “Ireland and Italy were both distinctly beautiful for different reasons,” she notes.

Erika also has taken several mission trips to South America, including missions to Brazil and Nicaragua. On one of her three trips to Brazil, she recalls that the soccer team from her school was traveling on the mission trip, and while she didn’t play soccer, it was a great opportunity to travel and perform mission work.

One could say that Erika is committed to service. Service to the law, service to children through advocacy, and service to her Christ and her fellow man through her mission work. While she may not have found

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her calling in biology and medicine, she certainly has found her niche in the legal world.

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Erika Blalock-Houser.

Erika and her husband Blake on a trip to the Dominican Republic.

Erika being sworn in to the Tennessee State Bar by Knox County Juvenile Court Judge Tim Irwin.

January 2018

AT TO R N E Y P R O F I L E By: Shelly L. Wilson Owings, Wilson & Coleman

DOUG OVERBEY - U.S. ATTORNEY, EASTERN TENNESSEE - A RARE BREED

I had no idea of the ride I was about to embark upon when I accepted the offer to go to work with J. Douglas Overbey at the Robertson, Ingram & Overbey law firm over 18 years ago. I had been a practicing criminal defense lawyer in another state and was relocating to Tennessee for my husband=s company.

I arrived at the office for my initial interview and saw a newspaper on the table with Doug’s photo on the front. He had been awarded “Best Dressed” attorney in Knoxville! On his office wall I saw a plaque given to him commemorating his selection for membership in the Order of the Coif. That was a little intimidating, but, as soon as I met him, all of my fears disappeared. Doug was so charming, interested, and easy to speak with, that I immediately liked him and knew I wanted to work with him.

I soon learned that Doug is like that with everyone he meets. He is a very sincere person who takes a genuine interest in others.

There are many things about Doug that I admire. This article would become a book if I tried to explain all of his accolades and wonderful characteristics, so I’m just going to highlight the aspects of Doug’s character that stand out in his professional walk. Those are the characteristics that have made him a successful attorney, legislator, and now U.S. Attorney for Eastern Tennessee. Those characteristics are things that we all should strive to achieve.

Doug makes himself available to colleagues, clients, and constituents. Many times I’ve seen on his calendar an early morning breakfast or late night meeting just to meet with someone who needed his ear.

Doug listens. Attentively. In fact, anyone who knows Doug has probably experienced those awkward moments of silence after they’ve just spoken to Doug and are waiting his response. He reflects on what is being said to him and is mindful of the words he uses to convey his response.

Yet, at the same time, he is quick on his feet. I’ve been in court with Doug many times and marveled at how he could react so quickly on his feet. During those rare occasions when we’ve been in court and an argument arises that commands a response other than what we’ve prepared or anticipated - admit it, you’ve all been there - Doug very easily changes course and delivers an appropriate argument. It’s a talent, I think, he must have been born with because, although many of us can do that, it’s the grace and ease with which he delivers the argument that sets him apart.

Doug is respectful of all persons in all walks of life. He takes the time to speak to others less fortunate than himself. He is interested in the causes of those people. He is especially known for his causes to benefit children and veterans.

Doug has been very loyal and active in the various groups and associations of which he is a member. He is not just a member of record but plays an active role and participates, most often in positions of January 2018

leadership. I can’t tell you how many programs I’ve attended in which Doug is a speaker. There is almost always a question and answer segment at the end of those programs, and I can’t tell you how many times a question is asked of the co-speaker, who abruptly turns his head, looks at Doug, and says “Overbey, what do you say?” Doug’s word is valued and respected.

Finally, but certainly not the least important, is the fact that Doug is very intelligent and is always open to learning more. He’s a student of the law. He’s a reader. He prepares.

Doug has been my go to guy for 18 years. Boy, will I miss him. But, America has gained a wonderful lawyer in the U.S. Attorney’s office for Eastern Tennessee. And, I still have his cell number on speed dial.

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DEDMON V. STEELMAN: THE TENNESSEE SUPREME COURT HOLDS THE RATIONALE OF WEST V. SHELBY COUNTY HEALTHCARE CORP. DOES NOT APPLY TO PERSONAL INJURY LITIGATION.

On November 17, 2017, in an opinion authored by Justice Holly Kirby, the Tennessee Supreme Court issued its much-anticipated decision in Dedmon v. Steelman, addressing whether the rationale of West v. Shelby County Healthcare Corp. is limited to Tennessee’s Hospital Lien Act (HLA), or whether it also applies to personal injury actions.1

Jean and Fred Dedmon (“Plaintiffs”) sued John Cook (“Defendant”) for damages arising out of an automobile accident of February 2010.2 Plaintiffs itemized in and attached to the complaint medical bills totaling $52,482.87 claimed by Mrs. Dedmon.3 Defendant’s answer denied the bills were reasonable or necessary.4 Plaintiffs later deposed one of Mrs. Dedmon’s treating physicians, who testified all of the medical bills were reasonable and necessary.5

The Supreme Court subsequently decided West, and found a hospital’s “reasonable charges” under Tennessee’s HLA are the amount the hospital accepts from private insurance, not the amount in the bill sent to the patient.6 West reasoned the amount of undiscounted charges is “unreasonable” when compared to the amounts actually paid, and undiscounted bills do not reflect “what is [actually] being paid in the market place.”7

Relying on West, Defendants8 filed a motion in limine to exclude “evidence of unreasonable medical charges.9 Defendants argued West set forth a new standard for the definition of reasonableness of medical bills, and therefore the bills attached to the physician’s deposition should be excluded, and amounts accepted in satisfaction of the bills (totaling $18,255.42) deemed the “reasonable” expenses instead.10 Defendants argued the collateral source was inapplicable, as it was not necessary to mention the source of the discounted amounts.11 Defendants also filed a “Notice of Intent to Rebut Presumption Pursuant to T.C.A. § 24-5-113,” arguing the discounted amounts accepted by the medical providers should be admissible to rebut Plaintiffs’ expert testimony.12

Plaintiffs argued West is limited to Tennessee’s HLA, extending it to personal injury litigation violates the collateral source rule, and Tennessee law permitted them to

16

prove the reasonableness and necessity of their medical expenses through expert testimony, which they had done.13

The trial court granted Defendants’ motion, holding the discounted amounts paid were “reasonable medical expenses” as a matter of law, and excluding evidence of the undiscounted medical bills as “unreasonable.”14

Plaintiffs’ application for interlocutory appeal was granted in both the trial and appellate courts.15

The Court of Appeals reversed, finding West was confined to the HLA, and therefore evidence of the full, undiscounted medical bills was excluded in error.16 However, it held evidence of discounted amounts accepted by the providers admissible to rebut Plaintiffs’ proof because “existing law in this state … makes clear that Defendants are permitted to offer proof contradicting the reasonableness of the medical expenses[,]” provided the collateral source rule is not violated.17 The appellate court urged the Supreme Court to accept review.18

Defendants applied for permission to appeal, which was granted.19

The Supreme Court first considered Tennessee law on damages in personal injury cases, noting a plaintiff may recover medical bills proven by expert testimony as “necessary and reasonable.”20 Plaintiffs may also rely upon the rebuttable presumption in T.C.A. § 24-5-113(a) that medical bills of $4,000 or less itemized and attached to a complaint are both necessary and reasonable, or the rebuttable presumption of reasonableness (but not necessity) for bills itemized and attached to the complaint in any amount under subsection (b).21 However, defendants may present evidence to rebut the presumptions of T.C.A. § 24-5-113(a) and (b).22 Additionally, regardless of any statutory presumption, plaintiffs must always establish causation.23

It then considered the collateral source rule, from its origins in English common law to its adoption by the U.S. Supreme Court and Tennessee Supreme Court, and evolution into “both a substantive rule of law and an evidentiary rule.”24 Several states have abrogated the rule to varying degrees, including Tennessee, with enactment of

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legislation abrogating it in health care liability lawsuits, and case law holding that it does not apply to workers compensation benefits.25 However, it remains applicable in other personal injury cases.26

It next reviewed West, and considered hospital billing practices, whereby undiscounted rates are billed, but discounted amounts accepted from private insurance companies, with balances written off.27 The Court noted West was limited to the HLA[,]” and “the collateral source rule was not argued or even mentioned.”28 Nonetheless, West had been applied by several Tennessee trial courts and U.S. District Courts to find the discounted amounts “reasonable medical expenses” as a matter of law, with evidence of undiscounted bills excluded as “unreasonable.”29 Others limited West’s application to the HLA, and held the collateral source rule prevented admission of insurance benefits in personal injury cases.30 Concluding West was not intended to be directly applicable in personal injury cases, the Court rejected Defendants’ argument that it created a new standard for defining “reasonable medical charges” in personal injury cases.31

The Court then considered whether concepts from West should apply in personal injury cases, to recognize the reality of our current health care system, particularly the growing disparity between what providers charge and what they accept.32 It agreed “health care has undergone tremendous changes since Tennessee adopted the collateral source rule[,]” including increases in types of benefits and growing complexity in pricing, payment, and reimbursement, the results of which have been to widen “the gap between standard rate[s] charged to uninsured patients and … amounts accepted from insurance or social legislation benefits.”33

These “changed circumstances” have encouraged many jurisdictions to abrogate the collateral source rule by statute, a combination of statute and common law, and sometimes solely by common law.34 Several states have abrogated the rule to some degree, usually as part of broader tort reform legislation; others have abrogated the rule for some purposes, but not others.35 Some permit plaintiffs to January 2018

COVER STORY By: Hannah S. Lowe Trammell, Adkins & Ward, P.C.

submit undiscounted bills, but permit trial courts to reduce the jury’s verdict after trial based on amounts received from collateral sources.36 Some support a “hybrid” method, whereby juries consider evidence of both the undiscounted and the discounted amounts.37

Similarly, jurisdictions that have addressed the rule based on common law have used three approaches: (1) actual amount paid; (2) benefit of the bargain; and (3) reasonable value.38 The “actual amount paid” (applied by a minority of courts) is based on reasoning that a plaintiff does not in fact “incur” the full undiscounted amount, but is criticized because of resulting disparity between plaintiffs who are insured versus uninsured.39 The “benefit of the bargain” permits recovery of undiscounted bills only where the plaintiff paid consideration for the insurance benefits, and is criticized as protecting the rich and undermining the collateral source rule.40 The “reasonable value” allows plaintiffs to recover the “reasonable value” of their medical expenses, with (1) a minority of courts defining the “reasonable value” as the actual amount paid; (2) a majority holding that “reasonable value” is the full, undiscounted bills; and (3) a few courts allowing the “hybrid” method, where both discounted and undiscounted amounts are admitted.41

In Tennessee, courts have generally used the “reasonable value/full bill” approach, as described in Fye v. Kennedy, 991 S.W.2d 754, 763-64 (Tenn. Ct. App. 1998).42

Defendants argued the “actual amount paid” approach does not violate the collateral source rule, as plaintiffs may introduce evidence of medical expenses actually incurred or paid, without indicating the source.43 The Court disagreed, holding that to adopt this approach required rejection/abrogation of the collateral source rule.44 It further rejected the argument that “reasonable medical expenses” is analogous to “fair market value,” as “medical expenses cannot be valued in the same way one would value a house or a car, pegging the “reasonable value” at the fair market value, that is, the amount a buyer is willing pay.”45

The Court noted Defendants had addressed only the circumstances where a plaintiff is covered by private insurance, and not how the approach would work under other circumstances, e.g. when a plaintiff is covered

by TennCare or Medicare, received care at a veterans’ or charitable facility, or benefits are paid by family.46 Adopting the “actual amount January 2018

paid” approach would result in disparity in awards for “reasonable medical expenses” for the same treatment.47 Additionally, finding the full, undiscounted bills “unreasonable” as a matter of law conflicts with the statutory presumptions in T.C.A. § 24-5-113.48

The Court of Appeals had indicated approval of the “hybrid” method, whereby both the amounts charged and the amounts accepted are admitted, provided insurance is not mentioned.49 On this, the Supreme Court reversed, reasoning although the hybrid approach may sound equitable, criticism that it undermines the collateral source rule is “compelling[,]” as it is unclear how it applies to plaintiffs who paid discounted amounts to a charitable facility, or where the provider accepted a heavily discounted settlement from an uninsured plaintiff, or how it should apply to social legislation benefits like TennCare, all of which must be considered when evaluating an alternative.50

The Court acknowledged “shortcomings of the collateral source rule in the current health care environment … are substantial and we do not minimize them. However, neither the Defendants nor the Amicus [TDLA] had [suggested] a better alternative[,]” with the other approaches undermining the collateral source rule and the significant public policies behind it, thereby posing “a whole different set of problems.”51

Having determined West does not apply directly in personal injury cases, and having declined to “depart from Tennessee’s longstanding adherence to the collateral source rule in personal injury cases[,]” the Supreme Court concluded Plaintiffs may submit evidence of the undiscounted bills as proof of “reasonable medical expenses[,]” and Defendants are precluded from submitting evidence of discounted rates accepted by the medical providers as a result of insurance.52 Therefore, the Court affirmed the Court of Appeals’ reversal of Defendants’ motion in limine, but reversed the Court of Appeals to the extent it held that Defendants could introduce evidence of lesser amounts accepted by the medical providers in order to rebut the Plaintiffs’ proof.53 However, the court noted Defendants “remain free to submit any other competent evidence to rebut the Plaintiffs’ proof … [provided it] does not contravene the collateral source rule.”54 Justice Kirby did not opine as to what shape that “other competent evidence” might take.

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1 Dedmon v. Steelman, et. al., No. W2015-01462-SCR11-CV, 2017 Tenn. LEXIS 720 (November 17, 2017).

Amicus curiae briefs were filed in both appellate courts on behalf of both the Tennessee Association for Justice and the Tennessee Defense Lawyers Association (TDLA).

2 Id. at *3-4.

3 Id. at *4.

4 Dedmon, 2016 Tenn. App. LEXIS 386, *2 (June 2, 2016).

5 Dedmon, 2017 Tenn. LEXIS 720 at *4.

6 West v. Shelby County Healthcare Corp., 459 S.W.3d 33, 46 (Tenn. 2014).

7 Id. at 45.

8 Mr. Cook died after the original complaint was filed, and plaintiffs filed an amended complaint naming the representatives of Mr. Cook’s estate, Debbie Steelman and Danny Cates, Sr. Therefore, I refer to “Defendants” through the remainder of this article.

9 Dedmon, 2017 Tenn. LEXIS 720 at *6.

10 Id. at *6-*7. See also Dedmon, 2016 Tenn. App. LEXIS 386 at *3-*4.

11 Id. 12 Id. 13 Dedmon, 2016 Tenn. App. LEXIS 386 at *5-*6.

14 Dedmon, 2017 Tenn. LEXIS 386 at *8.

15 Id. 16 Id. at *9.

17 Id. 18 Dedmon, 2016 Tenn. App. LEXIS 386 at *31.

19 Id. 20 Id. at *14. See also Borner v. Autry, 284 S.W.3d 216, 218 (Tenn. 2009).

21 Id. 22 Id. at *17-*18. See also Borner, 284 S.W.3d at 218.

23 Id. at *18. (citing Iloube v. Cain, 397 S.W.3d 597, 603 (Tenn. Ct. App. 2012)).

24 Id. at *18-*23; *26-*32. (citing Restatement (Second) of Torts § 920A (1977)).

25 Id. at *33-*34.

26 Id. at *33-*34.

27 Id. at *35-*36.

28 Id. at *42.

29 Id. at *42-*43.

30 Id. at *43.

31 Id. at *44-*46.

32 Id. at *46-*47.

33 Id. at *47-*50.

34 Id. at *50-*51.

35 Id. at *51-*52 (citing to an exception applied in North Dakota for “private insurance,” and health care liability legislation from Arizona, Maine, Maryland, Wisconsin, West Virginia, and Utah).

36 Id. at *52.

37 Id. 38 Id. at *52-*53.

39 Id. at *53-*57.

40 Id. at *57-*58.

41 Id. at *58-*62.

42 Id. at *62.

43 Id. at *65.

44 Id. at *65-*68.

45 Id. at *69-*71.

46 Id. at *71.

47 Id. 48 Id. at *72.

49 Id. at *73.

50 Id. at *73-*78.

51 Id. at *79-*80.

52 Id. at *82-*84.

53 Id. 54 Id. at *84.

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

COME OUT, COME OUT, WHEREVER YOU “Я”!

Growing up, we all had that one friend or sibling who was ridiculously bad at playing hide-and-seek. They chose the exact same spot time after time, couldn’t keep quiet or sit still, or believed that if they could not see you, you could not see them. Hopefully those kids compensated for their lack of stealth with an ironclad moral compass, because crime does not pay, especially if you get caught.

Earlier this year, a 30-year-old man suspected of stealing $5,800 in cash and other goods from a fish and chip shop in Halifax, West Yorkshire was found at his home hiding under his bed. Under the bed is a decent option for hide and seek, but less ideal when the seekers are police officers and even less ideal when over half of your body is not actually under the bed.

napkin behind, DNA evidence and all.

Then there was the story of Jeffrey Manchester (the “Roofman”), who was serving a 45-year sentence for a series of at least 40 robberies of fast food restaurants, in which he would drill through the roof, drop in and politely rob the restaurant (he would offer captives a jacket before putting them into the walk-in freezer). He escaped from his maximum security prison in 2004 by hiding under a delivery truck and ended up in Charlotte, North Carolina, where he assumed a new role as a churchgoing volunteer who regularly gave toys to children. He told his new girlfriend and fellow church members that he had a secret government job. At night, he made his home in a Toys “Я” Us, sleeping in a cubbyhole in the bicycle display, riding the bikes for exercise, eating baby food and racing remote-control cars on the roof. When the holidays rolled around, the crowds at Toys “Я” Us were not conducive to the Roofman’s nighttime dwelling place, so he made a secret passageway into an adjoining Circuit City that was no longer in business. He built a cubicle of sheetrock under a stairwell, painted the walls, hung up posters and action figures, mounted a basketball hoop and watched movies on a DVD player. He kept watch on his former home, installing a baby video monitor in his cubicle, and even altered the security system and employee work schedules in order to engineer an environment better suited for a planned robbery. He attempted a robbery at Toys “Я” Us the day after Christmas, but when he was forced to flee, the police soon found his hideaway. When the police published photos of the Roofman, members of his church recognized him. He was also linked to the arson of a local dentist’s office where he had gone to have his teeth fixed. Police believed he set the office on fire in order to destroy his records. Even after learning about his true identity, the Roofman’s girlfriend said she did not hate him. “I’m disappointed and confused. I don’t know whether to smack him or hug him.” I cannot confirm which option she chose, but she did invite him to her 40th birthday party, where he was re-arrested without a struggle. Roofman may take solace in the fact that he is now known as the Toys “Я” Us Bandit, which has a friendlier feel. Also, now that I know how to type a backwards R (“Я”), I want to take this opportunity to suggest that perhaps Manchester could politely ask if he can just be called Яoofman.

I am pretty sure that the fish and chips and Roambee robbers will continue to lead lackluster and disappointing lives, but I wouldn’t be surprised if the Яoofman has more in store for us. Just probably not a Toys “Я” Us store.

The officers took the fugitive into custody, but not before taking a picture and posting it on Facebook.

In California this summer, a thief who intended to steal cell phone chargers to resell unwittingly stole 100 GPS trackers from the offices of a tech firm called Roambee. The devices are used to track goods as they are shipped around the world. Once the company realized the thief had a box of trackers, the devices were placed into recovery mode (in which they transmit their locations every 60 seconds. He was caught in five or six hours. He helped them even more by cutting himself taking a beer from the fridge, stopping the bleeding with a napkin, and leaving the

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January 2018

barrister bullets BARRISTERS ELECTION RESULTS The Barristers Elections and Holiday Party were held on December 6, 2017 at the Bistro at the Bijou. Thank you to everyone who came and to our newly elected Executive Officers, Mitchell Panter, President; Mikel Towe, Vice President; Daniel Ellis, Secretary/Treasurer; Jeremey Goolsby and Amanda Tonkin, Members-at- Large. Paul Wehmeier and Matthew Knable, Co-Chairs of Volunteer Breakfast Committee, were presented with the Barristers’ Presidents’ Award for 2017.

HIGH SCHOOL MOCK TRIAL COMPETITION - LOOKING FOR VOLUNTEERS - FEBRUARY 10 & 24 The Barristers Mock Trial Committee is looking for volunteers to help as presiding judges, scoring judges, and bailiffs for this year’s KBA High School Mock Trial Competition. Volunteers are needed for Saturday, February 10 and Saturday, February 24. If you are interested in volunteering for one or both of those dates, please contact Sarah Watson at sarah@swatsonlaw.com or Amanda Tonkin at amanda.tonkin@tn.gov as soon as possible.

Volunteers will need to be available from 8:00 a.m. until roughly 2:00 p.m. (although you might get done earlier). Volunteers will be provided with breakfast and lunch each Saturday.

MOBILE MEALS The Knoxville Barristers Hunger & Poverty Relief Committee would like to thank all the firms, organizations and individual volunteers who continue to make our Mobile Meals project a tremendous success, with an estimated 1,750 meals delivered over the course of approximately 160 days in 2017.

See the insert for a full list of firms, organizations and individual volunteers.

MONTHLY MEETING Plan now to attend the first Barristers monthly meeting of 2018 on Wednesday, February 14, at 5:00 p.m. at the Bistro at the Bijou. Everyone is welcome. Get updates on the Barristers on Facebook at www.facebook.com/knoxvillebarristers.

HELP WITH BARRISTERS VOLUNTEER BREAKFAST IN 2018 The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. The Barristers Volunteer Breakfast Committee always need volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact Lacey Dillon at ldillon@knoxbar.org for more information.

VETERANS LEGAL CLINIC The Veterans’ Legal Advice Clinic is a joint project of the Knoxville Barristers, the Young Lawyers Division of the Knoxville Bar Association (KBA), KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, and the local VA office. This is a general advice and referral clinic which will require attorney volunteers for its operation, and it is anticipated to serve between 20 and 30 veterans in the community each month with a wide variety of legal issues, including family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract disputes, child support, and personal injury, among other issues.

We need volunteers for the next two clinics on January 10 and February 14 from 12:00 p.m. to 2:00 p.m. at the Knox County Public Defender’s Community Law Office at 1101 Liberty Street, Knoxville TN 37912. Register by clicking on January 10 or February 14 in the Event Calendar at www.knoxbar.org.

Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: John L. Billings TCV Trust & Wealth Management, Inc. BPR #: 025268 1111 N. Northshore Drive Suite S-250 Knoxville, TN 37919-3801 Ph: (931) 265-9521 billings2120@gmail.com Tyler C. Brown Garner & Conner, PLLC BPR #: 035952 250 High Street Maryville, TN 37804-5918 Ph: (865) 984-1268 tbrown@garnerconner.com Maria Foley Danker BPR # 028213 P.O Box 22452 Knoxville, TN 37933-0452 Ph. (865) 236-1837 maria.danker.law@gmail.com

January 2018

K.O. Herston Herston Law Group, PLC BPR # 018701 402 S. Gay Street, Suite 202 Knoxville TN 37902-1164 Ph. (865) 971-3757 ko@herstonlaw.com

Keith D. Stewart Stewart | Dupree | PA BPR # 017574 P.O. Box 1141 Knoxville TN 37901-1141 Ph. (865) 437-5081 keith.stewart@knoxtnlaw.com

Ashley L. Roberts The Barnett Firm BPR # 035298 7414 Kingston Pike Knoxville TN 37919-5609 Ph. (865) 474-0128 ashley@barnettlegalteam.com

Natalie Sue Walker Special Investigation Services, Inc. BPR # N/A (Licensed in Massachusetts) 4031 Gumwood Lane Knoxville TN 37921-1364 Ph. (413) 522-3425 sis.nwalker@gmail.com

Molly A. Simbeck Trammell, Adkins & Ward, P.C. BPR # 036204 1900 North Winston Road Suite 600 Knoxville TN 37919-3606 Ph. (865) 330-2577 mollysimbeck@tawpc.com

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John F. Weaver, Jr. Herston Law Group, PLC BPR # 028758 402 S. Gay Street, Suite 202 Knoxville TN 37902-1164 Ph. (865) 971-3757 jfw@herstonlaw.com

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LAWYER HOBBIES By: Katheryn M. Ogle McDonald, Levy & Taylor

SERVICE TO OTHERS

Many of the Lawyer Hobbies columns focus on a specific person and a unique hobby he or she pursues outside of their legal practice.

However, as the holiday season has recently passed, along with numerous opportunities to serve our fellow man, this month’s column will address ways to continue to be involved with the community all year long. As attorneys, we have an ability to be involved in our community on a level that most cannot. Even when we aren’t serving in a legal capacity, we bring a specific skill set to groups and organizations beyond that of a lay member of the community. Also, there are direct benefits to you as an attorney beyond the “feel good” of doing something to help another.

Engaging in community service will sharpen your skills in whatever area you are volunteering.

People learn by doing. Pro bono representation of clients in a low income tax clinic will undoubtedly help you learn how to practice tax law. Spending a Saturday morning volunteering in a Wills clinic may remind you to include a different provision in a last will and testament in your own practice. You will learn terminology, legal analysis, familiarity with whatever topics or issues you undertake to research, and a range of possible options on how to achieve your client’s legal goals. These are all skills that will make you a better lawyer, and a more valuable member of whatever firm or office you practice in.

Join a KBA committee. Plan a CLE event for lawyers in your practice field. Head a volunteer event. Join the board of a nonprofit that you believe in. Volunteer work and community service also expose you to other attorneys. Many of whom you don’t routinely have an opportunity to practice. If you have an idea for a service project or a way you can become involved in the community, chances are, there are others who have the motivation to help in the same way.

Even if you are engaging in community service that has absolutely nothing to do with legal representation at all, every hour that you spend out in your town or your city helps expand your relationship with the local community. These people that you serve with, and often the people who are the recipients of the service, are your future potential clients, sources of business, referrals, resources for information, and your friends.

The most active and engaged professionals that I know, lawyer or not, are also the ones who can always respond to my queries for assistance with “I know a guy who ….” How do they always know a guy? It’s because they are present and engaged, and being involved with your community is an incredibly easy and genuine way by which you can be the same.

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January 2018

SCHOOLED IN ETHICS By: Alex B. Long Associate Dean for Academic Affairs University of Tennessee College of Law

ETHICS LESSONS FROM THE HEADLINES

As the New Year begins, now is as good a time as any to look back on some of the more interesting and important legal ethics issues of the past year, both at home and on a national level.

(1) Changes to the Tennessee Rules of Professional Conduct: In March, the Tennessee Supreme Court issued an Order amending various portions of the Rules of Professional Conduct. While many of the changes were minor, some of them are more noteworthy: • Comment 8 to Rule 1.1 (Competence) now specifically notes that the duty of competence includes a duty to keep abreast of “changes in the law and its practice, including the benefits and risks associated with relevant technology.”

• The Court also adopted another technology-related rule.

New Rule 1.6(d) recognizes a duty on the part of a lawyer to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. This new rule comes on the heels of several prominent cyber hacks of law firms and a 2017 ABA ethics opinion on cybersecurity. (See below.)

• The Court also adopted an exception to the duty to keep confidential client information under Rule 1.6 in the case of conflict checks. See Rule 1.6(b)(6). Under the exception, which had previously been adopted in the ABA Model Rules of Professional Conduct, a lawyer may disclose information as is reasonably necessary to detect a possible conflict of interest arising from the lawyer’s change of employment.

• New comment 2 to Rule 1.18 provides valuable information regarding who qualifies as a prospective client and what qualifies as “consultation” for purposes of the rule.

• Comment 7 to Rule 7.2 now contains information about paying others for generating leads, such as Internet-based client leads (2) Cybersecurity concerns continue: There were an increasing number of news stories related to potential security breaches at law firms. According to an ABA Journal article, cybersecurity breaches were “the biggest risk that law firms face[d] in 2017.”

Julie Sobowale, Law Firms Must Manage Cybersecurity Risks (March 2017). In June, DLA Piper was hit by a malware attack, which resulted in the firm’s email and other systems being offline for an entire week. Tennessee’s adoption of new Rule 1.6(d) (see above) is a recognition of the ethics issues involved in law firm cybersecurity. Recognizing the increasing threat posed to law firm clients by hackers, the ABA issued Formal Opinion 477, which discusses in detail the need for lawyers to take steps to protect client information in the digital age.

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(3) Tennessee Attorney General’s Office Files Lawsuit Against Lawyer in Chattanooga Bus Case: Following the death of several children in a tragic school bus accident in Chattanooga, a Texas law firm allegedly engaged in the improper solicitation of prospective clients in violation of Rule 7.3, the unauthorized practice of law, and various deceptive practices as it attempted to persuade families to sign up with the firm. In April, the AG’s office brought an action against the sole lawyer in the firm and his two investigators. Among other things, the investigators worked with a funeral home and allegedly offered to pay for funeral expenses if the family signed a representation agreement with the firm. In one instance, a family was allegedly told the funeral home would not bury their child unless they signed a representation agreement with the firm.

(4) Judicial Misconduct: In April, Nashville General Sessions Judge Casey Moreland resigned after he was charged with various federal crimes. As an example, Moreland was alleged to have intervened in a traffic stop on behalf of a woman with whom he was having a sexual relationship. In an effort to prevent children from being born under the influence of drugs, Sparta General Sessions Judge Sam Benninfield signed a standing order in May that provided 30 days’ credit toward jail time for inmates who voluntarily agree to undergo birth control methods. The Tennessee Board of Judicial Conduct reprimanded him in November. Campbell County Judge Amanda Sammons faced various legal and ethical issues arising from her conduct on the bench, including ordering the Department of Children’s Services to bring drug-testing kits to court and to test in court bathrooms anyone she ordered to be screened.

(5) Donald Trump’s Legal Team Provides Fodder for Ethics Discussions: In February, a group of law professors filed an ethics charge against White House advisor and lawyer Kellyanne Conway for violating Rule 8.4’s prohibition on conduct involving dishonesty, fraud, deceit or misrepresentation for her use of “alternative facts.” In September, Trump lawyers Ty Cobb and John Dowd “casually and loudly” discussed details of the Russia investigation during lunch at a table directly next to a New York Times reporter, thus providing lawyers and Professional Responsibility professors with a great example of a violation of Rule 1.6. In December, Dowd took credit for authoring a Trump tweet that relayed new information about what the president knew and when he knew it regarding the Russia investigation, thus leading to renewed discussion of possible obstruction of justice charges against the president.

(See Rule 1.1, Competence) (Continued on page 22)

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ETHICS LESSONS FROM THE HEADLINES (6) Whistleblowing Lawyer Awarded $8 Million in Wrongful Discharge Case: A California jury awarded former BioRad general counsel Sanford Wadler nearly $3 million in compensatory and $5 million in punitive damages after Wadler was fired for blowing the whistle to the company’s audit committee regarding what he viewed as the company’s violations of the Foreign Corrupt Practices Act. To repeat, the jury verdict was $8 million.

(7) Boies’ Conflict Leads to Actual Malice on the Part of the New York Times: Famed lawyer David Boies’ firm was representing the New York Times in a libel case. At the same time, Boies’ firm agreed to execute a contract between Hollywood mogul/alleged serial sexual assaulter Harvey Weinstein and a high-tech security company for the company to “provide intelligence … to completely stop the publication of a new negative article in a leading NY newspaper” about Weinstein’s actions. The New

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(Continued from page 21)

York Times says Boies had a conflict of interest and his actions of “contract[ing] with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters” was “reprehensible” and betrayed the client’s trust. Boies denied a conflict existed and relied on an advance waiver signed by the paper. Most observers were not persuaded.

(8) Lawyer Disbarred as Part of Revenge Scheme Against Elementary School Volunteer: This case isn’t really important so much as it is bizarre, hence its inclusion in this list. A California lawyer sought revenge against an elementary school volunteer after the volunteer allegedly intentionally locked the lawyer’s son out of the school building. His act of revenge involved planting illegal drugs in the volunteer’s car and then calling the police to report the “crime.” The lawyer was recently disbarred for his actions.

January 2018

O F T H E R M O M E T E R S A N D T H E R M O S TAT S By: Melissa B. Carrasco Shareholder, Egerton, McAfee, Armistead & Davis, P.C.

CIVILLY RIGHT

On July 13, 1868, Alabama became the twenty-ninth state to ratify the Fourteenth Amendment to the United States Constitution.1 The state of Tennessee had ratified it two years earlier – the first Southern state to do so.2

The ratification of the Fourteenth Amendment made an important declaration: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”3 It also established an important restriction: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”4 Just like that, thousands of people became citizens, with all the attendant privileges or immunities.

Three months later, President Johnson designated Thursday, November 26, 1868, as a national day of thanksgiving.5 One reason for gratitude was that, “[w]e are permitted to hope that long protracted political and sectional dissensions are at no distant day to give place to returning harmony and fraternal affection throughout the Republic.”6

But, nearly a century later, that hope was tenuous. In 1960’s Alabama and many other states, it was apparent that status as a citizen was not enough. There was extensive debate over what “privileges or immunities” were afforded citizens.7 There was also extensive debate over what means should be used to secure those “privileges and immunities,” and the “due process” and “equal protection” also required by the Fourteenth Amendment.

Much was at stake. On April 12, 1963, Dr. Martin Luther King, Jr. and Ralph Abernathy were arrested for violating an injunction prohibiting certain protests and an ordinance requiring a permit to protest.8 Dr. King was placed in solitary confinement.9

The same day, eight Alabama clergymen published a statement in the local newspapers.10 In response, Dr. King wrote a letter now known as the Letter from the Birmingham Jail.11 If it has been awhile since you read either the clergymen’s public statement or Dr. King’s letter, both are worth a read. It will take no more than fifteen minutes to read both. Generally, these two documents are studied for purposes of understanding the complexity of the issues involved in the Civil Rights movement. Certainly, they do just that. However, for purposes of this column, they are instructive for another purpose.

As you read, notice how the thoughts are articulated, the words used, and most importantly, the tone. The clergymen and Dr. King clearly had different opinions about how to achieve the goal of racial equality.

The clergymen urged “that honest convictions in racial matters” should be pursued in the courts, but “that the decisions of those courts should in the meantime be peacefully obeyed.”12 They believed they were seeing positive signs: “Responsible citizens have undertaken to work on various problems which cause racial friction and unrest. In Birmingham, recent public events have given indication that we all have opportunity for a new constructive and realistic approach to racial problems.”13 They were concerned that the protests were unwise, untimely, and extreme and urged patience and dialogue.14

For Dr. King, past negotiations resulted in broken promises.15 He saw the sit-ins, marches and boycotts as a way to open the door to negotiation for “too long has our beloved Southland been bogged in the January 2018

tragic attempt to live in monologue rather than dialogue.16 To those who urged patience, he saw other countries speeding toward political independent while “we still creep at horse and buggy pace toward the gaining of a cup of coffee at a lunch counter.”17 He recalled the ancient church’s past willingness to oppose societal ills like infanticide and the gladiatorial contests and expressed his disappointment that the church was largely silent on the issue of segregation: “In those days, the Church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society.”18

Clearly, there was a difference of opinion. But, both the clergymen’s statement and Dr. King’s letter share one characteristic: civility. The public debate between Dr. King and the clergymen about civil rights was just that – civil. To be sure, the language used was direct and even stern in places, but each articulated their position without attacking the other’s character, beliefs, or intelligence. Both the statement and the letter implicitly – and sometimes explicitly – recognize that thoughtful, goodhearted people can take different positions on an issue.

If those addressing racial inequality in 1963 Alabama could maintain civility in their public discourse, what is our excuse for allowing incivility to creep into our profession? Are we really incapable of articulating out clients’ respective positions directly, firmly, even sternly at times, and at all times, civilly? Can we be civilly right or civilly wrong?

Are we also incapable of accepting that someone might disagree with our client’s position without finding the other person disagreeable? After all “opposing counsel” is a temporary, matter-specific label, not a pejorative.

For years, bar leaders have called for more civility in our profession.

We have a Professionalism Committee and a Code of Conduct, which will be reviewed this year. But, the Knoxville Bar needs more than thermometers to tell us where we are on the civility scale. It needs thermostats to transform the atmosphere 1 U.S. Constitution, Ratification of Constitutional Amendments, https://usconstitution.net/ constamrat.html#Am14, last visited Dec. 10, 2017.

2 Id. 3 U.S. Const. 14th Amend., cl. 1.

4 Id. 5 Pres. Andrew Johnson, Proclamation, Oct. 12, 1868, in A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1884-1875, U.S. Stat. at Large, App’x No. 14, 711 (1868).

6 Id. 7 U.S. Const. 14 Amend., cl. 1.

8 Stanford University, Birmingham Campaign (1963) in Martin Luther King Jr. and the Global Freedom Struggle, available at http://kingencyclopedia.stanford.edu/encyclopedia/ encyclopedia/enc_birmingham_campaign.

9 Id. 10 Public Statement by Eight Alabama Clergymen (Apr. 12, 1963), available at http://www. massresistance.org/docs/gen/09a/mlk_day/statement.html.

11 Ltr. Dr. Martin L. King, Jr. to Bishop C. C. J. Carpenter, et al. (Apr. 16, 1963), available at http://okra.stanford.edu/transcription/document_images/undecided/630416-019.pdf.

12 Public Statement by Eight Alabama Clergymen.

13 Id. 14 Id. 15 Ltr. Dr. Martin L. King, Jr. at 3.

16 Id. at 5.

17 Id. at 6.

18 Id. at 16.

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LIFE HACKS By: Angelia Nystrom University of Tennessee Institute of Agriculture

MAKING THE MOST OF THE MOST WONDERFUL TIME OF THE YEAR

I have always loved the Christmas season. I look forward to November 1 every year when XM radio starts its holiday music. I love to decorate and to drive around to look at Christmas lights. But this year, I’ve been a bit of a “bah humbug.”

It’s mid-December, and I have been feeling a bit stressed. In this past, I have always started decorating during Thanksgiving; however, this year, I started a small closet-cleaning project that ended up taking much longer than anticipated. Once I did start decorating (about 2 weeks behind schedule), I realized that my normally great “life hacks” for Christmas decorating had failed me. We always put up two trees – one on either side of our downstairs. I store them in the Frontgate standing bags in the garage, which means that they are assembled and ready to go when I get them into the house. Several years ago, I got the bright idea to leave the lights on them when I stored them so that I wouldn’t have to re-string them every year. It has worked like a charm – until this year.

When I opened the first tree, it was perfect. The second one, however, was a different story. Our living room tree is 11 feet tall and about the same width, and it has over 2000 lights. When I unzipped the bag and plugged the tree into the outlet, I realized that about half of the lights were not working. Because the burned out/defective bulbs were scattered throughout, I had to take all of the lights off, purchase new ones, and then re-string the tree. In addition to taking several hours, I was covered in scratches. I looked like I was in a fight with a cat – and that I lost.

Once the tree lights were on, I started unboxing my ornaments. I discovered several years ago that the Harry and David fruit boxes are perfect for storing non-breakable ornaments and that the Hale Groves padded boxes are perfect for the more fragile ones. After I unpacked the ornaments and put away boxes, I realized that I was missing a number of ornaments. I drug out all of the boxes and went through them again.

When I didn’t find the ornaments, I had Hugh go through the boxes.

After several hours of looking through boxes, I recalled that the padded boxes have two layers of padding and that I had put the ornaments between the layers.

After wasting way too much time trying to decorate, I complained to Hugh that (1) we had not made a shopping list and (2) that we didn’t have a decent photo for a Christmas card. I was stressed out and feeling overwhelmed. I needed to clear my mind, so I logged onto Facebook. And found exactly what I needed.

Janet Strevel Hayes had posted the following, which was exactly what I needed to lift my spirits:

“In a move that was fairly out of character, I went Black Friday shopping (like got up in the wee hours of the morning and stood in line outside so I could get a 40% off coupon). Much to my surprise, the people around me in line were fun and the time passed quickly. Although 40 million of us were eventually crammed in a tiny boutique at an hour when it was barely daylight, the spirit in the place was amazing. “Excuse me,” “please” and “thank you” were echoed throughout the morning- in harmony with “no, you go first.” I watched people offer to hold packages for other people and save places in line. When I got home, I was not tired and frazzled. I was energized.

Last week, our church gave life to the biggest oxymoron ever invented: the FREE sale. Church members packed (literally packed) our gym with coats, toys, kitchen items, furniture, clothes, and everything else you can imagine. We then opened the doors to anyone in the community

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who needed or wanted something for free. The event was tirelessly organized by servant-hearted workers who could’ve been at ballgames or shopping for their own children. The members who donated items could have sold most of the stuff and made some extra cash. It was a labor of love, and the community was blessed. The generosity of those involved inspired me to do more.

Then, last week, I was a little grumpy at work-not feeling much holiday spirit. To get out of the office for a minute, I walked down to the post office. It turned into a walk around town--Market Square full of families eating near the ice skating rink; Gay Street with Christmas trees and garland- I passed the old courthouse where I tried my first case on a cold December day. I remembered the bailiff who sensed my anxiety and gave me a wink and thumbs up when it was over. I ended at the post office, where I was greeted by a cheerful worker wearing a Santa hat. He reminded me of that bailiff--he winked and smiled as we talked about the craziness of the post office at Christmas. He made me laugh. When I got back to my desk, my bad mood was gone.

Today when I came out of Sam’s, it was a balmy 33 degrees and the gray sky was spitting snow flurries. I heard the traditional jingle of the red kettle bell and the loudest, sweetest voice singing “Oh come all ye faithful, joyful and triumphant...”. The girl ringing and singing was bundled in a coat and gloves, and her smile was nearly as big as her voice. She was probably in her late teens or maybe early twenties. I thought of all the other things she could have been doing this cold morning. She paused only to look me in the eye and wish me what seemed to be the most sincere “Merry Christmas” I have ever heard. I got in my warm car and thanked God for that girl and prayed that I would be more like her.

Moral to this long story---I am so thankful that God still fills hearts with the joy that is Christmas. I am thankful that God uses other people to inspire us and to help us feel His love. If you are feeling less than festive, look around. I promise that, if you really open your eyes, you will see a reminder that this IS the most wonderful time of the year. In the darkness, there is light. May we see it. May we be it!”

I hope your holidays are merry and bright. And that 2018 is your best year yet.

DICTA

January 2018

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

ALL THE PRESIDENT’S NUKES

In August, 2017, Donald Trump threatened to unleash “fire, fury, and, frankly, power, the likes of which this world has never seen before.”1 if North Korea threatened the United States. In October, Senator Bob Corker expressed concern that President Trump’s aggressive rhetoric could put the nation “on the path to World War III.”2 In November, the Senate Foreign Relations Committee, which Corker chairs, held an extraordinary hearing on the President’s authority to order the use of nuclear weapons. Two weeks later, North Korea successfully tested the Hwasong-15, its first intercontinental ballistic missile (“ICBM”) capable of reaching the entirety of the United States.

Are we on the verge of nuclear war with North Korea? More specifically, does the President have the authority, as commander in chief, to order a nuclear strike? The answer depends upon the situation.

Most constitutional scholars agree that the President has the power to respond to an attack. If North Korea launches missiles at the United States, the President can order an immediate response designed to destroy those missiles and to prevent other weapons from being launched.

If North Korea manages to destroy an American city, the President may respond, at least in the first instance, although it would be advisable, and constitutionally-required, for him to obtain congressional approval to wage an extended war.

But what about the situation in which we find ourselves now?

North Korea will soon develop the ability to combine its nuclear weapons with its ICBM’s, perhaps even mounting multiple warheads on individual missiles. It has declared its determination to go forward with its nuclear program, despite ever-increasing international sanctions.

Can the President neutralize this growing threat by ordering a pre-emptive nuclear attack? And, if so, is it wise to repose such awesome power in any one person?

Such was the focus of the recent Senate hearing. Among the witnesses was Peter D. Feaver, a Professor of Political Science and Public Policy at Duke University. Feaver questions whether, as a practical matter, President Trump, or any President, actually has unrestrained power to order a pre-emptive nuclear strike. It is true, Feaver acknowledges, that the President is the commander in chief, and his subordinates are bound to obey his orders – but only if they are lawful.

The people in the chain of command are very much aware of the need to follow the law when it comes to nuclear weapons. And there are a lot of people in that chain. Consequently, Feaver points out, “it’s just simply not true that the President can fire off a nuclear weapon as easily as he can fire off a tweet.”3

That may be true. On the other hand, according to the testimony of retired General C. Robert Kehler, a former commander of the Strategic Air Command, a legal objection would not necessarily block a presidential launch order. General Kehler’s comment that an unlawful launch order would prompt “a very difficult conversation”4 is, perhaps, cold comfort.

Stephen Schwartz, a former Publisher and Executive Director of the Bulletin of the Atomic Scientists notes that “we are the only country in the world that allocates this power to one person and one person alone.

Every other nuclear state, as far as we know, has many more people in the loop. China has a committee, actually, involved. In Russia there are several people that have to have a say in the decision. It’s not purely the President’s call.”5 Schwartz thinks that it may be wise to require January 2018

our President to consult with another high-ranking official, such as the Attorney General, before initiating a nuclear conflict.

Of course, whenever Congress tries to limit the President’s military authority, the Separation of Powers doctrine comes into play. Recall the War Powers Resolution,6 a statute enacted in the wake of Vietnam, designed to limit the President’s ability to engage in military actions without congressional approval. Presidents have treated the War Powers Resolution with varying degrees of disdain over the past several decades, and many scholars consider much of it to be unconstitutional.7

In any event, who would enforce such a law? The Supreme Court is notoriously reluctant to get involved in matters of war and peace, routinely dismissing such cases as non-justiciable “political questions.”8 1 Video archived on CNN.com: http://www.cnn.com/2017/08/08/politics/north-koreamissile-ready-nuclear-weapons/index.html 2 Recorded interview with New York Times, archived on nytimes.com: https://www. nytimes.com/2017/10/08/us/politics/trump-corker.html 3 “All the President’s Nukes” episode of Your Weekly Constitutional, available at http:// ywc.podomatic.com/.

4 United States Senate, Committee on Foreign Relations, Authority to Order the Use of Nuclear Weapons, November 14, 2017, available at https://www.foreign.senate.gov/ hearings/authority-to-order-the-use-of-nuclear-weapons-111417.

5 “All the President’s Nukes” episode of Your Weekly Constitutional, available at http:// ywc.podomatic.com/.

6 50 U.S.C §§ 1541-48 7 See, generally Library of Congress, Law Library, War Powers: https://www.loc.gov/law/ help/war-powers.php.

8 Schlesinger v. Holtzman, 414 U.S. 1321 (1973).

DICTA

25

WELL READ By: Lee T. Nutini Gideon Cooper & Essary

BOOK REVIEW: REBOOTING JUSTICE

Ben Barton and Stephanos Bibas, authors of Rebooting Justice, clearly understand that their own profession is in crisis. But, as they astutely note, crisis is a word of opportunity. If both legal education and legal services are in crisis, then they are at a turning point toward a new, better approach. All lawyers – the young and perhaps especially the old – know that times are changing. Rebooting Justice sets out the problem, and a few solutions, in understandable terms.

If the authors will permit me to place their work in a nutshell: Rebooting Justice argues that “more lawyers = more justice for everybody” is exactly wrong. Instead, the book proposes making the legal arena function without the need for a lawyer at all. If more citizens can handle their legal issues on their own, justice will be supremely accessible.

The goal / hypothesis of the book is easy to support, but, as the authors understand, the method and the support for the method will be the tricky part. If you have a zero-sum perspective on the legal market (or the economy as a whole), some people are going to lose their jobs, their businesses, and quite a lot of money if the law becomes more accessible.

But it really should.

As any civil litigation defense lawyer knows, the complexity in law often does not create more justice. Sure, in a frivolous case, the complexity helps knock out the case on a technicality early – but would it really be so bad for the case to lose a bit later on its merits? Wouldn’t that actually be justice?

Barton and Bibas should be championed for wrestling with these issues. Naysayers lurk around every corner to ensure the status quo remains. The authors do their readers a favor by conceding that the biggest issue with their proposed fix is that substantive law gets more complex by the day. As I read the book, I wondered how the legal industry will rein in the legislature – the source of all of that substantive law. Cooperation will be key.

Rebooting Justice is not a thrill-ride of wild new philosophy.

Again, the book is written for non-lawyers, so lawyers will be rather unstimulated by the necessary setup (a description of the legal and judicial systems) to put the suggestions in context, and perhaps by some of the generalities. But the book serves what I bet was the author’s purpose – create an accessible basis for discussion to inch closer to industry disruption – and avoid being dismissed out of hand because you asked for too much.

Where the book cannot be questioned is its placing great emphasis on the importance of technology to the legal system of tomorrow.

Drafting, discovery, negotiation, ADR, etc. are already far easier because of technology. Fewer skilled hands are needed to take care of these tasks.

We all know that a majority of the information gathering process – one of the most expensive pieces of litigation – can be automated by legalfocused technology. (I know plenty of the discovery responses I receive may as well have been drafted by a robot.).

Barton and Bibas are right to point out that technology makes the professional, geographic-based protectionism lawyers have built look quite silly. With the ability to broadcast the way a specific instance of

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justice unfolded, would justice not become more equal everywhere?

Tennessee justice should not be any different than California justice – but different legal jurisdictions adopt conflicting rules all the time.

Technology will only truly change the law when it demands a smaller universe and uniform law, which will in turn demand, for example, a uniform Bar exam that will reduce barriers to entry. Although that may create more lawyers (contrary to Rebooting Justice’s suggestion), it may also open up novel avenues for paraprofessionals to engage in the provision of legal services.

An industry as stodgy as the law must be disrupted by waves of new thought inspired by books like this one. Rebooting Justice’s proposals will nudge a few hundred lawyers and judges in a better direction. It will cause a few thousand more to question what they do every day. More critical questions will come to the fore. Lawyers in many cities are already beginning to realize that the billable hour, and the partnership track, are on their way out.

I highly recommend Rebooting Justice to any well-read lawyer, if for no other reason than to continue spreading the incisive thinking and fever of market disruption that are bravely initiated by Barton and Bibas.

DICTA

January 2018

LONG WINDED By:

Jason H. Long London Amburn

ANNUAL MEETING REVIEW

In the interests of space, I am not doing a running timeline this year, but just jumping straight to the highlights. If I offend you by leaving something out, I am sure some of you will let me know. Without further ado, some random thoughts on the KBA annual meeting.

I have to commend our past treasurer, Wynne du Mariau CaffeyKnight (henceforth “WDMCK”). Anyone who has read my annual meeting synopsis in the past knows that I dread the treasurer’s report.

While necessary and important to our organization, there is simply no way to make the recitation of income and expenses interesting.

WDMCK, however, found a way to make it tolerable. She apparently convinced our past secretary, Hanson Tipton, to report on the proposed by-laws amendments prior to her taking the stage. After hearing Hanson drone on, quoting proposed by-laws changes word for word, the treasurer’s report was a breath of fresh air. No offense, Hanson.

Next, Chris McCarty and the editorial board of DICTA took to the stage to thank the hard work of the volunteers and professional staff and make their annual award for best contribution. I always look forward to this moment because there is really no telling what Chris is going to say when you put a microphone in front of him. He did not disappoint this year, as Chris took the opportunity to declare war on the entire Chattanooga Bar Association. It was an interesting choice on his part, but nothing less than what I have come to expect. He did also acknowledge the passing of contributor Pete Van de Vate, a wonderful lawyer who left us too early, and managed to present the DICTA award to Matthew Lyon of LMU University. Anyone else notice that Matt appears to be everywhere, doing everything?

Either he is a naturally energetic guy, or Dean Wade cracks a hard whip. Either way, the award was well-deserved.

I’m not saying there were any insider shenanigans involved, I’m just saying that the sitting KBA president was on the winning Ethics Bowl team. But for the fact that she and teammate, Emily Stulce, are above reproach, I would be asking for a special counsel investigation.

Congratulations to the winning team.

Garry Ferraris, chair of the Professionalism Committee, stood to present the Courage in the Face of Adversity Award. This year, the award was given posthumously to Mitch Cramer. I had the good fortune of working with Mitch on several cases over the years and he was, without a doubt, one of my favorite lawyers I have met anywhere.

Mitch was intelligent, hard-working, honest, and committed. He had a great sense of humor and never took himself too seriously. During the presentation, he was described as unflappable, and I think that is a perfect adjective. The house could be burning down around him, but Mitch would always remained poised and good-humored. We often drove together to depositions, and I would listen to Mitch tell stories of the VW bus he and his wife had out of college driving up and down the January 2018

west coast, painting a very different picture from the button-down lawyer sitting next to me. I will never forget my time with him and I will always appreciate that I serve in the same bar he did.

Samantha Parris turned over the reigns of the Barristers to Mitchell Panter. Samantha had a tremendous year and the Barristers, as always, were a shining light for our association. I had the good fortune of attending their Christmas Party and to say the organization is robust is an understatement. Mitchell, you have large shoes to fill and a rich tradition to uphold. I have no doubt you will do so well, but just remember – don’t screw up.

How many lawyers does it take to connect audio capabilities to a video feed? That was the eternal question to be answered as Bill Vines presented the Governor’s Award to Penny White. It actually made for a very entertaining respite as Penny loomed over us on a video screen speaking to colleagues about not being able to hear us while we heard every word she said. There was real potential for high comedy here. I was really hoping that Penny would start having “off the record” conversations for the whole bar to hear. Sadly for me, Penny is too smart to make such a gaffe. Penny is an especially deserving recipient of this highest honor our bar has to offer and the look on her face as the room stood on its feet applauding her proved that she understood the significance. Technical difficulties aside, the moment was very special.

Congratulations to our incoming officers and newly elected board members: Keith Burroughs (president), WDMCK (presidentelect), Hanson Tipton (treasurer), Cheryl Rice (secretary), Charme Allen (government/public sector board member), Jamie BallingerHolden (board member), Betsy Meadows (board member), and Robbie Pryor (board member). I don’t think anyone could question the strength of this leadership.

The meeting concluded with the remarks of incoming president, Keith Burroughs. Is it just me, or does it feel like Keith has already been president of the KBA two or three times?

Maybe it’s just me, but it seems like he has been a leading voice in our bar for some time. I like that President Burroughs focused his remarks on civility and diversity. I agree wholeheartedly that those should be focal points for our bar. More importantly, he wisely kept his remarks pointed and brief and concluded the meeting at about 9:34 a.m. Slightly over the designated time limit, but I blame that on McCarty and not our new president.

Another bar year is in the books and, as things head in to 2018, the future of the practice in east Tennessee look brighter than ever. There is no better bar association in which to practice. Before I close out, thank you to Marsha and the professional staff for another amazing year.

Happy holidays and see you in the new year.

DICTA

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

Phil Hampton

Founder and CEO, LogicForce Consulting

$1000 IPHONE? “ X (PRONOUNCED “TEN”) MARKS THE SPOT”

A cellphone that costs as much as a computer? Really? We love our gadgets, but even a couple of gadget spendthrifts like us found the price for the new iPhone X shocking. But, we bought one anyway. (It actually cost us $1149.)

We will have to say that the iPhone X setup was elegant. iOS 11’s new Automatic Setup feature lets you setup by holding your old device near your new one to transfer across essential info. You must first, of course, backup your old machine to the Cloud. Then, start up your new iPhone X. It will tell you to “Bring your old iOS device close” to your new one. When you do so, a little panel pops up on the old device, giving you some instructions to follow to “pair” the devices. To complete the pairing, you have to aim the camera of your existing device at the whirling cloud patterns on the screen of the newborn device. And that’s it. The WiFi and Apple ID settings are beamed from one device to the other. Your phone number and all your old data are automatically transferred over.

Many of the features of the X are brand new. First the visuals.

There is no “home” button. It has been replaced by the soon-to-be infamous “notch.” There is no bezel. The 5.8 inch display covers the entire front; it just has a very thin frame around the screen. It actually looks a lot like a Samsung Galaxy 8 (which we bought earlier this year), except its frame is stainless steel, instead of aluminum. It has an OLED screen that has superior contrast and brightness and is easier to view at an angle. The screen is big, but because it has no bezel, the phone is not big.

On to use and performance. You no longer unlock the phone with your fingerprint. It unlocks with Face ID. Yes, it is true that Samsung has “been there done that,” but Apple’s Face ID actually works better than Samsung’s. Face ID is easy to set up and easy to use. (When you set it up, it makes a 3D scan of your face, so it even works at an angle.) It is not perfect, but it works very, very well. Still, it is something you will have to get used to, if you are accustomed to the fingerprint scan. The real problem is that Face ID uses a camera placed in a “notch” at the top of the phone. When you view items “full screen”, the “notch” gets in the way.

The X is clearly designed with the new iOS 11 in mind. Instead of pressing the home button you swipe up from the bottom of the screen.

To get the Control Center, you swipe from the upper right of the screen.

A left-swipe still takes you to the camera. There are several other gesture and control changes that you have to learn, and it takes some getting used to.

The phone is very, very fast, probably the fastest mobile phone you can buy. It uses a new chipset, the A11 Bionic, and, if you are a “phone gamer” you will be in heaven. However, the speed and the larger display does not sacrifice battery life. In this area, the X is a vast improvement over the iPhone 7, which, in our experience, pooped out battery-wise too soon. Also, like the new Samsung Galaxy phones, the X charges wirelessly, but, unlike those phones it does not support fast wireless charges speeds. Apple says it will support that feature very soon.

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So, the $1000 question – Is the X worth the price? That is up to you. If you do not like abrupt changes, and if you don’t like a sometimes steep learning curve, save your money and get the iPhone 8. In fact, one could argue that the 8 is a better phone for most people’s purposes. The “notch” is annoying and the X really can’t do anything that other smart phones can’t do. But, we are gadget nerds, and we spend money to play with new stuff and experiment. Sometimes it seems we enjoy being annoyed with quirky toys. Bill believes the X is the future of the iPhone, and he has enjoyed the expensive taste of his new toy. (Phil says he will stick with his dependable and technically advanced Samsung Galaxy 8.)

DICTA

January 2018

BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations. Email submissions to mwatson@knoxbar.org by the 10th of each month.

SAVE THE DATE! 2018 Law Practice Today Expo April 12-13, 2018 The KBA’s Law Practice Today Expo is the premier opportunity for you to get exposed to dynamic CLE courses from local and national speakers so that you can fast-forward your law office management skills and make new connections. If you are interested in helping plan the Expo, join the Law Office Technology and Management Committee.

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates.

Click on Public Resources and select “Career Classifieds” from the dropdown navigation.

TBF LEGAL HISTORY PROJECT INTERVIEWS NOW AVAILABLE ONLINE The Tennessee Bar Foundation is pleased to announce that its 100+ video interviews of senior Tennessee lawyers and retired Supreme Court justices are now available online at www. tnbarfoundation.org. The interviewees, from across Tennessee (including 10 from Knoxville), recount personal biographical information, significant legal topics dealt with during their careers, as well as the important social and political issues of their day. The Project continues to conduct interviews, so check back frequently to see who’s been added.

LEGAL CALL-IN SHOW Knoxville has a new legal live television call-in program and you can be a part of it! WVLT Local 8 LawCall will air Sunday night at 11:35 right after the news. The Producers say the show will cover such varied topics as divorce, traffic accidents, careers in the law and bankruptcy, along with many others. There will be a new topic each week. The station has partnered with The Law Offices of Ogle, Elrod and Baril to act as the legal hosts of the program. They are also underwriting this public affairs show. The host will be local broadcaster Sara Mitchell. If you would like to be a guest or have any questions please contact the producer bill@lawcall.com.

OFFICE SPACE AVAILABLE: •

•

2,870 sq ft 2nd floor office space with large reception area, 5 private offices, board room, two large work-rooms/ offices, common rest rooms & kitchen/ break room with one other tenant on the floor. Zoning C-3, Office Space Class B. Excellent high-visibility location with views of downtown Knoxville. Other tenants are a late-afternoon/evening youth music school downstairs (sound-isolated), and a single attorney. Ample parking and easy freeway access. An additional 1,500 sq ft of adjacent space is available if desired. Contact Frank Graffeo at 525-6806.

•

Furnished office space available in West Knoxville. Convenient to I-40 and Downtown. Quiet atmosphere perfect for sole practitioner or mediator. Contact Dana Holloway at Holloway Law & Mediation Center. (865) 719-1644 or (865) 643-8725 Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft.

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

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

NEW ATTORNEYS

NEW LAW STUDENT MEMBERS

Erika J. Blalock-Houser Erika Blalock-Houser, Attorney at Law

Isham Cason Hewgley, IV U.S. Court of Appeals for the Sixth Circuit

Elizabeth M. Burrell Forrester, Burrell & Varsalona

Dr. Joseph David Prestia Law Office of Joseph D. Prestia, PLLC

Jennifer R. Egelston

Richard H. Robinson

Matthew J. McClanahan

Tyler M. Caviness Ritchie, Dillard, Davies & Johnson, P.C. Hon. Josephine D. Clark Anderson County Chancery & Juvenile Courts

Joseph Vincent Ronderos, Jr. Holbrook Peterson Smith PLLC

Matthew A. Coleman Veronica Du

Samuel G. Hall

Kayla N. Sweet

Christy Ann Smith

Jeffrey Z. Daniel Daniel & Gaines

Philip G. Swan, II The Law Office of Philip Swan

Jordan Danielle Davis Law Office of Lisa Collins Werner

Anna M. Swift Owings, Wilson & Coleman

Jennifer Dobbins Stone & Hinds

Jenna L. Castello

Patrick C. Woodside, Jr. Woodside Law

Emma Boyd Elliott Lisa R. Givonetti

January 2018

DICTA

29

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

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

Thank you for all you do for Legal Aid of East Tennessee!

Jennifer Morton Craig Holloway Adam Moore Jennifer Taylor Cynthia Lawson Alex Johnson Jeremy Miller Dan Holbrook Amanda Busby Jesse Nelson Dan Scott Amelia Crotwell Jim Hickman Daniel Ellis Amy Hess Jim Snyder Daniel Moore Andrew Roskind Joel Roettger Dave Yoder Andy Fox John Elder David Gall Andy Sneed John Eldridge David Lipsey Angie Snyder John Lockridge David Luhn Ashley Roberts John Rice David Roberts Barbara Johnson John Spragen Derek Spratley Bart Williams John Wood Devin DeVore Ben Koyl Jon Roach Donald Farinato Bennett Hirschorn Jonathan Blanchard Douglas Dunn Bill Clayton Jonathan Cooper Dustin Crouse Bill Coley Jonathan Reed Ed Anderson Bradley Sagraves Josh Ball Ed Owens Brenda Brooks Josh Hedrick Eddy Smith Brent Snyder Kaitlyn Hutcherson Edwin Shoemaker Brent Strunk Katherine Young Emma Drozdowski Bryce McKenzie Kati Goodner Harry Ogden Carl Eshbaugh Katie Tolliver Jones Heather Anderson Carlos Yunsan Keith Burroughs Heather Banks Carolyn Gilliam Keith Edmiston Gerald Gulley Cecilia Peterson Keith Stewart Ian Hennessey Charmaine Nichols Kelly Street Jackson Fenner Chelsea Parrish Ken Miller Jacob Gibson Cheryl Rice Kenny Byrd Jamie Ballinger-Holden Chris Cain Kevin Hardin James Fogelsong Chris Conner Kevin Newton James Moore Chris Poulopoulos Kevin Tonkin James Parker Chris Ralls Kimberly Cambron Janet Gurwitch Christopher Brown Larry Little Jason Collver Constance Herinkova In addition to our wonderful Pro Bono attorneys, the following students, paralegals, and others have donated their time to help LAET’s Pro Bono Project: Hayden Short Alexandra Kroon Tyler Sims Campbell Cox Elisabeth Kroon Clara Johnson Travis Vest Don Ferguson Ashley Zepeda Sloane Davis Melissa Boyd Ben Johnson Courtney Cotter Mary Carson Ashley McGhee Joshua Hughes Josh Carson Marshall Clifton Hilary Magacs Keri Rule Michael Wheaton Ryan McMillan McKeehanan Rue Samuel Henninger Miranda Miller Charles Sharrett Kesley C. Osborne Samantha Clark Tayler Erwin Garrett Ward T.D. Schlafer Blythe Gulley Anthony Cognasi Tami Schack Brennan Foy Rachel Jensen Cody Walsh Kaitlyn Dean Kendra Lewis Diann DeJulia Tabitha Johnson Phebe McLin Jacklind Buffington Danielle Knight Julia Hale Feroza Freeland Caitlyn Sun Dacey Cockrill Chad McElhaney Tracy Chain Keaton Murphy Sabrina Schulhauser Marsha Watson Addy Keenan Veronica Du Chadwick Nottingham Blake Tate And, because it is inevitable that I have missed someone, thank you everyone else who has supported Legal Aid of East Tennessee and, more importantly, our clients throughout 2017 with your service at clinics and by accepting Pro Bono cases. We truly could not do it without you!

Lisa Hall Loretta Cravens Luke Ihnen Lyndsey Lee Lynn Tarpy Mabern Wall Maria Gillen Mark Chalos Matt Frere Maurice Guinn Meagan Collver Meaghan Moore Meghan Bodie Meghan Morgan Michael Brezina Michael Davis Michael Green Mike Hickman Mital Patel Newman Bankston Nolan Sharbel, Jr. Patrick Slaughter Patrick Woodside Paul Forsyth Paul Wehmeier Peggy Comstock Rachel Hurt Richard Austin Rick Carl Rockforde King Roger Hyman Ron Rayson Roy Aaron Russ Swafford

Sam Tipton Samantha Parris Samuel Louderback Sarah Higgins Sarah Miracle Sarah Watson Scott Griswold Scott Hahn Shelley Breeding Spencer Fair Stacie Miller Stephanie Coleman Stephen Byrd Stephen Garrett Stephen McSween Steve Merritt Steve Williams T.J. Norton Tasha Blakney Ted Kern Terry Woods Timothy Grandchamp Tom Dickenson Tony Seaton Troy Weson Tyler Roper Virginia Crouch Virginia Schwamm Wade Boswell William Gill Wynne Caffey

Mark Your Calendars: *

January 6 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville office (607 W. Summit Hill Drive)

*

January 10 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO

*

January 20 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office

*

January 24 (5:00-7:00) – Pro Se Divorce Clinic at LAET’s Knoxville Office

*

February 3 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville Office

*

February 3 (9:30-12:30) – Debt Relief Clinic at the Public Defender’s CLO

*

February 14 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO

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

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DICTA

January 2018

Q: A:

THE LAST WORD

Jack H. (Nick) McCall Christi, please share with DICTA’s readers your perceptions and experiences, having served as the first woman ever to be named Senior Director of Public Works and then Chief Operating Officer and Deputy to the Mayor for the City of Knoxville.

By:

CHRISTI W. BRANSCOM Chief Operating Officer and General Counsel, Partners Development; Owner and President, GRACE Construction

First of all, I learned that there are a lot of incredibly passionate people working for the City of Knoxville. When I decided to join the City in 2011, a lot of people questioned my sanity – why would I leave a successful career to work in City government? But I recognized that this opportunity was unique in that it would give me a chance to play a significant role in how our City operates, develops and grows. I always will be grateful to Mayor Rogero for affording me the opportunity to serve the City of Knoxville in a challenging but exciting way.

What I found when I joined the City is that the majority of the staff in City government love public service. They enjoy their jobs, they take great pride in working for the City, and they believe what they do is important. A lot of them could work elsewhere for greater financial reward, but it isn’t about the money for them. Some of them have quite a lot of responsibility, by anyone’s standard, and are paid far less than most junior associates. These people make a big difference in this city, and to find this level of passion and commitment was a very pleasant surprise.

Another interesting aspect that I hadn’t fully anticipated is that so much of what a city does involves real estate. My professional background is in real estate development and construction, and what I have most enjoyed during my career is structuring deals. I didn’t realize how valuable that skill set would be in public service, and yet structuring real estate and economic development deals was my favorite part of working in City government.

I worked with a variety of public and private partners on projects like the Regal Cinemas headquarters, Lakeshore Park, the Walnut Street Garage, and the new Public Service Complex. I came to the City with my own legal background; but when working on these type deals for the City, I had the luxury of relying on attorneys from the City Law Department. While most of the City attorneys were not transactional attorneys like me, they were critical in helping keep me within the City’s extensive and sometimes cumbersome contracting requirements. So, having attorneys approach deal structures from two different vantage points made for some creative and innovative deals that worked very effectively within city government. This unique scenario allowed us to establish a very formidable tag team, at least that’s how Charles Swanson and I described it.

I learned a great deal from the lawyers in the Law Department - about how to develop deals within the maze of government, and I believe my perspective helped them understand the analysis behind deal-making from a private developer’s perspective. For example, Alyson Dyer and I worked together on the Regal deal, and while she was adept at how a governmental agency could get involved in such a venture, I’d push back on how a private company or developer would consider the deal points. We worked hard to find pathways to be innovative and strategic in approaching a possible solution without running afoul of government guidelines and rules.

[When asked about Christi, City Law Director Charles Swanson said: “My favorite word to describe Christi Branscom is ‘indomitable.’ As the first woman to serve as our City’s Chief Operating Officer, she approached her duties and responsibilities, which would be intimidating to anyone, with confidence, courage, grace, good humor, and an incredible degree of competence. During her service with the City, Christi was a tremendous asset for whom we should all be exceptionally grateful.”]

Having worked at the City for almost six years, I have a much greater understanding of how jurisdictions operate and function. Now that I’m back in the private sector, I can use that knowledge and expertise to expand the services that we offer at Partners. Already, I have been contacted by several other jurisdictions asking that I advise them on specific projects and deal-structuring in general. There is much more complexity to this type work in the public sector than just understanding debt service obligations and funding capacity, and I’m not even referencing the public process and political investments that need to be made to commit to proceeding with a new a project.

Obviously, a lot of what a jurisdiction can do comes down to its fixed revenues. In Knoxville, we have experienced very moderate growth in residential property taxes, but the City has relied on capital budget funding when available to invest strategically in specific public infrastructure and beautification projects. These public investments are designed to stimulate private investment and continue the strong internal growth and improved tax base we have been experiencing. This inside-out focus has resulted in strong commercial growth (including multi-family housing) and more productive properties due to redevelopment to a higher and better use at times (of course understanding that someone’s idea of a higher and better use can be different than another’s). Think of it this way – if your neighbor invests in his or her yard with new landscaping and lighting, then you may be more inclined to invest in yours. To some degree, it’s the same concept – when the City is working hard to invest and maintain its public infrastructure and create new amenities, then the private sector is going to feel more comfortable (meaning there is less associated risk) about investing in that city. And, without a doubt, we know that this strategy works because of the tangible proof across our own city.

Follow-up question from Nick: Christi, didn’t you also just go through Leadership Tennessee?

Yes, I also recently graduated from Leadership Tennessee, which is a great program designed to bring together leaders from across our state to collaboratively focus on addressing the complex issues we face in Tennessee. Clearly, I understood that it would be a great networking opportunity, but I didn’t fully anticipate and will be forever grateful for the education it provided me. While we are very different in many ways across our geographically diverse state, there are many issues across the regions that are the same. So, being able to understand these issues better and then observe first-hand the various innovative ways that different communities are approaching these issues was a truly unique opportunity.

We are all trying to positively “move the needle a bit” in our respective cities and towns, and Leadership TN allows for leaders across the state to engage in up-close and personal interactions, in frank and open settings to ask whether a tactic or program works. Sometimes I heard “yes, this approach is working, and we are seeing results,” and sometimes I heard, “we tried it here, it didn’t work, the results weren’t what we had hoped.”

It quickly became apparent that, as different as we are, there are many common issues across our State. And, while the dream to correct them all may seem out of reach, at least we can become better educated and perhaps even learn from others across our state about strategies or approaches that could make sense for us here. Leadership TN was a very inspiring experience for me, and it left me and I’m sure many of my classmates, wondering how to get more involved statewide, and how each of us can play a role to begin to tackle these issues and make our state better and stronger for all.

“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.

January 2018

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AROUND THE BAR

AWARD WINNERS AND NEW BAR LEADERS ANNOUNCED AT KBA ANNUAL MEETING

KBA President Amanda M. Busby presided over the Annual Meeting of the Knoxville Bar Association on Friday, December 8, 2017. More than 275 lawyers and judges were in attendance. Ms. Busby announced that the following KBA members were elected as officers for 2018: Wynne Caffey-Knight – President-Elect; Hanson R. Tipton – Treasurer; and Cheryl G. Rice - Secretary. The membership elected the following KBA members to the four open positions on the Board of Governors: Charme Allen, Jamie Ballinger-Holden, Elizabeth (Betsy) Meadows, and Robert E. Pryor, Jr. Keith H. Burroughs assumed the presidency of the Knoxville Bar Association at the close of the meeting.

Penny J. White was presented the highest award of the Knoxville Bar Association, the prestigious Governors’ Award. The Governors’ Award is given each year to a lawyer whose peers believe to have brought distinction and honor to the legal profession. Ms. White has distinguished

herself with a long and tremendous career of service to the bar and to the education of lawyers and law students.

The Presidents’ Awards for 2017 was presented to J. William Coley and Ian Hennessey for their work with the Faith & Justice Legal Advice Clinics and to J. Spencer Fair for his work with the Veterans Legal Advice Clinics. The Award for outstanding writing was presented to Matthew R. Lyon for his contributions to the KBA monthly magazine DICTA. The Courage in the Face of Adversity Award was presented posthumously to William Mitchell “Mitch” Cramer.

T. Mitchell Panter was introduced as President of the Knoxville Barristers, the Young Lawyers Division of the Knoxville Bar Association, and it was announced that Paul Wehmeier and Matthew Knable, Co-Chairs of Volunteer Breakfast Committee, were presented with the Barristers’ Presidents’ Award for 2017.