DICTA.June 2017 by Knoxville Bar Association

Practice Tips: Collateral Source Rules in Wrongful Death, Personal Injury, and Employment Termination Cases in Tennessee . . . Page 9 Legal Update: Circuits Split on Whether Title VII Prohibits DiscriminationBased on Sexual Orientation. . . Page 11

A Monthly Publication of the Knoxville Bar Association | June 2017

THOUGHTS OF A JUVENILE DEFENDER ON THE 50TH ANNIVERSARY OF IN RE GAULT

DICTA

June 2017

In This Issue

Officers of the Knoxville Bar Association

Cover Story

June 2017

16 Thoughts of a Juvenile Defender on the 50th Anniversary of In Re Gault President President Elect Amanda M. Busby Keith H. Burroughs

Treasurer Wynne du Mariau Caffey-Knight

Immediate Past President Wayne R. Kramer

Secretary Hanson Tipton

KBA Board of Governors Dwight Aarons E. Michael Brezina III Kathryn Ellis Stephen Ross Johnson Lisa J. Hall

Dana C. Holloway Rachel P. Hurt Mary D. Miller Carrie S. O’Rear Mitchell Panter

M. Samantha Parris Cheryl G. Rice John E. Winters

The Knoxville Bar Association Staff

We Can’t Afford to Lose Federal Funding for Legal Aid of East Tennessee

Collateral Source Rules in Wrongful Death, Personal Injury, and Employment Termination Cases in Tennessee

Circuits Split on Whether Title VII Prohibits Discrimination Based on Sexual Orientation

Writing a Release of Claims under the ADEA? Don’t be Surprised by the Statutory Requirements

13 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 Assistant

Volume 44, Issue 6

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). Dicta subscriptions are available for $25 per year (11 issues) for non-KBA members. June 2017

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Editor Heidi A. Barcus Casey S. Carrigan Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long

Cathy Shuck Chris W. McCarty Melissa B. Carrasco Lee Nutini Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Melissa C. Reinders Ann C. Short

Managing Editor Marsha Watson KBA Executive Director

DICTA

Profile

2017 Law and Liberty Award Recipient Marigail Mullin

Marsha S. Watson Executive Director

Critical Focus

President’s Message

Practice Tips

Legal Update

Management Counsel: Law Practice 101 Schooled in Ethics

Cheater, Cheater, Pumpkin-Eater: The Ethics of Cheating on the Bar Exam

6 10 12 14 15 18

23 24

Conventional Wisdom Hello My Name Is

Stirling Walsh

Legally Weird

Flyer Beware

Outside My Office Window

Don’t Stop Believin’

Lawyer Hobbies

Lawyers on the Green

Thankworthy

A Charge to Keep

Around the Bar

June Open Service Project: Beardsley Community Farm

Long Winded

Proud Of My Profession . . . Again

Life Hacks

Things To Make Travel Easier When There Is No Rest For The Weary

25 26

Phil & Bill’s Gadgets

Samsung Galaxy S8

Life & Law in Harmony

When You Feel Like You’re Out of Your Depth

Does The Thing Really Speak For Itself?

All in a [Satur]Day’s Work: Access to Justice in Grainger County

27 28 4 20 22 29 30 31

Legal Mythbreakers

Around the Community

Common Ground

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

event

EVENT CALENDAR & SECTION NOTICES

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

calendar

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

June

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).

n 8

Lunch & Learn

n 8

Judicial Committee Meeting

n 10 Open Service Project n 10 Fireflies in the Smokies

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 13 Professionalism Committee Meeting

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).

n 19 Diversity in the Profession Committee

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).

n 28 Barristers CLE

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).

n 14 Senior Section Luncheon n 14 Veterans’ Legal Advice Clinic n 14 Barristers Meeting n 21 KBA Board of Governors Meeting n 22 Volunteer Breakfast n 22 Corn Hole Tournament n 29 Bankruptcy Section CLE

July n 11 Professionalism Committee Meeting n 12 Veterans’ Legal Advice Clinic n 13 Lunch & Learn n 13 Judicial Committee Meeting n 17 Diversity in the Profession Committee n 19

Gov’t Section CLE

n 26

In Chambers CLE

n 27 Volunteer Breakfast

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). Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on June 14, 2017 at Calhoun’s on the River. KBA member Anne McKinney will present the topic “Some Things We Wish Our Estate Planning Clients Would Never Do and Post-Election Tax Landscape.” See details on page 11. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307. Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).

DICTA

Annual Supreme Court Dinner September 6

June 2017

PRESIDENT’S MESSAGE By: Amanda M. Busby Anderson Busby PLLC

WE CAN’T AFFORD TO LOSE FEDERAL FUNDING FOR LEGAL AID OF EAST TENNESSEE As proposed, the President’s budget for FY2018 eliminates all federal funding for Legal Services Corporation (LSC) which in turn eliminates most, if not all, federal funding for legal aid organizations, including Legal Aid of East Tennessee (LAET). As attorneys and as residents of East Tennessee communities, we truly cannot afford for this to happen. National, state, local and specialty bar associations across the country are calling on Congress to continue funding LSC. On March 31, 2017, the KBA Board of Governors sent letters to all Tennessee U.S. Senators and Representatives and to the Chair, Vice Chair and Ranking Members of the House and Senate Appropriations Committees urging them to continue to provide robust funding for LSC. In the KBA’s letter, we reminded these U.S. Senators and Representatives that LSC funding is money well spent. Funding for LSC only accounts for .000001% of the total federal budget. Multiple clean audits show that 93.7% of LSC’s total budget is awarded in grants to 133 civil legal aid programs with nearly 900 offices nationwide. LAET is one of these LSC grantees, providing legal services to low-income Americans in 26 Tennessee counties from Chattanooga to Johnson City, Tennessee. Currently, LAET receives approximately 50% of its annual funding from LSC. LSC provides vital civil legal aid to a wide range of Americans (1.9 million annually): securing housing for veterans; freeing seniors from scams; serving rural areas when others won’t; protecting battered women; and helping disaster survivors back to their feet. LAET and its predecessor organizations have been providing these types of civil legal services to low-income East Tennessee families for over 50 years. Like most other legal services organizations, LAET originally received a majority of its funding from LSC. Due to prior drastic cuts in federal funding to LSC throughout the years, LAET has worked diligently to diversify its funding base, securing donations and grants from generous non-profit, community and private funding sources to make up the shortfall. Nevertheless, LSC funding still accounts for approximately 50% of LAET’s total annual funding. In 2016, LSC provided $2,519,158 in grants to LAET out of a $5,190,950 budget. According to its most recent LSC Program Profile, LAET completes approximately 5,000 cases annually, benefitting over 10,500 individuals with services ranging from obtaining Orders of Protection for victims of domestic violence to preventing families from becoming homeless. You may recall that LSC funding assisted LAET in providing a rapid response to Sevier County wildfire victims in need of legal assistance securing FEMA benefits, processing life, medical and property insurance claims, replacing Wills and other important legal documents destroyed in the fire, handling landlord/tenant issues, counseling on mortgage/foreclosure matters, etc. Despite the number of people LAET is able to serve, LAET even without these proposed funding cuts only has the resources to assist approximately 10% of the individuals who seek its assistance. Can you imagine the number of individuals in our communities that will not have legal services if LAET and other legal aid organizations nationwide receive no funding from LSC? The need for services will not go away and the task of making up this financial shortfall and providing these needed services will ultimately fall to members of our Bar. KBA lawyers know the value of LSC first-hand. Lawyers who are members of the KBA provide countless hours of pro bono legal services to individuals in desperate need of assistance. This volunteer service is dependent in part on partnering with LAET which screens cases for merit and eligibility, and trains and mentors our attorneys. Eliminating June 2017

funding to LSC will not only imperil the ability of LAET to directly serve members of our community in need, but it will also greatly diminish our local bar’s capacity to help these individuals. The pro bono activity facilitated by LSC funding is exactly the kind of public-private partnership the government should encourage, not eliminate. When Congress formed LSC in 1974 (in a bi-partisan vote during the Nixon Administration), it found that “there is a need to provide high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel;” and that “providing legal assistance to those who face an economic barrier to adequate legal counsel will serve best the ends of justice and assist in improving opportunities for low-income persons.” That remains true today and the need for these services in order to provide access to justice is greater than ever before. State studies have shown that the problems solved by legal aid offer a strong return on investment, and they even provide benefits to more than just the direct client served. For example, a recent Tennessee study showed that Tennessee’s legal aid organizations produced over $11.20 in economic impact from every $1 of funding received, and that such impact extended to businesses, local governments and individuals across all social classes.1 The ABA has reported that this extended impact is true in other states as well. For instance, a 2011 Pennsylvania Economic Impact Study by the Pennsylvania Finance and Budget Committee and the Pennsylvania IOLTA program estimated that for each dollar spent on legal aid, $11 of quantifiable economic outcomes and savings were realized for all residents of Pennsylvania. Likewise, the Florida Bar Foundation found that the return on investment was $7 for every dollar spent. The Iowa Legal Aid foundation estimated a six-fold return on investment and Virginia found a $5 return on investment for every dollar spent. These studies show that LSC funding of legal aid organizations has an impact nationwide and is a good investment. The late U.S. Supreme Court Justice Antonin Scalia assured us that all of his colleagues on the Supreme Court supported LSC. The state Supreme Court Chief Justices also have consensus support for LSC. In fact, over 80% of Americans believe it is important that everyone has access to civil legal help. Also, over 80% of people are convinced that LSC grantees’ self-help centers and legal services assistance protect the vulnerable in our communities. LSC-funded civil legal aid is essential to individuals living in rural areas where there are few lawyers and small bar associations with limited membership. In many counties across our nation, LSC grantees are the only available help for low-income Americans. Funding of LSC should not be a partisan issue. As TBA President and KBA member, Jason H. Long, stated in his President’s column for the Tennessee Bar Journal last month, “[w]hile we have a diverse bar, on this point we must be united;” this is “The Right Thing To Do.” If you have an opportunity to write your U.S. Senators and Representatives about this issue, I hope you will take the time to do so. The TBA is also campaigning to save Legal Aid funding in Tennessee. Additional talking points that may be used when writing to your members of Congress may be found on TBAImpact at https://account.votility.com/enterprise/TBA/ ec/302. 1 Economic Impact of Civil Legal Aid Organizations in Tennessee (March 18, 2015), prepared for the TBA Access to Justice Committee and the Corporate Counsel Pro Bono Initiative by Michigan-based research firm The Resource for Great Programs. LAET was one of the nine Tennessee civil legal aid organizations that participated in the study. More information about the study can be found at www.tba.org/news/access-to-justice-booststennessee-economy

DICTA

HELLO MY NAME IS

. . .

STIRLING WALSH

By: Katie Ogle McDonald, Levy & Taylor As attorneys, we learn many of the nuts and bolts of evidence, and the rules therein, when we sit through the required course in our second year of law school. We learn the procedural steps for entering a piece of evidence as part of the record, and the appropriate questions to ask a witness for that evidence to be admitted during the presentation of our case. However, we rarely come into contact with that evidence following its entry during our trial. For newly admitted member of the bar, Stirling Walsh, following evidence at the conclusion of a trial is something with which he is all too familiar. During his time in law school at Lincoln Memorial University’s Duncan School of Law, Stirling began working in the Knox County Criminal Court Clerk’s Office. In this position, part of his employment centered around cataloging evidence using a new system in the office. “Working in the clerk’s office and experiencing the inner workings of the legal system really helped deepen my understanding of legal procedure and the process of the criminal court here in Knox County,” notes the recent graduate. Stirling also served as the executive articles editor for the law review at LMU and managed the incoming articles from students and professors from other schools. One of his most memorable law school moments involved organizing a symposium centered around Edward Snowden in which several members of the FBI were in attendance. One may have previously remembered Stirling for his often-in-aponytail hair, which is uncommon in the Knoxville legal realm. Earlier this year, Stirling was on a trip to New York City and was snowed in for several days beyond his original agenda. During one of these snowbound days, he stumbled upon a barber shop near Central Park. Deciding there was no time like the present, Stirling used the opportunity to have his locks trimmed. “I’d had long hair since I was about twenty, so it was time for a change. Surprisingly, it’s the first thing many people notice these days.” A native of Kingsport, Tennessee and a graduate of DobynsBennett High School, Stirling completed his undergraduate education at Middle Tennessee State University in Murfreesboro, Tennessee. Here, he majored in Sociology and minored in Criminology and American Music, all of which are well-tailored to his individual talents and pursuits. Stirling’s interest in music began when he was ten years old and briefly took piano lessons. From there, he joined the school band and was a member of the percussion ensemble. In high school, he began playing guitar and started playing bass guitar in college. Today, he shares his home with “eleven guitars, two organs, an electric piano, and a bunch of ukuleles,” all of which are played with regularity. While his collection of musical instruments is at a self-described “hoarder status,” it comes with a great explanation, as Stirling is also the member of three local bands. The “Knox County Jumpstompers” plays Appalachian music primarily from the 1920’s and 30’s; “Southern Cities,” and the “Colonel Williams House Band,” that plays country-folk music, in a similar vein to that of John Perrine. Stirling is practicing law in the greater Knoxville area, and his bands have made an appearance at the Rhythm and Blooms and Dogwood Arts festivals. He’s always looking to make new acquaintances within

the Knoxville Bar, so if you see him around the courthouse, please take a moment to introduce yourself. Just don’t look for the guy with the ponytail.

DICTA

June 2017

JUDICIAL PROFILE By:

Hon. Deborah C. Stevens Knox Co. Circuit Court

2017 LAW AND LIBERTY AWARD RECIPIENT MARIGAIL MULLIN

June 2017

aside time at their December meeting to create gift bags of toiletry items for our transitional housing residents. In May the Open Service Task Force provided a special home cooked meal and shared time and conversation with the residents. The Law & Liberty Award is given annually to a recipient who is visible in the legal community; fosters good relations between the legal profession and the community and works to advance the understanding of the legal system to the non-legal community. Marigail Mullin truly represents the purpose of the Law & Liberty Award. Congratulations Marigail.

DICTA

IR S C UP IS UL E S AT R U E IO

DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier. DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at www.knoxbar.org.

EDITORS’ NOTE:

This year’s well-deserved recipient of the annual Law & Liberty award is Marigail Mullin, CEO of the Knoxville YWCA Marigial Mullin’s path to the Knoxville YWCA was fortuitous. Marigail was born and raised in Iowa. She received her Master’s degree in social work from the University of Iowa and had always worked in social service programming. She ultimately became the CEO of the Crittenton Center in Iowa, which is a large child welfare agency. Her husband, Tom Mullin, is a lawyer and was the elected county attorney. She and Tom had four children, and, when the children were grown and started moving away from Iowa, Marigail and Tom decided they would explore a new place to live. They spent three years taking two week vacations traveling around the country to explore locations that they thought might make a good home and a place where they could begin new careers. They came to Knoxville and found a place that met all of their criteria – mountains, water, four seasons, music and a college town. Shortly after that initial visit, they flew back to Knoxville and spent a week exploring the town. It rained the entire time they were here, but she and Tom found the people of Knoxville to be friendly and positive. They began making calls looking for jobs. Marigail called the local United Way office and asked to speak to the Executive Director. She told him she was hoping that he would have a few minutes to talk to her about social work opportunities in Knoxville. He graciously invited her to his office, and they enjoyed a wonderful conversation. What she did not know was that after hearing her credentials on the phone, he had contacted several members of the board of the Knoxville YWCA who were searching for an Executive Director. They were sitting outside his office. He invited them into his office, the interview process began and the next thing Marigail knew, she was being offered a job. In the meantime, Tom received an offer to join the office of the Knox County Law Director. They liked Knoxville, and they had jobs; so in 2006, they began their new adventure and would now call East Tennessee their home. Marigail and Tom live in the South Knoxville on the beautiful French Broad River. They currently share their home with two golden retrievers. In the last few years, all of their children, who had been scattered around the country, have now moved to Knoxville. Marigail and Tom are looking forward to another new adventure as they take on the role of grandparents, as their son and his wife are expecting their first grandchild. The mission of the YWCA is to eliminate racism, empower women and promote peace, justice, freedom and dignity for all. The YWCA Knoxville operates a transitional housing program called “Keys of Hope” which houses women for up to two years, giving them the time needed to become responsible, independent, and empowered to overcome significant life obstacles. They operate the Phyllis Wheatley Center in East Knoxville where they provide comprehensive educational support for children in the community through an after-school and summer camp program. The Center also serves as a community center for seniors and is home to a beautiful new community garden. The YWCA Knoxville provides advocates for victims of domestic violence, and they have created a nationally recognized, gender-based program, to teach violence prevention to middle-school boys. The YWCA Knoxville also hosts the annual, YWCA Tribute to Women, which recognizes the significant contribution women have made to this community. These programs do not magically grow and thrive. It takes amazing leadership. It takes vision. Marigail Mullin has worked tirelessly to serve the clients of the YWCA and this community. She has engaged the support of members of the legal profession as advocates, board members and volunteers. Each December, members of ETLAW graciously set

DICTA

June 2017

PRACTICE TIPS By: Charles L. Baum II, Ph.D. Professor of Economics at Middle Tennessee State University

COLLATERAL SOURCE RULES IN WRONGFUL DEATH, PERSONAL INJURY, AND EMPLOYMENT TERMINATION CASES IN TENNESSEE In wrongful death (WD),1 personal injury (PI),2 and employment termination (ET)3 cases, pecuniary economic damages, such as those from lost earnings and employment benefits or medical expenses, are recoverable and may be substantial amounts. However, these amounts will likely be significantly affected by whether income from collateral sources is deducted from the economic losses. Should life insurance benefits be deducted from economic losses in a WD case? How should disability income be handled in PI cases? Should earnings from subsequent employment after a termination affect economic losses in ET cases? In my experience as an economist assisting with damages calculations in litigation, one of the most common questions I encounter is whether it is appropriate to deduct collateral income sources from economic losses. The uncertainty is for good reason. The answer to this question depends on several factors that vary on a case-by-case basis, such as the source of the collateral income and whether the tort involves medical malpractice. In this article, I summarize the guidance provided by Tennessee statutes and case law for addressing collateral income sources in damages calculations in WD, PI, and ET cases. I. Tennessee’s Collateral Source Rule In Tennessee, benefits and payments from a collateral sources – a source other than the tortfeasor – are normally inadmissible, and economic damages are typically not reduced by payments made from collateral sources.4 However, if the tortfeasor or an entity acting on the tortfeasor’s behalf makes a payment or provides a benefit to the injured party, then economic damages should be reduced by that amount.5,6 For example, in PI cases, disability payments from a collateral source would not be deducted from economic damages for lost earnings owed by a tortfeasor.7 In ET cases, unemployment benefits financed by the state would not be an offset, but layoff or severance pay provided by the terminating employer would be.8 Benefits that are commonly subject to the collateral source rule include income from Social Security, welfare, and pensions.9 Tennessee courts have even considered as damages medical bills that were later partially forgiven (or reduced) by the medical provider, without admitting evidence of the reduced amount actually paid.10 Tennessee’s collateral source rule may result in a double recovery for injured plaintiffs.11 Just the opposite, if damages awards were credited for benefits and payments from collateral sources, then the tortfeasor would receive a windfall equal to the collateral amounts.12 Perhaps neither outcome is ideal, but Tennessee courts prefer to allow double recoveries rather than create windfalls for tortfeasors from collateral sources.13 For example, a tortfeasor should not be the beneficiary (in the form of a reduced damages verdict) of a gift to an injured plaintiff by the plaintiff ’s family. Tennessee courts intend the collateral course rule to preserve an element of punishment for wrongdoing.14 II. Medical Malpractice Cases Medical malpractice WD and PI cases in Tennessee are handled differently. Generally, in these cases, economic damages, such as lost earnings and medical expenses, are not recoverable if they have been replaced or reimbursed by another source.15 Replacement benefits that would prevent recovery include those provided by an employer or the government, Social Security, and unemployment insurance.16 However, quite a few exceptions apply. If losses or expenses in Tennessee medical malpractice cases have been replaced by a source provided by the plaintiff or the plaintiff ’s family, then they are recoverable.17 If the source has subrogation rights (e.g., if the plaintiff must repay an insurer for medical payments with proceeds from a damages award), then the losses are recoverable.18 Tennessee courts have ruled that economic damages in medical malpractice cases are also not reduced by the plaintiff ’s receipt of workers’ compensation,19 Medicaid payments,20 and benefits from insurance whose premiums have been paid, at least partially, by the plaintiff.21 III. Billed versus Paid Medical Expenses A unique situation arises when the amount billed for medical

services is larger than the amount actually paid by the injured party (or by their insurer), which may be at a discounted rate. Which is the correct measure of damages? Tennessee courts have recently reached somewhat conflicting conclusions. In West v. Shelby Cnty. Healthcare Corp., a case involving the Tennessee Hospital Lien Act, undiscounted medical rates were not deemed to be reasonable.22 Following West, some Tennessee courts in non-medical malpractice cases have either ruled that tortfeasors are not liable for undiscounted medical expenses23 or that undiscounted medical expenses are inadmissible.24 In other non-medical malpractice cases, Tennessee courts have determined that gross medical bills (e.g., the amount billed) are admissible and may be presumed reasonable,25 although defendants are allowed to challenge the reasonableness of those expenses by introducing evidence showing a discounted amount satisfies the amount billed.26 In medical malpractice cases under T.C.A. § 29-26-119, only the amount actually billed for medical care is recoverable.27 IV. Mitigation from Returning to Work The Doctrine of Avoidability typically requires those who are harmed to take action to limit damages. In ET cases, workers are required to mitigate damages by obtaining another job after a termination.28 This is true in Tennessee employment cases29 and in terminations that violate federal laws, such as the Civil Right Act,30 the Age Discrimination in Employment Act,31 the Americans with Disabilities Act,32 and the Family and Medical Leave Act.33 Any earnings from subsequent employment should be subtracted from the economic losses,34 with no subsequent lost earnings if earnings from the terminating employer become replaced completely by subsequent employment.35 However, the employee may not have been employed since the termination. If the plaintiff has not attempted to find another job, then economic damages from lost earnings may be forfeited.36 In Tennessee, the defendant has the burden of proving whether the terminated employee exercised reasonable effort to find a comparable job for which the employee was qualified.37 Tennessee courts do not require terminated employees to accept a significantly different job (e.g., with substantially lower pay, in another occupation, or located in another state).38 Similarly, in PI cases, the plaintiff may be able to work in a diminished capacity after the injury or may be able to recover, at least partially, from the injury and return to work. Earnings from employment (or the ability to earn) after the injury should be considered and subsequently deducted from the economic losses,39 but the defendant has the burden of providing the jury with this evidence.40 Conclusion The duty to mitigate and collateral source rules in Tennessee may significantly affect the way economic damages are calculated in WD, PI, and ET cases. Unfortunately, plaintiffs have unnecessarily deducted collateral benefits (i.e., pension income) in their calculations, which has unnecessarily reduced damages awards for lost earnings,41 and defendants have failed to offer evidence of a plaintiff ’s ability to earn from subsequent employment, unnecessarily overestimating damages awards for lost earnings.42 This manuscript seeks to assist attorneys and economics experts by summarizing the stipulations and guidance provided by Tennessee courts for addressing collateral source benefits in damages calculations. 1 Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593, 600 (Tenn.1999); Thrailkill v. Patterson, 879 S.W.2d 836, 841 (Tenn.1994). 2 Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 419 (Tenn.2013); Overstreet v. Shoney’s Inc., 4 S.W.3d 694, 703 (Tenn.Ct.App.1999). 3 Frye v. Memphis State University, 806 S.W.2d 170, 173 (Tenn.1991). 4 Restatement (Second) of Torts (1977) § 920A; Fye v. Kennedy, 991 S.W.2d 754, 763 (Tenn.Ct.App.1998); Jackson v. City of Cookeville, 31 F.3d 1354, 1359 (6th Cir.1994); Cherry v. McCullough, 1992 WL 379074, at *6 (Tenn.Ct.App.1992); Donnell v. Donnell, 415 S.W.2d 127, 134 (Tenn.1967). 5 Restatement (Second) of Torts (1977) § 920A; Howard v. Abernathy, 751 S.W.2d 432, 434 (Tenn.Ct.App.1988); Allen v. Consolidated Aluminum Corp., 688 S.W2d 64, 66

(Continued on page 11)

June 2017

DICTA

L E G A L LY W E I R D By: Sam Louderback Egerton, McAfee, Armistead & Davis, P.C.

Flyer Beware “Man pulled from seat, dragged off oversold United flight.”1 I am sure you have all seen the headlines by now and maybe even some of the videos of the incident. For the uninitiated, on April 9, 2017, a United Airlines flight departing from Chicago “was oversold and several passengers were chosen at random to be bumped from the flight” to accommodate four crew members traveling to Louisville.2 One of the “lucky” passengers was Dr. David Dao (“Dao”), who refused to leave the plane after being told to disembark.3 After Dr. Dao’s refusal, the flight attendants called security, who physically removed Dr. Dao from the flight.4 Dr. Dao “suffered a concussion and a broken nose, and lost two teeth” in the incident, which settled a few weeks later for an undisclosed amount.5 This incident spurred various discussions as to the handling of similar occurrences where airlines overbook flights and remove certain passengers (called “denied boarding” by the airline industry), and led me down two paths: one legal, one weird. I first wondered what legal authority airlines have that allows them to remove passengers from an airplane. The Federal Aviation Act of 1958, 49 U.S.C. §§ 40101 et seq., (the “Act”), which created the Federal Aviation Administration (“FAA”), provides an airline “may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”6 The standard most frequently used by the courts in interpreting this portion of the Act is “that liability will not attach to a carrier’s decision to refuse air transport unless that decision is shown to be arbitrary or capricious.”7 In determining whether an act is arbitrary and capricious, courts look to all of the facts and circumstances known by the decision-maker (often the pilot) at the time their opinion was formed.8 Furthermore, the decision-maker is granted substantial discretion to reject a passenger if “exercised in good faith and for a rational reason.”9 Further, the Department of Transportation (“DOT”), which is the parent agency of the FAA, requires each airline to give all passengers who are bumped involuntarily a written statement describing their rights and explaining how the carrier decides who gets on an oversold flight and who doesn’t.10 I didn’t see any written statement in Dr. Dao’s hands as he was being dragged off the plane… just saying. Now that you know airlines can lawfully remove you from flights under a broad standard, you may be asking yourself how often this happens. According to the DOT, there are two types of overbooking: voluntary and involuntary.11 The DOT reports that in 2015 (the most recent year for which data is available), 505,000 passengers were bumped voluntarily, while 46,000 passengers were bumped involuntarily.12 I was shocked by how frequently this happens, until I learned that it is common in the airline industry to purposefully overbook a flight to compensate for customers who fail to show up for their flight. Considering the frequency of these types of events led me to my second thought: why else have people been removed from flights? This is where we get into the weird segment of the article, covering events that may best be explained by a series of headlines: “Woman kicked off plane for berating Trump supporter,”13 “Urgent trip to restroom gets man kicked off flight,”14 “Woman claims she was booted from Spirit flight for showing too much cleavage,”15 “While they got kicked off overbooked Delta flight, staff said they could lose their kids,”16 and that all happened just in 2017! Then there is perhaps the most infamous incident of being kicked off a plane: “Alec Baldwin ‘kicked off plane’ over Words With Friends.”17 Even Hollywood has spoofed this type of incident, as Ben Stiller’s character in the movie Meet the Parents learned after getting kicked off a flight for saying the word “bomb,” “you can’t say bomb on an airplane.”18 Finally, my favorite headline came out of New Zealand last year, which read “Owner embarrassed and upset after goldfish kicked off plane.”19 So, flyer beware: on your next trip to the airport, know your rights, and save yourself the hassle… leave your goldfish at home.

Id. Id. 4 See id. 5 Daniel Victor and Christopher Drew, United Airlines Reaches Settlement With Passenger Who Was Dragged Off Plane, (Apr. 27, 2017), https://www.nytimes.com/2017/04/27/ business/united-david-dao-settlement.html. 6 49 U.S.C. § 44902(b). 7 Atia v. Delta Airlines, Inc., 692 F. Supp. 2d 693, 701 (E.D. Ky. 2010) (citing Williams v. Trans World Airlines, 509 F.2d 942 (2d Cir. 1975)). 8 See Ruta v. Delta Airlines, Inc., 322 F. Supp. 2d 391, 397 (S.D.N.Y. 2004). 9 Id. 10 Transportation.gov, https://www.transportation.gov/airconsumer/fly-rights (last visited May 10, 2017). 11 Id. 12 Bureau of Transportation Statistics, https://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/ files/publications/national_transportation_statistics/html/table_01_64.html (last visited May 10, 2017). 13 Woman kicked off plane for berating Trump supporter in viral video, (Jan. 23, 2017), http://www.foxnews.com/travel/2017/01/23/woman-kicked-off-plane-for-beratingtrump-supporter-in-viral-video.html. 14 Jim Stingl, Urgent trip to restroom gets man kicked off flight, (Apr. 26, 2017), https:// www.usatoday.com/story/travel/nation-now/2017/04/26/urgent-trip-restroom-gets-mankicked-off-flight/306818001/. 15 Woman claims she was booted from Spirit flight for showing too much cleavage, (Feb. 2, 2017), http://www.foxnews.com/travel/2017/02/02/woman-claims-was-booted-fromspirit-flight-for-showing-too-much-cleavage.html. 16 Alberto Luperon, Parents: While They Got Kicked off Overbooked Delta Flight, Staff Said They Could Lose Their Kids, (May 4, 2017), http://lawnewz.com/high-profile/parents-toldtheyll-lose-their-kids-when-getting-kicked-off-overbooked-delta-flight/. 17 Alec Baldwin ‘kicked off plane’ over Words With Friends, (Dec. 8, 2011), http://www. bbc.com/news/world-us-canada-16063586. 18 See Meet the Parents, Universal Pictures, released October 6, 2000. See also U.S. v. Gonzalez, 492 F.3d 1031, 1034 (9th Cir. 2007) (where passenger was removed from a plane for allegedly saying “I have a bomb”). 19 Owner embarrassed and upset after goldfish kicked off plane, (May 19, 2016), http:// www.radiolive.co.nz/Owner-embarrassed-and-upset-after-goldfish-kicked-off-plane/ tabid/506/articleID/122468/Default.aspx. Not to worry, the man and his goldfish were reunited. 20 Id. 2 3

1 Video: Man pulled from seat, dragged off oversold United flight, http://www.cbsnews. com/news/video-man-pulled-from-seat-dragged-off-oversold-united-flight/ (last updated Apr. 10, 2017, 10:21 PM).

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June 2017

L E G A L U P DAT E By: Regina Koho Tennessee Valley Authority, Office of the General Counsel1

CIRCUITS SPLIT ON WHETHER TITLE VII PROHIBITS DISCRIMINATION BASED ON SEXUAL ORIENTATION In March’s “Legal Update” column, I discussed an employment law issue – whether discrimination “because of ” sex2 under Title VII includes discrimination based on sexual orientation – that seems poised to make its way to the Supreme Court. Since the publication of my original article, developments in the federal courts make that likelihood even greater. The most important development is the Seventh Circuit’s decision in Hively v. Ivy Tech Community College, where it became the first federal appeals court to hold that “discrimination on the basis of sexual orientation is a form of sex discrimination” under Title VII.3 The en banc court found two bases for its decision – (1) under the “comparative method” and (2) under the “associational theory.” As to the first, the court observed that if the allegations of plaintiff (a lesbian) were true,4 her employer “would not have refused to promote her and would not have fired her” if she had been a man in a relationship with a woman. This, the court found, “describes paradigmatic sex discrimination.”5 As to the second, the court observed that the outcome would change “[i]f we were to change the sex of one partner in [the] lesbian relationship,” which again revealed discrimination based on “distinctions drawn according to sex.”6 An integral component of the Seventh Circuit’s decision to overrule its previous opinions was the Supreme Court’s evolving jurisprudence, not only in the realm of employment law, “but also in the area of broader discrimination on the basis of sexual orientation,” specifically its recent decisions striking down the Defense of Marriage Act’s provision excluding same-sex partners from the definition of “spouse” and recognizing the constitutional right of same-sex couples to marry.7 Based on these decisions’ logic, “as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” the court concluded that the time was right to overrule its prior line of cases excluding sexual-orientation discrimination from Title VII’s protective umbrella.8 There have been developments on this front within the Second Circuit, as well. In March’s column, I highlighted Christiansen v. Omnicon Group, Inc., a case then before a three-judge panel that provided the opportunity to revisit circuit precedent holding that “Title VII does not proscribe discrimination because of sexual orientation,” only discrimination based on nonconformity with sex stereotypes.9 The threejudge panel determined that it was bound by this precedent, but found that the plaintiff sufficiently alleged a cognizable gender-stereotyping claim.10 A separate concurrence expressed the view that the full court should eventually reconsider its precedent, “especially in light of the

changing legal landscape that has taken shape in the nearly two decades since” it was decided.11 A motion for rehearing en banc was filed on April 28, so it is possible that the entire court will take the opportunity to do so. And if not, a recent lower court case could provide the right vehicle for the Second Circuit. A few weeks after Christiansen was filed, a New York district court declined to dismiss a plaintiff ’s sexual-orientation claim under Title VII because of “the evolving state of the law.”12 The court relied on both the Christiansen concurrence and the Seventh Circuit’s decision in Hively as support for rejecting the “‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”13 It is quite unusual for a district court to ignore circuit precedent based on “the evolving state of the law,” but the judge is clearly attempting to tee the issue up for the Second Circuit’s reconsideration. Around the same time as the developments in the Second and Seventh Circuits, the Eleventh Circuit rendered a decision that explicitly reaffirmed its precedent holding that sexual-orientation claims are not actionable under Title VII.14 In effect, this provides a “fresh” circuit split, and it seems that it will only be a matter of time before the Court is asked to weigh in. 1 Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority. 2 See 42 U.S.C. § 2000e-2(a)(1). 3 Hively v. Ivy Tech Cmty. Coll. of Ind., __ F.3d __, 2017 WL 1230393, at *1 (7th Cir. Apr. 4, 2017). 4 The case was before the court on a Rule 12(b)(6) motion. See id. at *5. 5 Id. 6 Id. at *7. 7 Id. at *8 (discussing United States v. Windsor, 133 S. Ct. 2675 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015)). 8 Id. at *9. 9 See Simonton v. Runyon, 232 F.3d 33, 36, 38 (2d Cir. 2000). 10 See Christiansen v. Onmnicon Grp., Inc., 852 F.3d 195, 199-201 (2d Cir. 2017). 11 Id. at 202 (Katzmann, J., concurring). 12 Philpott v. New York, 16 Civ. 6778, 2017 WL 1750398, at *2 (S.D.N.Y. May 3, 2017). 13 Id. 14 See Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (“Evans . . . argues that she has stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation. She has not. Our binding precedent forecloses such an action.”).

PRACTICE TIPS (Continued from page 9) (Tenn.1985); Byrd v. Stuart, 450 S.W.2d 11, 13 (Tenn.1969). 6 Tennessee courts have allowed workers’ compensation payments to be reduced by disability benefits provided by defendant-employers when explicitly allowed in their plans (Allen, 688 S.W2d, at 66) but not when employer plans do not contain a set-off provision (Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 151 (Tenn.1991); Williams v. Delvan Delta, Inc., 753 S.W.2d 344, 347 (Tenn.1988)) or when the offset would be short-term disability payments for permanent disability payments (Cantrell v. Electric Power Board, 811 S.W.2d 84, 85 (Tenn.1991)). 7 Cherry, 1992 WL 379074, at *5. 8 Blayde v. Harrah’s Entertainment, Inc., 2010 WL 5387486, at *9 (W.D.Tenn.2010); Barnes v. Goodyear Tire and Rubber Co., 2001 WL 568033, at *8 (Tenn.Ct.App.2001). 9 Restatement (Second) of Torts (1977) § 920A; Fye, 991 S.W.2d, at 764. 10 Fye, 991 S.W.2d, at 763. 11 Restatement (Second) of Torts (1977) § 920A; Fye, 991 S.W.2d, at 763. 12 Id. 13 Barnes, 2001 WL 568033, at *8; Jackson, 31 F.3d, at 1359. 14 Restatement (Second) of Torts (1977) § 920A; Fye, 991 S.W.2d, at 763. 15 Tennessee Code Annotated § 29-26-119; Carter v. U.S., 2014 WL 1630824, at *10 (M.D.Tenn.2014); McDaniel v. General Care Corp., 627 S.W.2d 129, 132 (Tenn. Ct.App.1981). 16 Tennessee Code Annotated § 29-26-119; Electro-Mechanical Corp. v. Ogan, 9 F.3d 445,448 (6th Cir.1993); Nance by Nance v. Westside Hosp., 750 S.W.2d 740, 742 (Tenn.1988). 17 Tennessee Code Annotated § 29-26-119. 18 Tennessee Code Annotated § 29-26-119; Richardson v. Miller, 44 S.W.3d 1, 31 (Tenn. Ct.App.2000); Nance by Nance, 750 S.W.2d, at 743. 19 Nance by Nance, 750 S.W.2d, at 744. 20 Hughlett v. Shelby County Health Care Corp., 940 S.W.2d 571, 574 (Tenn.Ct.App.1996). 21 Hunter v. Ura, 163 S.W.3d 686, 711 (Tenn.2005); Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270, 281 (Tenn.Ct.App.1994). 22 West v. Shelby County Healthcare Corp., 459 S.W.3d 33, 45 (Tenn.2014). 23 Keltner v. United States 2015 WL 3688461, at *4 (W.D.Tenn.2015). 24 Hall v. USF Holland, Inc., 152 F.Supp.3d 1037, 1039 (W.D.Tenn.2016); Smith v. LopezMiranda, 165 F.Supp.3d 689, 691 (W.D.Tenn.2016).

June 2017

25 Dedmon v. Steelman, 2016 WL 3219070, at *9 (Tenn.Ct.App.2016); Ryans v. Koch Foods, LLC, 2015 WL 11108908, at *2 (E.D.Tenn.2015). 26 Dedmon, 2016 WL 3219070, at *11. 27 Gutherie v. Ball, 2014 WL 5094140, at *2 (E.D.Tenn.2014); Calaway ex rel. Calaway v. Schucker, 2013 WL 960495, at *4 (W.D.Tenn.2013); Nalawagan v Hai v. Dang, 2010 WL 4340797, at *2 (W.D.Tenn.2010). 28 Frye, 806 S.W.2d at 173. See also Coffey v. Fayette Tubular Product, 929 S.W.2d 326, 332 (Tenn.1996); Sasser v. Averitt Exp., Inc., 839 S.W.2d 422, 434 (Tenn.Ct.App.1992). 29 Mountjoy v. City of Chattanooga, 2002 WL 707467 at *4 (Tenn.Ct.App.2002); Frye, 806 S.W.2d at 173. 30 42 U.S.C.A. § 2000e; Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 680 (6th Cir.2008); Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228, 1233 (6th Cir.1996); Shore v. Federal Express Corp., 777 F.2d 1155, 1160 (6th Cir.1985). 31 29 U.S.C.A. § 621-634; Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1334 (6th Cir.1994). 32 Hoback v. City of Chattanooga, 2012 WL 3834828, at *13 (E.D.Tenn.2012). 33 29 U.S.C.A § 2601; §2617; Killian v. Yorozu Automotive Tennessee, Inc., 454 F.3d 549, 556 (6th Cir.2006). 34 Vawter v. E.I. Du Pont De Nemours and Company, 2016 WL 3228129, at *7 (Tenn. Ct.App.2016); Blayde, 2010 WL 5387486, at *9; Barnes, 2001 WL 568033, at *5; Frye, 806 S.W.2d at 173. 35 Maness v. Collins, 2010 WL 4629614 at *11 (Tenn.Ct.App.2010); Denney v. Lovett, 2006 WL 1915303 at *10 (Tenn.Ct.App.2006). 36 Barnes, 2001 WL 568033, at *5. 37 Maness, 2010 WL 4629614 at *11; Mountjoy, 2002 WL 707467 at *4; Frye, 806 S.W.2d at 173. 38 Barnes, 2001 WL 568033, at *5; Frye, 806 S.W.2d at 173. 39 Borne v. Celadon Trucking Services, Inc., 2014 WL 3778743, at *22 (Tenn.Ct.App.2014); Overstreet, 4 S.W.3d at 703. 40 Jones v. Consolidated Rail Corp., 800 F.2d 590, 592 (6th Cir.1986). 41 Jackson, 31 F.3d, at 1359. 42 Maness, 2010 WL 4629614 at *11; Jackson, 31 F.3d, at 1359.

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

Jr.

DON’T STOP BELIEVIN’ We all have dreams. Mine, including NBA stardom and headlining a Rock N’ Roll tour, died early. Pryor’s can’t jump and we have no musical talent. The first album I ever bought was Journey’s Escape. I knew I had to have it when I heard the keyboard intro on Casey Kasem’s American Top 40 in 1981. I was 13. I’d listen to “the countdown” from start to finish on Sundays. I was in love with two or three girls at the time, and I’d write down the name of love songs that I just had to have. After I purchased the album I’d sit in the floor and play Don’t Stop Believing over and over, wishing I knew how to play it on the piano. I fantasized of taking to the stage and my seat at the piano, adjusting the microphone, and starting into that beautiful intro. My voice would pierce the crowd and roll into the night, leaving my peers, and especially the girls, dumbfounded, starstruck and hopelessly in love. When I would jump into the second verse…”A singer in a smokey room, the smell of wine and cheap perfume..” something in them would break and unalterably change, making them forever mine. My best friend’s older sister, who was taking piano lessons, helped me learn to play the song when I spent the night one weekend. My family had a piano, but it was the only song I ever learned. I never took a lesson, only playing the Journey song over and over to the annoyance of my little brother and sister. The song became a staple of American Rock music. It still has a strong presence on the radio and television, having enjoyed a revival with such shows as Glee. Journey was just inducted into the Rock n’ Roll Hall of Fame. Whenever I hear the song, I smile, but I’ve long given up on living out my fantasy of becoming a rock star. I’m 48, can’t sing a lick, and know only the intro to one Journey song. The dream is dead. Or so I thought. Rum Runners is a piano bar in Sandestin. It is filled with people my age - some married, some not, and some not sure. All come to drink, some come to dance, and most sing along with two guys playing adjacent pianos. The crowd includes tables of women on “girl’s trips” and bar stools occupied by men on golf trips. The confines of that bar are a study of the middle-aged. The breeze coming off of the bay creeps through the open doors making the water-downed-overpriced liquor just fine and the average musical talent seem special. The place was packed the other night. I was one of the golf-trip guys on a bar stool as the two performers were going back and forth playing SEC fight songs and racking up tips. Though the place was packed, there were few on the dance floor. I told my friends I’d had enough and was going home. I really didn’t want to go to the bar in the first place, but I was the golf trip host. One friend, who I’ve known since we were kindergartners, said “I remember when you could play that Journey song.” I told him that I would always be able to play it, mistakenly inflating my musical skills, certainly not thinking that he would approach the stage and offer up $100 to the tip jar to have me play a song for the crowd. When I heard my name from the stage, fear shot through me like lightning. I certainly know that I possess no musical or singing talent, but I am also aware that I am genetically incapable of turning down an opportunity to perform regardless of the embarrassment that usually follows. It is a curse, but it sure makes me fun in a bar. I was scared to death as I approached the baby grand but displayed an outward false confidence all lawyers know from their early days in the courtroom. I leaned over to the gentleman who was seated at the occupied piano and whispered, “Listen, I only know the intro. You are gonna have to do the

heavy lifting.” He smiled and asked what key I would be playing it in. “I have no idea what that means,” I said. He laughed. “Show me where you put your fingers.” I did. Then, I took my seat, adjusted the microphone and looked out over the crowd. Suddenly, I was where I was born to be. I gave an eloquent introduction, mentioning my mini-Casio keyboard I got on my 13th birthday, 1981, and love. I filled the crowd with great anticipation. Talking is easy. Then, without a moment of hesitation (never hesitate - commit), I began to play. My introduction was flawless and partially drowned out by the crowd exploding onto the dance floor. Those notes, written by Steve Perry, produce a chemical reaction that is part nostalgia and part aphrodisiac in people of my vintage. The other piano player jumped in, the man who was supposed to be playing my piano took a seat at a drum set, and we were off to the races. I was so focused on playing the song correctly that I didn’t sing a lick of the first verse, and it was clear I couldn’t keep up the pace of the song. By the time we reached the second verse I was barely playing the piano at all. It wasn’t good, but I realized something amazing. My playing was completely inconsequential. The sound created by the first piano and the drums completely masked my ineptness! I realized I could completely stop playing and it would not effect the song. Even better was the fact everyone thought I was playing! So, quite naturally, as the time for the second verse arrived, my confidence level was sky high! I focused on appearing to play the piano and leaned into the microphone, winked at a cute girl on the front row with her hands raised high above her head, and belted out, “A singer in a smokey room, the smell of wine and cheap perfume…” When the song ended, I ran my hands up and down the keys, Jerry Lee Lewis style, and walked off stage to a standing ovation. I smiled at the piano player who was laughing. I now know both the exhilaration that keeps Mick Jagger coming back and the shameful lack of guilt that allowed Milli Vanilli to sleep peacefully during their fraudulent run. My life is now complete. Don’t Stop Believin’.

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June 2017

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Catherine E. Shuck East Tennessee Children’s Hospital

WRITING A RELEASE OF CLAIMS UNDER THE ADEA? DON’T BE SURPRISED BY THE STATUTORY REQUIREMENTS There are a number of surprising things about the Age Discrimination in Employment Act (“ADEA”).1 For one thing, the ADEA protects workers over 40;2 people are often surprised to find they qualify for ADEA coverage before qualifying for AARP membership. Furthermore, as amended by the Older Workers Benefit Protection Act of 1990 (“OWBPA”)3, everyone covered by the ADEA is entitled to enhanced benefit protection in the event of a layoff or termination. As a result, the third surprising thing about the ADEA is that, in order to write a separation agreement that includes a valid release of age claims under the ADEA, the drafter must comply with very specific provisions. Finally, note that unlike the other laws the EEOC enforces, the ADEA inexplicably applies to employers with 20 or more employees.4 If you ask an employee to sign a release of claims in exchange for a severance payment or package, the release must comply with a strict set of provisions to be effective in releasing claims under the ADEA and OWBPA. And if you are terminating more than one employee, the release and associated disclosures must meet an even more stringent set of criteria, as explained below. Release involving only one separation As amended by the OWBPA, a release is only valid to waive claims under the ADEA if it is “knowing and voluntary,” as measured by the following criteria: 1. 2. 3. 4.

5. 6. 7.

It must be written in a manner calculated to be understood by the individual; It must specifically refer to the ADEA and OWBPA; It may not waive rights or claims arising after the date the waiver is executed; It must be supported by consideration in addition to anything to which the individual is already entitled.5 In other words, the employer must offer payment(s) and or benefits in addition to whatever an employee would normally be entitled to upon separation; The individual must be advised in writing to consult an attorney; The individual must be given at least 21 calendar days to consider the offer; and The individual must be given at least seven calendar days after execution of the waiver to rescind her agreement to the waiver.6

As a best practice, any release of claims should have a separate, clearly marked section detailing all of the rights above. Releases where two or more employees are terminated If the employer is laying off or otherwise terminating two or more employees at a time, the ADEA requires disclosure of a tremendous amount of information to the individuals to ensure that they are aware

of all criteria for the lay off prior to agreeing to a release of claims.7 In addition to satisfying the criteria set out above, a release must also: 1. Give the individual at least 45 calendar days to consider the offer; 2. Identify the “decisional unit” from which the employer chose the persons to lay off; 3. Identify any eligibility factors for the layoff and severance offer, as well as any applicable time limits; 4. Identify the job titles and ages of all individuals selected for the layoff as well as the ages of all individuals in the same job classification or organizational unit who were not eligible and/or selected for the layoff.8 Note that although the statute refers to a “group” of employees, the EEOC interprets that to mean two or more employees.9 For most small firms, these requirements would not be particularly difficult to satisfy (assuming the firm is even big enough to be covered by the ADEA). However, for larger organizations, identifying the appropriate decisional unit and disclosing ages and job titles as required can be unpalatable at best and quite burdensome at worst. However, failure to adhere strictly to these requirements can result in a court invalidating the waiver and release. Conclusion To avoid the unpleasant surprise of having a release of claims invalidated for failure to comply with the statutory requirements, be sure to scrutinize any release purporting to waive claims under the ADEA and OWBPA. 29 U.S.C. § 621 et seq. 29 U.S.C. § 631. 3 Pub. L. 101-433 (1990). 4 29 U.S.C. § 630. Title VII and the ADA, which the EEOC also enforce, apply to employers with 15 or more employees. 5 Ordinarily a departing employee is only entitled to wages earned through the last day worked; an offer of COBRA if the employee is on the employer’s health plan; and a payout of unused PTO if the employer’s policy so provides. (Many employers believe that employees must be paid out accrued, unused PTO, but in Tennessee there is no requirement to pay out unused PTO unless the employer promises to do so in its handbook or other policy. See Tenn. Code Ann. § 50-2-103(a)(3); see also Tennessee department of Labor & Workforce Development, FAQs re: Wages, Fringe Benefits, Paychecks & Breaks, available at https://www.tn.gov/workforce/topic/wages-benefitsbreaks (visited May 8, 2017).) 6 29 U.S.C. § 626; see also 29 C.F.R. § 1625.22. 7 See id. See EEOC, “Understanding Waivers of Discrimination Claims in Employee Severance Agreements,” available at https://www.eeoc.gov/policy/docs/qanda_ severance-agreements.html (visited May 9, 2017). 8 29 U.S.C. § 626; see also 29 C.F.R. § 1625.22 9 See EEOC, “Understanding Waivers of Discrimination Claims in Employee Severance Agreements,” available at https://www.eeoc.gov/policy/docs/qanda_severanceagreements.html (visited May 9, 2017). 10 See, e.g., Kruchowski v. Weyerhaeuser Co., 446 F.3d 1090, 1095 (10th Cir. 2006) (“The absence of even one of the OWBPA’s requirements invalidates a waiver.”). 1 2

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.

June 2017

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

LAWYERS ON THE GREENS PART II Golf is a great way to get to meet and network with new business prospects or entertain current clients. Take a potential client out for a day of golf and you have a chance to get to know each other on a different level than the one you experience in the conference room. The conditions are more personal, less formal, and probably more comfortable. Golf is also a great metaphor for life. As a game that brings out both the best and the worst in players, you can tell a lot about a person from the way they conduct themselves on the golf course. Readers may recall the Lawyer Hobbies May column profiling attorney Carolyn Gilliam and our shared love for the game of golf. This month’s column centers around two other practitioners who are just as fond of their time on the fairways. Local solo practitioner Robert Straight III began golfing when he was a teenager here in Knoxville. He’s played many local courses, and most frequently plays at Egwani Farms Golf Course on the Little River, as well as Ruggles Ferry Golf Club. For Bert, golfing is something that is arguably in his DNA. His grandfather, Montgomery “Bus” Harris was a longtime champion golfer at Cherokee Country Club, and his uncle Ben Harris was a golfer at The University of Tennessee. His father, Bob Straight, is also a talented linksman, who happens to be a longtime golf partner for his son. Robert recalls that when he first began playing golf, his father let him drive the golf cart on a family vacation at Hilton Head Island. It was the first time he had played golf on a course of that caliber, and the young Straight was paying more attention to his surroundings, rather than the direction of his cart. At every course where he had previously played, driving on the fairway was commonplace; however, at this particular course, that action was frowned upon. As Straight began driving up the fairway at a pretty quick pace, his father began telling him to correct the direction of the cart. He quickly overcorrected his route toward the cart path, but not before turning the cart so quickly that his father was dumped from the golf cart into a nearby sand trap. “While the golf gene may be lost on me, I do continue attempts at improving my game, and I’m great at watching professional golf,” laughs Straight. Robert enjoys watching professional golf so much that he has made two pilgrimages to the golf mecca of the Augusta National Course, which he describes as “the most beautiful place on earth.” He and his wife, Jessa, were fortunate enough to be spectators on the 18th hole of the course on Sunday afternoon of the 2014 Masters Tournament. “As soon as we arrived that day we placed our chairs on the fairway of the 18th hole, not knowing that we’d later have the opportunity to watch Bubba Watson sob his way up the fairway. It was definitely an awesome moment.” Another local attorney who can identify with Straight’s love for the links is Luke Durham of Tarpy, Cox, Fleishman & Leveille, PLLC. Luke began golfing when he was just three years old. Growing up in Nashville, Tennessee, he was a member of Richland Country Club. Like Straight, Luke’s love for golf was encouraged by his father, with whom he always played as a child. Since moving to Knoxville, Luke has continued his passion for the sport and has been a member at Cherokee Country Club for six years. He golfs every weekend, and often plays with attorneys and fellow KBA members Wade Orr, Matt Googe, and John Kizer. “Wade and Matt are both really talented golfers with 5-7 handicaps, and John and I are about the same level with a 10 handicap.” He also notes that he frequently plays with Assistant U.S. Attorney Chuck Atchley. Luke’s love for golf has also taken him to several courses out of the area. Notably, he’s played the Kiawah Ocean Course and the Trump

Philadelphia, both of which he notes are “awesome courses.” Lawyers and golf have been synonymous for many years, and that isn’t likely to end any time soon. If you’re interested in taking up the sport or are looking for someone to round out your foursome, there are always members of the KBA looking for another attorney to play. In fact, the KBA even sponsors their own annual golf tournament for local practitioners. For more information about the KBA golf tournament, contact the KBA office. If you’re looking for an attorney to connect you with fellow golfers, contact the author at katie@mltlaw.com.

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June 2017

THANKWORTHY By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

A CHARGE TO KEEP Around 400 B.C., if you lived in Greece and happened to be in trouble, you wanted to find a synegoros. The synegoros was an advocate who would plead on behalf of another person if (and only if ), the synegoros believed in both the person and the cause.1 It was illegal to pay the synegoros for advocacy services and illegal for the synegoros to accept payment.2 The synegoros assumed this role because they believed it was their civic duty to speak on behalf of another. They were the first pro bono attorneys, well before the phrase pro bono publico was even coined.3 Over the centuries, there were plenty of attorneys who gave their time and professional skills to representing people and causes without compensation. There were the cognitores, the Roman counterparts to the synegoros.4 In 1495, Great Britain even enacted a law requiring attorneys to provide “indifferent (impartial) justice to the poor.”5 Attorneys were assigned civil cases and were expected to represent those individuals without a fee or risk exclusion from the bar.6 Although pro bono attorneys made their mark on U.S. history, it was not until 1963 that the legal profession as a whole began making a concerted effort to embrace and promote pro bono work as an integral part of the practice of law. In June 1963, President John F. Kennedy invited 244 lawyers from across the United States to meet with him, Vice President Johnson, and Attorney General Kennedy at the White House.7 The purpose of this meeting was to address a very practical problem: the lack of attorney influence in the civil rights movement.8 It wasn’t that no attorneys were participating in the civil rights movement. There were many engaged attorneys, each actively doing his or her part to represent clients on both sides of the movement. The issue was the organized bar had not taken a position on issues such as discrimination, segregation, and the importance of the rule of law.9 From that meeting in 1963, the Lawyers’ Committee for Civil Rights Under Law was born. Its stated goals were (1) to marshal the resources of the private bar, including its leadership for public policy advocacy; (2) to educate the public and the bar on civil rights; (3) to enlist the skills of lawyers as negotiators and mediators to help resolve disputes; (4) to provide pro bono legal assistance to victims of discrimination.10 With these goals in mind, attorneys across the United States got to work and got organized. Six years later, the ABA adopted the Model Code of Professional Responsibility, including Canon 2, EC 2-25: Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services, and other related programs have been developed, and others will be developed, by the profession. Every lawyer should support all proper efforts to meet this need for legal services.11

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Twenty years later, the ABA adopted the Model Rules of Professional Conduct, including Rule 6.1 which informed attorneys that “a lawyer should render public interest legal service” “by providing professional services at no fee or a reduced fee to persons of limited means” or by financially supporting those organizations which do.12 In 1993, Rule 6.1 was amended to add the “aspirational goal” of providing at least 50 hours of legal services per year without charge (or the expectation of a charge) to people of limited means.13 Tennessee’s Rule 6.1 adopts the same “aspirational goal” of 50 hours of pro bono service per lawyer, per year and lists a number of ways lawyers can achieve this goal.14 But, in 2008, the Tennessee Supreme Court raised the bar with its Access to Justice Initiative, establishing the Access to Justice Commission, and tasking the Commission with developing a strategic plan for improving access to justice in Tennessee every two years.15 Since then, our Court has worked tirelessly to promote this initiative, and attorneys and bar associations across the state have responded. In 2015, 41% of Tennessee attorneys reported doing pro bono work for a total of over 500,000 hours. That is good news, but it begs the question: what happened to the other 59%? Maybe they served and didn’t report. Maybe that aspirational goal was just an aspiration, not a goal. Recently, there has been much discussion about the federal government’s proposed defunding of Legal Services Corp., a non-profit which provides financing and other resources for legal aid organizations across Tennessee and the United States. The leaders of the ABA, TBA, and KBA have all been very vocal in opposing this proposal. No matter where you sit on this issue, it is important to remember that the obligation to provide free or low-cost legal services to lowincome individuals was not placed on the LSC or legal aid organizations. The obligation to financially support organizations which provide free or low-cost legal services was not placed on legislators. That obligation has always rested squarely on the shoulders of the synegoros, solicitors, barristers, attorneys, lawyers. It was an obligation the legal profession voluntarily undertook centuries ago, and an obligation each lawyer voluntarily undertakes when we join the legal profession. Those who take that obligation literally and seriously are truly Thankworthy.

1 Rowena Maguire, Gail Shearer & Rachael Field, Reconsidering Pro Bono: A comparative Analysis of Protocols in Australia, the United States, the United Kingdom and Singapore, 3 UNSW L. J. 1164, 1166 (2014). 2 Id. 3 Id. 4 See id. at 1165-1167. 5 Id. at 1167. 6 Id. 7 Charles T. Lester, Jr. The History of the Lawyers’ Committee for Civil Rights under the Law, available at https://lawyerscommittee.org/history. 8 Id. 9 Id. 10 See Lester, https://lawyerscommittee.org/history. 11 ABA Model Code of Professional Conduct, available at http://www.americanbar.org/ content/dam/aba/migrated/cpr/mrpc/mcpr.authcheckdam.pdf. 12 Id. at Rule 6.1 (1983). 13 See id. at rule 6.1 (1993). 14 Tenn. Sup. Ct. R. 8, RPC 6.1. 15 Tenn. Sup. Ct. R. 50.

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THOUGHTS OF A JUVENILE DEFENDER ON THE 50TH ANNIVERSARY OF IN RE GAULT May 15, 2017 marked the 50th anniversary of the landmark Supreme Court decision In re Gault,1 which held that juvenile court proceedings “must measure up to the essentials of due process and fair treatment”2 and guaranteed, among other rights, the right to counsel for all children in delinquency proceedings.3 Advocates nationwide have been organizing around the anniversary to celebrate how far we have come in ensuring the promises of Gault and to reflect on how far we have left to go. Tennessee juvenile defenders marked the anniversary with a year-long campaign of activities that culminated with a defender training, symposium and reception on April 21, hosted by the University of Memphis Cecil C. Humphreys School of Law Children’s Defense Clinic. Since joining the Knox County Public Defender’s Community Law Office in 2006, I have had the privilege of representing children faced with delinquency charges and helping families navigate the scary and confusing process of the juvenile court. I have also spent a good deal of time traveling around the state visiting my child clients in treatment facilities and youth development centers and talking to defenders about challenges in juvenile courts across Tennessee. From this vantage point, I have a unique perspective into Tennessee’s attempt to fulfill Gault’s promise to children. We have a long way to go to ensure due process and access to effective defense attorneys for children caught up in Tennessee’s juvenile justice system. On May 20, 2016, I testified before the Indigent Representation Task Force at the University of Tennessee College of Law as part of its “Listening Tour” of the state.4 Given the report released by the Task Force this past April,5 it is clear to me that my testimony, as well as the testimony of my colleagues across the state, had very little impact on the recommendations regarding the crisis in our juvenile courts. Although the report has some ideas I support, I don’t believe the recommendations will be very meaningful in improving access to effective juvenile defense lawyers for children in every county in our state. The National Juvenile Defender Center has published standards on what this effective

juvenile defense lawyer should look like under Gault,6 and just last November released a landmark report on a blueprint for juvenile defense delivery.7 These standards and guidelines emphasize that every child charged with delinquent conduct deserves to have a well-resourced attorney who has specialized training on the following issues: • childhood mental illness; • trauma; • race and the disproportionate representation of minority youth in the system; • interviewing and counseling children; • the role of counsel as a defender of the child (as opposed to a guardian ad litem who has a best interest role); • dispositional advocacy, which requires indepth knowledge of not only the mental health and other services available, but also the appropriate level of service a child needs and how to get those services paid for – quickly; • the over-arrest of disabled and minority children at school for disorderly conduct and assault and how to incorporate federal special education law into our advocacy; • childhood sexual acting out, what is normative and not normative for children, as well as best practice approaches to helping children access resources and navigate complex lifetime registration requirements if they qualify; • and finally, the brain science that recent U.S. Supreme Court decisions (Roper,8 Graham,9 Miller,10 and JDB,11 among others) have relied on to hold that kids are different from adults, and how this informs childhood delinquency. Lawrence Steinberg’s research is a must-read for anyone handling juvenile cases.12 Not only does his work look at how kids are different from adults, but also he argues that there are two “windows of opportunity” in a child’s life and that the experiences during infancy and early adolescence, either adverse or positive nurturing experiences, will affect behavior down the road.

Whew. I’m sure I’ve missed something.

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But you get the point. This is all required in addition to everything else that a defense lawyer needs to do well. Part of our challenge in Tennessee is figuring out how to provide this level of specialized representation in more rural areas where there may not be enough delinquency cases for an attorney to create a practice dedicated to juvenile defense. However, by acknowledging this challenge, we must also acknowledge that it is unacceptable to rely on lawyers who have no specialized training, who merely dabble in juvenile defense, or who meet their client the day of court. There should never be a situation in which a client pleads guilty to charges that will affect them the rest of their natural lives because his or her attorney believes “it’s just juvenile court” and does not fully understand the consequences of a juvenile adjudication. Furthermore, it is unacceptable that we still have a high number of children waiving counsel or going unrepresented at hearings because of the chronic judicial failure to ask the child if he or she wants a lawyer, instead relying on the parents’ assertion that the child doesn’t need one. And it is unacceptable that we still disqualify children from having counsel appointed because their families are just over the poverty guidelines set by the court or can’t afford to pay a fee for appointment of counsel. I am frustrated that we allow this to go on in our courtrooms. We can and must do better for our children. With all of these challenges in mind, I have four recommendations for change. #1 STOP INQUIRING ABOUT PARENTS’ INCOME TO DETERMINE IF A CHILD GETS A LAWYER. – All children should be presumed indigent. If parents want to hire a private lawyer for their child, they absolutely can; however, children should NOT go unrepresented because of a parent’s unwillingness to provide a lawyer or because the family’s income is over the federal poverty guidelines. #2 ENSURE TIMELY APPOINTMENT OF COUNSEL. – Children should have meaningful access to a lawyer from interrogation at the station house through the closing out of a child’s supervision by the State of Tennessee. In addition, before a June 2017

COVER STORY By:

Christina M. Kleiser

Assistant Public Defender, Knox County Public Defender’s Community Law Office

child walks into court (from detention or from the lobby), the child should already have been appointed a lawyer with enough time for that lawyer to be effective at the hearing for that child. Presently, lawyers are appointed after initial court appearances, when it is too late in the process to be a strong advocate for the child. #3 COLLECT BETTER DATA. – We must keep better data on how many children waive their right to counsel and whether judges and magistrates are appointing counsel to children charged with delinquent conduct. Tennessee simply does not collect this data, which creates huge gaps in truly understanding the crisis of access to defense lawyers for children.

387 U.S. 1 (1967). Gault, 387 U.S. at 31. 3 Id. at 36-37. 4 See generally http://www.tsc.state.tn.us/ IndigentRepresentationTaskForce. 5 Liberty and Justice for All, Providing Right to Counsel Services in Tennessee, Indigent Representation Task Force (April 2017), available at http://www.tsc.state.tn.us/ sites/default/files/docs/irtfreportfinal.pdf. 6 National Juvenile Defense Standards, National Juvenile Defender Center (2012), available at http://njdc.info/wp-content/uploads/2013/09/ NationalJuvenileDefenseStandards2013.pdf. 7 Defend Children, A Blueprint for Effective Juvenile Defender Services, National Juvenile Defender Center (2016), available at http://njdc.info/wp-content/ uploads/2016/11/Defend-Children-A-Blueprint-forEffective-Juvenile-Defender-Services.pdf. 8 Roper v. Simmons, 543 U.S. 551 (2005). 1 2

Graham v. Florida, 560 U.S. 48 (2010). Miller v. Alabama, 567 U.S. 460 (2012). J.D.B v. North Carolina, 564 U.S. 261 (2011). 12 See, e.g., Laurence Steinberg, AGE OF OPPORTUNITY, LESSONS FROM THE NEW SCIENCE OF ADOLESCENCE (2014); see also Brief for American Psychological Association, et al as Amici Curiae Supporting Petitioners, Miller v. Alabama, 567 U.S. 460 (2012) (no. 10-9646), 2012 WL 174239 (outlining succinctly how kids are different from adults). 13 See generally http://www.modelsforchange.net/ newsroom/409 & http://njdc.info/practice-policyresources/state-profiles/massachusetts/. The Indigent Representation Task Force made a site visit to Massachusetts to observe this particular defense delivery system. 14 Liberty and Justice for All, supra note 5, at 23-24. 15 Gault, 387 U.S. at 28. 9

10 11

#4 FUND A JUVENILE DEFENDER RESOURCE CENTER (OR REGIONAL CENTERS) THAT ADMINISTERS THE STATE’S JUVENILE DEFENSE SYSTEM. – Finally, I am lucky to work in one of the most well-resourced juvenile defender offices in the state, with an experienced social worker by my side and access to other specialists who can help children with school, housing, and other legal matters. But outside the larger metropolitan areas, there is no such support for front-line defenders. Tennessee should follow other successful models, such as Massachusetts,13 and fund regional juvenile defender resource centers dedicated to serving all rural and urban areas with high quality training, supervision, mentoring, and even co-counseling. The Indigent Representation Task Force recommends that a commission be set up to set standards and organize trainings.14 But this just isn’t enough. The juvenile defense function should be housed in regional centers with high quality, well-resourced, specialized counsel to cover the entire state. As we celebrate the 50th anniversary of In re Gault, I challenge all of us as a community to work together to ensure that every child charged with a delinquent act has a highly trained, adequately funded lawyer by his or her side at the earliest possible moment. Let’s work together to ensure that Supreme Court Justice Abe Fortas’ words truly do not apply to the juvenile courts in the State of Tennessee: “Under our Constitution, the condition of being a boy does not justify a kangaroo court.”15

June 2017

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AROUND THE BAR By: Debra L. House Director of Development and Compliance Legal Aid of East Tennessee

JUNE OPEN SERVICE PROJECT: BEARDSLEY COMMUNITY FARM In June, the Open Service Task Force is offering a unique volunteer opportunity to members of the Knoxville Bar Association. On Saturday, June 10, 2017, KBA members will gather at at CAC Beardsley Community Farm to participate in a community work day. Beardsley Farm is an urban community farm that promotes food security and sustainable agriculture. Since 1998, Beardsley Farm has worked to increase access to fresh produce in Knoxville’s food deserts through produce donations, educational programs, and community gardening. Beardsley Farm grows over 100 varieties of fruits and vegetables in six acres of Malcolm Martin Park with the help of over 1,000 annual volunteers. Beardsley Farm is a program of the Knoxville-Knox County Community Action Committee (CAC). Since 1964 CAC has coordinated some 14 programs and services in our community that promote family self-sufficiency and independent living for low-income and other vulnerable people. Programs include everything from Head Start to the Office on Aging, and for this opportunity, Beardsley Farm. What can you expect from this unique volunteer opportunity? First, a morning outdoors with your colleagues and friends. According to Jenna Bailey, Volunteer Coordinator at the farm, “We often have groups come to volunteer at the farm together. We would

start their time with a tour of Beardsley and discussing Beardsley’s role in the community, then open the day for volunteering. Volunteering on the farm can mean a lot of different things. Volunteers help with our daily farm tasks which can include weeding, watering, planting, harvesting, painting, building, shoveling, etc. All volunteers work outside for the most part, and should dress accordingly”. This is our first trip to Beardsley Farm. You may ask what you need to know or bring. They offer the following guidance: You should bring yourself, a water bottle, clothes you can move in and get dirty, and closed toed shoes (no sandals). Please dress in accordance with the weather (sunscreen, a hat, raincoat/rain pants, winter jacket etc.) We have clean, running water at the farm where you can fill up your water bottle. We have bathrooms on site. Beardsley Farm provides all the tools and training you will need. We have plenty of gloves, but bring your own if you wish! The project with Beardsley Farm will be held on June 10th from 9:00 a.m. until noon. The Farm is located at 1741 Reynolds Street, Knoxville, Tennessee 37921. For more information about this volunteer opportunity contact Deb House at 251-4956 or dhouse@laet.org. To learn more about Beardsley Farm check out their website, www. beardsleyfarm.org.

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June 2017

barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month beginning at 5:00 p.m. at the Bistro by the Bijou (807 South Gay Street). The next meeting will be held on June 14, 2017. There are many opportunities to get involved, so please contact Barristers President Samantha Parris (samantha@ sparrislaw.com) or Vice President Mitchell Panter (tmp@painebickers. com) for more information. ATHLETICS Due to inclement weather, the Barristers’ 8th Annual Corn Hole Tournament has been rescheduled to June 22, 2017, at Bearden Beer Market. Check-in starts at 6:00 p.m. All proceeds benefit Big Brothers Big Sisters of East Tennessee. The $15 reduced rate has been reactivated until June 9. After June 9, the cost of enrollment increases to $20 per player. Registration is available online at www.knoxbar.org. The Athletics Committee is currently seeking sponsors for this year’s charity golf tournament, which will take place at Holston Hills Country Club on October 30, 2017. If you or someone you know is interested in sponsoring, please contact the Athletics Committee co-chairs, Luke Ihnen (lihnen@londonamburn.com) or Jeremey Goolsby (jgoolsby@ londonamburn.com). HUNGER AND POVERTY RELIEF The Hunger and Poverty Relief Committee would like to thank everyone

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who donated to the Professional Clothing Drive in April! We collected hundreds of items that were donated to career closets at the YWCA and Connect Ministries and to KARM. Additional thanks to the many volunteers who picked up donation boxes, sorted clothes, and delivered items to our recipients! LAW WEEK The 2017 Annual Junior Judges Program was a great success, with volunteers visiting 350 Knox County third-graders to talk about the Constitution and the practice of law. Volunteers and kids alike thoroughly enjoyed the program and several teachers have already asked us to come back next year. Thank you to everyone who helped make the program a success! The Law and Liberty Award was presented to Marigail Mullin at the Law Day Luncheon on May 3 for her work with the Knoxville YWCA. Ms. Mullin’s work in implementing the YWCA’s Victim Advocacy Program, Keys of Hope Program, and After School Enrichment program for the students of Vine Middle School warrant recognition. She truly embodies good citizenship and is a most deserving recipient of the Barristers’ highest honor. MEMBERSHIP Although the location is still TBD, the Barristers’ Summer Party will take place on July 21. Please mark your calendars!

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June 2017

SCHOOLED IN ETHICS By: Alex Long Professor of Law University of Tennessee College of Law

CHEATER, CHEATER, PUMPKIN-EATER: THE ETHICS OF CHEATING ON THE BAR EXAM Starting in May and continuing into July, recent law school graduates, fresh from their final law school exams and graduation, will glumly sequester themselves and commence studying for the Tennessee Bar Exam. These brave souls will eventually file into grim, cavernous rooms across the state and attempt to prove to bar examiners that they possess the legal knowledge necessary to call themselves lawyers. But sometimes how one passes the bar exam is more important than the fact that one passed. The Tennessee Board of Law Examiners’ website contains detailed rules regarding the administration of the bar exam. Applicants may wear sweatshirts but not hooded sweatshirts. They may have unwrapped hard mints, cough drops, or hard candy but not gum. Chapstick with the label removed is permissible, but woe to the applicant who leaves the Chapstick label on. Applicants may bring “up to two tissues” for one’s nose. The FAQ section of the website also helpfully notes that left-handed people can take the exam too. What happens if an applicant breaks one of the many rules related to the exam or engages in some type of misconduct during the exam? Obviously, a violation of exam-taking protocol may have consequences for the applicant’s ability to pass the exam. But it also may raise a question as to the applicant’s character and fitness to practice law. An applicant taking the Ohio Bar Exam in 2014 was observed by another applicant filling in bubbles on her multiple-choice answer sheet after time had been called by a proctor. The applicant admitted to having filled in one bubble on the sheet after time had been called. The Ohio Board of Bar Examiners - which apparently has some super specific rules regarding administration of the bar exam – imposed a 16.7% penalty on the multiple-choice portion of the applicant’s exam. Despite this, the applicant’s score was high enough that she passed anyway. However, the Bar Examiners also referred the applicant to the Board of Commissioners on Character and Fitness for further review. On appeal, the Ohio Supreme Court upheld the Commissioners’ conclusion that the applicant lacked the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio and denied her application. The applicant was permitted, however, to reapply at a later date. In re Application of Jia, 49 N.E.3d 1277 (Ohio 2016). That applicant at least fared better than an earlier Ohio applicant who was prohibited from ever applying for admission to the Ohio bar again after having been caught copying numerous answers from another nearby applicant and then lying about it. In re Application of Corrigan, 546 N.E.2d 1315 (Ohio 1989). It turns out that Ohio has a long a history of bar exam cheaters. Back in the 1920s, a group of ten law students who had failed the bar exam paid a court clerk to change their scores so that they would have passing grades. The conspiracy was eventually uncovered and the cheaters were disbarred. State ex rel. Turner v. Albin, 161 N.E. 792 (Ohio 1928). The bar examination process has also tripped up some practicing lawyers and judges. Justice John T. Todd of the Minnesota Supreme Court took the Florida bar exam in 1983 so that he could he practice in the state after he retired from the bench. He had previously failed the same exam the year before. Todd arranged to take the 1983 exam in a private room and decided to bring along some reference books to rely upon during the exam. He claimed he thought he was allowed to use these books during the exam. ‘’I have never cheated in my entire life,” said Todd at the time. Todd was brought up on disciplinary June 2017

charges and eventually resigned. Justice Resigns in Minnesota Because of Cheating Charge, NY TIMES, March 9, 1985; Justice Accused of Cheating, HERALD JOURNAL, Feb. 16, 1985. Perhaps the most bizarre bar exam-cheating incident involved Laura Beth Lamb, a lawyer for the Securities and Exchange Commission who took the California bar exam in 1985. Lamb’s husband had previously failed the bar exam, so Lamb, seven months pregnant and seriously ill at the time, dressed up her like her husband and took the bar for him. Immediately after completing the exam, she entered the hospital where doctors induced labor. Despite all of this, Lamb earned the ninth highest score on the exam. After her deception was discovered, the State Bar filed disciplinary charges against her. Despite a number of mitigating factors, the California Supreme Court disbarred Lamb. In re Lamb, 776 P.2d 765 (Cal. 1989). As a final word of caution, Tennessee lawyers and bar applicants should also remember that Rule 8.1 of the Tennessee Rules of Professional Conduct imposes a duty of candor on applicants as well as lawyers in connection with a bar admission application. Dishonesty in connection with the application process can and has resulted in severe sanctions. See In re Jordan, 478 N.E.2d 316 (Ill. 1985) (disbarring attorney who, during the admission process, failed to include the fact that he had accumulated 297 parking tickets over a period of 13 months).

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ASK MCLAWYER

Question Presented:

During a jury trial, what is the function of the “Golden Rule?”

Trial courts have substantial discretionary authority in determining the propriety of final argument, and although counsel is generally given wide latitude, trial judges must restrict any improper commentary. It is error to permit counsel of either party to present a “Golden Rule” argument to the jury.

Answer:

Dear McLawyer,

Good stories sometimes help advocates around roadblocks created by the Law, but not always. For example, take the “Golden Rule” followed in almost every jurisdiction. It got its name from its function. The rule forbids asking the jurors to put themselves in the shoes of one of the parties to the action. It is called the “Golden Rule” because you are not permitted to ask the jury to do unto the parties the way they, the jury, would want things done to themselves. That means that it would be absolutely improper in a final argument for the Plaintiff to say “Well, we are asking that you award $950,000.00 for John Smith’s right arm. I know that sounds like a lot of money, but think about it for awhile. Just suppose that it would be possible to remove your right arm without any pain at all. Which one of you would be willing to go into a doctor’s office tomorrow morning and sell your right arm for $950,000.00?”

What happens if you argue a Golden Rule argument in closing? “The Court finds that Plaintiff ’s counsel made an improper argument at the close of the liability phase of this case which served to inflame and bias the jury, ultimately affecting the fairness of the trial, and which are curable only by granting a new trial. The Court finds that Plaintiff ’s counsel made improper arguments to the jury suggesting they place themselves in the shoes of the Plaintiff, that such arguments were substantial and an improper solicitation to the jury for application of the Golden Rule to the Plaintiffs. The Court conditionally grants the Defendant’s motion for mistrial and conditionally orders a new trial based on the improper argument of Plaintiff ’s counsel.”

Roberts v Federal Express Corporation, No. 02A01-9502-CV-00019, 1996 WL 114489, (Tenn. Ct. App. March 14, 1996), perm. app. denied (Tenn. 1996).

McElhaney’s Trial Notebook, American Bar Association, 1989. “Ask McLawyer” is dedicated to answering questions on procedure, evidence and trial tactics in a variety of venues and subject matter. Should you have a question for McLawyer, please address the question to Ask McLawyer, c/o Marsha Watson, KBA, 505 Main Street, Suite 50, Knoxville, TN 37902 or mwatson@knoxbar.org. Your question will then be submitted to McLawyer for potential response in this column. McLawyer is an anonymous neutral counsel dedicated to answering questions of procedure from members of the Knoxville Bar Association.

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June 2017

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

PROUD OF MY PROFESSION . . . AGAIN I think that most people who know me would consider me an optimist. I tend to think that things will work out for the best, I start with the presumption that people are acting with good intent, I try to find the positive in most situations, and I am proud of our profession. That being said, even the most optimistic of us can be worn down over time. It has been a long year of bar service balanced with trying to keep a law practice afloat and bring in new business. I have struggled to find time for work, the bar and my family and I admit that I have been discouraged a few times in the last month. Sometimes, you just need someone to remind you that what we do, the grind we put ourselves through day to day, is all worth it. Enter Benjamin Ferencz. Sunday night, my wife and I sat down to watch 60 Minutes. Mr. Ferencz was the subject of an interview by Leslie Stahl and I have to say that he provided exactly the tonic I needed. In case you have not heard the name, Benjamin Ferencz is the last living prosecutor of the Nuremberg Trials. Now, like me, I am sure you are doing the math in your head right now. The trials occurred seventy years ago. Even the greenest lawyer at the time would be in his mid-nineties now and surely they would not have let a brand new lawyer try some of the most important cases in the history of the world. Well, you are right on the math. Ferencz is ninetyseven years old. He was a mere twenty-seven when he served as a chief prosecutor in Nuremberg Trial Number Nine. Born in Hungary in 1920, his family immigrated to the United States when he was ten months old and Ferencz grew up on the Lower East Side of Manhatten. He graduated from Harvard Law School in 1943 and immediately enlisted to serve in World War II. Too small to be a pilot, he served in the 115th AAA Gun Battalion where he landed on the beaches of Normandy and fought in the Battle of the Bulge. In 1945, he was transferred to the headquarters of Patton’s Third Army and was assigned to a team that would follow troops into concentration camps to collect and preserve evidence of war crimes. As you can imagine, Ferencz saw the very worst of humanity in that position. Later, during the Nuremberg trials, he was assigned to a team of researchers in Berlin that stumbled upon a collection of documents in a German foreign ministry building. The documents contained reports from the Einsatzgruppen. The Einsatzgruppen were SS units trained to follow the German Army as it advanced on the eastern front into Russia and kill communists, gypsies, and Jews. The reports found by Ferencz’s team were communications detailing how many people had been killed. Adding up the numbers from the various reports, Ferencz stopped after he got over one million people and took the information to his June 2017

commander, General Telford Taylor. He argued to the general that a new trial had to be added to prosecute these members of the SS for war crimes. Taylor explained that resources were stretched thin and adding another trial was impossible. When Ferencz persisted, Taylor told him that they could add a new trial if Ferencz could prosecute it on his own, in addition to his other duties. A twenty-seven year old attorney in a foreign country who had never tried a case in his life said “o.k.” and that is how Nuremberg Trial Number Nine came into existence. As chief prosecutor, Ferencz obtained convictions of all twenty-two Einsatgruppen commanders. Four were executed. Seventy years later, Ferencz is still overcome by emotion when he talks about the atrocities he prosecuted. Still, he does not blame the individuals, but the institution of war itself. In Ferencz view, “war makes murderers out of decent people.” For that reason, Ferencz has spent his life advocating against war and war crimes and trying to establish an international court. Largely due to his persistence, the Hague established an international criminal court in 1998. He gave the closing argument in the first case prosecuted in that court, at the spry age of 76. He is still at it today, attending and speaking at international law conventions. He has committed to donating his life savings to the Genocide Prevention Initiative at the Holocaust Museum. He maintains an optimism that is nothing short of amazing. During the 60 Minutes interview, Stahl pointed out that, despite his lifelong work, we still have war crimes, we still have genocide. She pointed out Rwanda and Bosnia. Ferencz told her “it takes courage not to be discouraged.” He then proceeded to lecture her on all of the advancements of society he has seen in his lifetime, including the emancipation of women and same sex marriage. Ferencz was optimistic because he sees progress. The interview ended with a smiling, optimistic Ferencz explaining that, despite his age, he is still a young man and he plans to stay in there fighting because he knows he is right. I cannot adequately express how articulate, sincere, passionate, and energetic this ninety-seven year old man was. What I can do is express how proud I am to be in the same profession as him. I’ll be the first to admit that I can get emotional at times (not my favorite trait). Perhaps it was just the release of the stress bearing down from the week, or perhaps it was the emotion-filled stories about the holocaust Ferencz shared, but as the interview ended, I looked at Carol Anne. We were both speechless, and we were both crying. I like to think it was because of the pride and admiration we felt for another lawyer. If you need a pick me up and an inspiration, do yourself a favor, google the interview and watch it. It is, quite simply, amazing.

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

THINGS TO MAKE TRAVEL EASIER WHEN THERE IS NO REST FOR THE WEARY It is almost June. I am slightly alarmed by this. The year is zipping by, and I am wondering how I have squandered so much of the year with so many of my 2017 “To Do List” items still undone. It seems that the Nystrom family has gone in a million different directions this year. In the past month, Hugh has traveled to Washington, D.C. and to Nashville for work, Trace visited Colonial Williamsburg with his Fifth Grade classmates, and I covered over 1600 miles of our beautiful state in a three day stretch (which was just one of multiple trips in the past several weeks). Life seems to be happening at a more and more frenetic pace, and I feel a bit road weary at times. It has, however, given me an opportunity to hone my travel skills and learn a few tricks to make travel easier. 1. Never pass up the opportunity to purchase gas or use a clean restroom. A large portion of my travel lately has involved trips to beautiful small towns and more remote areas. While the scenery is beautiful and the people are lovely, gas stations and restroom facilities are often few and far between. If you have the opportunity to fill your gas tank and use a clean restroom, by all means take it. You never know when you will get that chance again. 2. Purchase a good scarf and keep it with you at all times. I was never much of a scarf person (I thought they were for the Europeans); however, time and experience has changed my mind. The scarf is the Swiss Army knife of clothing. A good scarf can dress up an outfit, double as a blanket, and hide a multitude of sins (like Diet Coke down the front of your shirt).

8. If you are traveling by airplane, pack some luggage scales. This little trick has saved me numerous times. It only took one time of having an overweight bag at airline check-in (which meant opening my suitcase to readjust and reallocate, exposing my skivvies for all the work to see) to learn this lesson. When we returned from Hawaii in December, we had three checked bags. Each one weighed exactly 49 lbs. And we avoided overweight fees. 9. Always have snacks and drinks. And eat local if you get the chance. I recently purchased three Diet Cokes at a hotel in Jackson, Tennessee. When I got my bill at the end of the stay, I had been charged $3.50 per Diet Coke. Had I gone to the gas station that was within walking distance, I could have purchased them for $1.79 each. Although it wasn’t much, it adds up. Also, if you have the option to eat at a local restaurant versus a chain, eat local. I’ve found some of the best food comes from the little hole-in-the-wall diners in these small towns. Caution: after you have eaten at one of these places, it might be wise to hit up the hotel health club. While the food is usually quite tasty, I am certain that it is also quite unhealthful. Almost everything that tastes good is. 10. Never speed in Putnam County, Tennessee. Ever. Enough said. Wherever your travels take you, I hope these tips and tricks are useful. For now, though, in the words of Willie Nelson, “I can’t wait to get on the road again.”

3. Turn your suit jackets inside out and roll them up when packing. I laughed when Hugh did this on our trip to Hawaii and told him that he might be paying someone to steam his jacket when we got to Honolulu. He had the last laugh when his perfect looking jacket came out of the suitcase while my fancy dress looked like I had slept in it. If you are wondering how to do this, YouTube has great videos. 4. Use hotel laundry bags to hold your dirty clothes. When I return from a trip, I know which clothes are clean and which ones are dirty. I can dump the dirty ones in the laundry room before I ever head upstairs to unpack. 5. When packing for kids, put individual outfits in large Ziploc bags and label as to which day/time the items should be worn. I did this for Trace’s school trip, and he said it made getting dressed easier. Everything was together, and everything matched. Unfortunately for Trace, it also told me which days he did not actually wear clean clothes. 6. Use those shower caps from the hotel to cover the bottoms of your shoes in your luggage. In addition to walking through airports, parking lots, and public restrooms, my job takes me to farms and pasture fields. While I try to watch my step, things happen. Let’s leave it at that. 7. Use glasses cases to carry your phone and other chargers, as well as headphones. It is a really easy way to keep them organized, and they don’t get wound up in all of your other belongings in your bag.

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June 2017

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

SAMSUNG GALAXY S8 We usually are very eager to be first in line to get the latest and greatest gadgets when they hit retail shelves. However, when Samsung finally released its latest smartphone model, the Galaxy S8, we were a little hesitant to purchase. We had no qualms with the glowing previews we had read about the S8, but we knew that acquiring the S8 meant we had to give up our Galaxy S7 Edge smartphones. (We both have one, along with several other phones. Actually, Bill bought the S8+.) Over the past year, the S7 Edge has been the best smartphone on the market in our view, edging out (no pun intended) the iPhone 7 and Google Pixel for smartphone supremacy. So why give up a good thing – no, a great thing – to try something new and unproven? We were told the S8 was every bit as good as the S7 and then some. We’re an easy sell, so it only took a couple minutes of deliberation and we were headed home with the new Galaxy S8 in our bag. Would we love it? Would it catch fire, like the Note 7? We didn’t want to say that the S8 has made us forget the S7; but that is exactly what has happened. First of all, the S8 is slender and sleek, taller than the S7 and thinner. We tend to like “taller” and “thinner,” even in phones. Phone makers are continuing to pack more screen space into more compact form factors. The S8 feels smaller in your hand (and more accessible, especially for one-handed use); but you don’t feel like you are sacrificing screen real estate in the more compact form factor. Samsung uses what it calls an Infinity screen to create a bezel-less, slightly curved 5.8-inch display. Even the physical Home button at the bottom of the phone has been removed and replaced with a soft Home button on the display. Aesthetically, the S8 hits all the right buttons. If you are clumsy, however, you may want to buy a case for the S8. It is so thin, you may lose your grip on the phone. And, since it is all glass, it is vulnerable when it is dropped from your hands. One feature that we loved on our Google Pixel phone we purchased last year was the fingerprint reader on the back of the phone. We found this placement made it much easier to unlock the phone with a fingerprint scan. Fortunately, Samsung copied this feature on the S8 and moved the fingerprint scanner to the back of the phone. Unfortunately, they placed the scanner slightly off-centered and right next to the camera lens. So, it is very easy to smudge your camera lens when trying to swipe your finger over the scanner. This is probably the only design feature on the S8 that we found to be deficient and irritating. As far as functionality is concerned, the S8 is a home run. It runs on a powerful new processor that is noticeably quicker than almost any smartphone we have tried. We are told that the S8 is the first U.S. phone that is gigabit LTE compatible. This basically means that the phone is capable of connecting to the internet at much higher speeds should the underlying provider network support those speeds in the future. The camera (which was already good on the S7) is exceptional. Taking great photos is a breeze even for amateur photographers like us. We really like the selective focus feature that allows you to focus on a particular object in the picture while blurring everything else in the background. There is a professional mode you can enable if you are an expert photographer. Selecting the various options in the camera app is much easier on the S8.

June 2017

Included on the S8 is a new feature called Bixby, Samsung’s entry to the growing digital assistant market. There is a dedicated button to bring up Bixby on the side of the phone, but the plan is for Bixby to ultimately to respond to voice commands. Bixby is meant to learn the user’s habits, preferences, schedule, etc. and provide helpful information relevant to the user at a particular time. This feature is obviously not fully developed as the voice recognition is not available on our S8 currently, but we understand that further updates will enhance the Bixby service. Bixby is also integrated into the camera app so that you can point the camera lens at an object and then click a Shopping button to shop for similar objects online. Samsung also touts a translation feature in Bixby that allows you to focus the camera on a document or sign and have the text instantly translated via the camera app. We had limited success in testing these features on our S8, but we assume that the Bixby feature will get more robust as further updates are installed on the phone. In another first, the S8 is the first phone to support the new Bluetooth 5 standard. What this means is that you can connect to devices via Bluetooth over a longer distance (up to 120 feet) and you can also connect to two sets of headphones at once. Alas, no more sharing a single pair of headphones while watching a movie on your phone. Thankfully the S8 still has the old-fashioned 3.5mm headphone jack for those of us who still use the corded headphones. But Samsung did obsolete our old Galaxy power cords with the new USB-C charging port (although Samsung cordially provides a traditional USB adapter in the box). Yes, we have forgotten that old Galaxy S7 model that is now sitting on top of the recycling heap. The S8 has captured our attention and, so far, we really like what we are seeing. It remains to be seen how the S8 will stack up against the upcoming new iPhone release, but it is clear that once again Samsung has moved the bar even higher. The ball is now in Apple’s court.

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LIFE AND LAW IN HARMONY By: Leslie L. Beale, Success Coach Profusion Strategies

WHEN YOU FEEL LIKE YOU’RE OUT OF YOUR DEPTH “I can’t swim in eight feet of water,” he said. My son’s green eyes looked up at me and through his brimming tears, I saw fear. It didn’t matter that he’d been swimming in six feet of water (well over his five-year-old head) all summer. In his mind, he couldn’t swim in eight feet. It just wasn’t where he belonged. I recently heard the same thing from a client who was struggling to overcome her procrastination at the office. “What keeps you from diving in on certain projects?” I asked. “I think it’s that they are things I haven’t done before. I just feel like I don’t belong in that world. That I can’t quite keep up.” Just like my young son, my client felt out of her depth. Just like him, she was being asked to swim in waters where she wasn’t entirely comfortable. The fact that she was bright and successful didn’t matter. The fact that the project was only slightly outside her comfort zone didn’t matter. In that small gap in her experience, she felt the same fears that two extra feet of water can bring to a young swimmer in a pool. I might not be up for it. It seems scary and new. It might be too much for me. I might drown. We’ve probably all had those moments in our lives when we feel like we’re out of depth. It could be because we’ve gotten a new promotion that comes with increased responsibilities, or a special project that pushes us out of our comfort zone. Maybe it’s even swimming into the unchartered waters of networking or business development. Whatever the specific trigger, the truth is few of us escape the uncomfortable feeling of being asked to do something we don’t feel we are up to doing. So, how can we cope? Face the Fear Honestly. Too often, when we find ourselves feeling a little out of our league, we struggle to admit it. We tell ourselves all kinds of other stories to avoid facing the fact we are just plain scared. Fear is a natural part of the human experience, however, and doing something you haven’t done before or something that stretches you a little is a normal time to feel afraid. That being said, you don’t have to give in to your fear. Instead, do your best to put it into words. Are you afraid you will fail? Are you afraid people will mock you? Are you afraid that making a mistake doing something new will hurt your pristine track record? Whatever your fear may be, name it specifically.

of inadequacy in the past can help us see that we’ve survived. We’ve been scared, we’ve felt shaky, and we’ve made it through. We can do it again. Recall Your Past Success. Don’t stop with just recalling your fear, however. Instead, spend some time focusing on your wins. Remember how you overcame adversity and achieved the goal you were seeking. Think about how it felt to work hard and surpass your own expectations. Remind yourself that the person who tackled those challenges and prevailed is the same person who faces a challenge today. You have won in the past, and you can win again. Take Action. Nothing conquers fear like action. For many of us, however, fear is paralyzing. When faced with a challenge we don’t feel capable of overcoming, we wait. We plan. We worry. But we don’t do. In the absence of action, however, our fear looms larger and larger. Taking just one small action can start your momentum moving in the right direction. Doing something will remind you that you are not powerless. Focus on Growth, Not Mastery. Once you start taking action, remind yourself that you don’t have to master the skill the first time. Focus instead on getting better. Improvement and growth are the goal – not perfection. This shift will keep you from falling victim to perfectionism. You’ll be able to expand your knowledge and skills without worrying unnecessarily about mistakes, and you’ll stay open to new skills and solutions. Feeling out of your depth from time to time is part of being human, but it doesn’t have to stall your success. The next time you feel like you aren’t up to the challenge you’re facing, use one or more of these strategies, and you’ll find yourself able to confidently address whatever comes your way.

Remember When You Felt This Way Before. Regardless where you are in your career, you’ve probably faced down a fear or two in the past. You’ve pushed past your previous comfort zone. You’ve mastered a skill you thought would best you. Yet, somehow when we’re afraid, we forget those other times we’ve overcome fear. But, remembering that we’ve dealt with fear and a feeling

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June 2017

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

DOES THE THING REALLY SPEAK FOR ITSELF? On April 5, 2017, the Tennessee Supreme Court filed Ewin B. Jenkins, et al v. Big City Remodeling, et al.1 (“Jenkins”). The case involved a fire, which occurred during a remodeling project on Halloween night. The fire started on a back deck, which was accessible to the public. Plaintiff sued the general contractor and two subcontractors for causation as well as negligence. They also alleged res ipsa loquitur against the general contractor. After the trial court granted summary judgment to the defendants, and the Court of Appeals affirmed in part and reversed in part, the case went to the Tennessee Supreme Court. The Supreme Court affirmed the grant of summary judgment in favor of the defendants and affirmed in part and reversed in part the Court of Appeals’ decision. An interesting aspect of the case, however, is the excellent analysis by Justice Lee on the doctrine of res ipsa loquitur. We all recall the halcyon days of “Torts 101” and Evidence in law school. We all learned to throw around jauntily the phrase “the thing speaks for itself ” in order to impress clients with our imagined grasp of the language of the Romans. It goes over well at parties. In reality, however, “res ipsa” tends to be a bit confusing in its application and burden of proof, etc. When does the thing actually “speak for itself ” and what happens when it does? The Jenkins case lays it out admirably. In Jenkins, trial experts listed a number of possible causes of the fire, such as arson, improperly discarded cigarette butts (from subcontractors), electrical issues and spontaneous combustion. Importantly, no single cause could be established.2 Since plaintiffs had no direct proof of negligence on the general contractor’s part, they relied on the evidentiary principle of res ipsa loquitur to establish the inference of negligence. Bluntly put, the subject fire could not have occurred in the absence of negligence whether direct evidence exists or not.3 The doctrine, however, does not require an inference of negligence. The plaintiff does not get a “free pass.”4 The burden of proof does not change or shift to the defendant to rebut the assertion. The plaintiff, while not required to eliminate all other causes, must “…establish a rational basis for finding that the plaintiff ’s injury was probably the result of the defendant’s negligence.”5 Reliance on res ipsa loquitur requires plaintiff to meet three elements: (a) the event does not occur ordinarily absent negligence; (b) other potential causes must be “sufficiently eliminated”; and, (c) the negligence must be within the scope of the duty the defendant owes the plaintiff. The second element (b) can be met by “…showing that the specific cause for the event was under the defendant’s control or that the defendant was responsible for all reasonably probable causes to which the event can be attributed.”6 In the Jenkins case, the Court noted that in fire cases, res ipsa loquitur has been applied where exact causation was not known but the plaintiff could show the defendant had exclusive control of the premises or the particular instrument that caused the fire. Likewise, the Court has denied the applicability of res ipsa loquitur in fire cases where the exclusive control element was missing.7 Due to the fact that only “possible” causes were identified for the subject fire and exclusive control could not be established, the Court held res ipsa loquitur did not apply.8 In determining the negligence issue regarding the subcontractors, the Court addressed the important of establishing causation. A real “takeaway” from the case is summed up in the phrase “causation is not possibility; it is probability.” In the words of the Court, “[i]t is not June 2017

enough for a plaintiff to show that a defendant’s conduct was a possible cause of the injury; the defendant’s conduct must be shown to be the probable cause.” Causation may be proven directly or circumstantially. When shown by the latter, however, “…the evidence must be such that it tends to exclude any other cause; in other words, it must be proven to be more likely than not.”9 The Jenkins case is a “must read” as a primer for res ipsa loquitur. It also tends to indirectly suggest that some sort of expert proof in some cases is fairly critical. While that seems an obvious statement, one should also focus on the methodology by which the proposed expert arrives at her opinion. Recall that a hallmark of empirical science is the ability to “discard,” or rule out, other potential causes in order to arrive at the most probable cause. Simply forming an opinion of “a” cause gets one no further than first base…and that should speak for itself. 2017 Tenn. LEXIS 191 (Tenn. 2017, April 5, 2017). Jenkins, at *4-*5; citations to other cases in the Jenkins opinion will be omitted. 3 Also recall, however, one of the possible causes was arson. 4 Jenkins, at *12. 5 Jenkins, at *12. 6 Jenkins, at *13. 7 Jenkins, at *13 and *16. 8 Jenkins, at *20. 9 Jenkins, at *21. 1

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AROUND THE COMMUNITY By: Joy Radice Associate Professor, U.T. College of Law By: Daniel Ellis Ellis & Ellis Law, P.C.

ALL IN A [SATUR]DAY’S WORK ACCESS TO JUSTICE IN GRAINGER COUNTY Even before the 9:00 start time, dozens of individuals lined the hallways of the quaint red brick church that stands behind the old Grainger County Courthouse. The church’s pastor, Chandler Vinson, and his congregation members welcomed them with smiles, coffee, and donuts, as thirteen UT Legal Clinic students, two law professors, a legal secretary, and three volunteer lawyers began setting up tables, powering up laptops, and organizing forms. This Saturday morning Expungement Clinic was a collaboration between the KBA Access to Justice Committee, the University of Tennessee Legal Clinic, and the Tennessee Faith and Justice Alliance designed to address the problems encountered by individuals whose criminal records include expungeable charges and convictions. Before the day had ended, Grainger County General Sessions Judge Lane Wolfenbarger, Court Clerk Sherry Clifton, the pro bono lawyers and students had helped dozens of people file more than fifty petitions to expunge charges from their criminal records and by doing so had improved their employment potential.

an individual can rarely afford to pay the court costs associated with a charge or a conviction. Once an individual falls behind in court costs payments, his or her driver’s license is revoked, further complicating the job search, particularly in areas with little or no public transportation. Reinstating a revoked driver’s license can, in turn, cost hundreds of dollars. Expunging criminal charges then becomes the first step to ending this cycle and moving toward restoring driving privileges and increasing employment prospects. The process utilized by the Grainger County Expungement Clinic was simple and can be easily replicated. Before the date of the clinic, Grainger County residents called the UT Legal Clinic’s Expungement Hotline for prescreening. Students from the clinic answered questions and gathered information to enable the clerk to secure the individual’s criminal history and court cost balance prior to the clinic. The student’s involvement represented the first in a series of service events honoring the UT Legal Clinic’s 70th Anniversary. The Grainger County Expungement Clinic was one of five expungement clinics held in April as part of the statewide Help4Tn Day launched by the Tennessee Supreme Court’s Access to Justice Initiative. “Ensuring fair access to justice by providing legal advice to those Tennesseans who otherwise cannot afford legal representation in civil matters is the primary focus of this Initiative,” explained Tennessee Supreme Court Chief Justice Jeff Bivins in a recent speech. “Through the civil legal clinics, the citizens of our state will have a convenient place to go to get answers to their legal questions.”

After a welcome by Judge Wolfenbarger and Clerk Clifton, and a prayer by Pastor Vinson, registration began. Bill Coley, a Knoxville partner at Hodges, Doughty & Carson, and volunteer from the Tennessee Faith and Justice Alliance, explained, “Bringing legal services into churches makes sense, connecting two vocations with a ministry of service and justice who believe in second chances.” The individuals told their stories to the pro bono lawyers and students. Each one explained how he or she had made mistakes in the past, but hoped that expunging charges would offer them a new start. One man, now in his 40s, explained that although his conviction occurred when he was 19, the conviction hampered his efforts to get employment. He wanted the conviction expunged to help him be more competitive for jobs, enabling him to better support his children. One by one, the pro bono lawyers and law students identified charges and convictions that were immediately expungeable and prepared petitions for the judge to sign. Mini Expungement Clinics, like the one held in Grainger County, can end a vicious cycle. Old criminal records, including dismissed charges, hamper job-seeking efforts. During a period of unemployment,

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June 2017

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. NEED GUIDANCE IN A SPECIFIC PRACTICE AREA? One of the best kept secrets of the Knoxville Bar Association is our Mentor for the Moment program. We want to let the secret out and make sure that our members use this wonderful resource. It’s really simple to ask a question of our helpful volunteer mentors. Log in to the members’ only section of www.knoxbar. org or check out the list in the KBA Attorneys’ Directory and begin your search! Our easy-touse website allows you to search by last name or by subject area experience. New Apprentice Mentor category now available! TLAP VOLUNTEER OF THE YEAR AWARD On April 8th, 2017, Knoxville attorney, John Butler, was the recipient of the Tennessee Lawyers Assistance Program’s Volunteer of the Year Award. The award, also known as “The Stephenson,” after Stephenson Todd, Kingsport attorney and first TLAP Commission Chair, is given to a TLAP volunteer that has gone above and beyond the call of duty in assisting members of the legal profession in crisis. Current TLAP Commission Chair, Judge John Everett Williams, had this to say about Mr. Butler “John is a fine lawyer, and a credit to the legal profession. He is well deserving of this award.” PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, April 13, 2017, at 12:00 pm. in the Blount Mansion Visitors Center. Attorney Edward H. Trent of Wimberly Lawson Wright Daves & Jones will be presenting an Update on Overtime Exemption Rules. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@ smparalegal.org or (865) 546-7190 for additional information and/or lunch reservations. SEARCHING FOR A WILL The family of Nada Lambert Hubbs is looking for the attorney who prepared her will. Name: Nada Lambert Hubbs Date of Birth: 6/23/30 Date of Death: 12/15/14 Last Known Address: 723 Metler Drive Knoxville, TN 37912 Contact: KBA Member Bob Godwin: 688-2434 June 2017

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 sub-lease at 618 S Gay St, Suite 100. High visibility with full window on Gay St. Wi-fi available at no additional cost. Private office, 11’ x 10’ with large private conference room available. Great for sole practitioner or satellite office. • Corner of Westland Drive and Pellissippi Parkway. Former legal office. Excellent condition. 3,456 Sq.Ft. Highly visible with easy access to interchange. Phone system installed. Lease or Purchase opportunity available. For further information, contact Oliver Smith Realty (865) 584-2000. • A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants. Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049. • Office 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.

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

Charles G. Currier Charles G. Currier, Attorney-at-Law Garett Franklyn Moore, Ingram, Johnson & Steele, LLP Brittany L. Nestor Nestor Law, PLLC Jackson H. Tidwell Baker, O’Kane, Atkins & Thompson, PLLP

New Law Student Members Tammy N. Barry Shelia V. Crosby Anna M. Moon Devin Park Kara Sheridan Hannah K. Wilkins

Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Heather Good Ritchie, Dillard, Davies & Johnson, P.C. BPR # 035154 606 W Main St. Knoxville, TN 37902 Ph. (865) 637-0661 Fax: (865) 524-4623 hgood@rddjlaw.com Julie Kuykendall Valliant, Harrison & Schwartz, P.A. BPR # 035219 800 S Gay Street, Suite 1650 Knoxville, TN 37929 Ph. (865) 637-0134 Fax: (865) 522-3525 jkuykendall.vhs@gmail.com Will Parz Will Parz Law Office BPR # 034870 P.O. Box 7393 Asheville, NC 28802 Ph. (865) 406-3096 Fax: N/A willparzlaw@gmail.com Zachary B. Tenry Esq. The Tenry Law Firm BPR # 025724 239 South Peters Road Knoxville, TN 37923 Ph. (865) 247-5689 Fax: (865) 454-8363 zach@tenrylaw.com

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

Without the help of all of you, those of us at Legal Aid of East Tennessee would have even more on plates. This is true both of our wonderful clinic volunteers and our volunteers who accept Pro Bono cases either on a case-by-case basis or through our Pillar Law Firm programs. Now that we are about halfway through this year, which will be my first full year as Pro Bono Director, I wanted to thank all our wonderful volunteer attorneys! So far this year, the following attorneys have volunteered at our Gatlinburg Wildfire, Veterans, and Faith & Justice Alliance clinics, as well as our regular Saturday Bars in Knox and Blount counties. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Alex Johnson Amanda Tonkin Ashley Roberts Benjamin Lauderback Betsy Meadows Bill Coley Brady Cody Bryce McKenzie Chris Kawood Dale Allen David Draper David Noel David Yoder Douglas Dunn Heather Banks Heather Banks Ian Hennessey Jason Collver Jason Long John Eldridge John Lockridge John Routh John Spragens Jonathan Blanchard Jonathan Cooper Josh Ball Kaitlyn Hutcherson Kati Sanford Goodner Keith Stewart Kenny Byrd Kevin Tonkin Maria Gillen Mark Chalos Meagan Collver O.E. Schow Rachel Hurt Richard Austin Richard Mattock Samantha Parris Spencer Fair Stephen Byrd Steve Merritt Tim Grandchamp

And, thank you to all the additional attorneys currently handling Pro Bono Project cases for us! • Amy Hess • Andy Roskind • Andy Sneed

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Angie Snyder Barbara Johnson Ben Koyl Bennett Hirschorn Billy Gribble Brandon White Brenda Brooks Brent Snyder Brent Strunk C.J. Lewis Carl Eshbaugh Carlos Yunsan Cecilia Peterson Charmaine Nichols Cheryl Rice Chris Conner Chris Poulopoulos Chris Ralls Dan Holbrook Dan Scott Daniel Ellis David Gall David Luhn Derek Spratley Donald Farinato Eddy Smith Emma Drozdowski G. Kevin Hardin Heather Anderson J. Nolan Sharbel James Bell Jamie Ballinger-Holden Jeffrey Murrell Jennifer Morton Jeremy Miller Jerry Martin Jim Hickman Jim Snyder Joel Roettger John Elder Jonathan Reed Josh Hedrick Julia Spannaus Katie Tolliver Jones Keith Edmiston Ken Miller Kevin Renfro Larry Little Lauren Strange-Boston Lindsey Hobbs

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Loretta Cravens Lynn Tarpy Mabern Wall Matt Frere Meghan Morgan Michael Brezina Michael Craig Michael Davis Michael Franz Michael Green Mike Hickman Mital Patel Patrick Slaughter Paul Forsyth Ray Lacy Rick Carl Roger Hyman Ron Rayson Roy Aaron Sarah Miracle Shannon Holland Stacie Miller Stephanie Coleman Stephen Daves Stephen Garrett Steve Williams Stewart Crane T.J. Norton Tasha Blakney Ted Kern Terry Woods Thomas Hale Tom Dickenson Troy Weston Virginia Couch Virginia Schwamm Wade Boswell Wynne Caffey

If you don’t see your name here, there’s no reason it can’t be on the next list. Just call me or e-mail me and we can find a wonderful client for you to assist! And, if you see your name here, but aren’t sure what case you are handling for us, you probably still owe me a File Closure Report! ;-) Thank you all for everything you do to help LAET and to support us!!

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

DICTA

June 2017

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Stewart, would you describe for DICTA’s readers your radio show on constitutional law, Your Weekly Constitutional, and how it came about?

PROFESSOR STEWART HARRIS Lincoln Memorial University, Duncan School of Law

I happen to specialize in constitutional law. Fortunately, Uncle Bud does, too. He uses his favorite phrase, “that’s unconstitutional!” to describe pretty much anything he doesn’t like. There are many things Uncle Bud doesn’t like. And it’s remarkable how frequently the Constitution prohibits them. I bet you have an Uncle Bud, too. There are a lot of them out there, writing Letters to the Editor or posting on social media. You’ve probably chuckled at their grand pronouncements, perhaps even shaken your head in disbelief. But there’s a serious issue here. Ignorance of the law, especially our fundamental law, has consequences. It erodes our institutions. It undermines our essential values. That’s why, as lawyers, we have a duty to “further the public’s understanding of and confidence in the rule of law and the justice system.”1 Seven years ago, I noticed an opportunity to fulfill that duty in an unusual way. My local NPR affiliate, WETS in Johnson City, was changing its format from the traditional, eclectic public radio mix to a slate of news and information programs, most of which would be national – think All Things Considered and Car Talk – but some of which would be locally-produced. Hmm. That meant that WETS would need some locally-produced shows. Clearly, what WETS really needed was a locally-produced show focused upon constitutional law. A show created by me. So I sent an email message to a fellow named Wayne Winkler, the Station Manager at WETS, whose made-for-radio, basso profundo voice you’ve probably heard on your journeys east on I-40. And then I waited. After about a month, I figured I had my answer. After all, when you ask a girl to a dance, and she somehow fails to get back to you, well, you take the hint. Then, after six weeks, a miracle: Wayne sent me a reply. He liked the idea of a show focused upon the Constitution. Could I call him to discuss it? We spoke that afternoon. After several congenial minutes, Wayne asked me to come down to the station and start the development of the program. I hung up, only to realize that our brief telephone call had been my audition. Wayne needed to hear me before putting me on the air. Hey, it’s radio. A year went by, a year during which Wayne and I met nearly every week to discuss, and try out, different concepts for our new, hour-long show. I sent several demos to friends, mostly non-lawyers, whose general verdict was, at least initially, “you suck.” By the end of the year, however, we had come up with a conversational format that seemed to work. We decided to focus upon one major issue per episode, with one or two guests (no sound bites here) interspersed with shorter features to break things up. We began broadcasting Your Weekly Constitutional on March 1, 2011, with an episode entitled “The Constitutionality of Secession.” And then we were off and running, doing episodes on everything, as we like to say, from Gay Rights to Gun Rights. Within a few months, another miracle: I found an underwriter, the Robert H. Smith Center for the Constitution at James Madison’s historic home, Montpelier. I had worked with the Center’s staff on an educational program called “We the People,” so I knew its new Director, Doug Smith. Doug was enthusiastic about using radio and social media to extend the Center’s reach. Soon we started a Facebook page (over 50,000 fans and counting) and made the show available as an iTunes podcast (over 350,000 downloads last year) and, yes, like our new President, we joined Twitter. We quickly became the most popular non-drivetime show on WETS, where we are broadcast twice each week, at 3:00 PM Sunday and 8:00 PM Tuesday. Indeed we often garner more listeners than national shows like This American Life, which follows us on Sunday afternoons. Other public radio stations have picked us up, from New York to Texas. Here in Knoxville, we are broadcast on WUOT-2 on Monday evenings at 7:00 – you can listen on either HD radio (if you have one) or at wuot.org. What a ride it’s been. I’ve interviewed a United States Senator, a sitting Governor, and many other fascinating people, from law professors to public officials, to ordinary people affected by constitutional law. I’ve also interviewed a number of judges, including a fellow named Gary Wade, who told me what it was like to be the Chief Justice of Tennessee’s Supreme Court. Gary and I got on famously. In fact, we enjoyed each other’s company so much that, last year, the Judge, who is now the Dean at Lincoln Memorial University’s Duncan School of Law, offered me a job. So now I teach at LMU in Knoxville, even as I continue to make the trip each week to Johnson City to produce my radio show. I should say “shows,” because a couple of years ago, Wayne and I started producing a second, daily show, which lasts only 90 seconds and which is broadcast during the morning and evening drivetimes. Your Daily Constitutional is obviously too short to offer any depth, but it does, we hope, bring up interesting issues in a way that gets people thinking. It seems to work – many of our listeners tell us that they tune in every day – and some of them even time their commutes by our broadcasts. So if you’ve got something constitutional to discuss on the radio, drop me a line: stewart.harris@lmunet.edu. I’ve got recording equipment in my office, and it’s just waiting for you to share your wisdom, your humor, and your appreciation of our Constitution. Don’t be shy – it’s fun. And it’s your duty. And maybe, just maybe, Uncle Bud will be listening. 1

Tennessee Rules of Professional Conduct, Rule 8, Preamble.

“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. June 2017

DICTA

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