DICTA.March 2016 by Knoxville Bar Association

Legal Update: 2015 Supreme Court Term—Criminal Law Developments . . . Page 11 Management Counsel: Law Office 101 - Reimbursement of Employee Expenses . . . Page 13

A Monthly Publication of the Knoxville Bar Association

March 2016

A TENNESSEE COURT IS “IN BUSINESS” FOR US ALL

DICTA

March 2016

In This Issue

Officers of the Knoxville Bar Association

March, 2016

COVER STORY 16

A Tennessee Court is “In Business” for Us All

CRITICAL FOCUS President Wayne R. Kramer

President Elect Amanda M. Busby

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

Treasurer Keith H. Burroughs

Secretary Wynne du Mariau Caffey-Knight

KBA Board of Governors Rachel P. Hurt Carrie S. O'Rear M. Samantha Parris Cheryl G. Rice Keith D. Stewart

Immediate Past President Tasha C. Blakney

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

President’s Message Being both Attorneys and Counselors at Law

Practice Tips Tips for Writing Engagement Letters

Judicial News Expungement Screening: Making the Expungement Process More Efficient

The Knoxville Bar Association Staff 11

Legal Update 2015 Supreme Court Term-Criminal Law Developments

Management Counsel: Law Office 101 Reimbursement of Employee Expenses

21 Marsha S. Wilson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

Lacey Dillon Programs Administrator

Schooled in Ethics Prosecutorial Ethics: The Ethics of Release-Dismissal Agreements

Legal Mythbreakers The Elephant in the Room

CONVENTIONAL WISDOM 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

Kayla Swiney LRIS Assistant

Open Service, Year Two: So Nice, We’re Doin’ It Twice

Hello My Name Is Tempus Fugit - Time Flies Better than Lemonade

DICTA

publication of the Knoxville Bar Association

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

Open Service

Bryce Hardin

15 19

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Wilson (522-6522).

Outside My Office Window The Coffee Cups

DICTA is the official

Publications Committee Executive Editor Executive Editor Executive Editor Editor

Attorney Profile Sheri A. Fox

Volume 43, Issue 3

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.

March 2016

Brittany Headrick LRIS Assistant

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

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

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

Managing Editor Marsha Wilson KBA Executive Director

DICTA

Lawyer Hobbies Gone Fishing

Well Read Length vs. Density

Long Winded

Nice Niche

Up in The Air, It’s a Bird, It’s a Plane . . . Intellectual Property

Guilty Pleasures

Cats v. Dogs: The Ultimate Showdown

COMMON GROUND 4 18 18 20 27 29 30 31

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

EVENT CALENDAR & SECTION NOTICES

event

Section Notices

calendar

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section The ADR Section has CLE programs planned for 2016. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720). Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like further information on the Corporate Counsel Section, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Corporate Counsel Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Daniel Sanders (215-2327). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Joanie Stewart (215-2515). Senior Section The Senior Section will meet quarterly in 2016. The next luncheon will be held at 11:30 a.m. on March 9, 2016 at Calhoun’s on the River. The featured speaker with be Chris Edmonds, Pastor, Piney Grove Baptist Church, Maryville and CEO of Roddie’s Code speaking about Heroes. More information is available on page 17 or online in the Event Calendar. 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

March Fee Dispute Resolution Committee Solo Small Firm Section Law Office Tech Committee Membership Committee ADR Section CLE Family Law Section CLE Professionalism Committee Access to Justice Committee Senior Section Luncheon Barristers Monthly Meeting Judicial Committtee Functions Committee Diversity in the Profession Committee Barristers Access to Justice Committee Board of Governors Meeting Lunch & Learn CLE Committee LRIS Committee Knoxville Bar Foundation Meeting

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April ■1 ■2 ■4 ■6 ■6 ■6 ■ 12 ■ 13 ■ 14 ■ 14 ■ 18 ■ 18 ■ 21 ■ 22 ■ 27

Community Law School Community Law School ADR Section CLE Solo & Small Firm Section Fee Dispute Resolution Committee Law Office Tech Committee Professionalism Committee Barristers Monthly Meeting Lunch & Learn Judicial Committtee Diversity in the Profession Committee Barristers Access to Justice Committee Law Practice Today Expo Reception Law Practice Today Expo Board of Governors Meeting

MARK YOUR CALENDAR Law Practice Today Expo April 21 & 22 March 2016

PRESIDENT’S MESSAGE By:

Wayne R. Kramer Kramer Rayson LLP

BEING BOTH ATTORNEYS AND COUNSELORS AT LAW When I first started practicing law in the late summer of 1978, it was not unusual for law firm letterheads to include, in addition to the firm name, the words “Attorneys and Counselors at Law.” The concept of an attorney being a counselor as well as advocate was very much in the forefront of our profession. Today one rarely sees the term “Counselor” on a law firm’s letterhead. Our firm included. The question that comes to my mind is why? Why has that concept changed? What events have transpired to move us away from that piece of practicing law? Beyond the mere practice of law, what has changed, how have things evolved to affect the way in which we interact with each other? Almost 40 years have passed since the late summer of 1978. So many things have happened; more people, more technology, more lawyers. It is a smaller world. But when young people ask me what has changed the most, the term “pace” comes to mind. In all we do, the pace has accelerated in monumental proportions. Everything happens fast, and people’s expectations rarely allow for anything less than breakneck speed. While doing things quickly is not all bad, I believe one of the casualties in the practice of law of such an accelerated pace is the ability to truly “counsel” with our clients. There is less time for questions and reflection, less time to consider all aspects of a matter, and there is less time to get to know the client. The opportunity to better understand what makes the person or entity tick has largely “gone with the wind.” The difficulty about such a reality is that counseling is something many attorneys do very well. We are taught to see the big picture, to reflect, to raise questions and to point out things that others may not see, both good and bad. All of that becomes difficult when everything must be “done yesterday.” We should not just file the complaint or try the case. We should not merely close the transaction, prepare the deed or get the check. We must understand and discuss with our clients the ramifications of filing a lawsuit- the cost, the emotion, the distraction and more. We must talk with the client about the property or the lease. Why is the sale or purchase a good idea? What are the pitfalls and what are the advantages? It is that type of counseling which has become very difficult to carry out in our fast paced world. We are simply not the best lawyers we can be, when we fail to do so. But our pace does more than make counseling with clients a challenge. It also affects our relationships with each other, our ability to work with one another, and the ability to fully appreciate the community and shared values we have as attorneys here in Knoxville and as members of the Knoxville Bar Association. In a recent KBA Leaders and Planning Session, we discussed those shared values; the need to be in community, to support each other, to mentor, to learn from and interact with all parts of the legal community. Those in attendance also recognized and embraced additional values such as professionalism, fellowship, education and the importance of reaching out to the public. Whether it be reflecting on the history of the Bar, the future of our profession, mentoring new attorneys, improving access to justice and/or enhancing the public understanding of the legal system, we do it together. That is how the law can be alive and relevant and that is how the Knoxville Bar Association can be alive and relevant. March 2016

Unfortunately, the fast pace of 2016 sometimes prevents us from even acknowledging the presence of our own law partners or others in the legal community who are merely “down the hall.” It makes it difficult to be counselors at law and to reach our goals as attorneys either individually or collectively in a manner which most of us believe we are called upon to do. Whether there is a way to slow down ever so slightly, I am not sure. The speed of technology, along with the desire for instant success and results, pushes us every single day. I realize to resist the ever increasing pace of the day can be seen as out of touch and old fashioned, somewhat of a “curmudgeon” if you will. I, however, see it more as an effort to recognize and celebrate our roots. Those roots are deep and they enable us to stand as attorneys against strong winds that can blow in directions contrary to who we need to be as professionals. As this year moves forward, I encourage all of us as members in the Knoxville Bar Association and others to remember that counseling is just as much a part of being an attorney as advocacy. The two should not be mutually exclusive. Furthermore, I encourage all of us as members of the Knoxville Bar Association to reflect upon our shared values and work together toward making those values the centerpiece for the KBA and all of its members. It is a great journey and it is even better when we travel together.

DICTA

Photo Ops 2016 Bar Leaders Session On January 26, 2016, more than 40 members of the Board of Governors, Barristers and Committee and Section Chairs gathered together to discuss the shared vision of the KBA.

Find the Right Mediator!

DICTA EDITORS’ NOTE:

Hourly Rates & Fees Don't mediate another case before checking out the mediator's qualifications at www.knoxbar.org. 6

DICTA

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

Search the mediator profiles based on a mediator's subject area experience and the mediator's qualifications. Everything you need to select the right mediator for your case is provided including court certifications, subject area experience, training & mediation experience, and mediator notes. With all the relevant details needed to identify a mediator best suited to help the attorneys mediate, the selection process is made easy.

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 Wilson 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.

March 2016

AT TO R N E Y P R O F I L E By:

Marshall H. Peterson Holbrook Peterson Smith PLLC

INTRODUCING: SHERI A. FOX, ESQ.

Sheri A. Fox became Executive Director for Legal Aid of East Tennessee (LAET) on January 1. LAET provides civil (non-criminal) legal assistance and representation at no cost to eligible clients in 26 East Tennessee counties. LAET also provides community education and outreach. LAET and its predecessor organizations have provided representation to low-income East Tennesseans since 1965. LAET serves clients out of six offices located from the Tri-Cities to Chattanooga. It is a large geographic area with many thousands of individuals meeting the requirements for pro bono legal services. LAET, through its dedicated attorneys, staff, and pro bono volunteer attorneys, benefits around 14,000 individuals per year, ranging from obtaining Orders of Protection for victims of domestic violence to protecting families from being homeless. The annual economic benefit to our region from this work is more than $26 million. For the past 23 years, David Yoder has served as Executive Director of LAET. Mr. Yoder brought vision, stability, and inspired leadership to the role. At the end of 2015, he stepped down, and our new Executive Director assumed her role. The Board of LAET appointed me Chair of the Search Committee to recommend a candidate for Board consideration. The Search Committee included LAET board members and employees representative of the LAET geographic regions. A

March 2016

consultant with experience in legal aid organization placements guided the nationwide search process. After considering dozens of applicants and two rounds of interviews, the committee made a unanimous recommendation of Ms. Fox, which the Board accepted. Ms. Fox comes to LAET from 14 years in private law practice, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. (Baker Donelson). While at Baker Donelson, Ms. Fox amassed a wide range of litigation experience at both the trial and appellate levels in state and federal courts. She focused her practice primarily on products liability defense, commercial litigation, nursing home defense, and general litigation. She was active in the work of LAET during her years in private practice and, even before becoming a lawyer, when she was a summer intern in the Chattanooga office of LAET. She says of that experience: “I was hooked right from the start; hooked not only by the important work being done, but also by the spirit and commitment of the people doing it.” That commitment to legal aid work continued in her law practice as she served on her firm’s Pro Bono Committee, took pro bono cases, volunteered for various legal clinics, and worked on other LAET events. In recognition of her Pro Bono work, the Tennessee Supreme Court designated her as an Attorney for Justice. Sheri Fox has many practice recognitions, as befitting an accomplished practitioner. Important as those are, what stands out are her enthusiasm, drive, creativity, and pragmatism. She assumes her responsibility with a solid management team, a dedicated board, community goodwill, a balanced budget, and a supportive network of partners throughout the state. Her passion for building on these strengths is inspirational. As Chair of the Search Committee, my endorsement of Sheri Fox stems from viewing her as a leader, intent on making equal justice a community value. Please welcome Sheri A. Fox as Executive Director of LAET.

DICTA

The KBA Judicial Committee has compiled an inclement weather policy list for all of the courts in our area as a resource for members. The list is available at www.knoxbar.org.

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

Jr.

THE COFFEE CUPS The routine was cast years ago. I usually wake first. I let Sophie, our golden retriever, outside, start the coffee maker, fill Sophie’s bowl, and fix Nancy’s first cup of coffee. I take a shower and return to fix my first cup of the day. I drink too much coffee. I often don’t sleep well Comes with the job. However, it doesn’t matter how drowsy I am or whether I’m concerned with the myriad of things I’ll face that day, it all melts away when I have to choose my cup. I have about 12 cups/mugs to choose from, but I invariably choose one of only four. Each is adorned in art work created by the hands of little people who are no longer little. I smile every time I fill one up. Shelby and Cori are in college. As I write these words they are tucked away beneath blankets in sorority houses at UT and the University of South Carolina. Cliff is 22 years old and a working man. Andy, our baby, is a sophomore in high school. We pass each other every now and then in the hallway. He has a very busy life. But, every morning when I drink my coffee each of them is back in kindergarten with paints and brushes, free of the troubling news of the world and still fully in possession of the magic innocence that defines childhood. I picture them sitting in their seats, at little tables, in crowded classrooms painting away. You wouldn’t buy one of these cups at a garage sale. Andy’s is a fruit basket with way too many grapes. Cliff ’s depicts a guy (I think) with a dog (or a horse) in a yard. Shelby crafted an apparently severely injured butterfly laying in a field of sticks, and, finally, Cori’s is a fading iris or some other similar looking flower. She, perhaps, held the most artistic talent (if it can be called “talent”) at the age of five. They argue, of course, which held the greatest potential. Each piece is now preserved in ceramic and resides on a shelf awaiting my daily decision. I remember filling out the order forms and thinking what a racket it was to sell my children’s own art work back to me in the form of coffee mugs and placemats. So jaded. Genius is what it was. They are better than the photos from Disney or the video from a family beach trip. They are an insight into my children’s minds, captured, and with each sip from the cup I feel as though I am taking in the glorious days of their youth - Days which happen to comprise the most beautiful season of my life. I wouldn’t take a million dollars for any one of the little ceramic museums. When my wife passed away suddenly at the age of 31, I changed the way I approached and lived my life. Before her abrupt departure it seemed okay to work late and leave home early. It was okay to miss a few little things for advancement, for money. The future was the focus. We were going to live forever. Oh, the lessons we are forced to learn. Perspective was thrust upon me. I didn’t seek it. It came at a high price. I became a different kind of lawyer, friend, and father. I was blessed to meet and marry another wonderful woman 14 years ago this past month. I have been privileged to play father to her two children and she has graciously and lovingly mothered my two. I vowed not to miss a minute and with but a few exceptions, I haven’t. More importantly, I have had a deep appreciation for those moments while in them. I don’t miss dinner. I’ve coached every one of them in various sports. I don’t miss games or school programs. I was coaching from the bench when 8-year-old Andy hit a half-court shot at the buzzer. I escorted Shelby to daddy/daughter dances. I caught a leaping Nancy when Cori scored the winning goal in a state quarterfinal soccer game in high school. Before they were able to drive, I drove them to school every day, blasting the

song of the day and singing along as loud as I could. And, I sang my girls to sleep with two golden retrievers up in their beds before they “needed” their own rooms. I miss those days so much, but I didn’t miss any of it. It is all there in the ceramic. We miss so many things in this profession - even when we are present. How many times has your mind gone to work when you are at the dinner table, at a soccer game, or sitting in church. Are you on your phone reading emails on the family beach trip? How much are you missing when you are supposedly THERE?! One of the true downfalls of our profession is that it is one that travels with us wherever we go. There are many studies that tell us attorneys are the most likely of all the professions to suffer from depression. We are more likely to suffer from drug/alcohol abuse, kill ourselves, or go through divorce. Put simply, we are a mess. It is directly related to the stress we carry, and we carry it everywhere we go. Whenever perspective escapes me, it is the cups that place everything in their rightful order. I recently finished a two-week trial. My father always told me that a trial of that sort takes about five years off of a lawyer’s life. When you are preparing for and in the midst of one you must block out everything. You know. I blocked it all out, ignored the rest of my life, until a moment every day in the dark early morning hours when I faced the cups on the shelf. I took a deep breath, smiled, and sent my grown babies a group text filled with hearts and expressions of a loving father’s adoration.

DICTA

March 2016

PRACTICE TIPS By: Sarah J. Watson The Law Office of Sarah J. Watson

TIPS FOR WRITING ENGAGEMENT LETTERS An engagement letter is an excellent tool to help your practice manage risk and establish client expectations. At its core it is a contract between you and your client, and should contain all the elements of a valid contract – offer, acceptance, and consideration. However, to increase its value to your practice you can expand upon these elements. The following are some ideas you may consider incorporating. 1)

Identifying the Client

It goes without saying that an engagement letter should identify the client. However, if there is a third party paying your client’s bill, have the third party sign a separate agreement detailing the financial arrangement and your limitations in discussing the case with the third party. This is a great way to manage expectations and to clearly establish boundaries. 2)

State Any Services You Do Not Provide

Goals

A particular result in a case should never be guaranteed. If your letter discusses possible outcomes it should be tempered by stating that they are only possibilities. 6)

Client’s Obligations

Stating a client’s obligations to you is also important. Inform potential clients that they have an obligation to be truthful and to keep you fully informed. Let them know that their failure to do so can trigger your right to withdraw from their case. 9)

Beginning the Work

Never begin working on a case until the signed engagement letter is returned. As previously mentioned, the letter is a contract between you and the client. It not only states your obligations to the client, but also the client’s obligation to pay you for your services. 10) Practice What You Preach

If you don’t practice in a particular area, such as taxation, clearly state that you will not provide advice in this area. You can underscore the point by encouraging the potential client to seek advice on the subject from another professional. 5)

The engagement letter is the perfect place to disclose any possible conflicts of interest that you may have and to obtain the potential client’s consent. Before accepting a client for whom a possible conflict may exist, though, you should carefully review Tenn. Sup. Ct. R. 8 RPC 1.7.

Scope of Engagement

It’s worth taking the time to think about the wording of the scope of the engagement. A scope that is too vague, or non-existent, can open you up to additional matters that were never discussed in the initial consultation. If another matter does come up, and you’re willing to accept it, you should have the client sign an engagement letter for the additional matter. Additionally, if the matter is litigation, and you don’t want to handle a possible appeal, explicitly state that the scope of the engagement is limited to the trial. 4)

Conflicts of Interest

Representing Multiple Clients

If you are representing multiple clients in the same matter, then your engagement letter should clearly state how you will resolve an issue if the multiple clients are not in agreement. This can be accomplished by selecting one of the clients as the decision-maker, or by withdrawing your representation from the clients. 3)

rates of any other personnel, such as paralegals or legal assistants, should also be laid out. It’s also important that the potential client be made aware that you will be billing for expenses in addition to your time working on the case. Inform your clients when and how they will be receiving their bills, and when an unpaid bill can begin accruing interest. Furthermore, it’s a good idea to state that your rates are subject to change and the time of year such changes usually take place. This will help ensure you are not locked into an out-of-date rate for a case that goes on for years. Before increasing your rates, though, be sure to review Tenn. Sup. Ct. R. 8 RPC 1.5 and RPC 1.8 Comment 1 regarding the reasonableness of fees and how to implement a fee change. Additionally, state how and when any unused fees are reimbursed, and to whom the unused fees will be reimbursed to if a third party is paying the bill.

Financial Terms

Finally, abide by your engagement letter. If you informed a client that you don’t give advice on a specific subject, then don’t advise on the subject. Also, be highly cognizant of scope creep. If another issue pops up in a client’s life and appears to be tangentially be related to the case, that does not mean it is. Closer inspection could reveal that issue requires another engagement letter. In the end, an engagement letter is about protecting your practice and communicating with your client. As with all forms or templates, you should review it on a regular basis to ensure that it is still performing its function.

The financial terms of the arrangement, whether you are billing on an hourly rate or on a contingency basis, should be clearly stated. The March 2016

DICTA

JUDICIAL NEWS By: Samyah Jubran Assistant District Attorney General Office of the District Attorney General, 6th Judicial District

EXPUNGEMENT SCREENING: MAKING THE EXPUNGEMENT PROCESS MORE EFFICIENT In September of 2015, under the leadership of my boss, District time beyond the screening hours, particularly in the cases of multiple Attorney General Charme Allen, and that of Criminal Court Clerk forms submitted or convictions that cannot be handled in one day, we Mike Hammond, Knox County began an Expungement Screening follow up at another time. process to assist the defense bar and pro se petitioners in an effort to At screening, we double-check eligibility of the cases sought to be expunge criminal cases in a more efficient and organized manner. As a expunged, we provide blank TBI forms, and we print the necessary result of this key collaboration, our offices have Justice Information Management System n most circumstances we are able ( JIMS) screens. You can download a PDF of streamlined the entire expungement process in Knox County and processed thousands of the Tennessee Bureau of Investigation (TBI) to assist the person in a applications within a short period of time. Order from our website “one-stop shop” method… Through improvements in technology we are (www.knoxcounty.org/dag) to ensure that you constantly tweaking the process, and will keep are using the current version of the form (the you apprised of changes. However, any suggestions towards further TBI will not accept altered versions of their form) and you can ask the efficiency are always welcome from members of the Knoxville Bar Clerk’s Office for a copy of the JIMS Expungement screen with respect Association. to General Sessions Court cases. We no longer need copies of warrants Expungements in Tennessee are governed by T.C.A. § 40-32-101, or other JIMS screens submitted for the Expungement application to be and because the statute is frequently revised, those preparing processed. All we require with the TBI form is a self-addressed stamped Expungements should confirm that they are using the latest version. envelope so that the Clerk’s Office can mail the attorney or petitioner a Currently the statute allows for the expungement of public criminal certified copy of the expungement to maintain for his/her records. records as defined in T.C.A. § 40-32-101(b) related to all dismissals and Applications from pro se petitioners are not accepted at the District certain minor convictions. The process to expunge a dismissal is Attorney General’s Office Reception window. While we do accept completely different from the process to expunge a conviction, so please expungements from the private bar at our reception window and from ensure that you understand each process in advance or check with us if everyone through the mail, we still encourage those who prepare the TBI you have questions. forms to attend screening to ensure that the forms are accurate and to At Expungement Screening, an Assistant District Attorney ensure that court costs and expungement fees are paid to the Clerk. General, along with a General Sessions/Criminal Court Clerk, are available to assist private attorneys or their staff members and pro se Expungement Screening For Dismissals petitioners. A judge is not present during the process, but rather, we • All applicants must provide a self-addressed stamped envelope for submit the forms to the respective judge for signature after we have each Expungement Application submitted. reviewed them for eligibility and accuracy. Once the judge has signed • Expungement Applications for judgments of Dismissal, Nolle the form, the Clerk’s Office has 60 days to expunge the records in Knox Prosequi, No True Bill, and Not Guilty Verdicts are free of charge. County, and the Tennessee Bureau of Investigation (TBI) has 60 more • Expungement Applications for judgments of Dismissal After days to expunge their records. Successful Completion of Judicial Diversion/Pretrial Diversion Students from the University of Tennessee College of Law’s require payment of a non-refundable $475 fee at the time of expungement Clinic are also present to assist pro se petitioners in their submission. form preparation and to provide them legal guidance regarding • All restitution, court costs, fines, & probation fees (if ordered) must expungements of convictions. Not only has this partnership with the be paid in full prior to submission of the Application. Please College of Law benefited the petitioners and our offices, but it has also confirm payment information with the Knox County Criminal benefited the law students in giving them hands-on legal experience Court Clerk's Office. within the criminal justice system. Expungement Screening For Convictions • Pursuant to T.C.A. § 40-32-101(g), certain convictions are eligible Expungement Screening for expungement. Mondays & Thursdays • All applicants must follow the instructions in the Expungement of 3:00 p.m. – 4:15 p.m. Conviction Packet. You can download an Expungement of Conviction Packet PDF from our website 4th Sessions Courtroom (www.knoxcounty.org/dag) or request one during Expungement Main Floor of the City-County Building Screening hours listed above. • All Expungement of Conviction Petitions require payment of a All General Sessions Court and Criminal Court Expungement non-refundable $450 fee at the time of submission. applications are screened during these days/times. When attorneys, their • If you are an attorney filing the Petition on your client’s behalf, the staff, or pro se petitioners enter the courtroom, we ask that they sign in District Attorney General’s Office will not evaluate the request so that we can keep track of who is in attendance. Anywhere from 5 until the Petition (including required documentation as per the people to 20 people show up each time, some with one case to expunge Expungement Packet), proposed Order, and fee of $450 are filed and some with multiple cases. In most circumstances we are able to with the Clerk of the Court. assist the person in a “one-stop shop” method, although sometimes, old cases must be ordered from records and court costs must still be paid For more information, please visit our website before the petitioner can apply for expungement. Attorneys and their www.knoxcounty.org/dag. staff members are prioritized at screening, but if a situation requires extra

DICTA

March 2016

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

2016 SUPREME COURT TERM— CRIMINAL LAW DEVELOPMENTS The 2016 Supreme Court term is off to a running start, and two cases that build importantly on the Court’s precedent in the criminal sentencing arena have already been decided. 1.

Capital Sentencing — Hurst v. Florida2

In order for a criminal conviction to comport with the Sixth Amendment, “each element of [the] crime [must] be proved to a jury beyond a reasonable doubt.”3 In 2000, the Court held that if a fact “expose[s a] defendant to a greater punishment than that authorized by the jury’s guilty verdict,” it is an “element” for Sixth Amendment purposes that must also be submitted to the jury.4 This precedent was extended to capital sentencing in Ring v. Arizona,5 where the Court held that Arizona’s capital sentencing scheme violated the Sixth Amendment because it allowed a judge, rather than a jury, “to find the facts necessary to sentence a defendant to death.”6 This term, the Court addressed Florida’s capital sentencing scheme in light of this precedent. Florida’s statute allows a jury to render an “advisory verdict” on whether the sentence should be life imprisonment or death, but the judge ultimately makes a factual determination regarding which sentence to impose.7 Although the Court had previously approved of Florida’s capital sentencing scheme, these favorable cases were pre-Ring.8 In Hurst seven justices determined that Florida’s procedure violated the Sixth Amendment9 because, as in Ring, “the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst’s authorized punishment based on her own factfinding.”10 Florida currently has about 400 inmates on death row – the second most in the nation – and it is not readily apparent how Hurst affects these inmates’ ability to challenge their sentences.11 Prior decisions “indicate[] that, at least in federal court, rulings like [Hurst] . . . would not apply retroactively to inmates whose convictions are final.”12 2.

Juvenile Offenders — Montgomery v. Louisiana13

In the past decade, the Court has been very active in defining the parameters of punishment that can be constitutionally imposed on juvenile offenders for certain crimes. During that time, the Court has held that the Eighth Amendment prohibits the imposition of a sentence of life without the possibility of parole for juvenile offenders convicted of non-homicide crimes;14 bars capital punishment for offenders under the age of 18 at the time of their crimes;15 and, with Miller v. Alabama in 2012, held that juvenile offenders convicted of homicide could not be sentenced to life in prison without the possibility of parole “absent consideration of the juvenile’s special circumstances in light of the principles and purposes of juvenile sentencing.”17 This term, the Court took up the question of whether Miller applied retroactively to juvenile offenders whose convictions and

March 2016

sentences were final at the time Miller was decided. Petitioner Henry Montgomery, who was convicted of murder and sentenced to life without the possibility of parole in the 1960s when he was 17 years old,18 challenged his sentence in state collateral review proceedings based on Miller’s holding, but was denied relief because the state courts concluded that Miller did not apply retroactively.19 A majority of the Court reversed,20 holding that “Miller announced a substantive rule that is retroactive in cases on collateral review” because the decision “did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of the distinctive attributes of youth.”21 Although Louisiana contended that Miller was simply a procedural rule without retroactive effect “because it did not place any punishment beyond the State’s power to impose,” the Court found that this was a distinction without a difference because “Miller did bar life without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”22 As is typically the case, the Court left open the mechanism by which states could allow defendants convicted as juveniles to challenge their sentences of life without the possibility of parole. The Court indicated that states would not be required to re-litigate sentences (or convictions, for that matter) in order to give Miller retroactive effect, but could simply permit eligible defendants, such as Montgomery, to seek parole.23 1 Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority. 2 136 S. Ct. 616 (2016). 3 Id. at 621. 4 Apprendi v. New Jersey, 530 U.S. 466, 494 (2000). 5 536 U.S. 584 (2002). 6 Hurst, 136 S. Ct. at 621. 7 Id. at 620. 8 See Hildwin v. Florida, 490 U.S. 638 (1989) (per curiam); Spaziano v. Florida, 468 U.S. 447, 457-65 (1984). 9 Only Justice Alito dissented. 10 Hurst, 136 S. Ct. at 622. 11 Adam Liptak, Supreme Court Strikes Down Part of Florida Death Penalty, N.Y. Times, Jan. 13, 2016, http://www.nytimes.com/2016/01/13/us/politics/supreme-court-deathpenalty-hurst-v-florida.html?_r=0. 12 Id. 13 __ S. Ct. __, 2016 WL 280758 (Jan. 27, 2016). 14 Graham v. Florida, 560 U.S. 48 (2010). 15 Roper v. Simmons, 543 U.S. 551 (2005). 16 132 S. Ct. 2455 (2012). 17 Montgomery, 2016 WL 280758, at *2. 18 Id. at *3. 19 Id. at *3-4. 20 Justice Kennedy authored the opinion, which was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia filed a dissenting opinion, which was joined by Justices Thomas and Alito, and Justice Thomas also filed a separate dissenting opinion. 21 Montgomery, 2016 WL 280758, at *11, *13 (internal quotation marks omitted). 22 Id. at *13 (emphasis added). 23 Id. at *16.

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OPEN SERVICE By: Troy S. Weston Eldridge & Blakney, P.C.

YEAR TWO: SO NICE, WE’RE DOIN’ IT TWICE After a groundbreaking year comprised of 12 successful service projects, the Open Service Task Force is back to continue the work of connecting Knoxville lawyers with local service projects. But, just like the Scorpion’s “Winds of Change,” the Open Service Project is pleased to be growing. This year, the committee leadership is shared between Elizabeth Carroll and me. The task force is comprised of Charme Allen, Katrina Atchley Arbogast, Maha Ayesh, Jamie Ballinger-Holden, Tasha C. Blakney, Loretta Cravens, Debra House, Farrell Levy, Francis Lloyd, Hon. Greg McMillan, and Paul Wehemeier. You can expect that the task force is planning some unique opportunities for you to have a terrific service experience. For our first project, we are returning to the scene of our first crime against insouciance—the YWCA. Founded in 1899, the YWCA has, for many years, focused on being a refuge for Knoxville-area women. In their own words: Women come to us in times of crisis, as survivors of rape or domestic violence, and for housing as they transition to a permanent living situation. We work to help them become independent by providing career counseling and

support. They come for help meeting health-related goals. They come for after-school and summer programming for their children. They come for a variety of reasons. But they come, and they leave with a renewed spirit, new skills, and stronger lives. Knowing the worthy mission the YWCA undertakes every day and the perseverance of their residents, it is our Bar’s privilege to return once again to serve them. Our specific project will be to prepare and serve supper to their approximately 50 residents on Thursday, March 24, 2016, beginning at 6:00 p.m. This year’s theme is going to be a Mexican fiesta (¡olé!). We will need volunteers to prepare supper, decorate the dining room, serve supper, and to help clean up afterwards. Immediately following supper—and before clean-up—representatives from the YWCA will be on hand to offer tours of the facility to interested folks. If you are interested in signing-up, please contact me at tweston@eblaw.us or 865.544.2010. I hope you will join us in our continued efforts to serve.

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March 2016

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Ben D. Cunningham Kennerly, Montgomery & Finley, P.C.

Reimbursement of Employee Expenses I suspect that many of you reading this column, like me, were once employed as a “runner” for a law firm. As those of us who were runners know, the absolute best part about being a runner was the out-of-office runs which required the use of your personal vehicle. On those runs you got to be out of the office, free from the watchful eyes of any senior lawyers and, most importantly, you likely got a mileage check reimbursing you for the trip. For those of you saying “I was a runner and I didn’t get mileage checks,” you have my condolences. For those of you saying “we don’t pay mileage for out-of-office runs at our firm,” do not fear. As a general matter, employers are not required to reimburse their employees for any expenses incurred in connection with their work. However, just because employers are not required to reimburse employees does not mean that they shouldn’t. While not required, employers are allowed to reimburse their employees for business expenses, including travel reimbursements and, in fact, are arguably encouraged to do so by the IRS. Thus, the primary reason employers should reimburse their employees’ expenses is that the IRS allows a business to deduct legitimate business expenses when calculating its income for tax purposes. According to IRS Publication 535, to be deductible, “a business expense must be both ordinary and necessary. An ordinary expense is one that is common and accepted in your industry. A necessary expense is one that is helpful and appropriate for your trade or business. An expense does not have to be indispensable to be considered necessary.” Travel expenses are one of the most common legitimate business expenses claimed by employers. The easiest way to reimburse for miles driven by your employees is to use the IRS mileage rate that the IRS publishes annually.1 The IRS rate is adjusted annually for inflation and takes into consideration the insurance, maintenance, licensing and fueling costs of vehicles. Because the IRS rate takes these considerations into account, employers do not have to document separate vehicle use costs. All that is required is that the employer maintain records of the dates, mileage and reasons for the business travel in order to establish the legitimacy of the tax-exempt reimbursement. It is worth noting that the IRS rate is a guideline. Thus, employers are free to reimburse at a rate above or below the IRS rate. Employers reimbursing above the IRS rate must treat any amount paid above the IRS rate as taxable income. All mileage reimbursements paid at or below the IRS rate are tax free. For employers who do not reimburse employee expenses, one potential pitfall is the Fair Labor Standards Act’s mandate that wages be paid “free and clear.” While the FLSA does not contain any rules mandating reimbursements, the FLSA requires that employers pay an employee’s wages unconditionally or free and clear. If an employee is required to return some portion of wages – whether directly or indirectly – and that “kickback” puts the employee’s hourly rate below the minimum wage, then the employer has violated the FLSA. In the context of expense reimbursements, the elements of an improper

kickback include the following: 1) the employee incurs an expense necessary to the performance of the employee’s duties; 2) the employer fails to reimburse the full amount of the expense; and 3) the unreimbursed expense reduces the employee’s actual compensation below the required minimum or overtime wages.2 For employers employing individuals at or near the minimum wage, it only takes a minor expense to create a problem. For instance, an employee working 40 hours a week making $8.00 per hour needs to incur just 6 dollars per day in expenses for the kickback to take his or her wage down to the federal minimum wage. Thus, if you send that employee on a run to file a pleading at the Roane County Courthouse, a roughly 75 mile round trip excursion, you have just brought that employee below the minimum wage if you do not reimburse the employee for their travel expenses. In conclusion, while the general rule is that an employer does not have to reimburse its employees for business expenses, it likely makes better business sense to do so. Not only will employee morale increase but the employer will receive a tax benefit at little to no additional cost to the employer. In addition, if the employer has any employees at or close to the federal minimum wage, by reimbursing expenses, the employer removes any chance that it may involuntarily reduce the employee’s earnings below minimum wage and thus incur potential FLSA liability.

For 2016, the IRS standard mileage rate is 54 cents per mile for business miles driven. The standard rates can be found at: https://www.irs.gov/uac/Newsroom/2016-StandardMileage-Rates-for-Business-Medical-and-Moving-Announced 2 See 29 C.F.R. § 531.35 1

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. March 2016

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HELLO MY NAME IS . . . BRYCE HARDIN By: Katie Ogle Haynes Meek & Summers

Competition is nothing new for local attorney Bryce Hardin. In fact, he finds courtroom litigation to be one of the most enjoyable parts of practicing law. “I love having a good contested hearing,” he says. “It reminds me of competing in sports or coaching—it’s a rush.” As an associate at the firm of Tarpy, Cox, Fleishman & Leveille, PLLC, Bryce has been able to find lots of opportunities to compete in the courtroom. “I practice a little bit of everything,” notes Bryce. “The first thing I did after being sworn in to the bar was get on every appointed list I could. Criminal matters, child support, juvenile—anywhere that had available work, I was willing to go.” Since Bryce has been a member of the firm, he has been able to expand his practice to include some personal injury matters, contract disputes, as well as other general civil litigation matters. While most of his practice has gone swimmingly thus far, like nearly every other attorney, he can recall an embarrassing moment here and there. “The first that comes to mind is during argument on a motion to dismiss that I filed. The judge interrupted me and started thinking out loud, and was concurring with my argument. I was excited, so I responded, ‘your honor is correct’—big mistake on my part.” Fortunately, Bryce was able to tactfully continue through the rest of the hearing, and his motion was granted, despite the faux pas. Bryce has called Knoxville home since the second grade, and remained here for both his undergraduate and law school careers. In addition to a obtaining degree in political science, he also worked for the strength and conditioning staff at the University of Tennessee to help athletes on the football and baseball teams prepare for their respective seasons. He continued this employment before beginning his legal career and worked at Christian Academy of Knoxville as the head of their strength and conditioning program.

So, you know by now that Bryce is comfortable in the gym and the courtroom, but his favorite place to be? A flooded cornfield. “I love duck hunting,” smiles the new attorney. “Getting my law practice going, and recently getting married have cut into it a bit, but there is nothing like sipping a coffee on a cold morning, just waiting for the ducks to come out.” In addition to weightlifting and duck hunting, Bryce also enjoys watching professional wrestling in his spare time. “My wife is a pretty good sport about it,” notes Bryce. “I wouldn’t call her a fan, but she will occasionally watch some throwback NWA, WCW, and WWF with me. It’s a fair trade for all the New Girl episodes I’ve had to watch.” Bryce also recognizes that while there is a lighter side to life, being a lawyer comes with serious responsibility. “There is definite pressure to succeed. Your clients give you a lot of money, sometimes all they have to their name, just so you have their back. Most of the time, this is the only litigation they have, and you owe it to them to give them your best.” We appreciate Bryce taking time to be interviewed for DICTA and wish him the best in his legal and duck hunting endeavors.

Knoxville Bar Association

LAWYERS CONCERNED FOR LAWYERS ........ to provide assistance to lawyers, law firms, and families of lawyers suffering from alcoholism, addiction, or other mental or emotional problems that impair the lawyers' ability to practice law. Free and Confidential Services Provided by Lawyers for Members of the Legal Profession and Their Families Help when you need it. Lawyers Concerned for Lawyers is a membership service of the Knoxville Bar Association. For more information, please contact Jim Cornelius at 292-2515 or John Butler at 244-3925.

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March 2016

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

BETTER THAN LEMONADE Not too long ago, I had the unfortunate experience of having to spend the night in a hotel in Atlanta. But, as they say, when life gives you lemons, make lemonade, which, in this case, meant catching up on some of the Walker Texas Ranger episodes I missed in the 90’s. The combination of martial arts, cowboy boots, big belt buckles, and watching a Dodge Ram pickup engage in high-speed chases is mesmerizing. The original version of this idiom was penned by Elbert Hubbard in his 1915 obituary for Marshall P. Wilder.1 Marshall Pickney Wilder was a turn-of-the-century American actor, storyteller, and writer.2 He was born with a form of dwarfism and a severely curved spine that caused people to describe him as a “hunchback dwarf.”3 Here is how Hubbard described Wilder:

most prominent people of his day: Henry Ward Beecher, General Ulysses S. Grant, Queen Victoria, Cornelius Vanderbilt, and Buffalo Bill Cody to name a few.8 The book is dedicated to “My Second Mother, the American Public.”9 People who are just trying to make the best of things do not make that kind of impact. Here is how he did it, in Wilder’s own words: When I became old enough to want to select a life occupation, I found myself in a serious quandary. All the callings to which boys at first naturally incline seemed closed against me. I couldn’t be a clown in a circus or enter for a walking-match, for my legs were too short. I couldn’t preach, for my head wouldn’t reach the top of the pulpit. There was no chance for me in Congress, for the Speaker couldn’t see me to recognize me, unless I stood on a chair, which would be contrary to the Rules of the House, and I couldn’t become John L. Sullivan’s rival, for my fighting weight was too light.

He was a walking refutation of that dogmatic statement, Mens sana in corpore sano. His was a sound mind in an unsound body. He proved the eternal paradox of things. He cashed in on his disabilities. He picked up the lemons that Fate had sent him and started a lemonade-stand. **** No man ever got more fun out of his work than he. This, of course, was also the secret of his success. His fun was spontaneous, and when he told the old jokes over, he always hypnotized himself into the belief that it was a brand-new audience. He gave big value, and he grew rich by giving.4 The primary difference between Hubbard’s original phraseology and the modern idiom is the actor in the sentence. Life is the actor in the modern version. This version speaks of an unknowable force that distributes sour events or circumstances, and those who are on the receiving end ought to try to make the best of it. In contrast, Hubbard’s version is much more active. It conjures the image of Wilder standing in a lemon grove, picking an armful of lemons, and making the conscious choice that he is going to make something profitable with those lemons. Rather than simply making the best of sour circumstances, Hubbard’s obituary implies that Wilder actively sought out challenges and insisted on bringing his own presence, wit, and perspective to those challenges. This is a remarkable perspective considering the times in which Wilder lived. During this period, people with disabilities were called “defectives” and other derogatory names.5 In 1915, the year Wilder died, there was an extensive public debate, with writers such as Helen Keller and Jane Addams publishing letters in The New York Times, the Washington Post, and The New Republic discussing whether such “defectives” had the capacity to contribute to society, or whether society had a duty to protect itself from these “defectives.”6 If anyone had a right to adopt the perspective that “you just have to make do with what you got,” Wilder could make that claim. In an age when performers with disabilities were relegated to “freak shows,” Wilder took the stage and made himself a household name in vaudeville.7 His first book, entitled The People I’ve Smiled With: Recollections of a Merry Little Life, recounts Wilder’s encounters with the

March 2016

It occurred to me one day that there were a good many solemn people in the world, and none too many men who made a business of provoking their fellow-men to laugh. If I could persuade enough people to listen to me, I might make it my business to smile for revenue. Incidentally, I might do some good, for if I, with the handicapping I was enduring, could smile and be merry, any big healthy fellow ought to go out into his own backyard and kick himself whenever he found himself becoming miserable. So, I went into the “humorous entertainment” business. I also succeeded—so other folks say.10 Those are not the words of someone who is taking life as it comes. Those are the words of someone who made a conscious choice to focus on his strengths and use them to change the perspective of those around him . . . and make some revenue in the process. No wonder Wilder’s obituary stated, “No man ever got more fun out of his work than he.” Elbert Hubbard, Marshall P. Wilder in Selected Writings of Elbert Hubbard, Vol. 5, 235-239 (1922). Susan Schweik, Marshall P. Wilder & Disability Performance History, Disability Studies Quarterly, Vol. 30 No. 3/4 Univ. of Cal. Berkley (2010), available at http://dsq-sds.org/article/view/1271/0. 3 Id. 4 Hubbard at 237, 239. 5 John Gerdtz, Disability & Euthanasia: The Case of Helen Keller & the Bollinger Baby, Life & Learning XVI 491 (2006). 6 Id. at 491-92; see also John Dill Robertson , M.D., The Case of the Bollinger Baby, Journal of the American Medical Association Vol. LXV, No. 23, 2025 (Dec. 4, 1915), available at http://jama.jamanetwork.com/article.aspx?articleid=447318 . 7 Susan Schweik, available at http://dsq-sds.org/article/view/1271/0. 8 Marshall P. Wilder, The People I’ve Smiled With; Recollections of a Merry Little Life (1886) available at https://archive.org/details/peopleivesmiledw00wi. 9 Id. 10 Id. at 3-5. 1

DICTA

A TENNESSEE COURT IS “IN BUSINESS” FOR US ALL

With a flourish of the pen, the Tennessee Supreme Court created a business court docket in the Davidson County Chancery Court, Part III, in March 2015. The business court (also known as the Business Litigation Pilot Project) began to take cases as of May 1, 2015. Chancellor Ellen Hobbs Lyle (https://www.tncourts.gov/chancellorlyle), a judge with significant experience adjudicating business law matters, presides over the court. General information about the court is available at http://www.tsc.state.tn.us/bizcourt. This represents important progress for businesses and business lawyers in Tennessee. Many are familiar with the Delaware Chancery Court, the leading business trial court system in the United States. But numerous other states also have business courts of one kind or another. The Business and Corporate Litigation Committee of the American Bar Association Business Law Section has a standing subcommittee, the Business Courts Subcommittee, dedicated to these courts. These courts are recognized forums for dispute resolution across the country. Why Are Business Cases Getting This Special Attention? Given that I do not litigate cases (we transactional folks try to keep the matters we work on out of the courts!), you might wonder why I view the creation of a business court in Tennessee as a positive development. Having worked with the bar in Massachusetts on the establishment of a business court back in the 1990s (before I moved my family to Knoxville to start my law teaching career) and having taught business law courses at The University of

Tennessee College of Law for almost sixteen years now, however, I have come to understand business courts as important to the efficient, effective administration of justice in many business disputes. Specifically, business cases can have an idiosyncratic complexity to them that is best handled by a court that has the ability to specialize and develop an expertise on procedural and substantive business law. For example, those who have taught or endeavored to explain shareholder derivative claims against corporate directors or officers asserting a breach of fiduciary duty or appraisal rights actions in which dissenting shareholders request a judicial valuation of their shares may appreciate the value of a court with significant experience in those kinds of cases. Cases of this kind often include unsettled or otherwise contentious legal issues in the context of specialized procedural requirements. In the hands of a court of general jurisdiction, trials frequently involve matters of first impression for the court or the judge and, as a result, can be lengthy. Based on experience in other states with specialized business courts of various kinds, the business court should result in a more efficient use of judicial resources, reducing the overall cost of this litigation to the state and the parties. In addition, the business court holds promise to develop an increasingly consistent, coherent body of judicial decisions relating to Tennessee business law. In fact, the online Guide to the Business Court (http://chanceryclerk andmaster.nashville.gov/wp-content/uploads/G uidetotheBusinessCourt.pdf ) describes the court as “a specialized trial court established to (1) provide cost effective disposition of business cases and procedures adapted to the needs of

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each case; and (2) to develop a body of rulings from which lawyers and litigants can better predict and assess outcomes in business cases.” What Cases Does The Business Court Hear? The business court is authorized to adjudicate a variety of business law actions alleging $50,000 or more in compensatory damages or primarily requesting injunctive or declaratory relief. The types of claims that may be heard generally include (and this is a partial summary) civil disputes relating to the internal affairs of business entities, contractual and other business transactional matters, commercial real property issues, technology licensing, non-compete and non-solicitation agreements, antitrust, trade secrets, securities, and commercial construction contracts. Claims may be brought as shareholder derivative or commercial class actions. Specific types of claims and causes of action also are expressly excluded, including (without limitation) personal injury and wrongful death actions, standalone employer/employee and professional fee disputes, residential landlord/tenant actions, healthcare liability cases, and (quoting from the Guide) “cases in which the State of Tennessee is a party.” In addition, to be eligible for adjudication in the business court, the complaint in the action must have been filed on or after May 1, 2015. Legal counsel may request that a case be transferred to the business court by filing a request to designate the case to the court with the Davidson County Clerk and Master’s Office within 60 days after service of the complaint on the defendant. The Chief Justice then either orders or denies transfer of the case.

March 2016

COVER STORY

By: Joan MacLeod Heminway The University of Tennessee College of Law

Objections to transfer (other than those relating to eligibility) must be filed with the Chief Justice within 30 days of the entry of the order transferring the case to the business court. What Has Been Happening In The Business Court Since May? It has only been six months since the business court opened its doors. Yet, business litigants in Tennessee already have begun to make the business court a court of choice. As might be expected, the range of matters before the court includes a diverse assortment of cases. Although a formal published report from the business court is not yet available on the nature of its docket, the recently released Annual Report of the Tennessee Judiciary for 2015 (http://www.tsc.state.tn.us/sites/default/files/do

cs/2015_outline_02092016.pdf ) notes (on page 13) that 34 cases were transferred to the business court in 2015, 11 of which were resolved by the end of the year. Other publicly available information indicates that the court has handled issues in (among other types of cases) a number of contract disputes and at least one appraisal rights case, LLC statutory derivative action, and LLC fiduciary duty claim. Sample court orders illustrating issues addressed by the court to date, divided between substantive law and case management matters, are available on the court’s website. The Future Of The Business Court The business court was expressly established as a pilot program to facilitate the study of and feedback concerning the court’s

operations under the new rules. To assist in that assessment process, the Tennessee Supreme Court established a Business Court Rules Advisory Commission. The commission is chaired by a sitting judge from the Tennessee Court of Appeals and also includes eight members of the bar practicing in private firms and businesses in each of the three grand divisions. Tennessee’s cautious, thoughtful approach to the creation of a business court offers much to commend. A successful pilot program in Davidson County may not only portend the permanent establishment of a business court there but also may catalyze the establishment of other business courts across the state. This is a potential development to watch for.

THE KNOXVILLE BAR ASSOCIATION presents OVER 50 LUNCH FOR SENIOR ATTORNEYS & THEIR GUESTS

Heroes Featuring

Chris Edmonds Pastor, Piney Grove Baptist Church, Maryville & CEO of Roddie's Code Wednesday, March 9, 2016 11:30 a.m. - 1:00 p.m. Calhoun’s on the River - 400 Neyland Drive Price includes Grilled Shrimp or Grilled Chicken Teriyaki, vegetable, salad & beverage. If you have dietary restrictions, please provide us with at least 48 hours’ notice of your limitations. PRICE: $35.00 (Includes tax & gratuity) Enclose check payable to “The Knoxville Bar Association.” Mail/deliver check & registration form to: The Knoxville Bar Association 505 Main Street, Suite 50, P.O. Box 2027, Knoxville, TN 37901-2027 (865) 522-6522 Prepay online at www.knoxbar.org. Please note new luncheon location at Calhoun’s on the River. March 2016

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WORD PLAY

barrister bullets •

Plan now to attend the Barristers monthly meeting on Wednesday, March 9, at 5:00 p.m. at the Bistro at the Bijou. Everyone is welcome. This is a great opportunity to get to know your fellow young lawyers. Jonathan Cooper will be the featured speaker talking about Driver’s License Reinstatement. Get updates on the Barristers on Facebook at www.facebook.com/knoxvillebarristers.

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The Hunger & Poverty Relief Committee thanks everyone who participated in this year’s Teddygram Drive! Please be on the lookout for information to come regarding the Committee’s Professional Clothing Drive, which will take place April 6 – 18. For more information on how to get involved with upcoming projects, please contact Courtney Houpt at choupt@taylorknightlaw.com or Kourtney Hennard at khennard@londonamburn.com.

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Caitlyn Elam and Stanton Fears, co-chairs of the Barrister’s Law School Mentor Committee, would like to thank all of the wonderful lawyers who volunteered to conduct Mock Interviews at UT Law. Through its volunteers, the committee successfully conducted 42 mock interviews for 1L students to assist them in preparing for upcoming interviews for summer clerkships. Caitlyn and Stanton would like to thank the following attorneys who volunteered their time: John Rice, Ronnie Isaacs, Adam Russell, Jill Evert, Susan Dominick, Elizabeth Towe, Brandon Morrow, Jared Garceau, Mitchell Painter, Courtney Houpt, Mikel Towe, Mabern Wall, Erin Wallen, Bart Williams, Taylor Williams, Camille Sanders, Cathy Shuck, Sarah Watson, Jay Moneyhun, Daniel Ellis, Heather Ferguson, and Rachel Hurt.

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

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

“Siesta” We all know what it is, by why call it a “siesta”? Is it the Spanish word for “Nap”? Not really. During medieval times, church bells would ring out the hours of the day to call the clerics to gather for the appropriate prayer. These were known as the canonical hours. Days were considered to begin not at midnight, but at sunrise; so, the prima hora (first hour or first prayer) occurred at around 6:00 am. The tertia hora (third hour) was sung at 9:00 am. By the time the sexta hora, 12:00 pm rolled around, it was hot in Spain and Latin America, so a break from the heat was in order. A couple of hours were set aside for a meal and a rest. Then work would begin again and proceed through to sunset. This became the norm and the break came to be called a “siesta.” When the time of day began to be tolled from midnight, the sexta hora was at 6:00 am, but the tradition kept and the midday break remained the siesta and is observed to this day in Spain and Latin America. Nine hours after the beginning of the day the nona hora was sung. It is thought that when clerics were prohibited from breaking a ritual fast until this 3:00 pm bell. Nona became non in Old English, which eventually became “noon.” When people began to eat at 12:00 pm, the mealtime break continued to be referred to as “noon.”

Barristers February Meeting 18

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March 2016

LAWYER HOBBIES By: Katie Ogle Haynes Meek & Summers

GONE FISHING Growing up in Knoxville, there were plenty of opportunities for Adam Moncier to enjoy the great outdoors. In the 1930s, his grandfather purchased a remote mountain farm in Wears Valley, Tennessee, about an hour from Knoxville. As a child, Adam recalls spending entire summers at the family cabin. “The house was constructed entirely of indigenous stone from the mountain, and the water was plumbed and gravity fed from a stream outside.”

“Each morning we would head into the mountains at the first sign of daylight, and not return until sunset. My cousins and I traveled untold miles, meandering through mountain streams and flipping over rocks in search of the ‘ultimate crawdaddy’ or ‘brawniest salamander.’” It was during these summers that Adam developed a passion for the wilderness and spending time outdoors. After casting hundreds of lines into the lakes and rivers around Cherokee, North Carolina, and navigating the “spur” between Gatlinburg and Pigeon Forge in hopes of landing a rainbow trout, Adam can’t remember a time when he wasn’t an avid fisherman. While he continues to enjoy an array of outdoor sports, he has traveled extensively to fish in locations all over the world. Last year, Adam took a four day excursion from Ft. Lauderdale to Bimini to fish Marlin and Mahi Mahi, and annually visits Venice, Louisiana to fish Redfish and Speckled Trout. He has been to Acadia National Park to fish smallmouth bass, fished Spanish Mackeral moored at the walls of Fort Sumter, and caught Speckled Brown Trout at Fort Moultrie. But his favorite fish to catch? Largemouth Bass. Adam has even gone fishing in the Seven Seas Lagoon at Disney World in hopes of bagging a prize largemouth, but caught his 9.75 pound trophy bass close to home on Douglas Lake. “I really enjoy bass fishing, and especially enjoy any fishing I get to do with my children, William and Khaki. We are looking forward to spring and summer, and getting after the Striped Bass on Melton Hill Lake. I also believe that even after thirty years of fishing, my best catch is my wife, Paige. ” Most anglers also have a host of recipes in which to prepare their catches each day, and Adam is no exception. While largemouth may be his favorite fish to catch, it isn’t his favorite catch to have plated in front of him. In our discussion of fish recipes, he notes that redfish grilled “on

March 2016

the half ” (filleted with the scales on) basted with garlic butter and lemon pepper is pretty tough to top in his book. One would imagine that fishing is a most relaxing sport, spending days floating down a river or around a lake, and dreaming about different ways to prepare your haul at the end of a long day, but some of Adam’s experiences have been anything but restful. “On one trip we hiked two miles into the Lamar River Canyon (part of Yellowstone National Park) in Cooke City, Wyoming to fish cutthroats (trout). The locals had warned my group that if we met any bison herds, we should slowly turn around and go back the way we came. After hiking to the bottom of this canyon, we rounded the corner to see a herd of bison who were less than thrilled to see us. We then heeded the instructions and swiftly walked away from the herd before we were chased. A very scary, but also a very cool experience.” With the exception of a 2,000 pound bison, Adam considers his fishing excursions as his opportunity to reflect on work, life, and the beauty of being in nature. “There’s no better way to truly understand how insignificant you are on this earth until you’re on a boat in the middle of the ocean, or in the middle of a stream in a lush forest attempting to lure in a creature that hasn’t required much evolution for the last million or so years. Pretty awe-inspiring, don’t you think?” If you’re interested in learning more about local fishing holes, need a guide for your first fishing trip, or just want to discuss the great outdoors in general, Adam is one of the most approachable attorneys I know, and he would be happy to discuss his adventures with other KBA members. From everyone at DICTA, we thank Adam for his participation in our Lawyer Hobbies column, and wish him and his children safe and successful fishing ventures this year.

DICTA

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

If you were like me, I had a moment of hope and utter daydreaming this past January when the news reported that there was a winner in Tennessee for the ridiculously large Powerball drawing. My bubble was quickly burst, however, when the reports confirmed that the winner was in Munford, Tennessee. Considering that before that day I had never heard of Munford, Tennessee, I was quite certain I had not purchased my lottery ticket there. Sigh. While elated with their winnings, John and Lisa Robinson probably underestimated how people would come out of the woodwork, or more specifically the Pennsylvania prison system, with claims to their new money. On January 25, 2016, Johnathan Lee Riches “d/b/a Jihadi Schitz” filed an “Emergency Motion for Preliminary Injunction Temporary Restraining Order TRO” against the Robinsons and the whole of the Powerball lottery system, asking the court to restrain the Robinsons from collecting the Powerball money. I cannot proceed with this story without first taking a quick sidebar regarding this dude’s name. Riches claims himself to be a converted Muslim. Apparently “Jihadi Schitz” is his new chosen name. I mean, just say it out loud once. Wonder what made him land on this particular name? I’m going to go out on a limb and say he doesn’t actually know what “d/b/a” means. And if he does; well, then, I’m even more confused. I digress. Riches filed suit against the Robinsons claiming that, whilst he was in prison, he became pen pals with the Robinson’s daughter, Tiffany. She, allegedly, was “a fan” and “Facebook follower” of Riches and “wrote [him] dirty letters.” Fortuitously, Riches sent Tiffany $20 from his prison trust fund account and told her to give the money to her parents to buy a Powerball ticket (because he claims they couldn’t afford it). Riches says that he and Tiffany wanted to win the lottery so they could “leave America and live on a remote island full of milk and honey.” Riches claims that they promised him half of the winnings if they won the Powerball. And now, the Robinsons are refusing to give him his proper half of the jackpot. Riches contends that “Tiffany conned and bamboozled [him] and manipulated [his] love for $20 dollars.” The ridiculousness of this story pretty much speaks for itself. I do want to know if Tiffany was really pen pals with Riches though. What is most sad is that the Robinsons are actually going to have to spend some of their Powerball earnings to get this craziness dismissed.

DICTA

March 2016

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

PROSECUTORIAL ETHICS: THE ETHICS OF RELEASE-DISMISSAL AGREEMENTS If you are like me and many others, you probably spent a lot of time watching and thinking about the documentary Making a Murderer on Netflix this winter. (And if you didn’t, you need to stop reading this article right now and start watching.) The documentary contains a smorgasbord of potential ethics issues involving the chief prosecutor and one of the defense lawyers in the matters at issue in the documentary. (I’m not going to give away any spoilers, but Ken Kratz and Len Kachinsky, if you are reading this, shame on you both.) In the documentary, we learn that Steven Avery was wrongfully convicted of a horrible crime, released from prison, sued various officials involved in the prosecution (including the district attorney) for prosecutorial misconduct, and wound up settling his lawsuit. In Making a Murderer, the settlement agreement was reached after Avery had already been freed from prison. However, sometimes a criminal defendant may be forced to choose between having his or her criminal charges dropped and proceeding with a civil matter against law enforcement. This scenario raises an interesting issue of prosecutorial ethics: under what circumstances may a prosecutor enter into a release-dismissal agreement? Release-dismissal agreements are agreements between a prosecutor and a criminal defendant whereby the prosecutor agrees to drop criminal charges in exchange for the defendant agreeing to drop any civil action the defendant may have against the prosecutor or other officials, such as a § 1983 claim for violation of the prisoner’s rights while in custody. The situation might also arise in the post-conviction context whereby the prosecutor agrees not to contest a prisoner’s post-conviction relief efforts in exchange for the prisoner agreeing to drop civil charges. In Newton v. Rumery, 480 U.S. 286 (1987), the Supreme Court, in a plurality opinion, concluded that that such agreements were not per se invalid and may be enforced, provided they are not the result of coercion. In reaching this conclusion, the Court noted that a criminal defendant’s decision to enter into such an agreement may represent a rational cost-benefit analysis. However, the Court did make clear that such agreements are subject to close scrutiny. In addition, the Court did not speak directly to the question of whether such an agreement might violate a state’s rules of professional conduct and concluded that the validity of such agreements must be determined on a case-by-case basis. State ethics opinions have taken different views on the ethical ability of prosecutors to enter into such agreements. A California opinion concluded that a prosecutor is ethically prohibited from entering into release-dismissal agreements. Cal. Formal Op. No. 1989-106. Relying upon Newton, most states have concluded that there is no per se ethical bar on prosecutors entering into such agreements. However, ethics opinions warn that such agreements should be scrutinized closely. For example, a Colorado ethics opinion opined that such agreements should only be enforced where the defendant’s decision is knowing and voluntary and where no serious civil rights violation has occurred. Colo. Formal Ethics Op. 62 (1982 as revised and amended 1988 and 1995). A

March 2016

North Carolina opinion warns that a prosecutor should not negotiate such an agreement with an unrepresented party and imposes additional restrictions on a prosecutor’s ability to enter into release-dismissal agreements. N.C. Formal Ethics Op. 2013-1. An additional obstacle to entering into such agreements exists in jurisdictions (like Tennessee) in which a lawyer is prohibited from “threaten[ing] to present a criminal or lawyer disciplinary charge for the purpose of obtaining an advantage in a civil matter.” TRPC R. 4.4(a)(2). An ABA opinion interpreting this rule concluded that a lawyer does not violate the rule where “the criminal matter is related to the civil claim, the lawyer has a well founded belief that both the civil claim and the possible criminal charges are warranted by the law and the facts, and the lawyer does not attempt to exert or suggest improper influence over the criminal process.” ABA Formal Op. No. 92-363. But where any of these conditions are not satisfied, a violation of the rule may result. What’s more, conduct that amounts to a violation of Rule 4.4(a)(2) might also conceivably amount to extortion under a criminal statute. Id.; see also TN Code § 39-14-112(a) (defining the crime of extortion as involving coercion upon another with the intent to unlawfully restrict the other’s freedom of action). The one area in which ethics opinions appear to be unanimous is the situation in which a prosecutor knows that a charge is not supported by probable cause. A prosecutor is ethically prohibited from prosecuting a charge that the prosecutor knows is not supported by probable cause. TRPC R. 3.8(a). As several ethic opinions conclude, it naturally follows that a prosecutor who initially believed a charge was supported by probable cause but comes to know that probable cause is actually lacking is also ethically prohibited under Rule 3.8(a) from entering into a release-dismissal agreement. See Va. Legal Ethics Op. 1867 (2013); Colo. Formal Ethics Op. 62 (1982 as revised and amended 1988 and 1995); Indiana Legal Ethics Op. 2005-2; see also N.C. Formal Ethics Op. 2013-1 (concluding that a prosecutor who comes to learn of exculpatory evidence demonstrating prisoner’s innocence may not ethically make the prosecutor’s consent to a post-conviction relief motion contingent on the prisoner waiving civil rights claims). A prosecutor who enters into a release-dismissal agreement under these circumstances would also probably be in violation of Rule 4.4(a)(2), since the prosecutor was threatening criminal charges in order to gain an advantage in a civil matter while lacking probable cause. A comment to TRPC Rule 3.8 observes that “[a] prosecutor has the responsibility of a minister of justice whose duty is to seek justice rather than merely to advocate for the State's victory at any given cost.” Given this heightened duty, a prosecutor who enters into a release-dismissal agreement must, in the words of a North Carolina opinion, “take great care not to transgress existing ethical rules.” And, by the same token, a prosecutor who fails to take such care should be held strictly accountable.

DICTA

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

LENGTH VS. DENSITY I read Seth Godin’s blog post every morning before starting my day. His blog posts aren’t news briefings or photographs of perfect avocado toast. Seth’s posts provide inspiration in the form of explanation: he discusses the way we produce whatever it is we produce, drawing upon analogies that are helpful to even the lay reader. Seth Godin is a New York Times bestselling author, entrepreneur, and renowned marketing mind, and his blog distills many of his big ideas. Sometimes the subject is an explanation of the new economy; at other times, he encourages better marketing. You almost feel like you’re discovering big ideas alongside him. The blog has for years inspired confidence in me to produce great work and to refrain from letting fear stall a particular project. For example, Seth’s blog often asks the reader to set out on an adventurous new project, and then “ship” one’s work before fear gets in the way. Perhaps most important is that the blog posts can be digested in less than 60 seconds. No matter the topic of the day, Seth’s blog is always brief and to the point. And then one day, I woke up to a Seth’s blog post about the benefits of brevity (which, of course, was concise in its own right). What other advice could be more important to pass on to a group of lawyers? Seth’s post, “Running out of room (length vs. density),” published December 2, 2015, points out that in today’s world of tweets and Facebook posts, our messages to the outside world keep getting shorter. And “in a world with infinite choice, there’s always something better and more urgent a click away.” We can all stop here and commiserate collectively on the difficulty of finishing an Atlantic cover story with

other apps just a click away. But, Seth explains, shorter isn’t better. Instead, density is what we should aim for. As you might guess, density is difficult. Density requires us to focus on “boiling out all the surplus” and getting to the point already, thank you very much. Seth points out that the proper density is a critical balance: “Too much and you’re boring. Not enough and you’re boring.” The obvious corollary is that, if you’re interesting, then you may feel free to continue to command the reader’s (or listener’s) attention. Just make sure to stop before you’re boring again. [How many professionals do we know who stand on the soapbox just a few minutes too long? Better to make your point and sit down.] Lawyers in particular struggle with the concept of length versus density. We write lengthy briefs rather than dense, short briefs because we worry about leaving too much to the imagination. Despite all good intentions, the resulting writing only serves to bore the reader. Worse still, the bored reader will leave a lot more to the imagination . . . because she’ll only read every other word. As lawyers, we all know the saying, “I would have made it shorter, but I ran out of time.” But Seth’s blog post adds an important caveat: “Long isn’t the problem. Boring is.” In the spirit of Seth’s blog post, and having made my point, I’ll end this post a bit early. To read or to subscribe to his blog post, visit Seth’s Blog at http://sethgodin.typepad.com. Having read it for years, I can attest that Seth’s blog pours out a fine morning cocktail that is always equal parts inspiration and suggestions on how to produce better work with your organization. I highly recommend it for any well-read lawyer.

DICTA

March 2016

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

UP IN THE AIR, IT’S A BIRD, IT’S A PLANE . . . You can blame Abbie Hoffman . . . or maybe Jerry Rubin . . . or Tom Hayden, or any one of a number of long haired hippie freaks of the 1960s (Don’t get me wrong, I love the long haired hippie freaks. I like to think if I had lived in the sixties, I would have been one of them, although I know the reality is that I would have been too nerdy for that group. I look and act more like I would have been working for Mayor Daley.). The upheaval and chaos surrounding the 1968 Democratic National Convention resulted in the nomination of Hubert Humphrey who, remarkably, had not won a single presidential primary that year (in 1968 it was much safer to place second). In the wake of this bizarre result, party leaders decided it was time to implement a nomination system more reflective of the will of the people (or at least the will of those people willing to spend a lot of money on primary advertising). They determined that, henceforth and forevermore, delegates to the National Convention would be bound by the results of the primaries occurring in their states. That, really, is how our current system of nominating candidates for President fell into place. This led to a mad scramble among the states to position their primaries in a way that would have maximum impact in choosing a party representative. I have no idea how Iowa and New Hampshire came out the big winners in that contest, but they did. Now, presidential hopefuls have to focus an extraordinary amount of time on the value of an ethanol tax credit or trudging up the snow covered streets of downtown Manchester in February, shaking hands and kissing babies, if they are going to convince their big dollar donors that they have enough widespread appeal to stay in the race. Through two primaries (I realize this is a bit dated as, by the time the column has been published, several additional primaries will have occurred), the clear winners on the Republican side have been Trump, Cruz, and Kasich. To a lesser degree, Jeb Bush has shown to the great surprise of everyone, including his parents, that he still has a pulse. To be sure, other candidates are still viable in the race, but Iowa and New Hampshire did not do them any favors (I’m looking at you, Marco Rubio). On the Democrat side, Hillary has to be pulling her hair out a little bit. At the beginning of this race, Bernie Sanders was polling around 5%. Now, he has claimed a dead heat in the Iowa Caucuses and he managed a blowout (albeit expected) in the New Hampshire Primary. That being said, don’t fret too much for the former first lady, and still likely Democratic nominee, just yet. Despite his meteoric performance, Sanders still trails in delegates through the first two contests, and it’s not even close. According to the numbers I saw in an AP article, Sanders won 13 delegates due to his blowout in New Hampshire and Clinton won 9 (2 remain uncommitted – how is that possible?). Still, adding those totals to the big tote board, Hillary currently has 394 delegates in her pocket and Sanders has 42. That’s right, Bernie has wildly outperformed expectations, and in fact beaten Clinton in overall vote totals, through two contests, yet he is staring at a 350 vote deficit. I imagine many in his camp are “feeling the bern” right about now. Of course you ask “Jason, how can this be? Is the AP adding in vote totals from the 2012 democratic primary? Is this a New World Order conspiracy spearheaded by Donald Trump to infiltrate the Democrats and select a candidate for them? Is this the natural result of

March 2016

common core math run amok?” The answer to all of these questions is “no” (although I still don’t fully understand common core math so there may be some merit there). The reason Hillary holds a commanding lead at this point can be summed up in one word: “superdelegates.” Before you envision crime fighting politicos faster than a speeding bullet and more powerful than a locomotive, understand that superdelegate is the name given to unpledged delegates to the convention, selected by virtue of their leadership positions within the party, who are not bound by the results of any state primary. Think of them as free agents. There are 712 superdelegates to the Democratic National Convention from all over the country and they are free to vote for any candidate they please and may in fact change their mind at any time. The Republicans have superdelegates as well, although theirs are typically bound to vote for whoever has won their state’s primary. Thus far, Hillary has done an excellent job in securing superdelegates, which is to be expected. Now, you may be thinking to yourself, “Jason, this seems very undemocratic to have a collection of party elite who can vote for whoever they want despite what the people say. Isn’t this the very type of thing Abbie Hoffman and his group protested in the streets of Chicago?” Well, in a way, yes. There will be about 4,700 delegates voting for the democratic nominee. Therefore, superdelegates make up roughly 15% of the total votes cast. Not enough to win, but certainly enough to swing a close race if the one candidate can rack up a large number of these superdelegates. The reason for the superdelegate system is purportedly to ensure some level of quality control. The introduction of superdelegates occurred after the 1980 election and was the brainchild of Jim Hunt, former governor of North Carolina and political nemesis of Jesse Helms. I guess the party had enough of backing Jimmy Carter in elections and did not want to run the risk of a charismatic, unknown peanut farmer taking the reins of the party in the future. Instead, in 1984, they got Walter Mondale, who received exactly 13 more electoral votes than I did in the presidential election that year (I am still demanding a recount). I believe the superdelegate system makes it more difficult for a true outsider to win. Bernie Sanders is a prime example. He does not have the type of institutional support that Hillary does and therefore he is going to have to make a convincing case that he should be given control of the party. While I have to admit the process is less democratic, I don’t believe it is necessarily improper. Institutional safeguards are sometime necessary to protect us from ourselves. If the Republicans permitted their superdelegates to remain uncommitted, I suspect Trump would be facing longer odds and Jeb Bush may be on more steady ground. Personally, that would give me some comfort. I don’t mean to suggest that Sanders is not a worthy candidate or that he should not get the nomination. I just believe that when someone uses the popular “I’m an outsider and want to destroy the system to build it back up” theme, they should be properly vetted and closely scrutinized. If Bernie wins the nomination, he will have earned it the hard way and it will ensure a level of support and credibility that will be necessary if he is to win the White House. As interesting as the Republican fight is, it may be the battle on the Democratic side that causes the fireworks to fly.

DICTA

LEGAL MYTHBREAKERS By: David E. Long Leitner Williams Dooley Napolitan PLLC

THE ELEPHANT IN THE ROOM An employee driver operating a commercial truck within the course and scope of his employment runs a stop sign. He hits the plaintiff who has the right of way. Plaintiff suffers personal injuries as a result. Plaintiff sues both the driver and employer. The employer admits the accident occurred within the course and scope of the employment. In the past, employers were often successful in having the driver dismissed conditionally by admitting to agency, respondeat superior or other vicarious liability issues while still maintaining the ability to argue the negligence issues. Under the Civil Justice Act of 2011, however, the former practice may have some problems. In both T.C.A. Section 29-39-102 (“102”) and Section 29-39-104 (“104), the rules of the game seem to have changed somewhat. Section 102(j) (dealing with compensatory damages) states that the “liability” of a vicarious defendant (for non-economic damages) “shall” be determined separately from the alleged agent, employee or representative. Section 104(a)(9) and (g) dealing with punitive damages states the same thing, utilizing the word “culpability,” with a number of caveats. Both Section 102 (m) and Section 104 (g)(C)(2) seem to indicate that the above provisions do not create or enhance civil liability/ claims/damages /etc. Section (102), or expand or increase the scope of vicarious liability for punitive damages (Section 104). It is interesting to note that both sections state they do not increase the potential scope of the vicarious liability doctrine(s). Both statutes do not say anything about “decreasing” the scope of those doctrines. However, a reasonable suggestion is that both sections may very well increase the effect of vicarious liability litigation, if not the literal scope of it. An apparent issue as to both sections is one of potential conflict of interest. Given 102(j) and 104(a)(9) and (g), can the employer and driver be defended by the same attorney? Can they waive any potential conflicts of interest, or based on the particular facts, is the apparent conflict non-waivable? After all, 102(j) and 104(a)(9) utilize the word “shall.” It seems the jury or court has no choice but to consider vicarious liability and/or culpability between the employer and driver. In and of itself, a liability/culpability parsing in a “vicarious” liability situation changes the scope and meaning of vicarious liability as we have understood it to mean in the past. Note that Section 102(j) does not say anything about a separate cause of action for negligent entrustment. It limits itself to vicarious liability situations. Section 104 (punitive damages) is particularly interesting. In 104(g), the employer defendant is liable for punitive damages only if the plaintiff shows by clear and convincing evidence the employer did one or more of the following: (1) the act or omission was performed by a manager while acting within the course and scope of employment; (2) “reckless” hiring, retaining, supervising or training the driver which is in turn the proximate cause of the accident; (3) authorization, ratification or approval of the act or omission with (a) knowledge; (b) conscious disregard[sic]; or (c) reckless disregard that the act “may” result in the loss or injury. Note that (2) above does not address “negligent” entrustment; it seems to up the ante to “reckless” entrustment. Sections 102 and 104 could very well have the effect of creating both negligent liability and reckless or other punitive liability on the part of the defendants in the above example. It is easy to see a situation where the employer could sustain a punitive finding for reckless behavior while the driver was simply negligent. Under the current statutory

scheme plaintiff ’s lawyer has an incentive to litigate separately against employer and employee. Moreover, both defendants have additional incentives to throw each other “under the bus.” What if the driver testifies he was negligent, the accident was his fault, but he had no safety or other training from the employer? The incentive is to pursue one for punitive damages and perhaps not the other. Some will point out the possibility of that issue has always existed. Depending on the theory/doctrine of law pursued in the litigation, it may be true. It is certainly a topic for discussion in a bigger column. The issue, however, is Sections 102(j) and 104(a)(9)’s use of the word “shall” mandating the jury or court’s consideration of the “liability” and/or “culpability” of employer/employee for vicarious liability issues. Does the use of the word “shall” mandate that the issue shall be included in jury instructions and on the jury verdict form? If so, it certainly forces the issue unlike prior practice. In 104(f ), the statute allows the court to determine the punitive damages analysis prior to trial, presumably on a motion for summary judgment. Summary judgment motions, however, are not routinely granted. Section 102 does not contain the same pre-trial determination language, although one would assume the legal analysis in terms of simply the vicarious liability issue would be similar. The vicarious liability sections of the Civil Justice Act seem to be an elephant in the room that no one has, or perhaps wants to address. It will be interesting to see how the appellate courts deal with it. The argument is bound to come up sooner or later.

DICTA

March 2016

NICE NICHE By: Matt Googe Robinson Intellectual Property Law

INTELLECTUAL PROPERTY •

What is your primary practice area?

relatively well-known trademarks. This involves investigating and monitoring the sale of counterfeit goods bearing our clients’ marks and preventing those items from being sold to consumers.

Our firm focuses solely on intellectual property issues, with our practice areas primarily consisting of patent and trademark law. •

•

How did you decide to become an IP attorney?

My undergraduate degree is in Mechanical Engineering. Towards the end of college, I had a job lined up with an engineering firm designing HVAC systems. During our last semester, an IP attorney came and spoke to our engineering design class about intellectual property issues related to our work as engineers. It was then that I decided to attend law school to become an IP attorney because of the opportunity to interact with a variety of new technologies. •

What does a normal week look like for an IP attorney?

A typical week for an IP attorney likely mirrors that of other attorneys with transactional practices. Most of my time is spent at my desk exchanging emails, on the phone, or meeting with clients. Occasionally we will have the opportunity to visit clients’ facilities to get hands on experience with prototypes or other developments and figure out whether protection of these products is warranted. Our firm also maintains a steady intellectual property litigation docket, however, we typically are only required to appear in court a few times each year. •

Is there anything people would find surprising about your practice?

I think one of the most surprising aspects of our practice may be the broad geographic scope of our work. Even though our firm is located in Knoxville, we work with clients in the U.S. and throughout the world including Europe and Asia. Because we can offer substantial value by being located in Knoxville, several of our clients have come to us from larger IP firms. Even though we are located in Knoxville and our client may be based in California, most of our filings are with the U.S. Patent & Trademark Office which allows us to file from anywhere. We also have the opportunity to expand our clients’ IP to foreign countries using a network of foreign attorneys that we work with, or to pursue U.S. protection for foreign clients. In a recent case, our firm was responsible for pursuing a U.S. patent based on an original application that was filed in Europe in French. We had to work with our client to translate the patent and ensure that all of the translated terms aligned with the scope of the original patent filed in Europe.

What types of problems or issues do you typically deal with for clients?

A majority of the issues that arise for our clients fall under two categories: (1) pursuing protection of our clients’ intellectual property and (2) defending our clients against claims of infringement. In the first category, we work with our clients to identify protectable intellectual property assets and to create a strategy for protecting those assets. This might include performing a search to determine whether a patent or trademark registration are available, filing patent and trademark applications, and asserting our clients’ assets against potential infringers. In the second category, our client has either received a cease and desist letter, is entering an area of business where we anticipate that an issue will arise, or has already been sued for infringement. We then have to consider the potential level of risk to our client and our options for defending against infringement. In some cases, even though our client may not be infringing the best course of action is to stop selling a particular product or using a particular name given the costs associated with IP litigation. In other cases, our client is prepared to fight a threat of infringement at all costs, and it is up to us to figure out a viable argument to win the case. This frequently requires looking beyond solely whether infringement exists and to figure out whether the asserting party’s intellectual property can be attacked as invalid. Occasionally we will assist other firms in litigation involving intellectual property issues in the Eastern District of Tennessee where the other firms act as lead counsel and we simply advise on the IP issues involved. We also do brand enforcement for a couple of clients that have

March 2016

DICTA

GUILTY PLEASURES By: Angelia Nystrom University of Tennessee Institute of Agriculture

CATS V. DOGS: THE ULTIMATE SHOWDOWN I have always been a “cat person.” It has been rare that I have not had at least one cat. Sometimes, two. I’ve never been a fan of dogs. They jump, lick, chew on things, and bark. And they are smelly. Cats, on the other hand, smell really nice. They use a litter box, don’t have to be walked, and are generally low maintenance. If you want to go away for the weekend, you can. You just leave a bowl of food and water and access to the litter box, and you are all set. I was lucky enough to be “owned” by Alexa, a small, black long-haired cat, for over a decade. I called her my “angel with fur” because she truly was. About eight years ago, Alexa became very ill. During that same time, Hugh had broken his shoulder playing hockey and was in an immobilizer, which meant that I did pretty much everything for him for about twelve weeks. When I received the call that Alexa had been diagnosed with a brain tumor and that the feline neurosurgeon wanted to do surgery, Hugh remarked, “Oh, great. How much is this going to cost me?” After reminding Hugh that I was, in fact, flossing his teeth at the time and that I had Alexa long before I had him, I authorized the surgery. When Alexa died during surgery, I was devastated. Afterwards, although Hugh (a “dog person”) really wanted a dog, he settled for Max, the Maine Coon show cat, who is dog-like in personality and who is 44 inches long and weighs over 20 lbs. Between Max and Hugh’s crazy cat, Possom (who has since crossed the rainbow bridge), I assumed our pet family was complete. I should know what happens when I “assume.” I’ve told this story before. Two years ago, after much debate and gnashing of teeth, Trace finally agreed to go see Santa (as long as there was no chance any of his friends would see him). When we finally reached Santa, Trace told him, “I want a dog for Christmas. Nothing else. Just a dog. Give toys to all the other children in the world. All I want is a dog. If I get a dog for Christmas, it will be the happiest Christmas ever.” Much to the surprise of both of us, I looked at Hugh and said, “It looks like we are getting a dog.” Two years later, I cannot imagine life without Spanky. To my surprise, I think I am now more aptly described as a “dog person.” I love cats, but I absolutely adore that dog. I’ve gone from full-on “cat lady” to a “dog person.” I was curious as to whether other people were clearly in one camp of another, so I took a poll. Anne McKinney is firmly in the “cats” corner. Says Anne, “Definitely, definitely CATS! A cat can be trained (believe it or not) to act like a dog, but a dog will NEVER be a cat. (All the cats we have ever had learned to fetch, but there was no slobber or gross stuff on the toys they dropped back into our laps. Of course, if they want to fetch in the middle of the night when you want to sleep, you have a serious problem!) Show a cat one time where the litter box is and you never have to spend time potty training again. (Unless they get really really mad at you . . .)” Anne continues, “Cat owners don't stroll through the neighborhood with plastic bags in tow, praying there's not a hole in the bag they failed to detect. You can leave a cat alone in the house for a weekend. The cat will remember this slight, sneak up and bite you on the toe during the nap you desperately needed upon returning home, but you didn't have to spend money for a cat sitter while you were away.

Also, you can't smell a cat's breath from across the room (though it's pretty bad sometimes close up!). Cats (like dogs) can sense when your heart is broken, and for a wonderful brief moment, they will come close, purr and comfort you. Then they walk away because you've had your chance to get over it.” Kyle Baisley and Kristi Davis are in the “dogs” corner. Kristi advised, “Definitely dogs. I don't trust cats. One minute you're petting a cat, then the next minute it bites you for no reason.” Kyle Baisley agreed. “I have to go with a dog. The only cats that I get along with are cats that have personalities more like dogs (or cats that are bigger than most dogs, such as your Maine Coon). Cats are too moody and demanding. My dog Chloe is the one being on this planet (other than my son, Nolan) that is guaranteed to be happy to see me and cheer me up every time. She loves me at my best and my worst. In general, dogs are way more happy-go-lucky and forgiving animals. Cats, not so much. My mom has two. They are almost always in a foul mood and not very eager to go out of their way to be a companion or cheer anyone up, which, in my opinion, is the whole reason for having a pet.” Troy Weston and Cheryl Rice are a bit more diplomatic. Says Cheryl, “I’ve had both. I love dogs (usually), love certain cats (much fewer than dogs), but really at this stage of life prefer to have responsibility for NEITHER! That said, we have two cats, at the moment.” Troy added, “I have had both cats and dogs, and I have never been able to resolve this question. My most recent dog, Blanche, was very similar to a cat in her daily habits. Also, she did her own thing and didn’t really pay much attention to what other people and animals were doing. My most recent cat, Rocky, was very similar to a dog in that she would come running up to you when you came home, and she wanted constant attention. So, that really changed my perception. I prefer them both to rattlesnakes.” His best advice, though, was this. “Most importantly, everyone should go and adopt an animal, whatever their preference.”

DICTA

March 2016

ASK MCLAWYER

Ask McLawyer” is dedicated to answering questions on procedure, evidence and trial tactics in a variety of venues and subject matter. Should you have a question for McLawyer, please address the question to Ask McLawyer, c/o Marsha Wilson, KBA, 505 Main Street, Suite 50, Knoxville, TN 37902 or mwilson@knoxbar.org. Your question will then be submitted to McLawyer for potential response in this column. McLawyer is an anonymous neutral counsel dedicated to answering questions of procedure from members of the Knoxville Bar Association. Question Presented: “I love this idea and already have a question – I have a defendant who is evading service. . . . Cannot get him personally served and he won’t pick up the certified mail containing the complaint and summons. Need advice from McLawyer on cheap yet effective ways to get him served. The case is for partition, so I don’t think I can publish.” Discussion and Analysis: There are obviously many methods of serving an in-state defendant. Title 29, Chapter 27 of the Tennessee code addresses partitions within the Remedies and Special Proceedings title. Regarding notice of the partition action, Tenn. Code Ann. § 29-27-111 states: (a) Notice of the petition, stating the time it is intended to present it, and the court at which it is to be presented, shall be served upon the parties who do not join in the petition, at least five (5) days before its presentation, or given by publication, as provided in subsection (b).

Find a reliable “bulldog” process server. This method may not be the cheapest initially, but a defendant already making the matter difficult by avoiding service is a good sign that a service contest is likely. There are certainly local process service companies that go the “extra mile” to effectively and reliably serve your documents. Many private process servers incorporate technology, such as GPS location verification and digital photos, to support and verify their service. While retaining a good process server can cost extra money, it is often well worth the expense, and will ultimately save money, for valuable cases to avoid the uncertainties of service issues arising from less reliable methods (like unclaimed mail and leaving the documents with a person of “suitable age and discretion” in the place of abode). Information on some process servers with whom McLaywer has been especially satisfied can be obtained upon request from Marsha Wilson, KBA, mwilson@knoxbar.org.

(b) If any of the parties defendant are nonresidents or unknown, or of unknown residence, the court, or its clerk, may order and make publication for them, under this Code in like cases in chancery where personal service of process is dispensed with. Given the nature of the action, it is recommended to avoid many alternative methods of service, such as publication, leaving the summons at the place of residence, “unclaimed” certified mail1, etc. Instead, personally hand deliver the summons and complaint via a qualified individual.

Tenn. R. Civ. P. 4.04(10) and (11) provides the method for service by certified mail, but McLawyer recommends avoiding this method of service. Tenn. R. Civ. P. 4.04(11) states, “the . . . notation that a properly addressed registered or certified letter is “unclaimed,” . . . is sufficient evidence of the defendant's refusal to accept delivery.” Tenn. R. Civ. P. 4.04(11). Importantly, however, a recent amendment to Tenn. R. Civ. P. 4.04(11) adopted by the Tennessee Supreme Court via its order entered on December 29, 2015 and effective July 1, 2016 deletes the last sentence of said section providing that a notation of “unclaimed” is sufficient evidence of the refusal to accept service. In sum, proceed with caution if relying on refused certified mail.

“Haiku of the Law” by Jack H. (Nick ) McCall, Jr. Zen Master-in-Training

March 2016

Vying with quick wits, Time is of the essence now, In all lawyers do.

Drowning in contracts, The clients’ wrath grows hotter; “Midnight oil” is burned.

Law changes with speed, The world outside runs quickly; Yet, men’s hearts are slow.

“Negotiations:” How lengthy a word itself, How weighty the task.

DICTA

Address Changes Please note the following changes in your KBA Attorneysâ&#x20AC;&#x2122; Directory and other office records: Jack W. Bowers BPR# 002184 Bowers & Associates 640 North Building, 2606 Greenway Drive, Ste 315 Knoxville, TN 37918Ph: (865) 688-4060 FAX: (865) 688-4441 jbowers@northknoxlawyers.com James R. Cook II BPR# 032044 531 East Market Street Kingsport, TN 37615 Ph: (423) 246-3811 FAX: (423) 246-0262 jcookesq@gmail.com Caitlin F. Elledge BPR# 033653 Sobieski, Messer & Associates, PLLC 612 S. Gay Street, 5th Floor Knoxville, TN 37902 Ph: (865) 546-7770 FAX: (865) 546-7969 celledge@sobieskimesser.com

David H. Jones BPR# 011840 David H. Jones Attorney at Law P.O. Box 50034 Knoxville, TN 37950 Ph: (865) 789-2048 dhjones0208@aol.com Jeffrey T. Malotte BPR# 025149 The Malotte Law Firm P.O. Box 6296 Sevierville, TN 37864-6296 Ph: (865) 306-8902 jmalotte025149@gmail.com Leah Walker McClanahan BPR# 027603 U.S. Attorney's Office 800 Market Street, Suite 211 Knoxville, TN 37902 Ph: (865) 545-4167 FAX: (865) 545-4176 leah.mcclanahan@usdoj.gov

Heather Hubbard Morgan BPR# 023700 Bush Brothers & Company 1016 East Weisgarber Rd. Knoxville, TN 37909 Ph: (865) 450-4181 hmorgan@bushbros.com Goran Musinovic BPR# 028469 Realty Trust Group, LLC 2220 Sutherland Avenue Knoxville, TN 37919 Ph: (865) 521-0630 gmusinovic@realtytrustgroup.com Jacob T. Spangler BPR# 034454 SouthEast Bank 12700 Kingston Pike Knoxville, TN 37934Ph: (865) 824-3322 jspangler@edsouthservices.com

DICTA

March 2016

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

TWELVE ANGRY JURORS Foothills Community Players presents Twelve Angry Jurors, adapted by Sherman Sergel from the movie by Reginald Rose. in a case where a dozen jurors have been tasked with the fate of a teenager, stereotypes and prejudice threaten to derail justice. March 18-20 at the Clayton Center for the Arts in Maryville, directed by Nicci Grigsby. Tickets are $14 and can be purchased by calling the box office at 865-981-8590. CLE SPEAKERS Do you know someone who would make a great speaker for one of KBA's seminars? Let us know about it, or submit a proposal of your own. Contact Tammy Sharpe at tsharpe@knoxbar.org or 865-522-6522.

ONLINE LEGAL MARKETPLACE The KBA's Online Legal Marketplace at www.knoxbar.org is a powerful resource to find solutions for your law practice. The Online Legal Marketplace is a searchable directory of service providers that can offer valuable resources for your practice. OFFICE SPACE AVAILABLE: • A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants. Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility.

•

Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049. Beautifully Decorated and Furnished office space located at Franklin Square off Kingston Pike. Only $450.00 a month (includes utilities). For more details, call Patricia at 755-1005. Office Space for Lease: Fountain City: 5344 N. Broadway. Approximately 2,000 sq ft. *Will divide space * One level. Across from Fountain City Park. Space on either side occupied by long-term law firms. Present floor plan accommodates four offices plus a conference room and a reception area. Two (2) Year minimum lease required. Great for satellite office. Qualified prospects call: 805-1911.

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-to-use website allows you to search by last name or by subject area experience. AFFILIATED ORGANIZATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, March 10, 2016, at 12:00 pm. in the U.S. Attorney’s Office. Jamie Satterfield of the Knoxville News Sentinel will be presenting the topic of Legal Journalist/Blogger and the Legal Issues Faced. The presentation will be one hour. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 985-0706 for additional information and/or lunch reservations. FOLLOW THE D.A.’S OFFICE District Attorney General Charme Allen invites all members of the Knoxville Bar Association to go online to keep up with the activities of the District Attorney General’s Office. You can visit the D.A.’s Office website www.knoxcounty.org/dag to view our calendar of events and to receive information about our Office and the criminal justice system, and you can also “Like” our Office’s page on Facebook and “Follow” our Office on Twitter.

March 2016

DICTA

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

PRO BONO PROJECT

By: Terry Woods Project Director

MAKING A DIFFERENCE As we all look forward to the beginning of another magnificent East Tennessee spring, I thought it would be a good time to lift you out of any remaining winter doldrums by reporting a few of the triumphs that made Pro Bono Project clients think they were living in perpetual springtime. The Case of the Greedy Children Starring Thomas H. Dickenson “Joyce” took care of “Mr. Spencer” for ten years. In the last year of his life, he moved into the home Joyce shared with her husband and children. Mr. Spencer’s children never called or visited, and his social worker had a power of attorney prepared so Joyce could handle his affairs. When Mr. Spencer died, Joyce arranged his funeral and agreed to be responsible for paying for it. Mr. Spencer’s children did not attend the service. Mr. Spencer had arranged for Joyce to be beneficiary of a small life insurance policy, which Joyce intended to use to pay for the funeral. When she made a claim, however, the insurance company told her that Mr. Spencer’s children disputed the validity of his designation of beneficiary. The company filed an interpleader of the insurance proceeds in federal court. Joyce did not understand what to do when she received the complaint, and a default judgment was entered against her. At that point she came to Legal Aid. Tom Dickenson agreed to represent Joyce through the Pro Bono Project. Tom got the default judgment set aside and succeeded in obtaining insurance proceeds that actually exceeded the cost of the funeral. The Case of the Stubborn Landlord Starring Joshua D. Hedrick “Rusty” lived in a local motel that offers rooms by the week. He was current on the weekly rent but sometimes paid late. One week, the rent was due on Friday; and Rusty wouldn’t get paid until the following Wednesday. The landlord told Rusty that he had to vacate that day. Rusty called Legal Aid, and one of our staff attorneys talked to the landlord about Rusty’s legal rights. While an innkeeper is usually allowed to evict a guest summarily, the Uniform Residential Landlord and Tenant Act sometimes protects people who live in transient housing. T.C.A. 66-28-102(c)(3) provides that the URLTA does not apply to “[t]ransient occupancy in a hotel, or motel or lodgings subject to city, state, transient lodgings or room occupancy under the Excise Tax Act.” The Excise Tax Act, however, defines “transient” as a person who occupies a room for fewer than 30 days. Since Rusty had lived at the motel for eight months, Rusty was protected by the URLTA; and the landlord could not evict him without obtaining a writ of possession. The landlord continued to insist that he was entitled to evict Rusty and called the police to have him removed. Four officers responded and told Rusty that he would be arrested if he did not leave. Rusty complied, leaving all of his possessions behind. A Legal Aid staff attorney prepared a petition to compel the landlord to allow Rusty to stay, meeting a General Sessions Court judge that evening at his church to sign an order. With order in hand, the Legal Aid lawyer returned to the motel with a police officer who told the landlord that he was required to admit Rusty to his room. Still the landlord refused, and Rusty spent that night

on the street. Ultimately he was able to get shelter at the Salvation Army. After being served with the court’s order, the landlord called his lawyer, who objected to Legal Aid representing Rusty because our staff attorney would be a witness against the landlord. Josh Hedrick agreed to take over the case and sued the landlord for money damages. Josh succeeded in obtaining a judgment against the motel for $2,000. The Case of the Confused Corporations Starring Wade V. Davies “Paul” and his wife bought credit life insurance with the mortgage on their home. When Paul’s wife died, his income alone would not cover the monthly mortgage payment. Paul made a claim under the credit life insurance policy, but the mortgage company refused to give the insurance company a payoff amount. Eventually the insurance company sent the lender a check for the principal balance, but the lender returned it because it did not include accrued interest. By then, since Paul had been unable to pay the mortgage, the loan was in default, and the lender sent notice of foreclosure. Wade Davies agreed to represent Paul through the Pro Bono Project and found that the insurance company had taken the position that the lender never returned the check for the principal balance; since the company had paid the lender, Paul’s claim had been satisfied in full. Wade’s first task was to stop the foreclosure. He contacted the lawyer representing the lender, and she agreed that the foreclosure should not proceed, but the lender would not allow her to cancel or postpone it. Eventually, Wade was able to stop the foreclosure and persuade the lender and insurance company to work together, resulting in the loan being paid in full and Paul keeping his home. The Case of the Confused State Agency Starring Matthew B. Frere When TennCare sued “Jason,” he couldn’t understand what was happening. TennCare had an administrator appointed over the estate of Jason’s father in order to file a claim for reimbursement for almost $9,000 in nursing home expenses. Jason’s confusion resulted from the fact that TennCare’s claim involved months of care in a facility in which Jason’s father lived only a couple of weeks. TennCare also claimed that his father died in the facility, but he actually died at home. Jason thought that TennCare had confused his father with another patient. He tried to contact someone in the TennCare office to straighten out the problem, but no one would discuss it with him. Matt Frere stepped in to help Jason through the Pro Bono Project, and TennCare eventually dropped the claim. The Case of the Stressed Out Homeowner Starring Albert J. Harb “Alice” is a 74-year-old widow. Her social worker referred her to Legal Aid because Alice experienced almost debilitating stress when she got notice that her home would be sold for back taxes. A few days later, Alice had a heart attack. Albert Harb agreed to help Alice through the Pro Bono Project to negotiate a payment plan. Alice is recovering nicely, no longer worried that she will lose her home.

Thank you to all of the other lawyers who offered their time in the service of others by accepting or consulting on new cases or participating in Saturday Bar, the OP Clinic, Detainer Court, mediation, or in any other way since publication of the last list in DICTA:

Tracey M. Axtell Ashley E. Bentley James E. Bondurant, Jr. Curtis L. Bowe III Dawn E. Bowie

Adam Carr Thomas H. Dickenson Keith L. Edmiston Daniel L. Ellis Donald J. Farinato

Paul A. Forsyth David Gall Stephen K. Garrett Ross B. Gray Travis D. McCarter

Heather McCoy Kenneth A. Miller Ronald A. Rayson J. Kevin Renfro Laura J. Rudder

Vanessa Samano Michael C. Shults Julia Spannaus T. Lynn Tarpy

UT College of Law Wills Clinic Charles D. Waller David R. Yoder

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 502 S. Gay Street, Suite 404 • Knoxville, TN 37902 phone (865) 525-3425 e-mail: TWOODS@LAET.ORG fax (865) 525-1162

DICTA

March 2016

THE LAST WORD

Q: A:

By:

Jack H. (Nick) McCall

Alicia, how exactly did you and your husband Mike become the running pair known as "Team Bert"?

ALICIA J. TEUBERT Elmore, Stone & Caffey, PLLC

Long before my husband and I met, we both enjoyed running recreationally. Even as far back as middle school, we both would go out for a run for fun. As our free-time dwindled with college, law school and starting our careers, running unintentionally got phased out of our schedule. Just before New Year’s 2012, we realized how sedentary we had become and decided it was time to get active again. It started with the 60-day Insanity Challenge. After a lot of sweat, we successfully completed Insanity. At that point, we asked ourselves, “Now what?” That is when my husband, Mike, threw me a curve ball and said, “You know, running a marathon has always been on my bucket list.” Although I was always more of a distance runner (compared to a sprinter), I had never considered running a marathon. So, I suggested we try a half marathon first (to make sure we would not die). He agreed and we started looking for one to run. Thanks to Google, we quickly learned that Knoxville had a half marathon, but it was only a month away. I thought “no way,” but Mike wanted to do it. I consulted with a friend who had run marathons in the past. She suggested that because of Insanity, it would not be a suicide mission to run the Knoxville Half Marathon as long as we started our training right away. We trained for and ran the Knoxville Half in April 2012. It was hard and fabulous at the same time. We were hooked. Shortly thereafter, we were researching full marathons. One of Mike’s colleagues suggested considering the Apalachicola Marathon in Florida. With the lure of a flat course and beautiful ocean views, we made the commitment and registered. We trained for and we conquered the Apalachicola Marathon in October 2012. By conquered, I mean we crossed the finish line hand-in-hand with a smile on our faces. Our goal was “do not walk” and somehow we made that happen. It took a week before we could run again, but training had become part of our routine. The more we trained, the more time we spent with each other. The Knoxville Marathon was scheduled for early April 2013 and we focused our attention on it. Intimidated by the hills (even famous runners call our race the “KnoxHills Marathon”), we did not set a time goal. We just wanted to run it and do our best. We learned it really helps to train on the course you will be facing. We completed the KnoxHills Marathon almost 5 minutes faster than the “flatter than a pancake” Apalachicola one. That was when our competitive nature started to kick in. Our next marathon (in Ann Arbor, Michigan) was only 2 months away and we set a goal of finishing it in under 4 hours (this would take more than 12 minutes off of our Knoxville time). I’m not sure whether it was (a) the nostalgia of being back in Ann Arbor (where I went to undergrad), (b) the fact that our families and friends came to watch or (c) that we were celebrating our 5-year wedding anniversary, but we completed the Ann Arbor marathon in 3:57:30. We also began competing locally in some of the shorter Knoxville Track Club races. Being new to the scene, we joined the KTC’s “Socialites Team” and became acquainted with some of the friendliest and supportive runners in our area. The Socialites have team jerseys and almost everyone puts a nickname on the back. It did not take long for Mike and I to come up with our nicknames. In college, his fraternity brothers called him “Bert” and they would yell “Mrs. Bert” when I walked into the house. So naturally, “Mr. Bert” and “Mrs. Bert” went on the back of our jerseys. We became “Team Bert.” I am not sure who thought of it first, but we set a goal for Team Bert: to run a marathon in all 50 states. As of the publication of this article, we have run 11 marathons in 10 states and our 12th race/11th state will be completed March 6, 2016. So far, we have done Florida (twice), Tennessee, Michigan, Mississippi, Kentucky, Alabama, Virginia, West Virginia, North Dakota, and Hawaii. The March 6th race will "check off " Arkansas. Some of these races went really well (like Alabama, where I first qualified for Boston, and North Dakota, where I set a personal record by almost 15 minutes). Other races did not go as well (like Mississippi, where we walked the last 6 miles in the blistering sun and humidity). Through the good and the bad, Mike and I keep working toward our goal, keep strengthening our bond, and keep internalizing our motto: “Team Bert: Together, No Distance Is Too Great!”

“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. March 2016

DICTA

Prsrt Std U.S. POSTAGE

PAID P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 652