DICTA.May 2016

Legal Update - Recent Cases from the Tennessee Supreme Court . . . Page 11 Schooled in Ethics - “Will you take a hair follicle test right now?”

Applicants for the Tennessee Bar may now be Drug Tested . . . Page 21

A Monthly Publication of the Knoxville Bar Association

May 2016

MONTGOMERY V. LOUISIANA: THE KIDS ARE STILL ALL RIGHT AT THE HIGH COURT

A R O U N D T H E S TAT E

By: E. Michael Brezina, III Hodges, Doughty & Carson

LEGISLATIVE VISIT On March 29, 2016, Cheryl Rice and I visited Capitol Hill in Nashville on behalf of the KBA and the KBA legislative committee. It was a successful day! We were well-received and our efforts seemed genuinely appreciated everywhere we went.

Our purpose for visiting the Hill was to increase KBA’s profile with lawmakers and other important governmental officials, in addition to developing and engendering good relationships with legislators in both the General Assembly and the Senate. Although we did not have an express agenda, we invited each legislator we met with to our annual legislative breakfast, which will be held in the Fall/Winter of 2016. This breakfast has historically been well-attended.

March 29 was a jam-packed day! We met with Sen. Becky Massey, Rep. Jon Lundberg from Bristol, Rep. Martin Daniel and Sen. Doug Overbey. We also had a unique opportunity to spend time with two of our most well-known KBA members, General Counsel to the Governor Dwight Tarwater and Attorney General Herbert Slatery. All of our meetings were interesting and I think important in continuing to increase the KBA’s profile and improve the relationships between the KBA, its members and our lawmakers.

Photo Ops Community Law School…

Serving through Public Education Topics like debt, mortgage foreclosures, and wills and advance directives are never easy to think about or discuss. The seminars offered through the Community Law School program helped educate local residents about how to protect themselves against fraud and provided them with the information needed so that they could have peace of mind regarding healthcare and financial decisions. The Community Law School has been a great success, with over 7,300 graduates over the last twenty-one years. More than 100 people participated in the series and East Tennessee Personal Care Service was a corporate partner. The KBA would like to thank attorneys Daniel F. Wilkins, Frantz, McConnell & Seymour, and Stacie Miller, Arnett, Draper & Hagood, for presenting the Wills programs and Jedidiah McKeehan, Tarpy, Cox, Fleishman & Leveille, PLLC, and Mark Brown, Menefee & Brown, for handling the Consumer Rights sessions.

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DICTA

May 2016

In This Issue

Officers of the Knoxville Bar Association

May, 2016

COVER STORY 16

Montgomery v.

Louisiana: The Kids Are Still All Right at the High Court

CRITICAL FOCUS President President Elect Treasurer Wayne R. Kramer Amanda M. Busby Keith H. Burroughs

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

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

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President’s Message Dimensions of the Law

7

Judicial News Technology Updates in Criminal Court

9

Practice Tips Detainer Warrants

11

Legal Update Recent Cases from the Tennessee Supreme Court

The Knoxville Bar Association Staff 12

Nice Niche Employee Benefits

13

Management Counsel: Law Office 101 Workplace Investigations by Outside Counsel – What Do You Have to Lose?

21 Marsha S. Wilson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

Schooled in Ethics “Will You Take a Hair Follicle Test Right Now?” Applicants for the Tennessee Bar May Now be Drug Tested

Lacey Dillon Programs Administrator

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

Brittany Headrick LRIS Assistant

DICTA

publication of the Knoxville Bar Association Publications Committee J. Nicholas Arning, Jr. Cathy Shuck Chris W. McCarty Lee Nutini

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).

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

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

Managing Editor Marsha Wilson KBA Executive Director

May 2016

Outside My Office Window Skis - The Essential Deposition Tool

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Around the Bar

14

Around the Community

The Wholehearted Lawyer Habitat for Humanity Home

DICTA is the official

Executive Editor Executive Editor Executive Editor Editor

Hello My Name Is Stephanie Prager

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Volume 43, Issue 5

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.

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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

DICTA

Tempus Fugit - Time Flies Aren’t you overlooking something?

19

Well Read Bill Haltom’s “Milk and Sugar: The Complete Book of Seersucker”

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Long Winded

24

Lawyer Hobbies

25

Bill & Phil’s Gadget of the Month

30

Last Word

A Fresh Perspective Runnin’ From the Law Samsung Galaxy S7 Edge 1st Lt. Alexander “Sandy” Bonnyman, Jr.

COMMON GROUND 4 18 18 20 26 27 29

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

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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. Join members of the KBA Corporate Counsel Section for a happy hour social on Thursday, May 5, 2016. The social will be scheduled for 5:30 p.m. – 6:30 p.m. and will be held at The Alley (7355 Kingston Pike – VIP Room). The section co-chairs, David Headrick and Marcia Kilby would like to have an open and informal discussion on “Work Flow Management and Other Conundrums for Small Legal Departments.” The Corporate Counsel Section is planning “power hours” for Pro Bono Week, October 23 – 29, 2016! If you would like to help in planning this event and/or are willing to commit time during Pro Bono Week, please contact Section Chairs Marcia Kilby or David Headrick. If you are interested in drafting an article or know someone who may want to contribute to the Section Newsletter, The Consigliere, please have them contact Editor Paul Wehmeier. 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 Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515).

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

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

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

Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Daniel Sanders (215-2327).

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

Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on June 15, 2016 at Calhoun’s on the River. The featured speaker with be Bill Haltom, Lewis Thomason, who will speak about his new book “Milk and Sugar, The Definitive Guide to Seersucker.” Members are encouraged to wear seersucker to the program. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307.

Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522.

For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).

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DICTA

May ADR Section CLE Access to Justice Committee Functions Committee Fee Dispute Resolution Committee Law Office Tech Committee Corporate Counsel Section Social Law Day Luncheon & CLE Professionalism Committee Barristers Monthly Meeting Federal Bench Bar CLE KBA/Barristers Happy Hour Judicial Committtee Interprofessional Relations Committee Diversity in the Profession Committee Barristers Access to Justice Committee CLE Committee Board of Governors Meeting Past Presidents Dinner Knoxville Bar Foundation Dinner Barristers Volunteer Breakfast

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June ■1 ■8 ■9 ■9 ■ 14 ■ 15 ■ 15 ■ 20 ■ 20 ■ 20 ■ 23 ■ 23 ■ 24

Fee Dispute Resolution Committee Barristers Monthly Meeting Lunch & Learn Judicial Committee Professionalism Committee Senior Section Board of Governors Meeting Interprofessional Relations Committee Diversity in the Profession Committee Barristers Access to Justice Committee Barristers Volunteer Breakfast Employment Law Section CLE Family Law Section CLE

Mark Your Calendar

Law Day Luncheon Friday, May 6, 2016 See Back cover for details.

May 2016

PRESIDENT’S MESSAGE By:

Wayne R. Kramer Kramer Rayson LLP

DIMENSIONS OF THE LAW I have reached a station in my life where I find myself reflecting and appropriate. It is true that, there is a “spirit” in the law which is often upon the legal profession, where it has been, where it currently is critically important. If we lose sight of that spirit by focusing only on and where it might be going. It strikes me that it is important for us as the details of rules, statutes, documentary language and related items, we attorneys to do that from time to time, yet it is not easy. I have have failed in a certain way. And it is true that our experiences are discussed previously in this column the realities critically important as we address legal issues n the end, it is the spirit of the of our current pace and the technology that and represent our clients. We each bring our drives us. But there are other things as well own experience to the table and we must also be law and life’s experiences which that I believe can detract us from our purpose cognizant that our clients and our adversaries enable us to assist our clients and bring their individual experiences to the table as and our calling. make a contribution to the It is not uncommon for our days to be well. In the end, it is the spirit of the law and filled with dissecting rules and regulations, life’s experiences which enable us to assist our community in which we live. poring over the details of a contract or lease, clients and make a contribution to the arguing over individual words or phrases in community in which we live. It is also that spirit discovery documents and otherwise being focused only on the minutiae and experience which allow the law to grow, evolve and continue to be of the law. And indeed, those things are important, at least up to a relevant even in our modern age, and in a culture and society so vastly point. We cannot be good lawyers if we do not understand the rules and different from that which existed in the early days of the common law. regulations, are unable to draft appropriate language for documents It is also important to remember, and often difficult to do, that and/or fail to represent our clients zealously in adversarial proceedings. every problem our clients experience, whether large or small, is Nevertheless, there is more to it than important. With the pressure of paying that. the bills and maintaining a successful Recently, even with my limited law practice, it is often easy to focus technological expertise, I “googled” first and foremost on the large comments about the law. I was problems with significant clients. That interested in seeing what others have is only natural. And yet, as Albert said over the years about the law and Einstein so aptly states, “issues what we do. Here are just a very few of concerning people are the same.” the thoughts which I found: And finally, if the first duty of society is justice as suggested by 1. “It is the spirit and not the form Alexander Hamilton, then most of law that keeps justice alive.”assuredly, we must be about much Justice Earl Warren more than legal minutia. In the best 2. “The life of the law has not been way we know how, we must draw upon logic; it has been our experiences, consider the spirit of experience.”-Justice Oliver the law we are addressing and Wendell Holmes. recognize that fundamentally, it is all 3. “In matters of truth and justice, about people. It is their lives, their there is no difference between property, their relationships, their larger and small problems, for being. And it is honorable and noble issues concerning people are all for us as a profession to recognize that the same.”-Albert Einstein. and to dedicate ourselves to those 4. “I think the first duty of society is realities. By so doing, we increase the justice.”-Alexander Hamilton. likelihood of a more just community.

So I suggest to all of us, that as Earl Warren, Oliver Wendell we read the statutes, dissect the rules Homes, Alexander Hamilton and and regulations, advocate for our Albert Einstein lived in different eras clients and draft legal documents, it is and were no doubt impacted by just as important to remember the different life circumstances. They did not go to the same schools, were spirit of the law as well as the experiences of those interpreting and not part of the same family, were not trained in the same way and no otherwise affected by the law. It is equally important to remember that doubt had very different interests. And yet, each spoke of the law in a it is people who we are assisting and that justice is our duty and goal. manner that, when taken together, speaks volumes.

When we do those things, our profession is something about which we In fact, I found each one of the above comments both interesting can hold our heads high.

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May 2016

DICTA

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HELLO MY NAME IS . . . STEPHANIE PRAGER By: Katie Ogle Haynes Meek & Summers

Many attorneys can recall the hours spent at a necessary part time job during the meager financial years of college and law school, spending time reading for class in the break room at a retail establishment, or skimming notes for a test between waiting tables at a local restaurant.

Stephanie Prager, an associate attorney at Breeding & Associates, spent much of her time at The Melting Pot in the Old City during her law school tenure. But, unlike the rest of us, Stephanie gleaned some great practical experience in this position. “This turned out to be a lucrative side job for me, with a lot of perks. I still have all the recipes, and make a mean bleu cheese fondue,” she notes.

Stephanie hails from Moundsville, a small town in the northern panhandle of West Virginia, near Pittsburgh. She attended West Virginia University and double majored in political science and psychology. Following completion of her undergraduate career, Stephanie pursued a Master’s in Public Administration at West Virginia University. During her graduate studies, she served as a research assistant for the West Virginia University Extension Service, where she managed the daily functions of a grant funded health care program for senior citizens.

After obtaining her M.P.A., Stephanie focused her aspirations on law school. “The University of Tennessee College of Law was the first school to contact me after the initial application process. I came to Knoxville one time, and knew I could live here.” During her time in law school, Stephanie interned at the Tennessee Court of Criminal Appeals for the Honorable James Curwood Witt, Jr., and then served as the assistant in his legal process class the following year.

She also had the opportunity to work at the University of Tennessee Research Foundation. In that internship, Stephanie reviewed newly disclosed technologies to determine whether they should qualify for patents. “This was very interesting work,” Stephanie notes, “and really offered me an inside look at the brilliant researchers and scientists that are here at UT.”

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In her third year of law school, Stephanie began clerking at Breeding & Associates. As a clerk, the majority of her work related to legal research for civil and criminal litigation. She also had the opportunity to work on several appellate briefs, which incidentally, has turned out to be one of her favorite areas of practice. “I would love to concentrate on appellate work. I’m partial to the research and writing aspects of my job, which I suppose makes me a bit of a legal nerd, but I’m okay with that. Brief writing is one of my favorite things about law practice.”

These days, Stephanie spends most of her free time planning her upcoming wedding, which is set for September 2016. When she isn’t drafting briefs or wedding planning, she enjoys swimming and watching sports. “I love Pittsburgh professional sports, and of course, the West Virginia Mountaineers, which consequently keeps me from liking anything related to the University of Pittsburgh. I’m also a UT fan, so I’ll be conflicted when West Virginia and Tennessee play in Charlotte in 2018.”

Regardless of whom she supports on the field, Stephanie shares nothing but affinity for her new home in Knoxville. “I’ve been here for six years now, and I love East Tennessee. It reminds me of the beautiful hills of West Virginia, there are just more people here.”

Author’s Note: Many thanks to Stephanie for allowing DICTA readers to have a glimpse of her story. If you are a new attorney to the Knoxville Bar Association or if you know of a new attorney that you would like to see featured in this column, please contact the author.

DICTA

May 2016

JUDICIAL NEWS By: Joanie Stewart Knox County Assistant District Attorney General, Child Abuse Unit

TECHNOLOGY UPDATES IN CRIMINAL COURT Recorded telephone calls. Videos. Text Messages. Social Media Accounts. Raise your hand if the majority of people you know own a smart phone (small children not included - hopefully). Keep your hand raised if the smart phone users you know spend an inordinate amount of time on Facebook, Twitter, Instagram, SnapChat or some other application where they can find out what friends across the globe had for dinner (#nomnomnom). Lets face it – our lives are ruled, tracked and invaded by technology.

With society electronically documenting every event – whether mundane, commonplace or amazing, it follows that electronic evidence has become a routine part of trial practice and will show up in almost every case. Gone are the days where eyewitnesses alone would describe the bar brawl they happened to observe. Now, the fight is documented on YouTube, shared via messaging, and discussed on Reddit.

Recently, I talked with the Honorable Steve Sword, Knox County Criminal Court, Division One, about the presentation of electronic evidence in criminal cases. In case your practice doesn’t send you to Criminal Court, a short time after the Circuit Courts were equipped with fancy technology allowing the Judges to control the presentation of electronic evidence, the Criminal Courts were graced with the same.

Instead of lugging your own projector to the courtroom and praying it doesn’t blow a lightbulb in the middle of your case, a simple plug on counsel table allows you to hook up to a station manned by the Judge.

Witnesses have their own monitor, and we can ask them to mark their location or other relevant information on photos, with the result being printed by the Judge for inclusion in the record.

Take note – this makes Judge Sword happy. You should familiarize yourself with the equipment being used in your courtroom and you should definitely determine what makes your Judge happy.

Upon taking the bench he noticed that while directing a witness to use a classic red laser pointer to define areas of interest, very few attorneys followed up with language preserving the record. “Right here” or “in this general area,” means nothing to the Court of Criminal Appeals when looking at a crime scene photo. Now, a freshly printed exhibit can make the testimony clear, but only if we use the technology.

You must use the technology.

When the Criminal Courts first had the equipment installed, Judge Sword noticed that the attorneys using the equipment were the same ones who had been lugging their own projectors in the previous years.

Slowly, however, the technology is being embraced by the pen and notepad set. Here are some tips to make sure you have a smooth presentation in Court. *

Practice, practice, practice! Check with the Judge’s secretary to see when you can bring in your laptop and test out the system.

Nothing kills the momentum of a trial (and your perception with your adversary, the Judge and Jury) more than fiddling with the cords, remote controls or other gadgets.

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Don’t wait until the day of trial to discover that your MacBook won’t hook up directly to the available units. While the courtrooms have the basic cords, you may need to bring a connector specific to your type of laptop. Figure it out by talking to the courtroom staff

May 2016

and the Judge’s secretary or clerk beforehand. They are very helpful, but you should not count on them to produce the proper cord or connection the morning of trial or hearing. You have to do a trial run. *

Don’t be shy! If you need help figuring out the system, ask someone.

*

Be prepared. Have your exhibits scanned and ready, your videos whittled to relevant portions, and know how the software programs you are using work.

*

Always have a backup plan. Technology has taken over the world, but sometimes, the most meticulously planned electronic presentation, mysteriously, won’t work. Having a backup disc, or even paper exhibits, will help you keep your cool. Keep a large flip chart and a magic marker (Sharpie) as backup.

Technology is available and useful and can be very persuasive, but much like your evidence, if you don’t work with it, prepare and practice you could come across as unprepared, unprofessional or be branded the #courtroomnincompoop.

DICTA

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

Jr.

SKIS - THE ESSENTIAL DEPOSITION TOOL The first year of law practice for a litigator is one fraught with insecurity and nerve-racking stress. All of us who make our living in the courtroom remember the first case, the first trial, the first motion, the first deposition, the first everything. The learning curve is steep. You might be thrown to the wolves or allowed to wade into the shallow end, but nothing can save you from falling into the arena with a seasoned, skilled, and respected adversary. They are waiting for you. It can be a frightening and humbling experience or a pleasurable and learning experience. Depends on the draw.

It was the Winter of 1996. I was one year into my practice. In addition to having the pressure of newbie status in a field of sharks, I carried the added expectations that come with being the son of a respected litigator and the sleep deprivation and constant worry of a first-time father of a 5-month old baby girl. My many insecurities were hidden deep behind a facade of invincibility and ridiculous air of self-importance. I was given the automobile accident file of a young woman who had the majority of her orthopedic care in Charleston, West Virginia. My task was to go up and take the deposition of her treating doctor for proof. The trial date was approaching. I was told to prove the medical bills, get the surgeon to relate the back injury to the wreck, and give an impairment rating. Many of you have been there.

Will the doctor go with or push against? I didn’t want to spend the night. My wife needed help at home. The weather threatened snow, especially on the West Virginia side of the trip, and I did not want to get pinned down. As most young lawyers do, I got there very early for the afternoon deposition to meet with the doctor. The goal was simple get it right, get it done, and get down the road to your baby and wife. I was a wreck over the logistics, the doctor’s testimony, and the prospect of getting stuck away from my young family. I let it all overwhelm me.

Silly young lawyers.

My adversary walked in 10 minutes before the deposition. It was my first case against Brian Trammell. My meeting with the doctor and my direct examination went off without a hitch. Brian scored his solid points and ended his cross after only 15 minutes. His cross was efficient and straight to the point - just like Brian. No wasted motion. After it was over I took a deep breath, feeling as though the mission was accomplished. I shook the doctor’s hand, thrilled at the result of our efforts and walked with Brian out into the waiting room. We stopped and had about a 10 minute conversation. I will never forget it.

Brian went out of his way to tell me I did a good job with the deposition, praise I ate up like a dog getting a treat. We read people for a living, and I’m sure he read the stress in me. He took great interest in my practice, how I was handling working for my firm - one for which he expressed a tremendous respect. Beyond being a professional and zealous advocate, he seemed genuinely interested in me. He asked about my baby girl and told me he had four kids, a fact that absolutely blew me away. How could this man have four young children? He was cool, calm, effective, professional and easy to get along with. I was eaten up with all the things I had to do. I was in a hurry to beat the weather. He wasn’t. “I brought my skis,” he said with the smile of a kid on Christmas morning. He explained that he was taking a night for himself, staying at a cheap roadside motel and hitting the slopes of Winterplace ski resort, which was right next to Interstate 77 a few miles to our South. Brian was going night skiing.

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He took the opportunity to offer some advice. I don’t remember the specific words but it was something in the realm of - “In this business, you have to take some time to yourself. Take some time to breathe. We often make this so much harder than it has to be.” He never gave me advice in any of the cases we had together after that. He would, however, teach. For the first couple of years of my practice, when we had cases together or merely ran into each other at the courthouse, he didn’t hesitate to suggest how to ask a particular question or offer an exhibit into evidence as long as it didn’t interfere with his client’s interest. He was happy to make an effort to help a young lawyer. He was a gentleman and a friend even though we were always adversaries in the courtroom. Over the years, whenever we ran into each other, I would remind him of the trip to Charleston, West Virginia. I reminded him of the lesson he taught me by often asking “Are your skis in the car?” We would ask about each other’s aging children and talk a bit about the balance of life and law. We often shared a laugh over the fact that I ended up with four kids.

Brian had to be around 38 years old that evening in West Virginia.

He seemed so much older, more mature. He possessed wisdom, a rare quality at that age. The snow started falling as he pulled out of the parking lot, that expectant smile dominating his entire spirit. After stopping for a quick bite to eat, I continued to find a way to pile more stress on my shoulders as I drove South, mulling over all I had to do.

The rest of my week’s calendar rolled through my head while my foot grew heavy on the accelerator. The ski resort appeared over the horizon.

The lights revealed the rolling mounds of snow and a handful of skiers zig zagging the mountain side. I thought of Brian flying down the mountain, an honorable lawyer transformed into an adventurous little boy for the evening. Lesson learned. From that day forward I always thought of Brian as a kindred spirit, a man who knew when and how to smell the roses. I hope the powder is fresh where he is. I pray the sky is filled with sun, the mountain to his liking, and that the honorable lawyer he was has, one final time, given way to that adventurous little boy. I will miss him.

DICTA

May 2016

PRACTICE TIPS By: Dan Fielden Stewart | Dupree | PA

DETAINER WARRANTS So let’s say your primary area of practice is criminal defense or personal injury and a current or former client, who happens to own rental property, comes to you and asks for you help evicting one of their tenants. Can you help them out? Of course you can; should you is a question for a totally different article. You are in luck as long as you know the basic rules and principles of landlord/tenant law. Many of you reading this article may not need advice or tips regarding detainer warrants, but this article provides a brief overview for those unfamiliar with the process.

Being this is a brief overview and that the majority of you reading this article practice in Knox County, I’m going to focus specifically on filing detainer warrants in Knox County. Our county is unique in that our detainer warrants are guided by the Uniform Residential Landlord and Tenant Act (URLTA), codified under Tennessee Code Annotated § 66-28-101 et seq. Eighteen (18) other counties, along with Knox, that follow the URLTA are: Anderson, Blount, Bradley, Davidson, Greene, Hamilton, Madison, Maury, Montgomery, Putnam, Rutherford, Sevier, Shelby, Sullivan, Sumner, Washington, Williamson and Wilson.1 Under the URLTA, General Sessions Courts and Circuit Courts have original jurisdiction for all detainer warrant actions.2 In Knox County, the General Sessions Court has unlimited jurisdiction as to cases of forcible entry and detainer.3 Now, let’s quickly go through the process from the beginning with notice, filing the detainer warrant, putting on your proof in court, obtaining a judgment and a writ of possession, if necessary.

NOTICE Once the tenant breaches the lease agreement, usually by nonpayment of rent, you must first provide notice to the tenant of the breach.4 If the tenant does not cure the breach within fourteen (14) days, the landlord may take legal action (filing the detainer warrant) only after thirty (30) days have elapsed from the date of the notice.5 However, if the breach is remedied, but the tenant breaches the lease agreement for a second time within six (6) months, the notice of the breach only has to be provided fourteen (14) days in advance of filing the detainer warrant.6 In rare cases, when the tenant commits an act that is a danger to the health and safety of others, the landlord only has to give three (3) days notice before filling the detainer warrant, which is often termed an “emergency kick-out.”7 FILING THE DETAINER WARRANT After the required notice period elapses and the tenant has not remedied the breach, it is time to file the actual detainer warrant. The detainer warrant is a basic form used in Knox County and can be found under the Forms section on the Civl Sessions website.8 Once the detainer warrant is filed with the clerk’s office, it must either be served personally on the tenant or posted to the door of the rental property (but you cannot post notice until you have attempted personal service three (3) times.)9 The court date cannot be set for any less than six (6) days after service.10 It is also important to note, if the landlord wants possession along with any money damages (back rent, etc.), the detainer warrant must be served personally.11 If the landlord merely wants possession of the property, personal service is not necessary.12 TIME FOR COURT

Usually not. Will they become extremely agitated with you and shout random obscenities at you inside or outside of the court room? There is a very good possibility. Either way, you must make sure your client (the landlord) or a representative from the leasing/management company that can testify to the reason for terminating the lease and any applicable damages is in attendance. The client needs to bring proof of the rent and late fees due and proof of expenses to repair damages to the property, if any (receipts from a contractor or purchases made by maintenance staff ). You, the attorney, will be there to verify the accuracy of any reasonable attorney fees if applicable. Often, the tenant will still be living in the property and any damages to the property are not verified at this point. In this case, it is best to get the judgment for possession of the property and set another date for a determination of damages.

AFTER THE JUDGMENT Once you have a judgment for possession of the property, now what? If you get a judgment rendered in favor of the landlord, the tenant has ten (10) days to vacate the property.13 On the 11th day, if the tenant is still residing at the property, you will need to file a writ of possession with the clerk’s office.14 When the writ of possession is filed, the landlord is still responsible for removing any of the tenant’s property, however, the Sheriff will send an officer to the property to make sure no issues arise during removal of the tenant’s possessions.15 In Knox County, detainer warrants are heard on Tuesdays, so the eleventh day will always fall on a Saturday, and the writ of possession cannot be obtained until the following Monday. This means that tenants will technically have thirteen (13) days to vacate the property.

SUMMARY While this article is by no means an exhaustive analysis of detainer warrants, on which an entire book could be written, I hope those unfamiliar with the process have gained a basic overview of the process of litigating a detainer warrant and the steps necessary for a landlord to legally evict a tenant. Detainer warrants are a wild card and detainer court is never boring. Some detainer warrants require a few minutes in front of a judge, but sometimes they can turn into a vicious dogfight.

I’m happy to email the forms you need and chat with you about the process. You can reach me at dan.fielden@knoxtnlaw.com. Best of luck.

1 http://www.knoxnews.com/entertainment/life/legal-aid-society-releases-brochure-onchanges-in-landlord-tenant-laws-ep-362242915-357245951.html.

2 Tenn. Code Ann. § 66-28-105.

3 https://www.knoxcounty.org/gsjudges/jurisdiction.php.

4 Tenn. Code Ann. § 66-28-505.

5 Id. 6 Id. 7 Tenn. Code Ann. § 66-28-517.

8 https://www.knoxcounty.org/circuit/forms_civil.php.

9 Tenn. Code Ann. § 29-18-115.

10 Id. 11 Id. 12 Id. 13 Tenn. Code Ann. § 29-18-116.

14 Id. 15 Tenn. Code Ann. § 29-18-127.

Detainer warrants can be wild cards in an actual hearing. Will the tenant show up to the hearing? Maybe. Will they be represented?

May 2016

DICTA

9

AROUND THE BAR By:

Dawn Elaine Bowie

THE WHOLEHEARTED LAWYER Author and researcher Brené Brown says that Americans are, "the most in-debt, obese, addicted, and medicated adult cohorts in U.S. history."1 She's right. "We numb," she says, and we, "make everything that is uncertain, certain."2 "Numbing" is what drives addiction, alcoholism and depression. If the general public has it bad, we have it much, much worse – a recent study concluded that 20.2% of us suffer from these problems – those in the legal profession have the highest incidence of substance use and mental health concerns of any profession studied.3 The problem with numbing our sense of anxiety, inadequacy or lack of control is a double-edged sword. According to Dr. Brown, when we numb negative emotions or experiences, we also numb positive experiences, the longing for which only leads to more numbing.

The studies suggest that it starts in law school, where 44% of law students suffer from, "clinically significant levels of psychological distress," and are significantly more likely to engage in problematic drinking.4 Reasons cited as causing these problems sound like a prophecy for the rest of life as a lawyer: Fierce competition and an emphasis on achievement; linear thinking at the expense of creativity and personal values; an emphasis on pessimism and defensiveness. Try this experiment. Notice the topic of discussion among you and your colleagues for the next week or so. Keep track of how often the topic is either what you should be afraid of and/or whose fault it is that the problem making you fearful belongs to someone else.

By nature and training, we learn to use blame and defensiveness as our natural armor. We tend to think the better we are at it, the better we are as lawyers. But living this way destroys us as human beings. We can learn how to disarm. We can learn to live a fully authentic life, despite the barriers, hame is the which include focusing on scarcity, rather little voice in than generosity; perfectionism, rather than your head vulnerability; the need to control, rather than the willingness to be wrong; and of telling you that you course, fear, rather than acceptance. aren't enough.

If we are honest, most of us have an inordinate amount of shame, which leads us to perfectionism and blame. In fact, shame is highly correlated with addiction, alcoholism, gambling and other addictive behaviors. Shame is the little voice in your head telling you that you aren't enough. Not as good as, as smart as, as rich as, as prestigious as . . . the list goes on. The problem with shame is that it makes you lose track of guilt, which is a very different thing, tied directly to accountable behavior. Guilt says you did something bad, not that you are bad.

There is a solution. Dr. Brown says we need to learn to be imperfect and vulnerable, but she emphasizes that should include wisdom and prudence. She says we learn to do this by becoming "wholehearted."5 Being a wholehearted person involves becoming brave and courageous enough to show up and be seen in an authentic way, and is the focus of nearly every addiction treatment program, rehab facility, 12-step group and usually, what therapists strive to encourage in their patients. Even for lawyers who don't face the problems of addiction, alcoholism or mental/emotional challenges, many more struggle with burnout, exhaustion or fatigue, and deep unhappiness with their lives.

The key to a serene and joyful life, as a person and a lawyer, is to allow ourselves to become brave, to become wholehearted.

S

10

Being a "wholehearted lawyer" is the essence of civility. The wholehearted lawyer has good boundaries – self-compassion and compassion for others; is reliable; is accountable; keeps the confidences of others, as well as the facts about others lives, to himself or herself; has internal and external integrity; is non-judgmental and harsh with self and others; and who thinks and expects the best of everyone. A wholehearted lawyer is resilient, honest and happy with his or her life.

How does a person become wholehearted and resilient?

• • •

•

• • •

• •

By cultivating gratitude; By developing and practicing compassion for yourself and for those around you; By realizing you, and everyone around you, are both very small and very precious - which often means developing your own sense of spirituality; By learning to sit still and listen, to be mindful of what is happening in the moment - most of us need to do this several times a day; By being willing to admit you don't know – and don't need to know – all the answers to be worthy of love and belonging; By not taking yourself too seriously; By practicing empathy for folks in your orbit – that judge that is so annoying, the opposing counsel who is so strident and irritating, the client who just will not shut up about his or her problems or who won't take your advice and, if you get it wrong, being willing to acknowledge your mistake, accept that you need to change, and act with honesty in owning up to your behavior.

By being present without judgment, something you can't do for others until you learn to do it for yourself; By letting go of shame. This starts with yourself and as you learn to stop judging yourself for being human and imperfect, you find you are less likely to shame others.

These basics of a healthy and fulfilled life apply to all human beings, even lawyers. But there is a lot to the process. This article, and the two that follow, will discuss more about shame and fear and the tools available to live without them.

There is help from other sources as well. If you or someone you know in our professional community is struggling with life the Knoxville Bar Association's Lawyers Concerned for Lawyers Committee, in conjunction with the Tennessee Lawyers Assistance Program, can help confidentially and privately.

https://youtu.be/iCvmsMzlF7o, The Power of Vulnerability Id. 3 Krell, J.D., Patrick R., Johnson, M.A., Ryan, Albert, MSSW, Linda. The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys. Journal of Addiction Medicine. January/February 2016.

4 Peterson, Todd David and Peterson, Elizabeth Waters. 9 Yale Journal of Health Policy, Law and Ethics 357 (2009). Stemming the Tide of Law Student Depression: What Law Schools Need to Learn From the Science of Positive Psychology. Available at: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1163&context=yjhple 5 Brown, Brené. The Gifts of Imperfection: Letting Go of Who You Think You're Supposed To Be and Embrace Who You Are. Hazelden, 2010.

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May 2016

L E G A L U P DAT E By: D. Spencer Crouse Quist, Cone & Fitzpatrick, PLLC

RECENT CASES FROM THE TENNESSEE SUPREME COURT Vodafone Ams. Holdings, Inc. v. Roberts 2016 Tenn. LEXIS 182 (March 23, 2016) Holding Tennessee’s legislature intended that the Commissioner of Revenue should have authority under Tenn. Code Ann. §§ 67-4-2014(a)(5) and 67-4-2112(a)(5) to impose a variance to the statutory apportionment formula for franchise and excise taxes that would fairly represent the extent of a company’s business activities within the state.

What’s Going On? Vodafone holds a 45% partnership interest in Cellco Partnership, and Cellco operates and conducts business as Verizon Wireless throughout the United States. For the period from December 31, 2000, through March 31, 2006, Vodafone calculated that they owed the State of Tennessee franchise and excise taxes totaling in excess of $13 million.

Vodafone (or rather their tax and accounting counsel) came to this amount by determining its sales to Tennessee residents and included that amount in the apportionment formula’s sales factor.1 Sometime thereafter, Vodafone obtained new tax and accounting counsel. This new counsel performed a review of the accounting from the same time period and concluded that Vodafone had not engaged in activities that would be considered “business activities” within the meaning of Tennessee tax laws. As such, Vodafone argued that it had overpaid its taxes and filed a claim with the Department of Revenue for return of the full amount.2 3 The Commissioner denied Vodafone’s claim and asserted his authority under Tennessee statute to impose a variance for the relevant time period, which he argued provided him the authority to stray from the statutory method.4 Additionally, the Commissioner took the position Vodafone’s original calculating method more fairly represented the business activities that were conducted in Tennessee.5 The court concluded: (1) the Tennessee legislature purposefully granted the Commissioner substantial variance authority in determining an apportionment formula that fairly represents a business’s activities within Tennessee; (2) the method chosen by the Commissioner was “reasonable” within the meaning of the statutes;6 and (3) the variance imposed by the Commissioner was an acceptable alternative and did not constitute an abuse of his discretion.7 8 Tennesseean et al v. Metro. Gov’t of Nashville and Davidson County et al, 2016 Tenn. LEXIS 180 (March 17, 2016) Holding Although the Tennessee Public Records Act allows broad access to some government records, Rule 16 of the Tennessee Rules of Criminal Procedure is an exception to this law and governs the disclosure of certain information by the State during an ongoing criminal case and any related collateral challenges.9 What’s Going On? A coalition of media groups petitioned the Chancery Court for Davidson County to gain access to a police department’s investigative file while the criminal cases were ongoing.

There is a presumption of openness for government records.10 However, the court recognized that the amount and type of exceptions to this law has grown over the years. As it pertains to this case, Rule 16 of the Tennessee Rules of Criminal Procedure specifically provides for the disclosure of information by the State or the defendant and acts as May 2016

an exception to the Tennessee Public Records Act.11 The media group was found to not have a right to the police investigative records while the case is pending nor during any collateral challenges to any convictions. Only the defendants may receive the information contained in the investigative files.12 Circle C Construction, LLC v. D. Sean Nilsen et al 2016 LEXIS 170 (March 7, 2016) Holding The Tennessee savings statute, Tenn. Code Ann. § 28-1-105, applies to a contractual tolling agreement between the parties, despite the fact that the refiling of the action occurred outside of the agreed upon extended statute of limitations.

What’s Going On? The parties entered into an agreement which allowed the plaintiff additional time to file suit within a time period after a determinable event. The plaintiff filed suit within the agreed time period but submitted a voluntary nonsuit thereafter. The plaintiff then refiled the action within one year pursuant to the savings statute.13 The defendant moved for summary judgment and argued that the case was filed outside of the agreed upon extension. The trial court granted the summary judgment motion. The Court of Appeals affirmed that the tolling agreement precluded the use of the savings statute and that the plaintiff ’s action was time-barred.14 In reviewing this case, the court looked at the tolling agreement to “ascertain and give effect to the parties’ intentions in entering into the agreement based on the plain meaning of the agreement’s language.”15 The court also made a distinction between tolling agreements based on claims in contract and those based in tort – the former receiving a more narrow reading of its filing deadlines and not presumptively protected by the savings statute.16 Furthermore, the court concluded that in order for a party to preclude the use of the savings statute, it should include clear language within the tolling agreement itself.

Id. at 4.

Id. at 4-5.

The two discussed methods of calculating the taxes are “cost-of-performance” (COP) and “primary-place-of-use” (PPU). Vodafone utilized the PPU method in its original tax return. The Commissioner opined that the PPU method was “straightforward” and fairly represented Vodafone’s tax liability and business presence in Tennessee. Id. at 11.

4 Id. at 8.

5 Id. at 11-13.

6 Id. at 76-79.

7 Id. at 104.

8 The court decided that it must give deference to the Commissioner when interpreting its own rules; particularly the limitation of using variance statutes under Tenn. Comp. R. & Regs. R. 1320-06-01-.35(1)(a)(4), for “limited and specific cases” and “unusual fact situations,” Id. at 84-86.

9 Tennessee Public Records Act, Tenn. Code Ann. § 10-7-501 et seq.

10 Id. at 16, See Memphis Publ'g Co., 871 S.W.2d at 684.

11 Id. at 26-28. See the court’s reference to Memphis Publ’g Co., 710 S.W.2d 513, 515 (Tenn. 1986) where the media was allowed inspection of a closed criminal case despite a Rule 16 argument; and Appman, 746 S.W.2d 165, 165 (Tenn. 1987); where the court decided that Rule 16 protected the disclosure of records during a pending criminal case.

12 Id. at 42.

13 Id. at 3-4.

14 Id. at 4-5.

15 Id. at 6, See Tenn-Fla Partners v. Shelton, 233 S.W.3d 825, 829 (Tenn. Ct. App. 2007).

16 Id. at 13.

17 Id. at 15.

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NICE NICHE By: Ashley N. Trotto, Esq. Kennerly, Montgomery & Finley, P.C.

EMPLOYEE BENEFITS What is your primary practice area?

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

I am an employee benefits attorney (aka ERISA attorney) with a focus on health and welfare benefit plans and issues related to the Affordable Care Act – everyone's favorite topic.

I am consistently surprised at some of the issues our clients come up with, but there are some constants. For example, we are often asked to draft or revise employee benefit plan documents, including 401(k), 403(b), 457, and other types of retirement plans, as well as cafeteria plans, health plans, “wrap” documents and executive compensation agreements.

A large part of my practice is assisting clients with the correction of inevitable plan errors, whether in form or operation. These errors are often corrected voluntarily by using applicable IRS or DOL correction procedures, and sometimes involuntarily by way of an IRS or DOL audit. Either way, I'm here to walk clients through the process.

Clients regularly ask questions about COBRA and HIPAA compliance, coordination with Medicare and Social Security and FMLA leave. I am frequently asked to review employers' internal policies and/or handbooks to ensure compliance with these and other employee benefits related rules and regulations.

In addition, I am the resident Affordable Care Act “guru” and get asked questions about compliance with the Employer Mandate and health care reform. Most recently, I have assisted clients in deciphering the ACA’s complicated information reporting requirements.

In other words, if there is an employer and some sort of benefit involved, we have probably been asked a question about it.

How did you decide to become an employee benefits attorney?

"Decide" might be a strong word, it was more like I stumbled in and refused to leave. I started my legal career as a law clerk with Kennerly Montgomery, and its employee benefits practice group happened to need an extra hand. Before I knew it, I was flipping through the tax code, reading pension documents and quoting the Affordable Care Act…and I liked it.

If you had asked me prior to said clerkship if I could ever see myself as an employee benefits attorney I would have: (1) asked what an employee benefits attorney was; and (2) laughed at you. But lo and behold, I stand before you as a proud “ERISA nerd.”

What does a normal week look like for an employee benefits attorney?

Believe it or not, work as an employee benefits attorney is very diverse. The one unvarying aspect of my practice is the absence of the courtroom. Employee benefits is not a litigation sport, at least not for us.

My job is to assist clients with all matters related to the creation, administration and operation of their retirement and/or health and welfare plans and benefits. Generally speaking, my time is divided fairly equally between error prevention and error correction.

A normal week for me might consist of client meetings, communication with agencies like the IRS and DOL, legal research, document drafting and review and, like most attorneys, a lot of out of the box problem-solving.

12

Is there anything people would find surprising about your practice?

I think the most surprising thing would be how diverse, and dare I say, exciting, it is. There is very little repetition or redundancy in my life.

Every day is a new issue requiring new research and critical thinking.

I was once told that practicing employee benefits would be like “eating glass.” I respectfully disagree.

DICTA

May 2016

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Mark Travis Travis ADR Services, LLC

Workplace Investigations by Outside Counsel – What Do You Have to Lose?

In cases of workplace harassment or whistleblowing, an employer’s defense often hinges on whether it conducted an investigation and took prompt appropriate action based on the results of the investigation.

Whether an employer chooses to use its own legal counsel for an investigation can impact the application of the attorney-client privilege and the attorney work product doctrine. Another important factor is whether the investigation forms a part of the employer’s defense.

A.

The Attorney-Client Privilege.

Employers (and counsel) often expect that including attorneys in an investigation will shield the results from production in any subsequent litigation. Although various courts have held that an attorney’s investigation is privileged,1 including lawyers in an internal investigation does not automatically insulate an investigation from disclosure - despite assertions of attorney-client privilege. The key issue is whether the attorney is acting in the capacity of a legal advisor.

For example, in Koumoulis v. Independent Financial Marketing Group,2 the court held that communications between outside counsel and human resources personnel during the pendency of EEOC charges and litigation were not protected by the attorney-client privilege because their predominant purpose was to provide “business,” not “legal” advice.

The court found the communications generally concerned counsel's advice about actions human resources personnel should take regarding the investigation, who should perform those actions, and what should be documented. The court noted that communications from outside counsel included draft emails to the plaintiffs and scripts for conversations that human resources staff would have with the plaintiffs.

The employer’s emails to outside counsel reported on the outcome of their actions and asked about next steps in the investigation. As a result, the court ordered production of documents the employer had withheld as privileged, as well as the deposition of the employer's outside counsel regarding those communications.

Thus, involving an attorney with the investigation is not necessarily sufficient to bring the investigative materials under the ambit of the attorney-client privilege. Instead, counsel must act in his or her “legal capacity” when conducting the investigation, such as preparing the employer for litigation or actually providing legal advice.

Even if the privilege applies, it may be waived by the employer’s assertion that it properly investigated a complaint and responded appropriately to the findings of its investigation. In that case, the employer places the details of the investigation directly at issue, and it may be difficult to claim attorney-client privilege.3 Brownwell v. Roadway Package Sys., Inc.4 is illustrative. The employer denied the sexual harassment charges against it, arguing that the plaintiff ’s claims were barred because it fully and fairly investigated her allegations and took prompt and appropriate action consistent with the results of the investigation. After filing suit, the plaintiff requested discovery of statements made to the employer’s counsel in connection

with the investigation.

Although it found the statements to counsel were privileged, the court held the employer waived its right to invoke the privilege by asserting the adequacy of its investigation as a defense. First, the court found that by arguing that it fully and fairly investigated the plaintiff ’s allegations while objecting to the production of statements obtained in the course thereof, the employer was unfairly attempting to use the privilege as both a sword and shield. Second, the court held that by asserting the adequacy of its investigation as a defense, the employer had implicitly waived the attorney-client privilege by placing the adequacy of the investigation at issue. Accordingly, the court concluded that the statements were discoverable and had to be produced.

A somewhat different spin on this issue arose in Koss v. Palmer Water Dept.,5 where a sexual harassment investigation was contracted out from the defendant town’s regular law firm to an employment law firm.

While the latter firm conducted all of the interviews, the town’s regular law firm had significant involvement in advising and directing the investigating firm. After the plaintiff filed suit, the regular law firm represented the town.

The town’s defense was based, in part, on the investigation performed by the investigating firm. The plaintiff moved to compel production of documents related to the town’s investigation. The town maintained that the documents reflecting its regular law firm’s involvement in the investigation were protected under the attorney-client privilege.

The judge ordered the town to produce investigation-related documents involving its regular firm, finding that the law firm had been intimately connected to and perhaps controlling of the investigation that formed the basis of the affirmative defense. Thus, the judge concluded that the town had waived the attorney-client privilege for not only the investigative report itself, but for all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation.

B.

The Attorney Work Product Doctrine

The attorney work product doctrine prohibits disclosure of attorney work product prepared in anticipation of litigation, absent a showing of substantial need and undue hardship in obtaining equivalent materials by other means. Generally, a pre-complaint investigation by outside counsel is protected from disclosure, even if litigation is not yet imminent, so long as the purpose is to aid in possible future litigation.6 Just as with the attorney-client privilege, however, a claim of work product may be defeated when the investigation is used as a defense to the underlying claim. In Walker v. County of Contra Costa,7 the county hired an outside attorney to investigate a charge of race discrimination and report to the county’s board of supervisors on the merits of the employee’s claim. In the litigation, when the county resisted providing this report to the plaintiff, the plaintiff moved to compel production.

(Continued on Page 14)

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.

May 2016

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AROUND THE COMMUNITY By: Hon. Greg McMillan Knox County Circuit Court, Division IV

HABITAT FOR HUMANITY HOME On May 21, 2016, the Knoxville Bar Association and First Presbyterian Church will join forces as covenant partners and partner with Knoxville Habitat for Humanity (KHFH) to build a home for a wonderful family. This will be the 8th complete KHFH home that has been constructed by the KBA since the first project in 1994, not counting many other KBA and Barristers projects with KHFH to assist with portions of the construction of other KHFH homes.

Between the kickoff of construction on Blitz Day on May 21st and the tentative dedication date of August 25, 2016, there is a lot of work to do. This year, the KBA will be responsible for obtaining one-half of the volunteers for Blitz Day, all the volunteers for June 4th (roof and interior walls) and July 16th (trim and cabinets). Additional information will be coming soon on how to sign up on-line on KHFH’s website to volunteer on those days. Since this year’s house will be a five-bedroom home, a few more volunteers will be needed than on past projects, particularly on Blitz Day. The home that the KBA and First Presbyterian will be building will benefit Silas Twagiramungu, his wife, Philomene, and their five children (Silvia, 21; Julius, 20; Sonia, 10; Gloria, 8; and Alpha, 2). The family has been in the United States since 2012. Silas and Philomene fled Rwanda in the late 1990’s, and lived in a refugee camp in Kenya until 2005. At that point they were relocated to Nairobi and began seeking approval of their request to resettle in another country. They were eventually approved for resettlement in Tennessee. Silas works at Cherokee Health as a Patient Service Representative. Philomene works for the University of Tennessee where she helps clean and organize classrooms. The older two children are pre-med students at the University of Tennessee.

Currently the family lives in a three-bedroom apartment. They are looking forward to having a five-bedroom, 2-bath home with Habitat’s, the KBA’s and First Presbyterian’s help. As part of the KHFH program, the family will have attended classes on home maintenance, on being a good neighbor, on fiscal management, and will have personally put in 500 hours of “sweat equity” work on other KHFH homes before

breaking ground on their new home. Through the financial contribution of the KBA and First Presbyterian, the Twagiramungus will have an affordable twenty to thirty year mortgage. As the mortgage is paid, KHFH will reinvest their mortgage payments into additional homes for new families.

Please remember when you sign up that any worker must be at least 16 years of age and must sign a release form (available on-line as part of the sign-up process), which release is to be turned in to the KBA in advance of the work day. Also, please note that work days for the project will only cancelled at the job site based on then-current conditions.

Although the work days are a tremendous amount of fun, please pencil in 5:30 p.m. on August 25th and plan to attend the dedication of the home. Not only will you wonder at what has been accomplished, you will be moved deeply as the family receives their keys to their home and realizes, at last, their nearly 20-year dream.

Management Counsel: Law Office 101 Although the court carved out and did not permit disclosure of the sections of the attorney’s report dealing with findings and conclusions, the court ultimately held that where a party puts the adequacy of its pre-litigation investigation at issue by asserting the investigation as a defense, the party must turn over documents related to that investigation, even if they would ordinarily be privileged.

C.

Conclusion

As a neutral working in this area, I have seen privilege issues arise in both mediation and arbitration when employer’s counsel seeks to raise the results of its investigation as a defense and plaintiff ’s counsel seeks disclosure of that information. Employers should always conduct internal investigations where warranted and should engage competent counsel to do so. However, employers and their counsel should be aware that documents related to the litigation may or may not be privileged, depending on the circumstances.

14

(Continued from Page 13)

The complete unedited version of this article appeared in the February 2016 issue of the Nashville Bar Journal.

Brownwell v. Roadway Package System, Inc., 185 F.R.D. 19 (N.D.N.Y 1999); Peterson v.

Wallace Computer Services, Inc., 984 F.Supp. 821 (D.Vt. 1997); Harding v. Dana Transport, Inc., 914 F.Supp. 1084 (D.N.J. 1996); Pray v. New York City Ballet Co., 1997 WL 266980 (S.D.N.Y. May 19, 1997).

2 295 F.R.D. 28 (E.D.N.Y. 2013).

3 Wellpoint Health Networks, Inc. v. Superior Court of Los Angeles County, 68 Cal. Rptr 2d 844 (2d Dist. 1997); Peterson v. Wallace Computer Services, Inc., 1997 U.S. Dist. LEXIS 15831(D. Vermont 1997); EEOC v. Outback Steakhouse of Fla., 251 F.R.D. 603 (D. Colo.

2008); Payton v. New Jersey Turnpike Authority, 691 A.2d 321 (N.J. 1997).

4 185 F.R.D. 19 (N.D.N.Y. 1999).

5 977 F.Supp. 28 (D. Mass. 2013).

6 EEOC v. Lutheran Social Services, 186 F.3d 959 (D.C. Cir. 1999); Kayata v. Foote, Cone & Belding Worldwide, LLC, 200 WL 502859 (S.D.N.Y. April 26, 2000); Janicker v. George Washington University, 94 F.R.D. 648 (D.D.C. 1982); Ryall v. Appleton Elec. Co., 153 F.R.D. 660 (D. Colo. 1994).

7 227 F.R.D. 529 (N.D. Cal. 2005).

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May 2016

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

AREN’T YOU OVERLOOKING SOMETHING? Lions are animals. Cats are animals. Therefore lions are cats.

If that made sense to you, then you have become accustomed to one of the more common of the formal logical fallacies. Changing the words a bit may make the fallacy more obvious.

All judges wear robes. Most professional swimmers wear robes.

Therefore, most professional swimmers are judges.

Penguins are black and white. Old movies are black and white.

Therefore penguins are movies. Now, do you see it?

These sequences of sentences illustrate a logical fallacy known as the undistributed middle term. Dr. Bo Bennett, author of the book, Logically Fallacious, the Ultimate Collection of Over 300 Logical Fallacies,1 defines this fallacy as follows: “A formal fallacy in a categorical syllogism where the middle term, or the term that does not appear in the conclusion, is not distributed to the other two terms.”2 In other words, someone makes two factually accurate statements.

The statements identify a characteristic which two things have in common. The fallacy of the undistributed middle term occurs when the speaker (or perhaps the listener) concludes that, because two things have one thing in common, they must have all things in common. If this explanation is too simplistic for you, feel free to purchase Dr. Bennett’s book.

This is a logical fallacy because you cannot reach the conclusion from the original premises. The premises just tell you some facts. They don’t tell you how or even if those facts are related to each other. You need a few more facts to be able to reach the conclusion.

In case you have forgotten, the LSAT consists of five, 35-minute sections of multiple-choice questions. One section is reading comprehension. Understanding what one has just read could be helpful to an attorney. One section is analytical reasoning, which according to the Princeton Review, is supposed to “test [the] ability to understand effects of rules on decisions and outcomes. . . .”3 Surely, that must come up from time to time in the legal field.4 However, the LSAT reserves two full sections to test logical reasoning through a series of problems which go something like this.

Six students must participate in a committee—either the dance committee or the parade committee—to organize the homecoming weekend activities. Each of the six students (5 of which have names you can neither spell nor pronounce and one who will be named “Bob” or “Jan”) will be on one of the committees. The participation of the students will be in accordance with the following conditions: 1.

2.

3.

4.

5.

If Q is on the parade committee, T is on the dance committee.

V is on the parade committee if T is on the parade committee.

X and V are always on different committees.

S is on the dance committee if T is on the dance committee At least two students must participate in each committee.

Q is on the parade committee.

Bob is on the dance committee.

T is on the dance committee.

V is on the parade committee.

S is on the parade committee.

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People who are unprofessional miss deadlines. Opposing counsel says he cannot meet a deadline. Opposing Counsel is unprofessional.

Unreasonable people take unreasonable positions. The only reasonable position is X. The Defendant has proposed Y. Therefore, the Defendant’s offer is unreasonable (the fallacy in the negative).

As a group of people who specialize in logic, we should become more cognizant of when and how this fallacy may be injecting itself into the practice of law whether consciously or subconsciously. Pay close attention to the first conclusion which pops in your mind. You might be missing something in the middle.

Bo Bennett, PhD, Logically Fallacious, the Ultimate Collection of Over 300 Logical Fallacies (eBookIt.com 2012).

2 Bo Bennett, PhD, Fallacy of (the) Undistributed Middle, https://www.logicallyfallacious. com/tools/lp/Bo/LogicalFallacies/87/Fallacy_of_the_Undistributed_Middle, last visited Apr. 10, 2016.

3 The Princeton Review, LSAT Sections, http://www.princetonreview.com/law/lsatsections (last visited Apr. 10, 2016).

4 To which we must automatically respond, “It does, and don’t call me Shirley.” Airplane (Paramount Pictures 1980).

5 For an interesting history of the development of the LSAT and the reasoning (dare I say logic) behind it, see William P. LaPiana, A History of the Law School Admission Council and the LSAT, Keynote Address 1998 LSAC Annual Meeting (1998), available at http://www.lsac.org/docs/default-source/publications-(lsac-resources)/history-lsac-lsat.p df.

6 LSAC, Law School Admission Test (LSAT) Logical Reasoning Questions, http://www.lsac.org/jd/lsat/prep/logical-reasoning, last visited Apr. 10, 2016.

7 Hoatson v. New York Archdiocese, No. 05-CV-10467 (S.D.N.Y. Dec. 1, 2006).

8 Id. at *1.

9 Id. at *9.

10 Id. 11 Id. 1

If X is on the parade committee, then which one of the following must be true?

1.

2.

3.

4.

5.

You have 1.4 minutes to provide the answer or develop hives, whichever you find most appropriate.

Unless you were fortunate enough to begin practicing law before 1948,5 you more than likely had to figure out whether Bob would be on the dance committee using logic and reason rather than the method that is accepted in most high schools across the United States. This involves asking one question: “Is Bob cool?”

If the LSAT has carefully prescreened law students for their “ability to analyze, critically evaluate, and complete arguments as they occur in ordinary language”6 why does the fallacy of the undistributed middle term seem to pop up fairly regularly in the practice of law?

One of the most famous involved a motion to recuse filed by the plaintiff in Hoatson v. New York Archdiocese.7 In this case, the plaintiff argued that the trial judge should recuse himself because he had been corporate counsel to New York City when Mayor Rudy Giuliani was in office.8 As it turns out, the Mayor also knew an employee of the Defendant.9 Therefore, because both the trial judge and the Defendant had a connection to Mayor Guiliani, recusal was required, or at least that is what the plaintiff argued.10 Fortunately, the judge noted the fallacy of this argument and declined to recuse himself.11 However, here are a few more that often appear outside the courtroom:

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MONTGOMERY V. LOUISIANA: THE KIDS ARE STILL ALL RIGHT AT THE HIGH COURT Over the last decade, the United States Supreme Court has been called pro-business, but it can perhaps just as fairly be called pro-juvenile. In a series of decisions, the Court has held that the death penalty is unconstitutional for juveniles (Roper v.

Simmons1), that a sentence of life without parole is unconstitutional for non-homicide offenses committed by juveniles (Graham v. Florida2), and that mandatory life without parole is unconstitutional for any juvenile offense (Miller v. Alabama3). The Court has also held (in J.D.B. v. N. Carolina4) that the age of juvenile suspects should be considered in determining whether they are “in custody” for purposes of Miranda. This term, juveniles won again, in a case with implications that aren’t just for kids.

In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court addressed whether Miller v.

Alabama applies to mandatory life-withoutparole sentences that were final when Miller was decided. Henry Montgomery was convicted in 1969, for a murder he committed when he was 17. His conviction automatically subjected him to mandatory life imprisonment without the possibility of parole. More than 40 years later, Miller held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual’ punishments.” Miller, 132 S. Ct. at 2460.

Miller found that a sentencer must “have the ability to consider the mitigating qualities of youth” before imposing life without parole, which cannot happen if the sentence is mandatory. Id. at 2467 (citation and internal quotation marks omitted).

Miller focused on “three significant gaps between juveniles and adults.” Id. at 2464.

First, children have an “underdeveloped sense of responsibility” that leads to “recklessness, impulsivity, and heedless risk-taking.” Id. Second, children are “more vulnerable” to

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“negative influences and outside pressures,” they have limited “control over their own environment,” and they “lack the ability to extricate themselves from horrific, crime-producing settings.” Id. Third, “a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’” Id. These conclusions were based not just on “common sense” but on “science and social science” that “continue to show fundamental differences between juvenile and adult minds.” Id. at 2464-65.

Montgomery moved to correct his sentence on the ground that it was illegal under Miller. The Louisiana Supreme Court held he was not entitled to relief because, although Miller had established a new rule, it was not one that had to be applied retroactively. This holding was based on the retroactivity standards in Teague v. Lane, 489 U.S. 288 (1989).

In Teague and later decisions, the United States Supreme Court has held that, when it announces new rules, they do not apply to cases that have already gone through direct review, with two exceptions. First, a new rule will be applied retroactively when it is “substantive.”

Schriro v. Summerlin, 542 U.S. 348, 351 (2004).

A “substantive” rule is one that puts particular conduct or persons “beyond the State’s power to punish,” id. at 352, or that prohibits a “certain category of punishment for a class of defendants because of their status or offense.”

Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated on other grounds by Atkins v.

Virginia, 536 U.S. 304 (2002). Second, a new rule of procedure may apply retroactively, but only when it is a “watershed” rule that “alter[s] our understanding of the bedrock procedural elements” essential to a fair trial. Teague, 489 U.S. at 311 (plurality opinion). Aside from the right to counsel, examples of procedural rules that fit this exception are “hen’s-teeth rare.”

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Sepulveda v. United States, 330 F.3d 55, 61 (1st Cir. 2003).

The Supreme Court granted certiorari in Montgomery to decide whether Miller applies retroactively under the Teague framework.

Miller included language that gave Louisiana reason to believe the answer was no: “Our decision does not categorically bar a penalty for a class of offenders or a type of crime”; “it mandates only that a sentence follow a certain process – considering an offender’s youth and attendant characteristics – before imposing a particular penalty.” Miller, 132 S. Ct. at 2471 (emphasis added). “Process” sounds procedural, but the Court found that Miller’s rule is “substantive.”

The Court interpreted Miller as doing more than merely “requir[ing] a sentencer to consider a juvenile offender’s youth before imposing life without parole.” Montgomery, 136 S. Ct. at 734. Miller, according to the Court, held that such a sentence will be unjustifiable, regardless of what the sentencer considers, for all juveniles except the “‘rare juvenile offender whose crime reflects irreparable corruption.’”

Miller, 132 S. Ct. at 2469 (quoting Roper, 543 U.S. at 573). Thus, Miller did render a particular sentence unconstitutional for a “class” of defendants: “juvenile offenders whose crimes reflect the transient immaturity of youth.”

Montgomery, 136 S. Ct. at 734. That was enough, the Court found, for Miller to have “announced a substantive rule of constitutional law” that applies retroactively. Id. To remedy a Miller violation, the Court explained, states could grant juvenile offenders another sentencing hearing at which they may present evidence that they are “capable of change.” Id. at 736. In Montgomery’s case, such evidence could include what he has done in prison, like starting an inmate boxing team, working in the prison’s silkscreen department, and advising other inmates. Id. Recognizing

May 2016

COVER STORY

By: James R. Stovall Ritchie, Dillard, Davies & Johnson, P.C.

the burdens of resentencing every juvenile offender serving mandatory life without parole, the Court also found that a Miller violation may be remedied by legislation that makes juvenile offenders eligible for parole. Id. In addition to whether Miller is retroactive, Montgomery decided a jurisdictional question of first impression. Although Montgomery’s motion had been denied by the state court based on its interpretation of Teague, Louisiana had adopted Teague, a federal habeas decision, as a matter of state law,5 and the Supreme Court had never held that states are constitutionally required to follow Teague. As a result, it was unclear whether Louisiana’s decision not to apply Miller retroactively presented a federal question. The Court held that it did, finding that states that allow defendants to assert federal claims on collateral review are constitutionally required to give retroactive effect to new rules, at least when they are substantive (the Court did not address “watershed” procedural rules) and when the rule “controls the outcome.” Montgomery, 136 S. Ct. at 729. The Court had already held that states may do more than Teague requires in applying new federal rules retroactively. Danforth v.

Minnesota, 552 U.S. 264 (2009). After Montgomery, for substantive rules, they may do no less.

Montgomery was decided 6-3. (Chief Justice Roberts, who dissented in Miller, a 5-4 decision, joined the Montgomery majority.)

Justice Scalia wrote the principal dissent, sadly, one of his last. He noted that, until this decision, the Court had not held that even federal courts are “constitutionally obliged” to grant relief for a past violation of a newly announced substantive rule. Montgomery, 136 S. Ct. at 741 (Scalia, J., dissenting). His dissent suggests that Montgomery’s jurisdictional holding could have significant impact not just on non-juvenile state cases but on federal habeas cases as well.

As for the merits, Justice Scalia called the majority’s reading of Miller “a devious way of eliminating life without parole for juvenile offenders.” Id. at 744. He found that the inquiry contemplated by Miller – whether the juvenile offender was “incorrigible when he was sentenced” – would be “impossible in practice” to carry out. As a result, the majority’s comment that Miller violations may be cured by making offenders parole-eligible was, “in Godfather fashion,” “an offer [state legislatures]

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can’t refuse.” Id. Montgomery’s immediate consequences may not be as dramatic as Justice Scalia feared.

Some states had already decided to apply Miller retroactively. In those that hadn’t, by one count there are “dozens” of persons serving mandatory life without parole for offenses committed when they were juveniles, more than a handful, to be sure, but not quite enough to bring a court system to a standstill.6 In Tennessee, one court had held that Miller applies retroactively, but Tennessee does not have mandatory life-without-parole sentences. See Charles Damien Darden v. State, No. M2013–01328–CCA–R3–PC, 2014 WL 992097 (Tenn. Crim. App. Mar. 13, 2014).

Still, in its expansive reading of Miller, Montgomery does suggest that the Court is firmly committed to the proposition that “children are constitutionally different from adults for purposes of sentencing.” Miller, 132

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S. Ct. at 2464. Given the Court’s repeated emphasis on juveniles’ “diminished culpability and greater prospects for reform,” id., it is not hard to think that the Court will ultimately find life sentences for juveniles, even sentences with some possibility of release, too severe. The safe bet appears to be that the juvenile winning streak isn’t over.

543 U.S. 551 (2005).

560 U.S. 48 (2010).

3 132 S. Ct. 2455 (2012).

4 564 U.S. 261 (2011).

5 Tennessee has done something similar. See Bush v.

State, 428 S.W.3d 1, 19 (Tenn. 2014) (“[T]he retroactivity standard of Tenn. Code Ann. § 40–30–122 is similar to the federal standard of Teague v. Lane.”).

6 See Brief of the Equal Justice Initiative on Behalf of Dozens Sentenced to Die in Prison When They Were Children as Amici Curiae in Support of Petitioner, Montgomery v. State of Louisiana, 2015 WL 4607690.

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WORD PLAY

barrister bullets •

Plan now to attend the Barristers monthly meeting on Wednesday, May 11, 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 and local law students. Get updates on the Barristers on Facebook at www.facebook.com/knoxvillebarristers.

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Everyone is welcome to join the Barristers and the KBA for Happy Hour from 5-7 p.m. on Thursday, May 12th, at Balter Beerworks at 100 South Broadway. Please come out and have a drink or grab a bite with friends and colleagues. Happy Hour officially starts at five, but it goes until seven, so feel free to drop in when you can.

This is a great opportunity to network, meet new faces, and get involved with the Barristers, so join us! RSVP by clicking on May 12 in the event calendar at www.knoxbar.org.

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The Hunger & Poverty Relief Committee thanks everyone who participated in this year’s professional clothing drive during April!

Women's clothing was donated to the YWCA and Connect Ministries Career Closet and men's clothing was donated to Knox Area Rescue Ministries.

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The Access to Justice Committee invites members to volunteer at the next Saturday Bar from 9:15 a.m. – 12:30 p.m. at the Trentham Fellowship Hall, First Baptist Church (510 West Main Street) on Saturday, May 7th. The free legal clinic will be offer as a joint Saturday Bar and InterFaith Legal Clinic which means that the event will be open to participants of ALL faith backgrounds and regardless of income level. Help us spread the word about this important event to members of your congregation, as well as individuals and families your congregation serves, who may be in need of legal services. Contact Kathryn Ellis at kellis@laet.org or Daniel Ellis at dellis@ellisandellislaw.com for more information.

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

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.

“Creole” Yes, we all think of food in the French Quarter, but it goes deeper than that.

The word cirole (1697) denoted a native of the West Indies of European or African descent. By 1737, the word had evolved into Créole, which was borrowed from the French creole, which came from the Spanish criollo, a person native to a locality and from the Portuguese crioulo, which is the diminutive of cria, a person, or servant, raised in one’s house, originally from the Latin creáre, to produce or create.

By 1792, the word is found in American English to describe a descendent of early French or Spanish settlers in Louisiana.

So now we are up to the food, which speaks for itself.

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

Milk and Sugar The Definitive Guide to Seersucker Featuring

William H. Haltom Lewis Thomason Wednesday, June 15, 2016 11:30 a.m. - 1:00 p.m.

Calhoun’s on the River - 400 Neyland Drive $35 per person Register online at www.knoxbar.org.

The definitive guide to the quintessential Southern fabric covers all things seersucker. From the origins and history of the seersucker suit to the many different ways, places, and reasons people wear it, Milk & Sugar has it all. Author Bill Haltom dives into traditional ways to wear the puckered fabric as well as the unconventional styles of today. Along the way, he also chronicles the celebrities, politicians, and average people who champion seersucker fashions. There’s something for everyone — longtime fans as well as newbies will enjoy Haltom’s anecdotes and history lessons, and that doesn’t exclude the ladies (an entire chapter is devoted to ladies who’ve made seersucker their own).

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May 2016

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

BILL HALTOM’S “MILK AND SUGAR: THE COMPLETE BOOK OF SEERSUCKER” “It is literally cool.” The puckered fabric known as seersucker has decision you need to make is when to wear it – and Milk and Sugar allowed us southern lawyers a manageable way to work in the south and offers the most comprehensive seersucker etiquette to date. So as not to remain sharply dressed. But seersucker has a fascinating history as spoil all of the fun of the book, I’ll just give you the rule that most of complex as the fabric itself. From starting in the ocean, to nearly you (as Tennesseans) need to know: we live below the “Sweet Tea Line,” becoming obsolete, and back again to its national prominence, seersucker (you determine this by checking what’s in your glass when ordering “iced has been artfully draped over American cultural icons and presidents tea” in your locale) so seersucker season here begins on Easter Sunday, from both north and south. In Milk and Sugar, Bill Haltom – a not Memorial Day. Of course, if you ask the Haspels themselves, they’ll Memphis-based partner at the law firm Lewis Thomason, who also just tell you to wear it whenever it’s hot outside. finds time to be an accomplished speaker, author, and humor columnist As Haltom so helpfully points out, seersucker’s timelessness and – writes with the same flair as Jay Gatsby’s pink-and-white seersucker good looks has engendered its popularity from old Hollywood to suit.

Washington, D.C. But in no other profession has seersucker been more Don’t worry: You won’t break a sweat enjoying Bill Haltom’s new celebrated than the legal profession. Look no further than our very own book. Laced with whimsical puns throughout, Milk and Sugar easily Judge Pamela Reeves and Chief Justice Sharon Lee. And you can’t miss guides the reader through it at the Peabody on the last the history of seersucker and work day before Labor Day those who made it popular. when a colorful seersucker The book itself even abides flash mob outshines even the by the first rule of ducks’ plumage (thanks, Nick seersucker: to convey McCall!). From Memphis to effortless style, often referred Knoxville, seersucker remains to as sprezzatura. The second the “perfect law suit.” rule of seersucker, by the Especially because way, is that the wearer had seersucker has regained its better have the confidence to national popularity with the pull off the look. reinstatement of Seersucker Seersucker’s coolness Thursday in Congress and started with its inventor, the creation of National Joseph Haspel’s, dive into Seersucker Day ( June 11th), the ocean – fully dressed in Milk and Sugar is a the first seersucker suit – to must-own for any southerner show its ability to dry easily and, with its bright cover, a and look better even with a fantastic coffee-table book. If few (or many) wrinkles. you’re new to the fabric, do Haspel (whose company, yourself a favor and pick up s Haltom’s book points out, seersucker is the best kind of by the way, still makes one a copy of the book to learn of the best seersucker suits the basics, and then get “opening statement,” inviting conversation and putting a around) took what was yourself fitted for a suit in smile on the face of the wearer and the observer. originally a fabric of the summer’s greatest fabric. poor and made it work for That way, you’ll have no the everyday businessman. The seemingly effortless fabric naturally excuse to miss the next lawn party, much less the KBA’s Senior Section became popular in the Ivy League and throughout the northeast – so Luncheon this June 15th at Calhoun’s on the River – Bill Haltom will much so that the fabric made its appearance at Brooks Brothers by the be our special guest speaker and will discuss Milk and Sugar, so don’t 1920s. Although its cool utility waned when synthetic fabrics began miss it (and, yes, you are encouraged to wear seersucker to the event!). replacing the heavy wool suit, the puckered fabric made a comeback Having admitted my seersucker bias, it should be no secret that I from this “sartorial winter” to regain its national prominence today. also highly recommend Milk and Sugar for any well-read (and But, as a seersucker wearer myself, it is clear that seersucker never well-dressed) lawyer. Just remember the basic rule supplied by the great became too popular, so it has retained a niche coolness that always makes Sid Mashburn: around here, from Easter to Labor Day, you can proudly it a go-to outfit to stand out. As Haltom’s book points out, seersucker is sport your puckered ‘sucker in court, at a party, or really anywhere – the best kind of “opening statement,” inviting conversation and putting a except maybe a funeral. smile on the face of the wearer and the observer. Really, the only

A

May 2016

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

A great marvel of the modern era has to be the invention of the all-you-can-eat buffet – the roll-up-your-sleeves and don’t-stop-chewing-til-you’re-sufficiently-uncomfortable restaurant. While I remember it being a pretty big deal when the Golden Corral set up shop in Morristown, a buffet restaurant doesn’t quite make my skirt fly up (well, except for the pizza/salad/goodness buffet at Pizza Inn, obviously). Not to disparage all buffet establishments, but I can safely say that I’ve never had a buffet meal so exquisite to cause me to engage in fisticuffs. However, it seems I may need to reevaluate my position and pay a visit the Royal Buffet & Grill in Manchester, Connecticut. A loyal patron of the Royal Buffet, Rusty, wrote on the restaurant’s website: “Your [sic] food is some of the best I’ve had at a buffet. When I want to give my wife a treat[,] I mention Royal Buffet[,] and she puts on her happy face. Look forward to seeing you later for dinner.” Clearly, this place is legit.

Clifford Knight, 45, and Latoya Knight, 38, were enjoying the smorgasbord of food at the Royal Buffet this past month. As they were replenishing their plates in the buffet line, the unthinkable happened. There was only one crab leg left. What were the Knights to do? Wait (most likely, impatiently) until the next batch of crab legs came out of the steamer. Or battle among other Royal Buffet patrons for the last crab leg. A serious quandary. The Knights chose fight over flight and got into an argument with a 21-year-old man regarding who would get the last crab leg.

The argument escalated to the unidentified victim being punched so hard in the face by Mr. Knight that the victim lost his tooth. Let that sink in… the dude lost a tooth over the last crab leg at an all-you-can-eat buffet. The victim’s mother witnessed the altercation and jumped in, unleashing her pepper spray on the Knights.

Police responded to the scene and arrested the Knights. Ms. Knight was charged with disorderly conduct and threatening, while Mr. Knight received charges of third-degree assault and disorderly conduct. The victim’s mother was deemed to have acted in self-defense and is not facing any charges. The Knights bonded out and are scheduled to appear in court mid-April. The restaurant had to temporarily close after the incident while the health department assessed the air quality due the deployment of pepper spray. Never fear, however, the restaurant reopened for business the next day.

So, if you find yourself in Manchester, Connecticut, perhaps you should “put on your happy face” and mosey down to the Royal Buffet. I mean, the food must be pretty good if it’s worth going to jail for. Just try to keep your hands to yourself, or you may find yourself the topic of my next column.

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May 2016

SCHOOLED IN ETHICS By:

Judy M. Cornett1 U.T. College of Law

“WILL YOU TAKE A HAIR FOLLICLE TEST RIGHT NOW?” APPLICANTS FOR THE TENNESSEE BAR MAY NOW BE DRUG TESTED Those of you who watch “Judge Judy” know that she is fond of abruptly asking certain litigants, “Will you take a hair follicle test right now?” If the answer is “no,” Judge Judy will slam the gavel down on that litigant’s case. The same thing is now true of applicants for the Tennessee bar.

On December 21, 2015, without seeking prior public comment, the Tennessee Supreme Court added a new subsection (b) to Tenn. Sup. Ct. R. 7, section 3.07, effective January 1, 2016.2 It reads as follows: (b) The Board [of Law Examiners] or any individual member thereof, as part of the character investigation of an applicant, may request an applicant to submit to a drug test.

Failure or refusal to submit to the drug test shall be sufficient cause for the Board to refuse such applicant a license.

The only comment to the new rule states: “After the comment period, at suggestion of the TLAP’s Executive Director, subsection (b) was added to allow the Board to direct an applicant to submit to drug testing as part of the character assessment, which would usually occur during a show cause hearing.”3 This rule was brought to my attention by one of my third-year law students, who, in the course of completing her bar application, came across it while surfing the website of the Administrative Office of the Courts. A reference to it appeared in the Spring 2016 edition of Board Notes, published by the Board of Professional Responsibility: “The BLE or any member thereof is explicitly authorized to request an applicant to submit to a drug test as part of the character investigation. Failure of the applicant to do so is sufficient cause for denial of a license.”4 This rule appears to authorize any member of the Board of Law Examiners to seek a drug test of any applicant for the bar for any reason at any time during the pendency of the character investigation. The rule contains no guidelines constraining the Board members’ discretion in requesting a drug test. Nor does the rule specify what type of drug test can be required (blood? urine? saliva? hair follicle?). Presumably, the applicant would bear the costs of any drug test, but again, the rule is silent on this point.

It is also unclear why the rule was not published for public comment. The other changes to rule 7, such as the provision regarding military spouses, were published for public comment and the Knoxville Bar Association Professionalism Committee, among others, did submit comments. The comment to new rule 3.07(b) states that it was “added after the comment period.”5 The new subsection apparently originated in the Reply of the Board of Law Examiners to public comments received on the other proposed amendments to Rule 7: Section 3.07(b) [at Line 621] is added at suggestion of The Tennessee Lawyers' Assistance Program (TLAP), with whom the TBLE works closely. The new provision provides that, by submitting an application, an applicant agrees to submit to drug testing if requested to do so by the Board.

Other options for placement in Rule 7 would be to include this in Article VI regarding the Character and Fitness

investigation, Section 10.05 regarding Conditional Admission, or in Article XIII regarding Show Cause, where this issue often arises.6 Despite the broad language of the rule itself, it was intended only to address the situation in which a bar applicant has already been flagged for drug-related issues, such as an academic suspension for drug use or even a drug-related arrest. When those applicants appeared at a show-cause hearing before the Board of Law Examiners, they were asked about their drug use. If the applicant, despite appearances, denied drug use, the Board believed that it had no power to require the applicant to submit to a drug test to determine the truthfulness of the applicant’s denial. Therefore, the current rule was requested to give the Board an additional tool in its effort to determine the fitness of an applicant already red-flagged for drug-related issues.

Although the rule was never intended to allow random drug-testing of bar applicants, the broad language of the rule could conceivably allow just that, despite the disclaimer in the comment that the test would “usually” be ordered in connection with a show cause hearing already underway. There appears to be no authority requiring public comment on proposed Supreme Court rules,7 but the failure of the rule’s language to accurately express its intent is undoubtedly due in part to the failure to subject it to public comment. Had the rule not been added at the last minute, it could have been revised and narrowed to better reflect how it was intended to work.

Substantively, even if the rule did allow random suspicionless drug testing of bar applicants, it would likely pass muster under both the Fourth Amendment of the U.S. Constitution and the correlative provision of the Tennessee Constitution, article 1, section 7. The U.S. Supreme Court has created a balancing test for determining when such drug testing is permitted in the employment context, requiring that the employee’s privacy interest be balanced against the government’s competing interests in requiring the testing.8 At least one court has interpreted the Tennessee Constitution consistently with the U.S. Supreme Court’s approach.9 In Wilner v. Thornburgh,10 the D.C. Circuit applied this balancing test to suspicionless pre-employment drug testing of attorneys in the U.S. Justice Department. Striking the balance in favor of the government, the court held that the prospective employees’ privacy interests were diminished by (1) the extensive background investigation they had already undergone, including questions about drug use11; (2) the conditions of the testing, which were “dignified and discreet”12; (3) the notoriety of the pre-employment drug testing program14; and (4) the voluntary nature of the attorney’s application for employment. Against the employee’s interests the court weighed the Justice Department’s interest in “maintaining public confidence and trust”15 and guarding against performance deficits such as absenteeism.16 To the extent the new rule would allow drug testing only upon reasonable suspicion of drug use, the balancing test would almost certainly favor the Board.

So, as my students would ask, “What’s the take-away?”

First, the language of Rule 3.07(b) should be revised and narrowed to better reflect its intent.17 (Continued on Page 22)

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Schooled In Ethics

(Continued from Page 21)

Second, all members of the bench and bar who work with law students and bar applicants need to remind them that drug use and alcohol abuse are serious issues. If you see a prospective lawyer in need of help, urge them to seek it.

Third, all law students and bar applicants need to recognize that the Board of Law Examiners is serious about identifying applicants who face drug- and alcohol-related issues.18 As law students and bar applicants, you are held to a high standard of personal behavior. Engaging in illegal substance abuse can potentially end your chances of admission to the bar.

Finally, law students, bar applicants, and members of the bench and bar in Tennessee can find experienced, compassionate, confidential help for drug and alcohol problems at the Tennessee Lawyers’ Assistance Program. If you have a problem with illegal drug use or alcohol abuse, don’t wait for Judge Judy to demand that you take a hair follicle test – seek help now. Call TLAP at (615) 741-3238 or (877) 424-8527.

1 I wish to thank the following individuals for invaluable assistance with this article: Maddin Nelson and Harolda Bryson, UT Law Class of 2016; UT Law Profs. Sibyl Marshall and Kris Tobin; TLAP Executive Director Laura McClendon; BPR member Wade Davies; TBA President and Board of Law Examiners member William L. Harbison. The views expressed in this article are my own.

2 Order, In re Amendment of Rules 6, 7, and 8 (RPC 5.5), Rules of the Tennessee Supreme Court, No. Admin2015-00443 (Tenn. Dec. 21, 2015).

3 Appendix A, lines 634-36, Reply to Comments to Petition to Amend Tennessee Supreme Court Rules 6, 7 and 8 (RPC 5.5) Governing Admission and Licensing of Attorneys, In Re: Petition To Amend Tennessee Supreme Court Rules 6, 7 and 8, RPC 5.5, No.: ADM2015-00443 (filed Sept. 1, 2015), available at http://www.tsc.state.tn.us/sites/ default/files/combined_comments_to_sct_r_678_rpc5.5_admin2015-00443_5.pdf.

4 Lisa Perlen, Tennessee Board of Law Examiners: Amendments to Tenn. Sup. Ct. R. 7, Board Notes 2 (Spring 2016), available at http://www.tbpr.org/for-legal-professionals/ board-notes-newsletter. The new rule is also referred to in the seventh paragraph of the page headed “Tennessee Supreme Court Adopts Significant Updates to Rule Governing

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Licensing of Attorneys” on the Board of Law Examiners website, available at http://www.tnble.org/news/supreme-court-adopts-significant-updates-rule-governing-lic ensing-attorneys.

5 The Order seeking public comment was published on March 25, 2015, and the public comment period for the proposed amendments ended on July 15, 2015. See Order, In Re: Petition to Amend Tennessee Supreme Court Rules 6, 7 and 8, RPC 5.5, No.: ADM2015-00443 (Tenn. filed April 13, 2015).

6 Paragraph 2(c), Reply to Comments to Petition to Amend Tennessee Supreme Court Rules 6, 7 and 8 (RPC 5.5) Governing Admission and Licensing of Attorneys, In Re: Petition to Amend Tennessee Supreme Court Rules 6, 7 and 8, RPC 5.5, No.: ADM2015-00443 (filed Sept. 1, 2015), available at http://www.tsc.state.tn.us/sites/ default/files/combined_comments_to_sct_r_678_rpc5.5_admin2015-00443_5.pdf.

7 The Tennessee Administrative Procedures Act does not apply to the courts. Tenn. Code Ann. § 4-5-106(a).

8 See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L.Ed.2d 685 (1989); Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989).

9 Ensor v. Rust Engineering Co., 704 F. Supp. 808, 816 (E.D. Tenn. 1989).

10 928 F.3d 1185 (D.C. Cir. 1991).

11 Id. at 1190.

12 Id. at 1189.

13 Id. at 1191.

14 Id. at 1190.

15 Id. at 1192.

16 Id. 17 I hope to have my fall semester Professional Responsibility students at the UT College of Law prepare a petition to the Tennessee Supreme Court suggesting revisions to the rule to bring it in line with its intended purpose. If we succeed in doing so, the proposed rule could then be published for public comment.

18 As TBA President William L. Harbison noted in the April 2016 of the Tennessee Bar Journal, a study entitled “’The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,’ found that 21 percent of licensed, employed attorneys qualify as problem drinkers and that 28 percent of attorneys struggle with some level of depression. It is published in the February 2016 issue of the Journal of Addiction Medicine.” William L. Harbison, Competition Can Be Beneficial, But Also Corrosive, 52 Tenn. B.J. 3 (Apr. 2016). You can learn more about the study at www.tba.org/news/study-substancc-abuse-mental-health-issues-plagueattorneys.

DICTA

May 2016

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

A FRESH PERSPECTIVE OK, I cheated this month.

With no good ideas and a dwindling amount of free time, I desperately turned to another attorney in our office, Lindsey Lyle, to write an article this month to fill my column. My only instructions were to write 1000 words about what it is like to be a young lawyer in the Knoxville bar today (Lindsey is two years out of law school).

What she produced is far better written than what I usually put out there. I told her it was perfect although a bit polyanna. She smartly replied “did you really expect me to write about the negatives?” Yep. Lindsey is the smart one. Anyway, I hope you enjoy a new perspective from Lindsey Lyle, Lowe, Yeager & Brown: This was it. I had endured three years of grueling law school, sleuthing through three-hundred plus pages of assigned reading a night, balancing executive duties for one of the school’s law journals, two part-time jobs, and other extra-curricular activities, as well as surviving and conquering the hazing that is the BAR. Now, there I stood, in a court room in Knox County, before a real sworn-in judge, with my hand raised, reciting the oath that all new attorneys must take, and just like that, I was an official licensed attorney in Knoxville, Tennessee.

I admit, the whole thing felt a bit surreal. After twenty-one years of living under the label of “student,” I was now a professional, working adult. I recall walking into the building the next morning, dressed in my suit with a brief case slung over my shoulder, standing next to other learned professionals in the elevator, and laughing to myself a bit. In frank honesty, I felt a little bit like a kid playing dress up, pretending to be something I did not quite yet identify with. Yet there I was, a first year-associate, and people began looking to me expectantly for answers and direction—whether I had any answers or direction to give them or not. Although intimidating, it was gratifying to finally be in a position where I could begin to stretch and develop my legal skills in situations that had the opportunity to affect people’s lives for the better.

As a newly admitted attorney, my life changed in some obvious and expected ways. I settled into a more routine schedule, I no longer regularly lived off of peanut butter sandwiches and ramen, and my wardrobe quickly became a lot more professional. And of course, as the law school had warned us, I received a flood of inquiries for legal advice on a myriad of various legal issues. Unfortunately, all of my new fans wanted me to work for free, and there were many disappointed faces when I had to tell the inquirer that, no, I am not that kind of defense lawyer. (Please do not call me when you get a DUI…).

One of the things I did not expect was how much I would come to dread the question “what kind of lawyer are you?” For some reason, this is the first thing every non-lawyer asks once they learn that I am an attorney, and for some reason, this is the one question I had never expected or prepared for. At first, I tried to genuinely explain to interested parties what it is I do, but I watched as their eyes grew sallow

May 2016

with disappointment as I continued with my discourse, and I knew they wanted to hear about the excitement and bravado of the as-seen-on-TV court room, not that I spent the majority of my time at my desk, sifting through complex factual scenarios and case law attempting to synthesize legal argument and drafting pleadings and memoranda. Not nearly as exciting as Law and Order or Suits. Now when an individual looks at me expectantly and asks that question, I answer dryly, “the boring kind.”

That usually suffices to end the conversation.

As I have settled into my new career, I have been pleasantly surprised by how welcoming and helpful the Knoxville legal community is to new attorneys such as myself. In stark contrast to the competitiveness of law school, I found myself drawing closer to my former classmates, sharing our fears and accomplishments with one another, and exchanging knowledge and advice when appropriate.

However, I also found that I quickly connected with several other more experienced attorneys, outside of my own firm, who treated me with deference. These attorneys have willingly helped to guide me through procedural or legal questions I have encountered. Further, on the occasions where I have had the privilege to argue motions before the court, fellow attorneys sitting through the motion hearing–many of whom I had not been previously acquainted with–have taken it upon themselves to encourage me afterwards. All of these gestures have been greatly appreciated, strengthening me as I grow into my new identity as a practicing attorney in Knoxville, Tennessee.

In addition to the support received by fellow attorneys, I have felt the same supportive encouragement from the judiciary. I can still recall how incredibly nervous I felt the first time I was to speak before the court. One of the partners introduced me, informing the presiding judge that I had been newly admitted, and that I was being allowed to argue this particular motion. The judge took the time to congratulate and welcome me to the practice of law before indicating that I could proceed.

Even though it was a small motion, I had spent hours the night before preparing, determined not to make a fool of myself. I am sure I still stumbled over my words occasionally, but the judge listened respectfully and I answered questions the best I could. I may have lost that motion, but I was thankful the judge performed his duty professionally and unbiasedly, but in a manner that encouraged me to grow as an attorney instead of leaving me feeling discouraged. Further, the few times I have had occasion to speak with our judges and chancellors outside of a formal court room setting, they have all been a pleasure to converse with and incredibly motivating.

Truly, my first year and a half as an attorney has been a great experience, thanks in part to the welcoming and supportive legal community in Knoxville, Tennessee. I have had the opportunity to rub shoulders with local bars in other cities, and I have not always felt the same “southern hospitality” that the Knoxville bar has seemed to embrace. Here, it seems I am surrounded by attorneys who love what they do, who care about the well-being of their fellow attorneys and the community around them, and who are willing to invest time and energy into ensuring that the city of Knoxville is the best that it can be. As such, I am grateful to be a part of such a caring and passionate legal community, and look forward to serving this city with the same enthusiasm as my fellow Knoxville lawyers.

DICTA

Yes, I know, she is a better writer than me.

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LAWYER HOBBIES By: Katie Ogle Haynes Meek & Summers

RUNNIN’ FROM THE LAW I played sports during childhood, golfed in college, and have been involved in different recreational leagues as an adult, but I’ve never considered myself a “runner.” Recently, I’ve been more committed to running on a regular basis, and now that spring is upon us, I’m considering moving those runs from the treadmill at the gym to the wilds of Knoxville. After seeing my Facebook friends who participated in the Knoxville marathon, it struck me that a large number of my “runner friends” are also lawyers. One may conclude that the competitive nature of many attorneys is the driving force behind the progression of an occasional one or two mile jog to enlistment in multiple marathons.

Attorneys, however, have as many different motivations for running as they did for attending law school.

For former defense attorney Jhasta Moore Tack, her running journey began with the birth of her first child. “Aside from wanting to regain my physical strength ‘post baby,’ I wanted to make sure I’d be able to keep up with his speed when he began walking.” Jhasta had run a few short distance races some years ago, but began teaching Zumba classes in 2009. She got most of her cardio workouts through this hip-hop dance instruction until 2014 when she began training with Operation Boot Camp. She then became an Operation Boot Camp instructor, and the rest is history. And that competitive side I mentioned earlier? Jhasta lists her biggest competition as herself. “I like to set goals for myself, and see how I can match up to them rather than competing against others,” she notes. Jhasta has also achieved one of her “bucket list” items with the completion of her first half-marathon.

After eleven weeks of training, she set a goal of completing the run in two hours and fifteen minutes, and crossed the finish line with a whopping seventeen minutes to spare. Most recently, she took part in the Disney Princess Glass Slipper Challenge, a two- day event held at Walt Disney World.

Jhasta isn’t the only local attorney who travels to compete in running events. TVA attorney Cody Farmer ran the Memphis Marathon earlier this year. His tip for success? “I don’t recommend going to the Wiseacre Brewery the night before you run a marathon. I had to learn that the hard way.”

Cody also notes that cross training and finding shoes that improve your individual performance make huge differences on race day. Both Jhasta and Cody also stress the importance of keeping one’s body

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healthy enough to prevent injuries and general burn out. “Know your limitations and honor your body,” says Jhasta. “If you’re feeling sick or injured, rest. If you’re running eleven minute miles, and your goal is to run an eight minute pace, give it time and build toward your goal.”

Many attorneys who regularly run also say this is the most peaceful moment of their day, and I tend to agree. During a run, it’s easy to zone into the music pounding in your ears, and flow into a pace that works for you, rather than focusing on an endless “to do” list or the myriad of client needs awaiting individual attention. Cody and Jhasta also prefer to run solo to clear their minds, but do agree that when maintaining pace is key, it can be a benefit to have a partner or two. “I found myself running the same pace as another person during the Knoxville Marathon around mile thirteen and we ended up finishing the race at the same time,” says Cody.

If you’ve recently begun running, or need some direction on how to begin preparing for a race, local attorney James Corcoran also has some advice for beginners. “Read the book ‘Road Racing for Serious Runners’

by Pete Pfizinger. It provides training schedules to help you prepare to run your best race.” James also notes that it can be a good motivator to have a long term goal in mind. “I was registered for my first marathon before I had ever run a 5K. Having a goal eight or nine months down the road can make you keep going out there every day.”

And once you overcome the hurdle of getting out there each day, what nutrients are the best fuel for every run? As with motivation and goals, each runner has their own different recipe for success. Cody changes his diet a week before each competitive run, and adds foods that maximize glycogen levels leading up to race day.

On the morning of a run, a bagel with peanut butter is his breakfast standby. For James, sticking to low calorie options during training is key. Like Cody, he then adds carbohydrates in the days before a race.

Jhasta, on the other hand, focuses on the post-race refueling. “I’ve always had a fairly clean diet, but running makes me really, really hungry… like, ‘I just ran eight miles and now a steak sounds like a great idea’ hungry.”

Regardless of motivation, training methods, and food advice, each of these attorneys has much to be proud of in their running repertoires.

I’m hopeful that once my runs move to the street, I can incorporate some of the knowledge gained during the research for this article. Many thanks to the attorneys who contributed to this column… I’ll see you out there.

DICTA

May 2016

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

Bill Ramsey Neal & Harwell

Phil Hampton Founder and CEO, LogicForce Consulting

SAMSUNG GALAXY S7 EDGE Just as surely as the days start getting longer and warmer as the calendar flips into Spring, we begin to get antsy as Samsung and Apple start their annual rollout of new phones. Not content with last year's "must have" technology, we usually raid the Spring Break trip fund to pad Samsung's and Apple's bottom line by buying their latest and greatest. This year was no different. When Samsung revealed the latest incarnation of its immensely popular Galaxy S line of phones, the Galaxy S7 and S7 Edge, the question for us was not "if we should buy?", but "when can we buy?". And so, after dispensing no small amount of digital currency from our smart wallet (more on that gadget in a subsequent article), we bought the beautiful and curvy Galaxy S7 Edge.

Now we promise we are not geeky pervs, but, out of the box, we have to admit that the S7 Edge is one sexy smart phone. It is sleek and thin with the beautiful and vibrant display curving around both sides of the phone. The immediate effect that we noticed is that the viewing experience, whether internet, photos, videos, or even e-mail, is more immersive. The two-sided curved screen gives the impression of a never ending display that seems to lift the contents off the screen. The glass and metal body of the phone gives it a sturdy feel without being heavy.

The 5.5 inch display is smaller than Phil's previous huge Note 5 display but about the same as Bill's iPhone 6Plus display, but not as large as Bill’s other phone the S6 Edge+. Phil thought he would have trouble adjusting to a smaller display, but the curved aspect of the display sort of masks its smaller size. Furthermore, the S7 Edge is a good fit for your hand (even if you happen to have smallish hands like a certain presidential candidate).

So the S7 Edge won us over with its sexy looks; but was it smart?

In a word, "Yes!". The S7 Edge, running the latest version of Android, Marshmallow, is quick and powerful. The battery life, which always seems to be a problem with our phones, so far has been phenomenal.

Other reviews that we have read tout a 20-hour battery life. We haven't pushed it that far, but we have not dipped passed 50% for day-long activity. One of the first things we did was to put in a security lock code (as everyone should do to protect your privacy and security). We were very pleased to try the fingerprint authentication to unlock the phone which works very well. Also, the camera, as is the case on most recent Samsung phones, takes stunning photos and videos.

Of course, the sentinel feature of the S7 Edge is the edge panel that you can bring up on the edge of the phone with a quick finger swipe.

This panel is actually multiple customizable pages that you can bring up on the side to provide quick shortcuts to favorite apps, contacts, or even simple tasks (such as creating a calendar entry). Have you ever flipped through several screens on your phone looking for a particular app that you have no idea which screen it was saved on? It can be very frustrating when you have more popular app icons than can fit on the phone's home screen. In this scenario, the Edge panel can serve as an extension of the home screen where you can put shortcuts to your favorite apps. Another feature of the Edge panel that we thought was cool is something called Edge "lighting". With this feature turned on, when you get a call from a favorite person from your Contacts list, the phone will emit a color associated with that Contact.

Yet another unique feature that we like on the S7 Edge is the default display that shows when the phone is not active. Somehow May 2016

Samsung has engineered the screen to emit a dim display even when the phone is "off " without draining the battery. This feature called "Always On Display" shows the date and time along with alerts for missed calls or incoming texts when the phone is inactive. Do you know how many times we "wake" our phones just to check the time or if we have missed a call? Samsung tells us the average user checks his or her smartphone 150 times per day. That number can be cut dramatically (and battery life can be extended significantly) by taking advantage of the "Always On Display" feature.

We were not thrilled that Samsung, following a pattern of recent releases, did not make the S7 Edge battery removable. As long as the battery continues to perform as well as it has so far, however, this "shortcoming" should not be a problem. Storage space is another limitation that vexes us on many digital devices. We were very pleased that Samsung brought back the microSD expansion slot on the S7 Edge so we can add more storage capability. Bill’s S6 Edge+ does not have this feature, and the processor is not quite as powerful as the S7 Edge.

So, after we prodded and poked our new S7 Edge to find out about all these cool new features, we decided to make a call. We are happy to report that the S7 Edge does indeed work as a phone. But it seems with each new release of these increasingly smarter smart phones, the main purpose of the device, to make phone calls, is an afterthought. Not a problem for us. We demand a lot more out of our devices; and, in the case of the Galaxy S7 Edge, the fact that it looks so good in doing what it does is just an extra bonus. In the words of Fernando Lamas, “It’s better to look good than feel good.” This phone looks good and feels good. In fact “it looks mahvelous.”

DICTA

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

PRO BONO PROJECT

By: Terry Woods Project Director

JOBS IN PUBLIC-INTEREST LAW government becomes increasingly partisan and as executive-branch LAET recently announced that we are hiring another lawyer. The services become increasingly difficult to access, few Americans believe deadline for applications ended on April 22, so the purpose of this that their individual problems can be solved by either. When the time article is not to solicit new applications. My goal is for you to think comes to seek redress, Americans turn to their courts with an about pursuing public-interest law the next time you think it’s time to expectation that justice may be found there. make a change in your career. On the other expectation is undermined every time That hand, I don’t want to make you think that ut if you can help, if you do someone has to wander the byzantine it’s an easy transition. Jobs at LAET are like accept a referral, you can make a labyrinth of the law without a lawyer to help jobs at most non-profit law firms: rare. We real impact on a person’s life. navigate it. are always inundated with applications for Being a public-interest lawyer can be any position we post. This is in part because And that person could be you. incredibly satisfying. It can also be incredibly LAET is an awesome place to work, but it frustrating. There are four non-profit law is also because so many lawyers are already firms in Tennessee that are funded in part by the federal Legal Services drawn to a career in public-interest law.

Corporation. About 55% of LAET’s 2015 funding came from LSC (the There are many ways to define public-interest law; but since my rest came from other grants and donations), but there are strings go-to source is always Wikipedia, I’ll give you that definition: attached to LSC funding. There are a lot of poor people we aren’t allowed to serve and a lot of legal strategies we aren’t allowed to pursue.2 It is not a body of law or a legal field [public interest] There are also a lot more poor people who want our help than we can lawyers work on. Rather, it denotes the clientele they handle. Almost 500,000 people in our 26-county service area are represent. Instead of serving powerful economic interests, it income-eligible for our services (income less than 125% of federal stands for the advocacy of otherwise under-represented or poverty guidelines). After we hire our new lawyer, our seven offices will vulnerable individuals, especially those living in poverty. have 14 full-time staff attorneys plus eight lawyers whose administrative duties require limited caseloads. That works out to be between 23,000 During the 15 years I have been at LAET, a lot of my colleagues in and 36,000 potential clients per lawyer, and it means that we have to say, private or government practice have told me that they wish they had “I can’t help you” a lot. taken a different path, that they regret not following the instinct that led Of course, that’s why we have the Pro Bono Project! When you are them to law school: the desire to “help people.” To these wistful a member of the PBP panel, you can enjoy all of the perks of being a yearnings I say, (1) It’s never too late to take the road less traveled – I public-interest lawyer; and you only have to say, “I can’t help you” to me. spent my first 22 post-law-school years in private practice. (2) You help But if you can help, if you do accept a referral, you can make a real people in the job you have; they just might not be people you like, and impact on a person’s life. And that person could be you. you won’t like all of the people you help in public-interest law either.

As always, if you want more info, let me know. twoods@LAET.org But, most of the time, public-interest lawyers can feel good about the, or 865-384-2175 (cell). well, public interest of what they do.

In other words, we believe that the public has an interest in poor people getting a fair shake in the justice system. As Chief Justice Warren 1 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 594 (U.S. 1980).

Burger wrote, “For a civilization founded upon principles of ordered 2 For a list, see 45 C.F.R. Ch. XVI. liberty to survive and flourish, its members must share the conviction that they are governed equitably.”1 As the legislative branch of

B

Thank you 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. Dawn E. Bowie Jefferson L. Brandon Robert Cole Virginia L. Couch

Heather K. Craig Thomas H. Dickenson Keith L. Edmiston Daniel L. Ellis Paul A. Forsyth David Gall Stephen K. Garrett

Maria V. Gillen Carolyn L. Gilliam James R. Hickman Lindsey Hobbs Barbara Johnson Ben W. Koyl C.J. Lewis

Jason H. Long David H. Luhn Sarah E.C. Malia Heather N. McCoy Kenneth A. Miller Jesse D. Nelson Mital D. Patel

Julia K. Price Laura J. Rudder Brent S. Snyder Julia A. Spannaus Michael R. Tabler T. Lynn Tarpy Douglas J. Toppenberg

Paul E. Wehmeier David R. Yoder Carlos A. Yunsan

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

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DICTA

May 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: Dear McLawyer: I filed a personal injury complaint the day before the statute of limitations expired. Now, the defendant has alleged the comparative fault of a non-party in its answer. What are my options? What if the new defendant alleges the fault of other non-parties?

Discussion and Analysis: The good news is that T.C.A. § 20-1-119 saves your claim against the non-party if you take action within 90 days of the first answer alleging the non-party’s fault. If a defendant named in a timely original complaint alleges in its answer that a non-party caused or contributed to the damage for which the plaintiff seeks recovery but the statute of limitations has expired, the plaintiff may amend the complaint to add the non-party or institute a separate action against the non-party. See T.C.A. § 20-1-119(a). You must amend the complaint or file the new action within ninety (90) days of the filing of the first answer alleging the non-party’s fault. Id. A cause of action brought within 90 days pursuant to T.C.A. § 20-1-119(a) is not barred by any statute of limitations, but the statute does not extend any applicable statute of repose.

You will run into a problem if the new defendant answers and alleges the fault of further non-parties. Accordingly, you need to

investigate every possible party who could be at fault and add them before the expiration of the 90 days. Because you filed your complaint the day before the statute of limitations expired, any amended complaint would be filed after the expiration. T.C.A. § 20-1-119 specifically states that if a defendant “named in an amended complaint filed within the applicable statute of limitations” alleges the fault of a non-party, the plaintiff can amend the complaint or file a separate action within 90 days of the first answer alleging the fault of the non-party. T.C.A. § 20-1-119 will not save any cause of action against the newest non-parties because you did not sue the new defendant within the applicable statute of limitations. The Tennessee Supreme Court addressed this factual situation in in Mills v. Fulmarque, Inc., 360 S.W.3d 362, 369 (Tenn. 2012) and concluded that the 90-day period is available only when a defendant sued within the applicable statute of limitations alleges in an answer to the complaint that a non-party caused or contributed to the damage for which the plaintiff seeks recovery.

For future reference, you may want to keep T.C.A. § 20-1-119 in mind when defending clients. For example, in an insurance case, if the insurance company sued Defendant A and Defendant B under subrogation rights after a car accident but the insured then brings a separate lawsuit against only Defendant A, you would want to be careful in settling the subrogation matter on behalf of Defendant B until after Defendant A files an answer in the separate lawsuit filed by the insured.

If Defendant A alleges the fault of Defendant B in its answer, you would want to wait 90 days after the answer is filed before settling the subrogation matter against Defendant B.

Join the KBA and the Knoxville Barristers for Happy Hour on May 12th from 5-7 p.m. at Balter Beerworks (100 South Broadway).

Gather together with your colleagues have a good time! Cheers!

RSVP by clicking on May 12 in the Events Tab at www.knoxbar.org.

May 2016

DICTA

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Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: D. David Sexton II BPR # 016286 The Sexton Law Firm P.O. Box 31167 Knoxville, TN 37930-1167 Ph. (865) 691-7900 FAX: (888) 600-6919 david@thesextonlawfirm.com

James H. Hickman III BPR # 005958 Law Office of Garry Ferraris 800 S. Gay Street, Ste 650 Knoxville, TN 37902 Ph. (865) 584-7720 FAX: (865) 584-6639 jhickman@ferrarislaw.com

J. Cort Sikes BPR # 024703 Wykoff & Sikes, PLLC P.O. Box 31526 Knoxville, TN 37930-1167 Ph. (865) 320-9444 FAX: (877) 288-7152 cort@wykoffandsikes.com

Wayne D. Wykoff BPR # 015916 Wykoff & Sikes, PLLC P.O. Box 31526 Knoxville, TN 37930 Ph. (865) 320-9444 FAX: (877) 288-7152 wayne@wykoffandsikes.com Garry W. Ferraris BPR # 016086 Law Office of Garry Ferraris 800 South Gay St., Ste. 650 Knoxville, TN 37929 Ph. (865) 584-7720 FAX: (865) 584-6639 gferraris@ferrarislaw.com

Mark C. Travis BPR # 011165 Travis ADR Specialists, LLC P.O. Box 2460 Cookeville, TN 38506 Ph. (931) 252-9123 FAX: (931) 520-9123 mtravis@travisadr.com

Trina C. Hughes BPR # 034288 Cappiello Real Estate 800 S. Gay Street, Ste 1405 Knoxville, TN 37929 Ph. (865) 548-0337 trina@cappiellorealestate.com Christopher I. Belford BPR # 033198 Hyman, Carter & Patel, PLLC P.O. Box 26072 Knoxville, TN 37912 Ph. (865) 686-7789 FAX: (865) 868-7792 christopher.belford@icloud.com J. Patrick Henry BPR # 033761 Law Office of J. Patrick Henry 350 E. Race St., Ste 3 Kingston, TN 37763 Ph. (865) 224-6074 FAX: (865) 357-1238 jphenry.law@gmail.com

Benjamin David Stallard BPR # 034457 800 South Gay St., Suite 700 Knoxville, TN 37929 Ph. (865) 766-4088 info@bdavidstallard.com Christopher L. Ivey BPR # 032703 Tennessee Department of General Services P.O. Box 31167 Knoxville, TN 37930 Ph. (615) 765-3240 Christina L. Wilford BPR # Licensed in Florida LaFevor & Slaughter 800 S. Gay Street, Ste 1900 Knoxville, TN 37929 Ph. (865) 637-6258 FAX: (865) 637-8476 info@christinawilfordlaw.com

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

R. Samuel English Elizabeth M. Burrell Forrester & Varsalona Michael C. Beehan Fox & Farley Jill E. MCook Baker, Donelson, Bearman, Caldwell & Berkowitz

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

Law Student Members: Charles A. Al-Bawi Jenae A. Anderson

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.

Robert A. Dziewulski Noah J. Patton Mark A. Pienkowski Kathryn S. Waddell

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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.

KBA MEMBER JOINS DOWNTOWN LAW FIRM J. Steven Collins has joined Spicer Rudstrom, PLLC. Steve’s practice focuses on the grocery, financial, manufacturing, not-for-profit and trucking industries. He also provides counsel on government compliance, hiring agreements and severance packages for employers. Steve is a member of the Knoxville Bar Association and Tennessee Bar Association and has achieved an AV Preeminent rating from Martindale-Hubbell, been named Master of the Bench with the American Inns of Court and is a graduate of Leadership Knoxville.

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.

process and choose the payment option "KBA MBR - No CLE Credit."

ELECTED TO FELLOWS Amanda M. Busby of the law firm of Anderson Busby PLLC has been elected to The Fellows of the American Bar Foundation in recognition of exemplary dedication to the legal profession, commitment to the work of the American Bar Foundation, and support for the ideals and objectives of the American Bar Association.

AFFILIATED ORGANIZATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, May 12, 2016, at 12:00 p.m. in the U.S. Attorney's Office.

Melissa A. Ashburn of MTAS will be presenting the topic of Legal Issues Surrounding Liquor, Beer and Wine in Tennessee. The presentation will be a one hour program. 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.

OFFICE SPACE AVAILABLE: • A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants. Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049.

• Office 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.

Best Educated Bar = FREE Education The KBA wants to help our members become better lawyers - more informed, more educated, more effective and more satisfied practitioners.

KBA members have the option of watching any pre-recorded online CLE program for FREE. More than 85% of our live CLE programs are recorded and are available on the KBA website for viewing. Members who wish to receive CLE credit will be required to pay for the online CLE program but if you just wish to view the program for educational purposes, feel free to watch the recording and even download the course material at no charge. This is a great opportunity for newly licensed attorneys and law student members who wish to view programs on a variety of topics that will help as they settle in to new practice areas. It is also a great chance for members who miss a live program or have to leave early, to watch the program for FREE. The registration process is simple. Go to www.knoxbar.org and click on the CLE tab. Search by course type "Online Videos." Complete the normal registration

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THE LAST WORD By:

Jack H. (Nick) McCall

Q: A:

Miner, husband, father, hero; please share with DICTA’s readers your connections with 1st Lt. Alexander “Sandy” Bonnyman, Jr.

ANGELIA NYSTROM UT Institute of Agriculture

I first heard the name Alexander Bonnyman in 1997, when the bridge across the Tennessee River was named in his honor. I was touched by an interview on WBIR with his cousin, Teedee Nystrom (who, years later, would become my mother-in-law). She spoke about what an honor it was to have the bridge named for Bonnyman, as his remains had never been recovered from the battlefield on which he lost his life. My heart broke for a family that I did not know (not realizing that it would become my own). I recalled my own grandmother’s words regarding my grandfather, who had been killed in battle in Germany in World War II: “I could never completely grieve until his remains were returned.”

After I met Hugh, he told me the story of his cousin, Medal of Honor recipient Sandy Bonnyman. Although born in Atlanta in 1910, the Bonnyman family moved to Knoxville when Sandy was two years old. After graduating from Mrs. J.A. Thackston’s School, he enrolled in Princeton University, where he was an outstanding football player and popular student. With a thirst for adventure following his time at Princeton, Sandy joined the Army Air Corps as a cadet, where he was known for flying too close to control towers on occasion. After his honorable discharge, he returned to Knoxville to work for his father’s coal company. By 1938, Bonnyman had acquired his own copper mine in New Mexico.

When World War II broke out, Bonnyman was exempt from military obligation due to his age (32) and his role in running a company producing strategically vital war materials. However, Sandy was determined that he would not sit idly while his country was at war. He enlisted in the Marine Corps in 1942, and his battalion was sent to the South Pacific.

Following fierce fighting at Guadalcanal, his detachment was sent to Tarawa. On D-Day, November 20, 1943, the assault troops were pinned down by heavy enemy artillery fire at the end of a long pier. Bonnyman, on his own initiative, led his troops over the pier, obtained flame throwers, and blew up several hostile installations, saving the lives of hundreds of troops that were pinned down there.

On the third and final day of fighting, Bonnyman renewed his attack on the enemy, who were picking off U.S. troops from their positions in a cave. Realizing that the seizure of this bastion was imperative to make the Marine attack successful, Bonnyman pressed his attack and gained the top of the structure, flushing more than 100 of its occupants into the open, where they were shot down. Assailed by additional Japanese, Bonnyman stood at the forward edge of the position and killed three of the attackers before he fell mortally wounded. His men beat off the counterattack, and the island was declared secure later that day.

For his actions on Tarawa, 1st Lt. Alexander Bonnyman was posthumously awarded the Medal of Honor. But his remains were not recovered.

For years, Bonnyman’s parents sought information as to the whereabouts of his remains. They were told conflicting stories: he was buried at sea, he was buried on the hill where he died but that the mass grave had been lost when excavating equipment was brought in to build an airport runway. They died not knowing what had happened to their son’s remains.

Grandson Clay Bonnyman Evans made it his mission to find answers for his mother and aunt.

Beginning in 2010, he worked with History Flight, a nonprofit dedicated to finding, recovering and repatriating America’s war dead. Last spring, Clay was researching a trench on Tarawa, which was known as Cemetery 27, believing that his grandfather’s remains would be there. As Clay watched, one of the researchers remarked, “We just struck gold”—the gold being Bonnyman’s distinctive gold dental work. His skeletal remains were amazingly preserved by the sands of Betio. His boots remained on his feet, and the Zippo lighter that was in his pocket and which bore his initials, still worked.

On that day, the Bonnyman family had closure. On that day, the remains of 32 other Marines were recovered. And on that day, 32 other families had the closure that had eluded them for over 70 years.

Last September, the remains of 1st Lt. Alexander Bonnyman, Jr. were returned to Knoxville to a hero’s welcome. I cannot think about the events of that weekend without having tears in my eyes. Hugh’s family finally had what it had sought for so very long. What struck me, though, was how much it meant to others.

On the day that Sandy’s remains were to arrive in Knoxville, we were waiting in a room at the airport when an elderly Marine in full uniform was brought in. C.J. Daigle, in his 90’s, had served on Tarawa with Bonnyman and later fought in both Korea and Vietnam before retiring from the Marine Corps. “I had to be here,” he told us. “I had to pay my respects.”

Continued on Page 31

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(Continued from Page 30)

Daigle, who was only 16 during the battle, said, “He was like a father to a lot of us. We were so young. He was older and more mature.”

He talked about what a protector and leader Bonnyman was. And how he would never forget him.

Although it was raining heavily that day, about 300 Patriot Guard motorcyclists were on hand to escort the hearse from the airport to Knoxville. Time and time again, those veterans spoke about what it meant to be there and how Marines do not leave their fallen. This was personal to them.

The memorial proceedings included a public memorial at the East Tennessee Veteran’s Memorial at World’s Fair Park the following day.

Men and women from across the country, including veterans, active military, and civilians, braved unseasonably warm weather to pay their respects.

I think, though, that the funeral service will be etched in my mind forever. I am still awed by the number of people who contributed to that day. Burrough’s Battery, a group of Civil War re-enactors from Blaine, crafted a replica of the caisson which carried President Kennedy’s body for use at the service. 4-H’ers from area high schools assisted with preparing the horses that would pull the caisson from Highland Memorial to the cemetery plot at the top of Highland Memorial Cemetery. A Marine battalion, followed by the Marine Corps band, led the procession. There was a 21-gun salute and a missing man formation flyover. It was probably the closest thing to a state funeral that I will ever witness. And it was incredibly beautiful. And moving. And heart-wrenching.

The thing I will remember most, though, are the people. Following the Medal of Honor service, which was held prior to the funeral, I noticed an elderly gentleman in the back of the chapel. I walked over to speak to him and learned that he was 95 and had come to Knoxville from Memphis that morning. He told me, “I was not in Lt. Bonnyman’s unit. I was in the unit that was pinned down on the first day of fighting. He didn’t receive a Medal of Honor for what he did that day, but to me, it was every bit as important as what he did the day he died. Because of what he did on the first day of fighting, I lived. He risked his life that day to save mine and others. I owe my life to him, and I will never forget.”

Neither will I, sir. Neither will I.

“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.

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