Practice Tips: Lessons Learned from the Evil Other: Practice Tips for the Preservation of Evidence in Product Liability Cases . . . Page 9 Legal Update: Recent Sixth Circuit Decision Regarding Transgender Rights Under Title VII . . . Page 11
A Monthly Publication of the Knoxville Bar Association | May 2018
A ROUNDTABLE DISCUSSION ON THE EVOLVING 21ST-CENTURY LAW FIRM
On April 12 and 13, 2018, 300+ lawyers, law students and law firm staff participated in the 13th Anniversary Law Practice Today Expo. This year’s Expo included local and national speakers, panel discussions, and idea exchanges that provided education and networking to lawyers and law firm staff from large, midsize, and small firms. There were 22 CLE sessions, 38 sponsors, 25 judges, and Hallerin Hilton Hill as our featured speaker for our Judicial Roundtable Luncheon.
Thank you to our sponsors! Diamond Sponsor The Trust Company Platinum Sponsors Appalachia Business Communications HIG Cyber LBMC Lexis Nexis Sword & Shield Enterprise Security The IT Company Gold Sponsors M.L. Barnes & Associates TCV Trust & Wealth Management Wells Fargo Advisors
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Silver Sponsors ActionsProve, LLC American Addiction Centers Answer Quick Bradford Health Services Brown Professional Insurers Computer Systems Plus Cornerstone of Recovery Creative Business Systems Ensemble Recovery First Citizens Bank InfoSys Partners Knoxville Executive Suites Mirror Lake Recovery Center NetGain Mobile Diagnostics
DICTA
Pileum Corporation Powell Auction & Realty, LLC Pugh CPAs Renewal by Andersen SH Data Technologies Swafford Insurance The Assurance Group Thomson Reuters TIS Insurance Services Inc. WOW! Business Special Sponsors Ritchie, Dillard, Davies & Johnson, PC Association of Legal Administrators – Knoxville Chapter May 2018
In This Issue
Officers of the Knoxville Bar Association
Cover Story 16
A Roundtable Discussion on the Evolving 21st-Century Law Firm
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President’s Message
May 2018
Critical Focus President Keith H. Burroughs
President Elect Wynne du Mariau Caffey-Knight
Treasurer Hanson R. Tipton
Immediate Past President Amanda M. Busby
Secretary Cheryl G. Rice
KBA Board of Governors Charme P. Allen Maha Ayesh Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis
Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear T. Mitchell Panter
M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe
Ah, The Good Ole Days: How Technology Has Changed the Practice of Law
United States District Court for the Eastern District of Tennessee Appoints John Medearis as Clerk of Court
Lessons Learned from the Evil Other: Practice Tips for the Preservation of Evidence in Product Liability Cases
Recent Sixth Circuit Decision Regarding Transgender Rights Under Title VII
The Tax Cuts and Jobs Act – Employee Fringe Benefits
A Fool for a Client? Professional Conduct Considerations of the Pro Se Lawyer
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The Knoxville Bar Association Staff
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Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Lacey Dillon Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org
Tracy Chain LRIS Administrator
Adelyn Bryson LRIS & Membership Assistant
Volume 45, Issue 5
Dicta
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. May 2018
DICTA
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8 10 15 19 20
22 25
26 27 28 4 6 23 29 30 31
Judicial News
Practice Tips
Legal Update
Management Counsel: Law Practice 101 Schooled in Ethics
Conventional Wisdom Outside My Office Window
Midnight in the Garden
Legally Weird
Butt I Didn’t Mean To Dial You
Hello My Name Is
Taylor Jenkins-Dodd
Of Thermometers and Thermostats
Conspicuous Gallantry
Legal Myth Breakers
Medicare Secondary Payer Update…or best guess….
Lawyer Hobbies
Duplicate Contract Bridge
Well Read
Book Review: Canoeing the Congo by Phil Harwood
Your Monthly Constitutional
The Mere Distinction of Colour
Long Winded
Why We Do What We Do
Gadgets
Zoom Video Conferencing
Common Ground
Section Notices/Event Calendar Bar Hopping Barrister Bullets Bench & Bar In the News Pro Bono Project Last Word
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event
EVENT CALENDAR & SECTION NOTICES
Section Notices
There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section The ADR Section will be planning regular CLE throughout the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630). 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. The Section is partnering with Legal Aid of East Tennessee, with the support and involvement of United States Bankruptcy Judge Suzanne H. Bauknight, to create a Pro Bono Debt Relief Clinic to provide pro bono legal services to income eligible consumer debtors. The next clinic will be held on May 5, 2018, from 9:30 a.m. to 12:00 p.m. and will be held at the Knox County Public Defender’s Community Law Office. LAET staff will screen potential clients and give instructions to complete a questionnaire and bring it along with tax returns and pay stubs to the clinic. If a client qualifies for and desires to file a bankruptcy petition, during the clinic, the volunteer attorney and client will schedule a follow up appointment to move forward with a case. If you are interested in participating, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. 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. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2016 will automatically be opted-in to the section. The goal of the section is to provide programming for new lawyers, including educational opportunities, social/networking events, listserv, and e-community with a comprehensive file-sharing system. Events are planned for the last Monday of each month. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500). Senior Section The KBA Senior Section will meet next on Wednesday, June 13, 2018 at Calhoun’s on the River. The program title is “The Skinny on Knox County Politics” and will feature Bill Swann, retired Circuit Court, Division IV Judge. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, vegetable, salad and beverage. Please indicate your choice of grilled baked scrod or monterey chicken. Register online by clicking June 13 in the Event Calendar at www.knoxbar.org. 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 offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. To have your name added to the section list, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).
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DICTA
May
calendar
n 1 Law Office Tech Committee Meeting n 1 KBA & Barristers Summer Fun CLE n 1 Knoxville Bar Foundation Annual Dinner n 2 Fee Dispute Resolution Committee Meeting n 3 Law Day Luncheon n 5 Pro Bono Debt Relief Clinic n 7 ADR Section CLE n 8 Professionalism Committee Meeting n 9 Veterans Legal Advice Clinic n 9 Barristers Meeting n 10 Judicial Committee Meeting n 11 Circuit Court Bench Bar CLE n 14 Interprofessional Relations Comm Meeting n 16 Workers Comp CLE n 16 Board of Governors Meeting n 16 Past Presidents Dinner n 16 In Chambers – Magistrate Gunn n 17 Barristers Social Hour n 17 KBA & New Lawyers Section Pop Up Yoga & Social Hour n 21 Diversity in the Profession Committee Meeting n 21 CLE Committee Meeting n 23 Employment Law Section CLE n 24 Volunteer Breakfast
June n 2 TN Faith & Justice Legal Advice Clinic n 5 Law Office Tech Committee Meeting n 12 Professionalism Committee Meeting
n 13 Veterans Legal Advice Clinic n 13 Barristers Meeting n 14 Lunch & Learn n 14 Judicial Committee n 18 Diversity in the Profession Committee Meeting n 20 Board of Governors Meeting n 25 New Lawyers Section CLE n 28 Volunteer Breakfast
Mark Your Calendar Law Day Luncheon May 3, 2018 May 2018
PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.
AH, THE GOOD OLE DAYS: HOW TECHNOLOGY HAS CHANGED THE PRACTICE OF LAW As I began to think about the title to this article, I reminisced about my childhood days spent in my father’s law office. My father, Wallace F. Burroughs, practiced in Knoxville from the mid 1940’s until 1985. He loved to practice law and help ordinary people with their problems. Through most of the 1970’s, I spent many days with my father in his law offices and traveling about to various outlying counties to follow along with him. It was during these days that I decided I wanted to be a lawyer. During the summers of the 1970’s, my older sister and I filled in as receptionist during summer vacations of dad’s secretary. Georgia Clement, a fiery 98-pound tiger, served as dad’s secretary for the last half of his career. You didn’t get to see Mr. Burroughs without seeing Ms. Clement first. A chain cigarette smoker often with an inch and a half of ash dangling and bending precariously downward at the end of her lit cigarette, Ms. Clement never missed a beat between answering phones, greeting clients and guests, and typing all manner of legal documents and correspondence. Her primary tool was a relatively late model IBM Selectric typewriter first released in 1961. It took seven years for IBM to develop the Selectric with its 2800 parts. Relatively new technology with its interchangeable golf ball sized font balls, it revolutionized document production with the elimination of the return bar with a return key in the same location as the “Enter” key on a computer keyboard. The ball moved across the carriage as one typed rather than having individual key bars rise to strike the carbon ribbon to make an impression while the carriage moved from right to left. The Selectric was the benchmark of the day. Behind the rolled in stationary or red ruled paper in the Selectric was alternating layers of carbon and onion skin paper to produce the “carbon copies.” Always nearby was a typewriter correction eraser and straight razor blade to remove any typos on the original and onion skin copies, respectively. There were no photocopy (Xerox) machines, at least not affordable ones for a small law firm in the 70’s. Always the improvising and frugal employee, Ms. Clement designed the predecessor to the “Post It” note. Each day after opening the morning mail, she would cut out the backs of the envelopes, cut them in half to create four inch by five inch pieces of paper, and place them neatly in a stacker on dad’s desk so he could use them to write notes of instruction to Ms. Clement for a document’s next destination. These notes were clipped to a document and returned to Ms. Clement for further action. Checks were all manually written and posted to a large check book register. A recycled envelope back was paperclipped to the check with instructions as well. On Ms. Clement’s desk were other tools of the trade. A vertical spring-loaded manual postal scale with ounce marks from zero to one pound down the front of the scale sat on her desk into which mail could be placed and a metal wire would slide down the front of the scale indicating the weight of the mailing from which to calculate the appropriate amount of postage. With larger mailings, Ms. Clement had to divide the mailing into various parts, weigh each separately, and add up the total weight of the parts to determine the proper postage. A reel-to-reel tape recorder/ player sat prominently on her desk just to the left of the Selectric from which she took dictation and transcribed pleadings and documents. On her desk sat a black, rotary dial telephone with several clear push buttons and one red button below the rotary dial. Two of the clear buttons were dedicated for the incoming telephone lines that would light up when a call was being received or an outgoing call was being made, and buzzer buttons for each of the three lawyer offices were located alongside the phone line buttons. At the far left was a red button to place calls May 2018
on hold. All lines in use lit up. If a lawyer was not able to take a call when the lawyer’s buzzer button was deployed, Ms. Clement would push the flashing clear button for the caller on hold and take a message. No answering machine, voice mail or voice over IP existed. A phone note was written on a recycled envelope back and handed to the appropriate attorney. An accountant by training before attending law school, dad also maintained books for several downtown businesses and a couple of beer joints along Rutledge Pike (the Indian Rock and Wib’s Tavern). At year end, he prepared dozens of income tax returns. All calculations were maintained in pencil on fifteen column green accounting paper, tabulated with a 10-key tape adding machine (without display). The adding machine tapes were manually compared to the numbers on the spreadsheet to confirm accuracy of the calculations. Once confirmed, the adding machine tape was stapled to the manually maintained spreadsheet and placed in the file for backup. Tax returns were prepared manually, as were depreciation schedules, and paper instructions were reviewed to confirm accurate reporting of income and expenses. Excel and computer tax preparation software had not yet been invented. In dad’s office, a cloud and aroma of Holiday Pipe Tobacco smoke seemed to always hover over his desk. The office, with floor to ceiling bookcases surrounding the perimeter filled with digests, reporters, code and treatises, also had a dictation microphone attached to a curly cord that fed to the reel-to-reel tape recorder/player on Ms. Clement’s desk. Ms. Clement, with ear phones attached, could zing along typing until a malfunction occurred, and Cherokee Typewriter Service had to be called to make the necessary repair to breathe life back into the Selectric. In person, telephone and U.S. Mail were the primary means of communication of the day. It was commonplace for clients to call or come by the house at night to visit with my father. One regular client who seemed to have an unending supply of legal troubles was named Rosie. Everybody in the family knew Rosie and all of her woes. Rosie was known to just walk up to the front door, come in without knocking and seat herself in the living room until dad arrived. In the late 1960’s, my parents built “the new house” and retained the former home as a rental property. No public announcement was made of this move. Several months after we had moved to the new house, Rosie was in need of legal advice. Without calling in advance, Rosie made her way to the old house, opened the front door and sat on the living room sofa. After about 30 minutes, she looked at the occupants of the home and said, “when is lawyer Burse coming home?” The tenants had to inform her that we had moved a couple of miles down the road and sent her on her way to the new house. Few law offices had coffee percolators and coffee time was usually mid-morning at the S & W Cafeteria where the daily informal bar association meetings were held with colleagues discussing recent conundrums and strategies to solve legal problems were pondered. Law firm budgets could be prepared on a couple of those recycled envelopes. Billing clients in those days consisted of picking up the paper file, leafing from back to front to dictate a description of the services since the last billing, and arriving at a fair fee for the work performed. No credit or debit cards existed. Cash or check (or chickens, eggs or produce) was the mode of payment. It was a simpler time, and the pace was slower than today. Many things today are much easier and faster to accomplish thanks to technological advancements that may very well make today the good ole days.
DICTA
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BAR HOPPING By: Brady Cody Lewis Thomason
Bar Hopping highlights one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Congratulations to Garett Franklyn and Jarrod Casteel for correctly identifying Hamilton County. Think you can name this courthouse? Email me at bcody@ lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of DICTA. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.
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DICTA
WELCOME NEW MEMBERS THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:
NEW ATTORNEYS Katrice J. Morgan University of Tennessee College of Law Cullen M. Wojcik Law Office of Cullen M. Wojcik
NEW LAW STUDENT MEMBERS Clint Coleman Miranda M. DeRicco George B. Gilliam Ryan G. McMillan James E. White, Jr. Maddie Williams
May 2018
JUDICIAL NEWS By: James F. Parker Hodges, Doughty & Carson
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE APPOINTS JOHN MEDEARIS AS CLERK OF COURT The United States District Court for the Eastern District of Tennessee recently announced the appointment of John Medearis of Georgetown, TN as its new Clerk of Court; his tenure began in February of this year. As the Clerk of Court, John is the top official in the Clerk’s Office for the Eastern District of Tennessee, an office with nearly fifty (50) full time employees spread across what amounts to the largest of the three (3) federal judicial districts in the state of Tennessee. The Eastern District of Tennessee serves forty-one (41) counties, reaching from Bristol in the north to Chattanooga in the south and from Mountain City in the east to Shelbyville in the west. The Clerk’s Office serves an important function within the United States District Court, and has a wide range of administrative, clerical, and support responsibilities which include case and court administration, management of the Criminal Justice Act (CJA) Attorney Process, administration of the jury system, material procurement, human resources, and facility and budget management. While the title Clerk of Court may be new, the surroundings in which John will be working and individuals with whom he will be working are not. John spent the last eighteen (18) years serving as the Chief Deputy Clerk for the same Clerk’s Office that he now helms. During his nearly two-decade period of service as Chief Deputy Clerk, John regularly commuted between the federal courthouses in Greeneville, Knoxville, and Chattanooga, and in doing so, developed strong relationships with the judges and staff in each of the United States District Court’s divisions. His long and successful tenure as Chief Deputy Clerk is one reason that many are confident John will be equally successful as our new Clerk of Court. Commenting on the appointment, Chief United States District Judge Thomas A. Varlan stated: “The Clerk of Court is an essential position to the Chief Judge and the Court’s overall responsibilities to the public we serve. John has served the Eastern District with distinction for many years as Chief Deputy Clerk, and I look forward to working with him in his new position as Clerk of Court.” Similarly, Chief United States Magistrate Judge Bruce Guyton praised the new Clerk of Court for his work with the district’s five magistrate judges: “Over my 15 years on the bench, John, as Chief Deputy Clerk, has always worked closely with the magistrate judges to maintain best practices in the ways we support the district judges.” After growing up primarily in Chattanooga, John attended undergraduate at the University of Tennessee at Chattanooga, from which he obtained a Bachelor of Arts in History, Magna Cum Laude, in 1981. He then attended law school at the University of North Carolina at Chapel Hill, where he served on the North Carolina Law Review and from which he graduated with Honors in 1984. After law school, John returned home to Chattanooga for a post-graduate clerkship with the Honorable H. Ted Milburn of the United States Sixth Circuit Court of Appeals. After serving as Judge Milburn’s law clerk from 1984 to 1987, John entered private practice at the Chattanooga law firm Chambliss & Bahner (now Chambliss, Bahner & Stophel, P.C.) where he practiced in the areas of general civil litigation and employment law until 1991. That same year, John left private practice and returned to the federal court system as the Deputy-in-Charge of the Chattanooga Division of the Clerk’s Office for the United States District Court for the Eastern District of Tennessee, a position that he held until becoming May 2018
Chief Deputy Clerk in 2000. John is a member of the Knoxville and Chattanooga Bar Associations, Chattanooga Chapter of the Federal Bar Association, and Justices Ray L. Brock, Jr. and Robert E. Cooper American Inn of Court.
United States District Judge Pamela Reeves observes as John Medearis is sworn in as the new Clerk of Court by Chief United States District Judge Thomas A. Varlan in a private ceremony at the Howard H. Baker Jr. Courthouse in Knoxville, Tennessee. In addition to his many professional accomplishments, John is a devoted husband to his wife, Jill Price. Jill works as a legal assistant at the law firm of Husch Blackwell in Chattanooga. In his free time, John enjoys watching sports and cheering for his two favorite sports teams - the University of North Carolina basketball team and the University of Tennessee football team. John also admitted to being a fan of the Volunteers basketball team except when they play his Tar Heels. When asked about the aspect of his new role to which he was looking forward to the most, John stated that he is excited to take a more active role in the civic education initiative adopted by the Sixth Circuit and embraced by the Eastern District of Tennessee. John explained that school administrators, parents, and students in the forty-one (41) counties served by the Eastern District of Tennessee could expect a continued dedication to civil outreach and education from the Eastern District of Tennessee with the goal of increasing confidence in, and respect for, the judicial system. John’s passion for the civic education initiative and the federal court system as a whole comes as no surprise considering his background. To this point, John’s predecessor as Clerk of Court – newly appointed United States Magistrate Judge Debbie Poplin, was quick to compliment her former chief deputy: “John has an impressive, in-depth knowledge of the federal courts and operations of the Clerk’s Office. He consistently explores new initiatives to improve processes and efficiencies, and he also provides outstanding support to the judges, the bar, and the public.” As a final remark, this author notes only that he has known John for several years and has absolutely no doubt that John will do a fantastic job as Clerk of Court. We are lucky to have him.
DICTA
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OUTSIDE MY OFFICE WINDOW By: Robert E. Pryor, Pryor, Priest & Harber robertpryorjr.blogspot.com
Jr.
MIDNIGHT IN THE GARDEN
It didn’t look good. The band’s bus broke down. I stood watching the worried look on the faces of the elected fraternity officers as they brain-stormed solutions to the great crisis. It was Friday night which meant one thing - my fraternity was having a band party. This wasn’t just any band party. It was Pike’s Peak, a week long party complete with live bands every night. Fraternity life was simple in 1989 - go where the party was, and the party was at our house. Our Social Chairman paced in the middle of the circle as all of his subordinate officers and wanna-be advisers harbored looks of panic and despair. “What are we gonna do, man?! We can’t have a band party without a band!” said one concerned frat boy. Though there were extreme actions taken to contain the catastrophic news, the whispers of disappointment were starting to run throughout the house. It was 9:30 on a Friday night. It looked as though all was lost. The courtyard outside the house and the entire first floor were covered in eager college students who’d been “getting ready” all day. The Chairman locked himself in his room and emerged in twenty minutes. “They are called the Chevettes, and they’re on the way” he announced with a lingering doubt behind his usually optimistic eyes, “and they weren’t in the book.” Concerned looks among the group were exchanged. He turned and made his way to the courtyard to make an announcement which would hopefully save our party. The rain began to fall, and everyone moved inside. “This is going to be a disaster,” said our Treasurer, looking toward the heavens. After what felt like hours, a collective roar came from those gathered in the house and courtyard as a white cargo van pulling what appeared to have once been a U-Haul trailer turned into Fraternity Park. Remarkably, everyone remained at the house, and many more came when they heard the band was coming late. Only in college can a 3-hour delay possibly increase your crowd. The Courtyard was no longer an option because of the rain. A large group of pledges who had been hastily gathered and given instruction prior to the Chevettes’ arrival moved quickly into place and began assisting in the unloading of speakers, guitars, keyboards, drums and all manner of things that were necessary for The Chevettes to entertain. We were heading to the basement. The members of the band and their sizable entourage exited the rear of the van like clowns from a circus car. It looked like a gathering of central casting from the movie Purple Rain. Each of the men wore their hair in a jheri-curl and were adorned in short double-breasted blue and white jackets. It wouldn’t have surprised me in the least if Morris Day, himself, stepped out of the van. “We’ve only been practicing for two weeks. I don’t know how this is gonna go,” said a kid who looked like he was in middle school. The tuning of instruments and sound checks rose like smoke into the fraternity house and bled into the rain-soaked courtyard captivating and drawing the throngs of college students to the stairway like moths to a fluorescent light. The earlier disappointment created by the absence of live music was wiped clean and each follower of the movement was filled with a new adrenaline, the kind held in reserve only by those of the human race under the age of 23. It was well after 1:00 a.m when the pilgrimage to the basement began. In the light of day, the basement of the Pike house could have been mistaken for a medieval death chamber. The stained and sticky concrete floor ran the length of the room beneath a low ceiling supported by haphazardly placed steel poles. A stage made of plywood squares supported by rotting five-by-fives, the handy work of inattentive and distracted pledges from years past, rested at one end. The planks had supported the feet of frat-house rock stars and yesterday’s fools. The descent into the basement smelled of stale beer and bad decisions. However it may have looked in the light of day, everything changed during those hours our house was bathed in the light of moon and stars, especially on those nights of basement band parties. Illuminated only by makeshift stage lighting and the pheromones of a Gen-X crowd, the basement became an ethereal dreamland and temple to youth at a time when magic was our province and the real world was a distant and voluntary destination instead of an on-coming, unstoppable train. We were young, and in those moments below a low ceiling, overwhelmed by
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the decibels of musical dreams, we learned more than we would in any university classroom. We stood shoulder-to-shoulder swaying in anticipation of music. After making a pre-show visit to their van,The Chevettes entered. The crowd offered tempered yells and applause. The purple lighting from foot lights did nothing but amp up the level of anticipation as the members of the band all stood, eyes to the floor. When the percussionladen introduction to “Oh Shelia,” by Ready for the World jumped from the speakers, the room exploded. The congregants, each caught in that mystical land between child and adult, stood possessed by hours of unfulfilled anticipation, liquid fuel from bottles, and teenage lust. They immediately felt the mainline infusion of the popping-Billboard-charttopping R & B and instinctually began moving. As the lead singer, in a mock-British accent, stepped to the microphone and said, “What’s good for the goose, is always good for the gander... Oh Shelia,” I thought the entire universe would collapse on itself. The band moved in perfect unison to the beat of the drum. Girls screamed. Even those boys who didn’t so much dance as try to look cool lost total control in the steaming pit of humanity. We danced with nobody and everybody at the same time, hands raised in the air, electricity running up and down our spines. I stepped onto a bench and looked out over the crowd, convinced I was witnessing the greatest moment of my college life. After what can only be described as a virtuoso performance by the boys from East Knoxville, the crowd - and the Chevettes - were convinced the band was the greatest in the history of R & B. Fraternity men high-fived, girls and guys hugged and all screamed in adulation. Then the second song began. The next two songs were horrible. Forgotten words, poor instrumentation and missed harmonies cut into the night and sucked the electricity from the air of the basement. As disappointment began to filter through the crowd, a realization overcame the fading student body that the Chevettes were not talented and that there was indeed a very good reason they were available at midnight on a Friday. They just weren’t ready. Then, something happened - something so simple and brilliant in concept that human ingenuity, the collective genius of human history, could not have come up with it had several weeks been given to solve the riddle. My friend, my brother - Travis Hill - a man of great musical insight, a man who would go on to write several number-one hits, songs heard by millions, a man well-versed in the importance of pouring gasoline on the dying fire of a party - screamed out the greatest words of his life. “Play Oh Sheila, Again!!!!!” A great deal of debate exists to this day whether this photo actually captures the greatest and most meaningful moment of Travis’s life. The crowd, recognizing the genius of the instructions, roared louder than any which had previously visited the basement of the house. The band members knew immediately the request was not only a relief, a solution to their own dilemma, but that it was a revelation. They immediately broke into the intro, assuming their choreographed positions from the first performance. For the next glorious hour and a half, the Chevettes played “Oh Sheila” six more times, interrupted only by two terribly played and easily forgotten songs and a break. Like any great memory, that night 29 years ago sneaks up on me every now and then and grabs me by the shirt. When it does, I slip my iPhone out, hit play, and close my eyes.
DICTA
May 2018
PRACTICE TIPS By:
Gregory F. Coleman Greg Coleman Law PC
LESSONS LEARNED FROM THE EVIL OTHER: PRACTICE TIPS FOR THE PRESERVATION OF EVIDENCE IN PRODUCT LIABILITY CASES We’ve all had to deal with those opposing attorneys who are as friendly as a long lost friend when they are asking for a time extension, but who then turn into the evil ogre or wicked witch immediately after. Some are worse than others – especially the ones who pull preservation of evidence tricks from their bag to make it seem (erroneously) like your client has spoliated evidence. “Learn from the mistakes of others. You can’t live long enough to make them all yourself.” - folk wisdom The preservation of evidence in product liability cases can be especially tricky and has become far more pressing now that almost every American has a handheld computer (or two) within an arm’s reach every minute of every day. From your first contact with a potential client, you must start thinking about preservation of evidence or fear the consequences. And the bigger and more expensive the product, the more important the preservation of evidence becomes. Take, for example, a defective automobile: Polly Plaintiff is driving down a smooth road on a perfectly clear day in her three month old car, no other vehicles nearby. Her panoramic sunroof suddenly explodes, spewing glass fragments in and out of the car like Old Faithful. She pulls to the side of the road with her heart racing, searches for what hit the car without luck, sends a text message to her partner, calls roadside assistance – they can’t send a wrecker for two hours and will charge her $100 to tow the car, calls her office to ask them to reschedule a meeting, then calls the dealership. They have never heard of a panoramic sunroof exploding – it must have been a rock. Seeing no other logical alternative, she slowly drives the car twenty-five miles to the dealership. As she waits in the dealership lobby, she uses her cellular phone to google “exploding sunroof ” and discovers she is not alone. Cases have been filed against other automobile manufacturers. She calls your office. She wants you to file a case against the manufacturer. BINGO. The case – and preservation issues – have just arrived. • •
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At this moment, your new client is aware that her product may be the subject of litigation. She has evidence in her possession that must be preserved (in this example: a gaping hole above her head, a backseat full of glass, text messages, and the call record on her phone). What preservation advice will you give?
You need to immediately balance your client’s need to repair the product with your need for time to research the problem, evaluate the viability of the case, and draft the complaint. But you must address the ever-pressing requirement to preserve evidence for litigation. A failure to properly preserve evidence could result in dismissal of the case or the imposition of lesser – but still detrimental – sanctions. In Tennessee, “intentional misconduct is not a prerequisite for a trial court to impose sanctions for the spoliation of evidence, including that of a negative inference.”1 In Tatham, the Tennessee Supreme Court clarified that determinations of spoliation of evidence are based upon the totality of the circumstances.2 The decision to impose sanctions is “within the wide discretion of the trial court.” 3 May 2018
To avoid litigating preservation issues, immediately inform your client (or even potential client) to save the product or any remnants, and be aware of the importance of all communications about the product and its failure, whether that communication is to the company, a service center, or even her Facebook friends. Request photographs of the failed product, of anything else that might have been damaged by the failure, and especially of the surroundings when the product failed. Remind her to save receipts and documents related to any costs incurred as a result of the failure, whether large or small. Purchase receipts, owners’ manuals, warranty cards, web sites searched for the purchase, and websites found describing the defect – all of these items are likely to be important later in a product liability case. Next remind the potential client to err on the side of preserving things related to the product failure. The glass in the backseat of her car? Yes, definitely save it. And even items that might be detrimental to her case – like the rock sitting in the backseat that may or may not be related to the sunroof ’s failure – must be saved. Even if she thinks her child picked up that rock at the beach, she should save it. Before any repair is completed, send a preservation letter to the service facility, copying the manufacturer, even if a case has not yet been filed. While you may have the opportunity to arrange an inspection, replacement, or repair with the opposing party, a failure to take affirmative steps to preserve all relevant evidence at this point is critical – and it could be the line between a viable case and one that is quickly dismissed. The repair should not occur without full consideration of whether a spoliation argument might be made – otherwise you are leaving a door wide open for preservation problems. Even more importantly, if this product liability case is related to an automobile or another expensive product, you must make the client consider that she may not be able to sell the product during the litigation. Can she commit to maintaining ownership of the vehicle or the expensive product during the often-slow litigation? If the vehicle or product cannot be repaired and is inoperable, does she have another or can she afford to keep the inoperable one while litigation progresses? If not, you need to evaluate the wisdom and viability of filing the case on her behalf. This article began with a warning about lessons learned the hard way from an evil opposing counsel – and a caution of those who pull preservation of evidence tricks from their bag. Our firm’s change in preservation practices came after the flushing of a radiator clogged our office with unnecessary litigation to fight allegations of spoliation and gamesmanship. In product liability litigation, evidence is everything - and everything is evidence. Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 746 (Tenn. 2015). Id. 3 Id. at 747. 1 2
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L E G A L LY W E I R D By: Lisa J. Hall Hodges, Doughty & Carson
BUTT I DIDN’T MEAN TO DIAL YOU I don’t know about you, but there are some phrases that are particularly annoying to me, and I never say them. I cannot name them all without filling every page of a super-sized issue of DICTA, but here are a few: (1) “You’re fine.” This is typically said in response to “Excuse me.” I am not asking for your opinion of whether I measure up or am otherwise acceptable in your eyes. I am just being polite. But “you’re fine” makes me regret my manners. This should not be confused with “It’s fine,” which is a passive aggressive way to express discontent yet also acceptance. “It’s fine” is fine. (2) “LOL.” I never thought this phrase would have the staying power it has. Maybe it would be okay if it were used literally, because then it would be used pretty sparingly. LOL is everywhere, and if people were using it correctly I would not be able to hear myself think due to all of the audible laughter. Something’s got to give, LOL. (3) “Butt dial.” The phrase “butt dial” (hereinafter “pocket dial” for obvious reasons) means “to inadvertently call (someone) on a mobile phone in one’s rear pants pocket, as a result of pressure being accidentally applied to a button or buttons on the phone,” according to the Oxford Dictionary. Obviously, we have not literally dialed phones since we had rotary dial phones. [Side note: do you remember how long it took when you had to dial multiple zeroes in a telephone number? That was also annoying.] So nobody is walking around with a rotary phone in their pocket accidentally dialing an entire phone number, but perhaps “butt calling” or “pocket calling” just never caught on. I am pretty sure that anybody who has ever used the phrase “butt dial” around me thought they were hilarious for using the phrase. Also, much like LOL is tossed around without regard for the literal meaning of the phrase, nobody is literally “butt dialing” anyone. In 2016, James Stephens pocket-dialed his former boss, Georgia Subsequent Injury Trust Fund Director Mike Coan, a former state lawmaker, while talking to his wife about Coan. What he said could have been the most interesting part of this whole column, but all we know is that he went on a 12 minute rant about his boss. Coan listened to the conversation and realized that Stephens’ opinions and criticisms of his boss made it clear that they “could no longer have an effective working relationship and Coan could not trust Stephens as a subordinate,” according to his lawyer. He gave Stephens the option to resign or be fired. Stephens has now filed a lawsuit against Coan, alleging invasion of privacy and Georgia’s eavesdropping law by not hanging up when he realized the call was a mistake. Coan claims immunity from the eavesdropping law because he was acting in his capacity as a state employee. The Sixth Circuit Court of Appeals ruled on a similar issue in 2015 in the case of Huff v. Spaw,1 James Huff chaired a board that oversaw a Cincinnati airport. He was speaking with a colleague about replacing the airport’s CEO when he accidentally called the CEO’s assistant. She tried to get his attention several times to no avail, and once she realized he was discussing airport business, she took notes, recorded the call, and shared the summary with the other airport board members. This pocket-dialed call lasted about an hour and a half. Huff sued the assistant for intentionally intercepting a private conversation. Even though he accidentally placed the call, the Sixth Circuit found that he did not have a reasonable expectation of privacy, comparing this situation to a person who left the blinds open in their home, with a reasonable expectation that people could see what they were doing. Accidental texting can also create some awkward situations. In
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England in 2012, James Streeter was released on bail after a conviction for selling drugs. He and one of the officers exchanged phone numbers after he was released. A few months later, the officer received this text message “Safe – got bone dry cheese if u need.” (Apparently this is dealer slang for selling cannabis.) Poor Mr. Streeter accidentally sent this offer to everyone in his contacts, including the officer, so back to jail he went. He probably would have loved to have heard the phrase “you’re fine,” but alas, Judge John Maxwell said, “You were caught for this crime, granted bail and then you did it again – you were offering drugs and you stupidly offered drugs to police officers by sending text message to the wrong numbers.” I am grateful that I have never accidentally dialed someone while I was gossiping about them, and I am also grateful that I do not hang out with English drug dealers because I could not handle people saying “bone dry cheese.” 1
See 794 F.3d 543 (6th Cir. 2015).
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May 2018
L E G A L U P DAT E By: William T. Terrell Attorney, Tennessee Valley Authority, Office of the General Counsel1
RECENT SIXTH CIRCUIT DECISION REGARDING TRANSGENDER RIGHTS UNDER TITLE VII In previous “Legal Update” columns, there have been discussions about the employment law issue of whether discrimination “because of ” sex2 under Title VII includes discrimination based on sexual orientation, and a recent Sixth Circuit decision from early March 2018 addresses a similar issue – whether the same provision in Title VII includes discrimination based on a person’s transgender status. In Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc.,3 the Sixth Circuit reiterated that sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination under Title VII of the Civil Rights Act of 1964, and it held that this prohibition includes discrimination based on a person’s transgender status. In this case, the facts involved a funeral director, Aimee Stephens, employed at a small funeral home chain (Funeral Home) in Michigan for almost six years. She announced to the business owner that she would be transitioning from male to female and as a result would thereafter be presenting as a female in conformance with her gender identity.4 Soon thereafter, the Funeral Home owner, who identified as a Christian, fired Stephens because she “was no longer going to represent himself as a man” and “he wanted to dress as a woman.”5 A charge was filed with the EEOC alleging sex discrimination, which investigated and determined that Stephens was discharged due to her sex and gender identity in violation of Title VII. Because the parties could not reach a resolution, the EEOC filed suit against the funeral home in the Eastern District of Michigan.6 In response to a motion to dismiss, the district court held that transgender status is not a protected trait under Title VII, thus the EEOC could not pursue a sex discrimination claim due solely to Stephens’s transgender or transitioning status, though that court found that the EEOC could pursue a claim based on Stephens’s failure to conform to the Funeral Home’s “sex- or gender-based preferences, expectations, or stereotypes.”7 On summary judgment with respect to the remaining claims, the district court found direct evidence of sex discrimination,8 but dismissed in any event based on the defense presented by the Funeral Home under the Religious Freedom Restoration Act, or RFRA.9 On appeal, the Sixth Circuit affirmed the finding that Stephens was unlawfully terminated because of her failure to conform to sex stereotypes, but also ruled that the district court committed error when it held that she could not alternatively pursue a Title VII claim that she was discriminated against based on her transgender or transitioning status.10 Specifically, the Sixth Circuit held that discrimination “because of an individual’s transgender status is always based on gender stereotypes.” The court’s rationale was that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex” because in doing so the employer is “imposing its stereotypical notions of how sexual organs and gender identity ought to align.”11 In so ruling, the Sixth Circuit rejected any notion that there should be a distinction between unlawful discrimination based on gender identity or sexual stereotyping on the one hand, and “lawful” discrimination based on transgender status on the other hand.12 The Sixth Circuit has now joined two other Circuits in finding that discrimination based on transgender status is proscribed by the “sex” provision of Title VII.13 In its decision, the Sixth Circuit rejected the Funeral Home’s argument that RFRA precluded enforcement of Title VII in this situation even if there had been discrimination. RFRA prohibits the federal May 2018
government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government demonstrates that application of the burden to the person (a) is in furtherance of a compelling governmental interest, and (b) is the least restrictive means of furthering that compelling interest.14 According to the Sixth Circuit, the burdens on the Funeral Home owner’s religious beliefs here were not sufficiently substantial under RFRA. And even if those burdens were substantial, enforcement of Title VII was still the least restrictive means of furthering the government’s interest because “[w]here the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme’s objectives is through its enforcement.”15 This holding seems to suggest that no burden could exist on a religious belief that would be substantial enough to excuse sex discrimination – or potentially any other type of discrimination – under Title VII. This decision has an interesting political sidenote. The district court action was filed in 2014, and the appeal was filed in 2016. Although the action was initiated by the EEOC on behalf of Stephens, Stephens was allowed to intervene at the appeal level in March 2017, represented by the ACLU, due to her concerns that the EEOC might not continue to adequately represent her interests. In its order granting intervention, the Sixth Circuit found that the totality of the circumstances supported permitting intervention because the “EEOC’s recent actions imply that the new administration will less aggressively pursue transgender rights.”16 This was in part an apparent reference to the new Attorney General at the Department of Justice and the reported instances where the DOJ had articulated its intention to intervene in civil rights litigation and take positions inconsistent with the EEOC’s positions. This author can only hope that the Supreme Court will ultimately accept and decide a case that results in an overarching review of the scope of Title VII’s “sex” provision, however labeled - whether it be gender identity, sexual stereotyping, sexual orientation, or otherwise. This would lend finality to the issue similar to the Supreme Court’s review of the same-sex marriage issue in 2015.17 Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority. 2 See 42 U.S.C. § 2000e-2(a)(1). 3 See 884 F.3d 560 (6th Cir. 2018). 4 Id. at 567-69. 5 Id. 6 Id. 7 Id. at 569-70. 8 Employment law practitioners will recognize that a finding of direct evidence of discrimination is akin to spotting a unicorn. While direct evidence is the easiest way to prove discrimination (as opposed to circumstantial evidence), it rarely exists. Here, the employer provided business clothes for male employees but not female employees. 9 Harris Funeral Homes, 884 F.3d at 570. 10 Id. at 572, 580. 11 Id. at 574-80. 12 Because the EEOC is a party, in theory a petition for panel rehearing or en banc review could still be timely filed as of the date of submission of this article for publication. 13 See Glenn v. Brumby, 663 F.3d 1312, 1321 (11th Cir. 2011); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000). 14 See 42 U.S.C. 2000bb-1. 15 Harris Funeral Homes, 884 F.3d at 585-90. 16 See Order granting intervention (entered March 27, 2017). The intervention motion was filed January 26, 2017. 17 Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 1
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May 2018
MANAGEMENT COUNSEL: LAW OFFICE 101 By: Sarah R. Johnson Holifield Janich Rachal Ferrera, PLLC
THE TAX CUTS AND JOBS ACT – EMPLOYEE FRINGE BENEFITS The Tax Cuts and Jobs Act (the “Act”)1 was signed by President Trump on December 22, 2017. The Act contains many provisions affecting employee fringe benefits. Transportation Benefits The Act provides that an employer cannot deduct any expense incurred for providing any transportation, or any payment or reimbursement, to an employee of the taxpayer for travel between the employee’s residence and place of employment, except as necessary for ensuring the employee’s safety. The Act suspends the previously allowed employee exclusion from gross income and wages for qualified bicycle commuting reimbursements for taxable years beginning after Dec. 31, 2017 and before Jan. 1, 2026. This means that employer reimbursements for bicycle commuting expenses are taxable and subject to payroll taxes and income tax withholding. Employees may continue to exclude from their taxable income the value of any employer-provided subsidy of these benefits (up to $260 per month during 2018), but employers may no longer deduct the expenses associated with these subsidies if excluded from employees’ taxable income. However, an employer may choose to include qualified transportation fringe benefits in an employee’s taxable income and take a tax deduction or exclude the amounts from an employee’s taxable income and take no deduction for those amounts. Another option may be to establish a “qualified transportation plan,” which allows employees to pay for their own parking on a pre-tax basis through a salary reduction election. Qualified Moving Expenses The Act discontinues the favorable tax treatment for employer reimbursements of an employee’s moving expenses until 2026. In addition, the Act prohibits employees from deducting moving expenses that were not paid or reimbursed by an employer. This means that no tax benefits will be available with respect to an employee’s relocation for work, regardless of whether the employer or employee bears the cost. On the other hand, if an employer treats payment or reimbursement of an employee’s moving expenses as W-2 wages, the employer can deduct the payment as a compensation expense. The changes affect expenses incurred on or after January 1, 2018. Both the exclusion and deduction of moving expenses are preserved only for active duty members of the military who move pursuant to a military order. Unreimbursed Business Expenses Prior to the Act, an employee who itemized tax deductions could deduct unreimbursed employee business expenses as a miscellaneous itemized deduction (to the extent that the aggregate miscellaneous itemized deductions exceeded 2% of the employee’s adjusted gross income). However, beginning January 1, 2018 miscellaneous itemized deductions are no longer allowed, meaning that if an employer reimburses an employee for a business expense, the reimbursement is taxfree to the employee. However, if the employer does not reimburse the employee’s business expense, the employee will no longer be able to claim a tax deduction for the expense.
Entertainment Expenses Employers may no longer deduct any business-related entertainment expenses, regardless of whether the item is associated with the conduct of the employer’s trade or business. This change eliminates the 50% deduction that generally had been allowed for business-related entertainment, including meals. The Act also prohibits any deduction for amounts paid for membership in any club organized for business, pleasure, recreation or social purpose. However, a 100 percent deduction is still allowed for expenses incurred for recreational, social, or similar activities (including facilities, but not club dues) primarily for the benefit of employees (other than employees who are highly compensated employees). Meals Employers will continue to be allowed a 50% deduction for food or beverage expenses directly related to the employer’s business (i.e., meals for employees while traveling for work). For now, this 50% deduction will be available for expenses associated with providing food and beverages on employers’ business premises that (a) are provided for the convenience of the employer or (b) qualify as de minimis food or beverages, but this deduction will be disallowed for any such expenses paid or incurred on or after January 1, 2026. Employee Achievement Awards Prior to the Act, employers could deduct up to $400 for the cost of employee achievement awards in the form of “tangible personal property.” The Act states that awards of tangible personal property may still be treated as deductible by the employer, but the Act revises the definition of tangible personal property by excluding cash, cash equivalents, gift cards, gift coupons or gift certificates (other than arrangements conferring only the right to select and receive tangible personal property from a limited array of such items pre-selected or pre-approved by the employer), or vacations, meals, lodging, tickets to theater or sporting events, stocks, bonds, other securities and other similar items. Paid Leave Credit The Act puts in place a tax credit for employers that provide paid family and medical leave. To receive the credit, employers must provide at least two weeks of leave and compensate their workers at a minimum of 50 percent of their regular earnings during such leave. The tax credit will range from 12.5 percent to 25 percent of the cost of each hour of paid leave, depending on how much of a qualified employee’s regular earnings the benefit replaces. A “qualified employee” is the one that has been employed for at least one year, and whose compensation for the previous year is not in excess of 60% of the compensation threshold for highly compensated employees ($72,000 for 2018). The government will cover 12.5 percent of the benefit’s cost if workers receive half of their regular earnings, rising incrementally up to 25 percent if workers receive their entire regular earnings. Also, the credit is not available for paid leave in the form of vacation, personal leave or other medical or sick leave other than leave paid under the FMLA. Both full-time and part-time workers, if employed at the organization for at least a year, must be offered paid leave for an employer to be able to claim the tax credit. The Paid Leave Credit is set to expire on December 31, 2019. 1
Pub. L. 115-97.
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.
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May 2018
HELLO MY NAME IS
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TAY LO R J E N K I N S - D O W D
By: Katheryn M. Ogle McDonald, Levy & Taylor, PLLC
Lenoir City native and relatively new member of the Knoxville Bar Association, Taylor Jenkins-Dowd is no stranger to the hard work and commitment that goes hand in hand with the practice of law. In fact, Taylor persevered through her legal studies at The University of Tennessee College of Law and not only completed law school in a brief two and a half years, but did so with honors. While law school may have been a streamlined path for the young attorney, the road leading to her legal career was a bit of a circuitous route. After graduating from Trevecca Nazarene University in Nashville with a degree in English and a minor in creative writing, she considered many career options, but at that time, law school wasn’t one of them. “I considered continuing my education by getting a masters in English Literature, Education, or a Masters of Fine Arts in creative writing,” she explains. Also under consideration were various employment opportunities, including a teaching position in a private school. Taylor ultimately chose to return to her hometown and accepted a position as a paralegal at The Law Office of Kimberlee A. Waterhouse. Upon starting this new career, she had no idea how this particular
varies from estate planning to family law, with an occasional criminal defense matter. She notes that the most rewarding aspect of being an attorney is the ability to serve as a Guardian ad litem in juvenile court representing the best interest of minor children involved in the legal system. When she isn’t busy with the practice of law, Taylor enjoys spending time with her husband, Drew Dowd, who is the family and youth pastor at Crossroads Church of the Nazarene in Lenoir City, and was also one of Taylor’s most steadfast supporters during law school. They share their home in Lenoir City with their rescued Border Collie - Golden Retriever mix, “Chipper.” Taylor hopes to grow her legal career within her current firm, and enjoys each opportunity to assist local community members with their legal needs. While she may have taken a roundabout route, with a stop or two along her path to becoming a lawyer, Taylor Jenkins-Dowd has undoubtedly arrived in her career as a young attorney, and we couldn’t be happier to have her in the practice.
Justice Sharon Lee of the Tennessee Supreme Court administers Taylor’s Oath for Admission to the Tennessee Bar.
Taylor Jenkins-Dowd opportunity would influence the rest of her life. While working as a paralegal and gaining invaluable experience, Taylor was encouraged by her mentor and employer, Kimberlee Waterhouse, to take the LSAT. After receiving her score, and knowing that she wanted to build her life here in east Tennessee, Taylor applied to only one law school, The University of Tennessee College of Law. When she later learned that English was one of the preferred undergraduate degrees for law school admissions, Taylor felt a sense that everything had fallen into place. “I felt that my educational journey had come full circle and that even though I never considered law when I chose to pursue an English degree, God could see the bigger picture and was leading me exactly where I needed to be.” In September 2014, she began law school classes and by April 2017, Taylor was a practicing attorney. Today, Taylor is an attorney in the same firm where she was once an inexperienced paralegal. As a general practitioner, her day-to-day work May 2018
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Kimberlee Waterhouse, Taylor’s mentor and sponsoring attorney, Taylor Jenkins-Dowd, and The Honorable Sharon Lee after Taylor was admitted to the Tennessee Bar.
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A ROUNDTABLE DISCUSSION ON THE EVOLVING 21ST-CENTURY LAW FIRM
Dale Amburn of London & Amburn
The practice of law is changing. Economic forces and advances in technology are but two of the myriad factors driving this change, and law firms must adapt in order to grow. The Knoxville legal market is not immune to the trends affecting law firms nationwide. In early April, Matt Lyon of the LMU Law School sat down with the managing partners at four local firms to discuss the evolving practice of law. The four participants represent large firms with excellent reputations for service and a combined 265 years of legal practice in Knoxville. The four men – Dale Amburn of London & Amburn, Bob Bowman of Kramer Rayson, Tom Dickenson of Hodges, Doughty & Carson, and Steve McSween of Egerton, McAfee, Armistead & Davis – spoke frankly about how the management of their firms and their own practices have changed in the new millennium, as well as how, in some respects, they have stayed the same. Matt Lyon: How and why have staffing needs at your firm changed in the last ten to fifteen years, both for lawyers and support staff?
Bob Bowman of Kramer Rayson
Tom Dickenson of Hodges, Doughty & Carson
Bob Bowman: When I started as an associate at Kramer Rayson, we had a pretty deep bench of associates who cut their teeth doing insurance defense work – covering depositions for partners, going to docket soundings, drafting pleadings, responding to interrogatories. Over the last ten to fifteen years, a lot of the carriers have taken that work in-house, so the need for litigation associates has gone down dramatically. Tom Dickenson: Over that fifteen-year time frame, staffing needs have decreased primarily because the young people coming out of law school are so technologically savvy that they do a lot of the work themselves that used to be done by an administrative assistant. Steve McSween: I concur with that. I don’t think we’ve hired an associate in the last fifteen years who hasn’t done most of his or her own typing. Dictation is pretty much a thing of the past. Dale Amburn: When we started, we had a rule of thumb of a couple of lawyers to one administrative assistant. Those old rules of thumb no longer apply. BB: That staffing ratio of two-to-one is now probably more like three- or four-to-one. SM: There is a lot more investment in technology and less in traditional administrative staff. ML: The changes in technology just over the last ten years are like night and day.
Steve McSween of Egerton, McAfee, Armistead & Davis
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BB: Absolutely. We used to write letters, now we write emails. TD: I don’t write more than one letter a week now. Everything is by email. DA: Some clients prefer texting now, even more
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so than email. When you’re exchanging texts with a client, it is more challenging to keep your file up to date. TD: Texting also introduces a level of risk. BB: Absolutely. I spend a great deal of time working on data security policies and technologies for the firm, which was unheard of three or four years ago. We train our staff, associates and partners on confidentiality of client records and protection of documents. SM: And the physical size of the law library has shrunk. ML: How about staffing of cases? DA: More lightly staffed. BB: Most carriers limit staffing to one partner, one associate, and a paralegal. ML: Is there a resistance to paying for junior lawyers? BB: No, clients want to pay for junior lawyers. In fact, clients track whether a matter is being handled by the partner or the associate. They want the budget broken down by activity to be worked by partners versus associates and want us to push work down to the associate level. ML: How have things changed since the economic downturn several years ago? SM: The regulatory practice has picked up. There are more regulations passed every year, so clients need us more for that than they used to. TD: Our firm wasn’t impacted too much by the economic downturn. It never really got that bad, although it’s better now than it was. DA: We had a similar experience, and that may be related to the sector our firm practices in. My sense is that overall the legal market is stronger, but that’s mostly anecdotal. Our work has been steady. BB: The market has recovered. And the Knoxville market is pretty vibrant right now. SM: I think we have averaged hiring at least one associate per year. ML: Are your hiring practices the same now as they were in 2005 or 2006? BB: The economy didn’t affect us too much. If we had a really good candidate, we would hire them. We’ve been lucky enough to have really good candidates every year and did not really stop hiring. TD: Our hiring practices haven’t really changed. We have a mixture of laterals and new law graduates and we try to hire based on need. If the need is there, then we fill it. In the last five years, we’ve hired more laterals. BB: We still hire primarily out of law school. May 2018
COVER STORY By: Matthew R. Lyon Associate Dean for Academic Affairs & Professor of Law Lincoln Memorial University Duncan School of Law
SM: We do too. We hire at least one associate a year and have made some key lateral hires. We have 29 lawyers now and only four of them are over 60. So we’ve managed to reload pretty well.
require us to submit our bills through a thirdparty bill review system. That’s how they manage their legal spend. They are keeping with the hourly rate but pressing the hours worked down through third-party review.
ML: There was, several years ago, a wave of law firms merging, particularly in larger markets. But we haven’t seen as much of that in Knoxville. Why do you think that is?
ML: How recent is that trend?
DA: A lot of those mergers occurred looking for national clients. You get the “bigger is better” type of approach. I think that Knoxville, by and large, is a different type of market. BB: Those national and regional firms set rates at a high enough level that they can earn more in other places than they can here in Knoxville. In general, the rates in Knoxville have never been to the level that they are attractive to the national firms. DA: I also think there may be a different agenda for Knoxville firms. Our firm has never tried to grow for growth’s sake. We try to get the right people together that match with our culture and shared values, and we spend time trying to look at trends and prepare for changes in the market. The worst-case scenario may not happen, but when you prepare for it, you end up with growth. TD: Our firm grows if the need is there. But from our firm’s standpoint, we always hire a little bit late instead of a little bit early. DA: Generally, law firms hire six to eight months after they should. But we don’t spend much time thinking about the legal market in general. We think about the nature of our business and engage in more firm-specific planning. After tort reform several years ago, for example, we knew there was going to be a change – fewer med mal cases, for example. But at the same time, we have seen a growth in our regulatory practice and prepared for that. SM: Any highly regulated area has grown in the last few years. Employment law and healthcare have both just exploded with the client need for legal advice, because the rules are complicated and the penalties are great if you don’t comply. ML: Let’s talk about compensation structure and the billable hour. The billable hour is still the dominant paradigm in fees, but are its days numbered? Are clients more comfortable negotiating flat fees? BB: The billable hour is still the predominant way we bill, but most insurance companies May 2018
TD: It’s been around at least ten years. BB: Yes, but it’s become more prominent in the last five years. You submit your bills electronically, an auditor reviews it, they send the bill back with reductions, and then there is a process if you wish to appeal it. TD: It varies from cutting the amount of time that you recorded for a task to totally eliminating a time entry, saying it should have been done by an assistant. BB: Either reducing it completely or reducing the attorney rate to the paralegal rate. ML: Do you counsel your partners and associates on how to word their billing entries? BB: I offer assistance at Kramer Rayson to those who want help with electronic billing. There are companies that solicit us to do the billing and guarantee there will be no reductions on our bills. DA: I don’t know a single lawyer who doesn’t think time sheets are the bane of our profession. You want to get through them as quickly as you can. But that complicates the electronic billing system because “Review file” is not going to cut it. BB: If you code something with a “105” it’s going to get rejected, because “105” stands for “Internal office conference.” They don’t want lawyers talking to each other about the case! I occasionally need to talk to someone with a little more gray hair than I do about how they would handle a situation. But carriers won’t pay for that. TD: If you try to combine two entries together, which is called “lumping” of time entries, you’ll get dinged. Every task you perform has to have its own entry. Which might mean that you are working the entire morning on one file bit you have ten different entries for ten different tasks on the file. ML: Doesn’t this increased client pressure on billing have some effect on compensation? BB: Lawyers at our firm are working a lot more efficiently. Young associates can do legal research in a quarter of the time they used to do it. And they can draft much faster than they used to. The efficiency of the associate
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is night-and-day different than it was fifteen years ago. TD: From a technology standpoint, I feel the same way. From an overall standpoint, though, students right out of law school don’t know how to practice law, and it takes anywhere from two to five years to teach them. DA: That impacts new hires. It’s tough to bear the cost of training. When you are getting a lateral, you are thinking that somewhere they’ve learned a little bit more about how to practice law, and you are picking up efficiencies. That is a by-product of the policies of carriers that pay our bills. BB: You have to be willing to have a loss on a new hire for a couple of years. Or at least, you aren’t going to hit full productivity for a couple of years. DA: You have to cut a lot of the time, and then you have more experienced lawyers doing the guidance and they can’t bill for that guidance time. TD: It’s hard to make money on new associates because of the steep learning curve. That’s part of the driver of some of the things I’m doing in the class that I’m teaching at LMU. I’m trying to give students more practical, hands-on experience that will translate into a quicker learning curve when they actually start practicing. BB: I can see a need for that. When I went to law school, they didn’t teach you how to take a deposition. That would be very beneficial. ML: So what do you tell associates about billing their time? TD: We tell our associates to record every single thing they do. It will be up to the billing attorney whether to pass it through to the client. DA: We ask everybody to keep track of all of their time. Part of that is a business function; we’re very interested to see what the overall effective hourly rate is, and we won’t know that unless we know how the time is recorded. Also, whoever is going to send the bill to the client needs to be comfortable with what is sent. ML: That goes to my last question. What types of skills you are looking for in new associates and how has that changed over the last several years, if at all? DA: I find it hard to give a standard answer. I look at our firm like a basketball team. You have different types of opponents you will play (Continued on page 18)
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A ROUNDTABLE DISCUSSION ON THE EVOLVING 21ST-CENTURY LAW FIRM (Continued from page 17) during a season, and you are trying to devise different game strategies. You don’t want a team comprised of five guards, five forwards, or five centers. You’ve got to have some combination. I know that every person we hire is not interchangeable. Some have greater strengths in client relations; others in research and drafting. It is a matter of matching up each person’s strengths with our team’s needs. SM: New associates need to have the basic skills and framework. They are all technology-savvy; you don’t have to spend much time teaching them that. But depending on which area of law they end up focusing on, you almost always have to send them to seminars. Law schools give them a decent background, but they can’t teach new regulations that are coming out every year. To get them up to speed to where they can advise clients in a regulatory area, they have to have continuing education, probably earlier than when we got out of law school. BB: I don’t know that anything has changed about the type of associate. The skills you needed twenty years ago are the same skills you need today. You need people who are motivated, self-starters, smart, analytical thinkers. Probably the first and foremost skill I look for is a good writer. TD: I think brain power is even more important now than it was fifteen years ago. And it was important back then. Law, every year, gets
increasingly more complex, and if somebody doesn’t have brain power, they’re not going to be able to get it. That puts a higher premium on finding the people that have the high brain power to get the job done. BB: I agree with that. We just don’t have the trials we once did. TD: We have a retired partner who used to try two or three cases a week. Our whole firm might try two or three cases a month now. It’s just totally changed. BB: We’ve had the same experience. DA: We also look at life experiences for breadth. It feels like with technology, there is less communication, so you work more in a silo. When you are representing business clients, you have to have the savvy not to just do the legal part, but to understand what the client is trying to achieve. Sometimes, life experiences and the ability to deal with people are just as important to maintaining a client relationship as the legal ability. We look at activities and part-time jobs, not just grades and references from professors. SM: Some business experience prior to law school really helps the business lawyer advise his or her client.
Knoxville Bar Foundation Announces 2018 Fellows The Knoxville Bar Foundation will recognize thirteen esteemed members of Knoxville’s legal community at their Annual Dinner on Tuesday, May 1, 2018. Each year the Foundation inducts a new Fellows Class which is less than one percent of the active bar association. The Fellows represent quality men and women practitioners in our community who have distinguished themselves in the practice of law and service. The Foundation’s board of directors reviews numerous nominations, and determines the inductees who have demonstrated superior legal skills and high ethical standards and service to the community. Jamie Ballinger-Holden Baker, Donelson, Bearman, Caldwell & Berkowitz Brooklyn Sawyers Belk U.S. Attorney’s Office Christopher A. Hall Hodges, Doughty & Carson, PLLC Mark P. Jendrek Mark Jendrek, P.C. John M. Lawhorn Frantz, McConnell & Seymour, LLP Gregory C. Logue Woolf, McClane, Bright, Allen & Carpenter, PLLC Matthew R. Lyon Lincoln Memorial University Duncan School of Law
Hon. Thomas W. Phillips U.S. District Court Adam M. Priest Pryor, Priest, Harber, Floyd & Coffey Ellen J. Radice U.T. College of Law Catherine E. Shuck East Tennessee Children’s Hospital Hon. Thomas A. Varlan U.S. District Court John B. Waters, III Long, Ragsdale & Waters, PC
The Knoxville Bar Foundation is a not for profit foundation established to improve public awareness of the legal system in Knoxville, the administration of justice and the delivery of legal services through the distribution of its funds.
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May 2018
O F T H E R M O M E T E R S & T H E R M O S TAT S By: Melissa B. Carrasco Shareholder, Egerton, McAfee, Armistead & Davis, P.C.
CONSPICUOUS GALLANTRY Twenty-four years, one month, and five days is not a very long time. They say he was just a beanpole of a man who left the University of Tennessee to join the Navy when he was only twenty-one. He got his training as a Hospital Corpsman in San Diego, and did a float on the USS Haven (AH-12), a Navy Hospital Ship. But, it was 1966, and everyone knew where corpsmen were needed the most. By 1968, he requested a tour with the Fleet Marine Force, and within months, he was in Vietnam. He celebrated his twenty-fourth birthday on Valentine’s Day, 1969. By then, he was stationed with the 2nd Battalion, 11th Marines, 1st Marine Division (Rein) in Quang Nam Province. In just five months, he would be heading home for some much-needed leave. He had already volunteered for another six-month tour after he returned from leave. The evening of March 18th, he was in the field with the Delta Battery 2/11 Marines adjacent to the Liberty Bridge near An Hoa. The 1st Battalion, 5th Marines were a few hundred meters away. As a HM2, he was the senior corpsman in the field that night, and that is when all hell broke loose. In the early morning hours of March 19th, both Marine battalions came under attack. The enemy broke through the barbed wire around the perimeter and ignited an explosive under a hutch. When the Marines ran out, they were mowed down. Mortar and rocket fire rained down upon them with some estimating seventy-nine casualties in the first few minutes. This Hospital Corpsman did not back down. Ignoring the gunfire, mortars, and rockets, he moved from parapet to parapet providing aid to the wounded. He himself was wounded and began losing blood, but he did not stop. Eyewitnesses say he refused medical treatment and continued to administer aid to the Marines all around him. In a letter to his parents, Corpsman Tommy Vickers wrote, Bob got hit, but was still treating wounded when he was hit the second time. I hope this isn’t true, but this Marine said he and Bob were real close. We worked until 2:30 this morning, and then I got off. I was on second call. At 6:30 this morning, six choppers came in from An Hoa, and I got called back. The first think I did was go to triage and look for Bob. When I didn’t see him, I started asking because most of them were from 15, Bob’s outfit. Everyone said he had been hit, but no one knew how bad.1
On April 20, 1970, HM2 Bobby Ray was posthumously awarded the Medal of Honor. His father accepted the award on his behalf from Vice President Spiro Agnew.2 But, that isn’t where it ends. His former high school in McMinnville is now the Bobby Ray Memorial Elementary School. Their school pledge is a fitting homage: “I will act in such a way that I will be proud of myself, and others will be proud of me, too.”3 In 1977, the USS David R. Ray (DD-971), a Spruance-class destroyer was commissioned. Her coat of arms was light blue with a white star as a reminder of the Medal of Honor awarded to HM2 Ray. It has two Navy blue stripes, the color of the Navy Corpsman, with gold and scarlet, the colors of the Marines they fight to save. The ship’s motto, “Determined, Ready, Resourceful” are a reminder of HM2 Ray’s initials, and the resolve with which he served his Marines. The ship and her crew proudly served throughout the Cold War and the Persian Gulf War until she was decommissioned in 2002.4 The Citation awarding HM2 Ray the Medal of Honor sums up his service with these words: CITATION: for conspicuous gallantry and intrepidity at the risk of his life above and beyond the call of duty while serving as a HM2 with Battery D, 2d Battalion, at Phu Loc 6, near An Hoa. . . . By his determined and persevering actions, courageous spirit, and selfless devotion to the welfare of his marine comrades, HM2 Ray served to inspire the men of Battery D to heroic efforts in defeating the enemy. Twenty-four years, one month, five days is not a very long time. But, it was long enough for a young man from McMinnville, Tennessee to inspire his comrades to heroism. As we celebrate Memorial Day later this month, let us take a few moments to remember HM2 David R. (Bobby) Ray and the thousands of those like him who, through their “conspicuous gallantry and intrepidity” in the face of extreme danger sacrificed themselves and, in doing so, inspire us all to do the same. That’s what thermostats do. Notes from the Virtual Wall, David Robert Ray, from the Southern Standard, McMinnville, TN (Mar. 25, 1969), http://www.virtualwall.org/dr/RayDR01a.htm, last visited Apr. 9, 2018. 2 To learn more about David R. (Bobby) Ray and read some of the comments and stories posted by those who served with him, please see the following sources. Tennessee Medal of Honor Recipients, David Robert Ray, available at http://www.etvma.org/docs/TNMedal.pdf; Vietnam Veterans Memorial Fund, The Wall of Faces: David Robert Ray, http://www.vvmf.org/Wall-ofFaces/42523/DAVID-R-RAY?page=1#remembrances, last visited Apr. 9, 2018; Virtual Wall, David Robert Ray, http://www.virtualwall.org/dr/RayDR01a.htm, last visited Apr. 9, 2018. 3 School History, Bobby Ray Memorial Elementary, https://bres.warrenschools.com/apps/pages/ index.jsp?uREC_ID=340526&type=d&pREC_ID=747600, last visited Apr. 10, 2018. 4 For more information about the USS David R. Ray, see the following sources. USS David R. Ray (DD 971), https://www.navysite.de/dd/dd971.htm, last visited Apr. 9, 2018; USS David R. Ray (DD-971), http://www.navsource.org/archives/05/971.htm, last visited Apr. 9, 2018. 1
While Corpsman Vickers was back at triage, HM2 David Robert (Bobby) Ray was in the middle of it all taking care of his Marines. At one point, while he was treating a Marine, he was attacked by two enemy soldiers and managed to fend them off, protecting both himself, and his wounded Marine. With the enemy rapidly approaching, he managed to hold off the enemy until he ran out of ammunition. That is when he saw the grenade. He didn’t even think. He simply threw his body over the wounded Marine and took the brunt of the grenade blast. The Marine survived. HM2 Ray did not. In the end, thirteen Marines and two Navy Corpsman, including HM2 Ray were killed in an attack that could have been far worse.
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This one kid told me what happened. I couldn’t work. All I could do was sit and stare. He didn’t come here that I can find out. After his mother has calmed down, tell her this little Marine said Bob knew his job, and he was doing it. He fixed my arm. Then he started to cry
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LEGAL MYTH BREAKERS By: David E. Long Member, MGC
MEDICARE SECONDARY PAYER UPDATE…OR BEST GUESS….
“In terms of obligations pursuant to the Medicare Secondary Payer Act (“MSP”) and the Medicare & Medicaid SCHIP Extension Act of 2007 (“MMSEA”), there are multiple areas of compliance issues. Perhaps the two areas most often dealt with by attorneys in personal injury cases (non-worker’s compensation) are (1) the areas of repaying Medicare for conditional payments made prior to a lawsuit being settled and (2) protecting Medicare’s future interests. The legal issues potentially involved in conditional payments and/or future medical issues are varied and often complicated. The law is in a state of flux for various reasons. One reason is due to the slow, necessarily myopic progression of federal common law. Courts are designed to look narrowly at specific questions of law, not provide sweeping proclamations of legislative roadmaps as to how to practically apply or enforce laws. If agencies, such as CMS, either do not have the power or the will to push specific regulation, attorneys and courts are left with uncertainty as to how to proceed. While the court system has stepped up to the plate in regard to dealing with Medicare repayment issues as best it can, the nature of addressing particular lawsuits does not address the need for comprehensive regulation. Without specific guidance, attorneys must utilize the “safest” or “best” practice and hope Medicare considers its interests taken into account. Unfortunately, “best” or “safest” is not a settled definition, and in liability cases, CMS has done little to clarify what it means when it demands all parties take Medicare’s interests “into account.” It is an argument, but in the MSP arena, it is a dangerous one in which no one is entirely safe from future challenges. The MMSEA was the driving force behind the Government’s ability to actually enforce the pre-existing MSP requirements that “primary plans” not only reimburse conditional payments but protect Medicare’s future interests. Essentially, existing technology allowed the MMSEA to have teeth. Prior to the Internet, and in its infancy, the MSP had practical information problems. It was easier to follow worker’s compensation case than liability cases. Worker’s compensation cases require specific final orders and other state filings. There was an information trail, albeit a paper trial giving an idea as to settlement proceeds. Liability case information was not as readily available. Generally, liability cases are settled with private releases. The only public evidence of a potential settlement is an order of compromise and dismissal filed with the court. The order rarely, if ever lists any amount(s). Add to that, the lack of manpower at CMS, and the threat of the MSP was largely ignored in past times. The MMSEA , upgraded computer technology and the Internet changed the Medicare world. Section 111 of the MMSEA requires primary plans report settlements and judgment awards, or face severe penalties for not doing so. The practical upshot is now primary plans must file a MMSEA “tax return” or face penalties. The required information is being fed to CMS databases. The government worker can sit at her desk, drink coffee and simply note it. Attorneys now must take into account those issues in settling or otherwise litigating cases. In terms of conditional payments owed to Medicare, the issue is fairly straightforward: pay it. A party or its attorneys cannot avoid liability by paying a conditional payment over to the plaintiff and hoping she takes care of it. Calling it something else, such as loss of consortium, is not advisable, especially when the settlement documents have the derivative spouse releasing medical claims as well. 42 U.S.C § 1395y(b)(2)(ii) provides the statutory authority requiring the reimbursement to CMS/MSPRC. Any payment in the way of settlement, judgment or award requires that all of the parties make sure Medicare is reimbursed. When the final demand letter is received from Medicare, the reimbursement must take place within sixty (60) days to avoid penalty. If not, 28 U.S.C. § 3001, et seq. Federal Debt Collection Procedure Act and the MSP take over with significant penalties. The issue of future medical bills and the need for Medicare set aside issue is another kettle of fish. While Medicare has provided guidance on worker’s compensation issues (i.e., the Patel Memo and
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various C.F.R.s ), there has been little to no guidance regarding the issue of protecting Medicare’s future medical interests in liability cases. Practitioners should not, however, confuse themselves with various cases at lower federal court levels that might lull them into thinking that CMS does not intend to assert that future interest. CMS has made it clear in a number of memoranda and interviews that it intends to require parties to consider those interests. There is a split in the federal circuits over the MSP Manual, and those memoranda as to whether they are binding law, with some courts holding that, absent regulation, CMS cannot enforce its “ideas” as opposed to law. Some courts, however have adopted a philosophy more in line with Chevron v. U.S.A.,i the administrative doctrine that essentially holds (1) if the statute is clear, follow it; (2) federal courts should develop federal common law to deal with various issues; and (3) if the statute is silent, the agency interpretation of it should be given deference if that interpretation is reasonable. The Sixth Circuit, in Hadden v. United States,ii which was denied certiorari by the U.S. Supreme Court, gave the nod in dicta to the Chevron standard. Hadden did not deal directly with the MSP issue or future medical interests (it was a conditional payment case). It interpreted the issue before the Court narrowly under the MSP. By noting the Chevron doctrine, however, the Sixth Cir. indicated the willingness to consider CMS’ vision of its own authority. Of course, agency interpretation of its own rules is not much good if the information is not shared ahead of the lawsuit. Due to increased pressure to create regulations regarding Medicare Set Asides (“MSAs”) in liability cases, CMS has announced we should expect LMSA reference guides (hopefully by October 2018) and established criteria from Capital Bridge regarding voluntary review of LMSAs. CMS has indicated it will also take a strict interpretation of “hearing on the merits” regarding MSAs in general. As of the end of 2017, Performant is the new company taking over for CGI as the Medicare contractor. Performant will take increasing amounts of action in leveraging Section III MMSEA data for primary plans. In terms of reviewing MSAs, the new contractor will change to Capital Bridge, LLC, by mid-March 2018. LMSAs and NFMSAs will begin being reviewed by this entity by July 1, 2018 presumably in July 2018. CMS released version 5.3 of its update on December 15, 2017. It replaced Chapter III, sec, 6.3.2 dealing with ORM termination (termination of future medicals). Another important change is WCMSA Reference Guide, sec. 4.2. It is now good enough if the treating physician, in writing, states no future medical treatment is necessary. Newer protocols will require the physician must state and hold her opinion within a reasonable degree of medical certainly. Many physicians will likely not want to go on the record “within a reasonable degree of medical certainty” on those issues pertaining to future treatment. CMS has also requested doctors and health care providers to identify any Medicare beneficiary issues and document whether the patient is a Medicare beneficiary in their medical records. Medical providers are to confirm the patient is Medicare beneficiary. They are also to ask if the patient has an MSA, and if so, bill the MSA for services provided. This is likely to cause varying amounts of confusion. A current issue is whether Medicare Advantage plans are allowed the private cause of action and double damages. There is some district court disagreement on the issue, but it is likely the federal circuit courts will allow Medicare Advantage Plans to sue for double damages in the future. You should identify whether such a plan is in place early. The upcoming issues with CMS and Medicare liability settlements will require interfacing with experts as well as clients in order to set up protocols for flagging and dealing with MSA issues early in litigation. i ii
467 U.S. 837 (1984), 661 F.3d 298 (6th Cir. 2011)
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May 2018
SCHOOLED IN ETHICS By:
Paula Schaefer
Professor of Law A FOOL FOR A CLIENT? University of Tennessee College of Law PROFESSIONAL CONDUCT CONSIDERATIONS OF THE PRO SE LAWYER New York attorney, Anthony Zappin, was recently disbarred as a result of his conduct during his divorce proceedings.1 Zappin, who appeared in the divorce case pro se, was disciplined (in part) for his conduct as an attorney in the proceeding. But he also faced discipline for conduct in his individual capacity during the case. His “egregious and outrageous” conduct during the case ranged from testifying falsely and introducing altered text messages into evidence to filing a baseless disciplinary complaint against a court-appointed expert.2 Cases like Zappin’s bring to mind the old saying, “An attorney who represents himself has a fool for a client.” Perhaps Zappin could have avoided professional discipline if he had received the dispassionate advice of an independent attorney who would have dissuaded him from some of the conduct that he engaged in during his divorce – in his capacity as a lawyer and in his capacity as an individual. But there are lessons in Zappin’s discipline case for any attorney considering self-representation. Even lawyers capable of competently and responsibly representing themselves need to give thought to the unique ways that professional conduct rules may be implicated in an attorney’s pro se representation. Transactions with Persons Other than Clients Professional conduct rules found at Chapter 4 of the Tennessee Rules of Professional Conduct address “Transactions with Persons Other than Clients.” All of these rules describe conduct that is forbidden of a lawyer in the course of representing a client.3 Are these rules meant to apply to the pro se lawyer? Take Tennessee RPC 4.2 for example. In representing a client, a lawyer is forbidden from communicating about the matter with a person represented by counsel. The lawyer’s client, though, is not forbidden from communicating with that represented party.4 Should the pro se lawyer be treated as a lawyer or a client for purposes of making contact? Some states have addressed this issue explicitly in their rules,5 but Tennessee’s RPC 4.2 does not provide a clear answer for the pro se lawyer.6 The majority of courts in other jurisdictions that have addressed the issue have found that the rule applies to the pro se lawyer.7 Thus, a more conservative approach would be for the pro se lawyer to avoid discussing the matter with a represented party. Duties Owed to Clients Many professional conduct rules describe duties that a lawyer owes to a client, such as the duty to keep client confidences,8 to communicate with the client,9 and to act with diligence.10 An attorney may think he does not have to fear violating such rules – those describing duties of care and loyalty owed to a client - when representing himself. But a pro se lawyer needs to keep his other clients in mind when thinking about professional conduct rules that may be implicated in the matter. A lawyer’s representation of self in litigation or a transaction implicates professional conduct rules if that representation is adverse to a current or former client of the lawyer or the lawyer’s firm.11 For example, a lawyer who represents herself in a negotiation adverse to a client (even one that she represents in an unrelated matter) must be mindful of RPC 1.7 (generally prohibiting concurrent conflicts of interest) and RPC 1.8(a) (prohibiting business transactions with clients except when defined conditions are met). Attorney Conduct as an Advocate in a Court Proceeding Chapter 3 of the Tennessee Rules of Professional Conduct addresses the obligations of a lawyer as an advocate in court proceedings. Among a lawyer’s duties are the requirement to “make reasonable efforts to expedite
litigation” 12 and the prohibition against making “a false statement of fact or law to a tribunal.” 13 The Zappin court found that in his divorce proceeding the pro se attorney violated Rules 3.1 and 3.3 by, among other things, engaging in frivolous litigation, knowingly making a false statement of law or fact to the tribunal, and knowingly using or offering false evidence.14 Zappin’s misconduct in the divorce proceeding included introducing altered text messages as evidence and presenting misleading testimony through an expert witness.15 Rule-makers likely envisioned the lawyer representing a client in the advocacy scenarios described in Chapter 3, but the rules do not explicitly state that they apply only in the representation of a client.16 Thus, a court could find that Rule 3.3’s prohibition against a lawyer “offer[ing] evidence the lawyer knows to be false” was violated when the pro se lawyer testified falsely in the proceeding. In the Zappin case, the court noted that one ground for discipline was that Zappin had testified falsely in the custody trial.17 Attorney Conduct in an Individual Capacity A number of professional conduct rule provisions address situations when an attorney can be disciplined for conduct regardless of whether it occurs in the context of representing a client. For example, a lawyer can be disciplined for “commit[ting] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer,” for “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation,” and for “engag[ing] in conduct that is prejudicial to the administration of justice.” 18 During an attorney’s pro se representation, a court may become aware of criminal or other dishonest conduct that the attorney engaged in outside of the courtroom. That finding may later be the basis for professional discipline against the attorney. For example, attorney Zappin’s discipline was based, in part, upon dishonest conduct that included setting up a fake website about an attorney involved in the case and filing a baseless disciplinary complaint against a court-appointed psychiatric expert.19 Final Thoughts At some point in their professional lives, many attorneys will represent themselves in a negotiation, lawsuit, or other legal matter. While most will exercise better judgment than Zappin, they still need to be aware of the professional conduct rules that can be implicated in these pro se representations. Matter of Zappin, __ N.Y.S.3d ___, 2018 WL 1188869, *5 (March 8, 2018). Id. at *1-4. 3 TRPC 4.1 Truthfulness in Statements to Others; TRPC 4.2 Communication With a Person Represented by Counsel; TRPC 4.3 Dealing with Unrepresented Person; TRPC 4.4 Respect for the Rights of Third Persons. 4 TRPC 4.2, comment 4. 5 Margaret Raymond, Professional Responsibility for the Pro Se Attorney, 1 St. Mary’s J. Legal Mal. & Ethics 2, 13 (2011). 6 One commentator has advocated providing an explicit prohibition in the rule against pro se attorney contact with a represented party concerning the subject of the representation. Carl A. Pierce, Variations on a Basic theme: Revisiting the ABA’s Revision of Model Rule 4.2 (Part II), 70 TENN. L. REV. 321, 327 (2003) (asserting that “represented persons are no less in need of the protections afforded by Rule 4.2 when the lawyer who would communicate with them is represented by another lawyer in the matter or is proceeding pro se.”). 7 Raymond, supra note 5, at 13. 8 TRPC 1.6 Confidentiality of Information. 9 TRPC 1.4 Communication. 10 TRPC 1.3 Diligence. (Continued on page 22) 1 2
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. May 2018
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LAWYER HOBBIES By: Katie Ogle McDonald, Levy & Taylor, PLLC
DUPLICATE CONTRACT BRIDGE I spoke with attorney Arnold Cohen of Dunn, Macdonald & It comes as no surprise that some local attorneys incorporate bidding, Reynolds who has been playing contract bridge since he was a child. He contracts, and deals into even their recreational activities. For those of recalls his mother being an impressive bridge player and learning the us unfamiliar with the game of contract bridge, one game can consist of game from her. Cohen notes that he grew up in a card culture, with all of numerous deals. his childhood friends playing cards, so he played frequently throughout Contract bridge was invented by the American Harold Vanderbilt, high school, college, and law school. As with many hobbies, contract who had some invaluable idle time on a steamship cruise. Vanderbilt’s bridge took a backseat in Cohen’s life when work and raising a family brainchild incorporated a number of new features, most notably a took center stage. He returned to the game in recent years and is active sophisticated scoring table and varying modes of vulnerability. “Contract” in the Knoxville Association of Bridge Clubs (“KABC”). Attorney was so named because it required a partnership to commit to a contract of Cohen also noted that he often plays Duplicate Contract Bridge with a certain number of tricks. Failure to fulfill a contract resulted in a scoring Municipal Court Judge John Rosson, and other area attorneys including penalty; success, in an award.1 In fact, bridge was once so popular that Sports Illustrated included Tom Dickenson, Jim Ridley, Martha Mitchell, Barbara Johnson, Jerry regular bridge columns and articles, and Time magazine featured expert Shattuck, and Lou Woolf. In fact, local retired attorney Bill Waters is a Charles Goren, nicknamed “Mr. Bridge,” on an issue cover. past president of Unit 165, which extends from Crossville to Abingdon, Contract Bridge, Virginia and is comprised which is also referred of nearly 1,000 members. to as simply “bridge,” is Within the KABC, played with four people there are many clubs, sitting at a card table including the Smoky using a standard deck of Mountain club, Sequoyah 52 cards (no jokers). The club, and the Big players across from each Orange Country club. other form partnerships Additionally, for those as North‑South and interested in learning the East‑West. Each deal basics of the game, there consists of three parts – is a Beginner Bridge the auction, where the four class offered on Tuesday players bid in a clockwise evenings. rotation describing their The American hands; the play, where the Contract Bridge League side that wins the bidding also promulgates a Code auction tries to take the of Active Ethics. In fact, The American Contract Bridge League presented Dolly Parton with a $25,000 donation toward the My People Fund for wildfire victims in Gatlinburg. Pictured are Bill Waters, tricks necessary to fulfill the ethical rules of the President of the Tennessee Valley Unit 165; Kelly Trejo, ACBL executive coordinator; their contract; and scoring. game are so comprehensive Dolly Parton; Natasha Brown, ACBL controller; and Pete Misslin, Gatlinburg fund co-chair. that Cohen laughingly The game consists Photo courtesy of American Contract Bridge League. of several deals each compares the restrictions to progressing through four the T.C.A. Similar to the phases. The cards are dealt to the players, and then the players auction discovery process to which attorneys are so accustomed, a major tenet of or bid to take the contract, specifying how many tricks the partnership active ethics within Bridge is the principle of full disclosure. This means receiving the contract (the declaring side) needs to take to receive points that all information available to your partnership must be made available for the deal. During the auction, partners communicate information about to your opponents within each round. their hand, including its overall strength and the length of its suits. The Cohen explained that the local clubs are very welcoming to new and cards are then played with the declaring side trying to fulfill the contract, beginning members. If any local attorneys are interested in learning the and the defenders trying to stop the declaring side achieving its goal. game or joining a local club, information can be obtained at The deal is scored based on the number of tricks taken, the contract, and www.knoxbridge.org. various other factors which depend to some extent on the variation of the 1 Jeff Tang, The History of Bridge, BridgeBum (2016), www.bridgebum.com/bridge_ game being played.2 history.php. 2 American Contract Bridge League, (2018), www.acbl.com.
A FOOL FOR A CLIENT? PROFESSIONAL CONDUCT CONSIDERATIONS OF THE PRO SE LAWYER (Continued from page 21) 11 TRPC 1.7 Conflict of Interest: Current Clients; TRPC 1.8 Conflict of Interest: Current Clients; Specific Rules; TRPC 1.9 Duties to Former Clients; TRPC 1.10 Imputation of Conflicts of Interest: General Rule. 12 TRPC 3.2 Expediting Litigation. 13 TRPC 3.3 Candor Toward the Tribunal. 14 Zappin, 2018 WL 118869, at *1 15 Id.
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16 But see Martin Cole, Ethics Rules and Pro Se Lawyers, 71-SEP BENCH & B. MINN. 15 (2014) (noting that the Minnesota Supreme Court has determined that Rule 3.3(a)(1)’s prohibition against “a lawyer” knowingly making a false statement of fact or law to a tribunal does not apply to an attorney appearing pro se). 17 Zappin, 2018 WL 118869, at *1. 18 TRCP 8.4(b), (c), (d). 19 Zappin, 2018 WL 118869, at *1.
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May 2018
barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meeting begins promptly at 5:15 p.m. The next meeting will be held on May 9, 2018. There are many opportunities to get involved, so please contact Barristers President Mitchell Panter (tmp@painebickers.com) or Vice President Mikel Towe (mtowe@lewisthomason.com) for more information. ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on May 9, 2018, at the Knox County Public Defenders’ Community Law Office from 12:00 p.m. to 2:00 p.m. If you are interested in signing up for the Veterans Clinic, you can do so on www.knoxbar.org (click on CLE & Events, All Events, Upcoming Legal Clinics). The KBA’s Bankruptcy Section is partnering with Legal Aid of East Tennessee, with the support and involvement of U.S. Bankruptcy Judge Suzanne H. Bauknight, to create a Pro Bono Debt Relief Clinic to provide pro bono legal services to income eligible consumer debtors. LAET staff will screen potential clients and give instructions to complete a questionnaire and bring it along with tax returns and pay stubs to the clinic. The next clinic will be held on May 5, 2018, from 9:30 a.m. to 12:00 p.m. and will be held at the Knox County Public Defender’s Community Law Office. LAET staff will screen potential clients and give instructions to complete a questionnaire and bring it along with tax returns and pay stubs to the clinic. Judge Bauknight will present a short overview of the bankruptcy system after which volunteer attorneys will be paired with clients to discuss whether bankruptcy is an option or desirable to provide debt relief. If a client qualifies for and desires to file a bankruptcy petition, during the clinic, the volunteer attorney and client will schedule a follow up appointment to move forward with a case. If you are interested in signing up for the Legal Advice Clinic, please register on do so on www.knoxbar.org (click on CLE & Events, All Events, Upcoming Legal Clinics). ATHLETICS The Athletics Committee is currently seeking sponsors for this year’s charity golf tournament, which will take place at Holston Hills Country Club on October 22, 2018. If you or someone you know is interested in sponsoring, please contact the Athletics Committee co-chairs, Bryce Fitzgerald (bfitzgerald@kramer-rayson.com) or Jeremey Goolsby (jgoolsby@londonamburn.com). CLE The CLE Committee and the Barristers present its first Summer Fun Series, “Everything You Ever Wanted to Know about Sports Law” on May 1, 2018 from 5:15 - 6:15 p.m. at Lindsey Nelson Stadium, The Porch. This CLE is presented by Terry Adams. Tennessee vs. Morehead State baseball game will follow the CLE and the first pitch is at 6:30 p.m. Registration fee includes admission to baseball game, CLE credit, a boxed meal and beverages (beer, water & soda). When registering please choose your option for the box meal (Burger, Chicken, Italian Sausage or Smokey Hot Dog). Due to space limitations this event is limited to 40 people. Register at www.knoxbar.org by clicking May 1st in the Event Calendar. MEMBERSHIP Please join us for the Barristers and KBA Happy/Social Hour on May 17, 2018 from 5:00-7:00 p.m. at Balter Beer Works, located at 100 S. Broadway. Balter Beer Works is a great local brewery with great beer and food. Come out, have a drink and socialize with your friends and colleagues! Register at www.knoxbar.org by clicking May 17 in the Event Calendar. The Barristers will have a team walking in the East Tennessee Chapter of the Juvenile Diabetes Research Foundation’s One Walk Event on May 5, 2018, at World’s Fair Park (525 Henley Street, Knoxville, TN 37902). Check-in is at 8:30 a.m., and the walk starts at 10:00 a.m. If you are interested in joining our team, contact Mitchell Panter at tmp@painebickers.com. VOLUNTEER BREAKFAST The Volunteer Breakfast Committee would like to thank the firm of Arnett, Draper & Hagood, LLP for sponsoring the March breakfast and for kindly sending Cindy Winters, Dana Vigodsky, and Stacie Miller to help serve the breakfast. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast, please contact Paul E. Wehmeier (pwehmeier@adhknox.com), Matthew Knable (knablelaw@gmail.com), or sign up at: www.knoxbar.org/KBA-News/help-volunteer-ministries.
May 2018
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Photo Ops
FAITH & JUSTICE ALLIANCE LEGAL ADVICE CLINIC AT SECOND UMC On Saturday, April 7th, dozens of Knoxville attorneys and law students participated in the Tennessee Faith & Justice Alliance Legal Advice Clinic at Second United Methodist Church on Western Avenue. The clinic would not have been possible without Reverend Leah Burns and her congregation opening their doors to the community. The Tennessee Faith & Justice Alliance is a project of the Tennessee Access to Justice Commission. In the Knoxville area, the program is coordinated by the KBA’s Access to Justice Committee, Legal Aid of East Tennessee, the UT College of Law, and the generous lawyers, law students, and others volunteering their time and talent. Overall, 32 clients received advice, many of whom had family members with them who will also benefit from the information and assistance provided. The volunteers included Kathryn Ellis, Bill Coley, Ian Hennessey, Tim Jones, Dave Yoder, KBA President Keith Burroughs, Buck Lewis, Wade Boswell, Amy Lighter, Meagan Collver, Jason Collver, Jennifer Pearson Taylor, Daniel Ellis, and Coni Herinkova. In addition, there were a number of students from the UT College of Law who assisted with client intake. Knox County Criminal Court Clerk Mike Hammond and Executive Director of the Historical Society of the U.S. District Court for the Eastern District of Tennessee, Don Ferguson, each lent a hand with intakes as well. Jacqueline Padilla, Information and Referral Coordinator for Centro Hispano of East Tennessee also lent a hand by serving as a translator for Spanish-speaking clients. The next Tennessee Faith & Justice Alliance clinic will be on June 2, 2018 at CrossWalk Community Church, located at 2131 E. Gov John Sevier Highway, 37920. Volunteer at www.knoxbar.org under Upcoming Legal Clinics.
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DICTA
May 2018
WELL READ By:
David Headrick
KCI Technologies, Inc.
BOOK REVIEW: CANOEING THE CONGO BY PHIL HARWOOD
“I only had to get my machete out twice to prevent myself from being robbed.” – Phil Harwood
Phil Harwood is a former British Marine Commando and adventure seeker, who is clearly insane. In 2008, he proved this by solo canoeing the almost 3,000-mile Congo River from its source in Zambia, Africa, around the Democratic Republic of Congo, and all the way to the ocean. This book documents his journey. Before I even started the book, I had some assumptions that all turned out to be true. I would bear witness to an exciting and dangerous journey. I would get a firsthand account of what it’s like to travel through beyond-remote riverine, swamp, and jungle environments. I would learn a lot about the history, geography, and culture of areas that Harwood traveled. You will want an iPad with you, while reading this book. Harwood does a great job of keeping you abreast of his location, which you can follow on maps and Google Earth. Also, he routinely refers to plants and animals of which I had little or no knowledge, which was another very interesting aspect of the book. Not to mention, he describes tools, customs, and ways of life developed by people with few resources, no electricity, etc. Much of the book deals with human interactions, which ranged from wonderful chance encounters to frustrating or dangerous situations. Upon arrival, he is immediately faced with government officials that would not provide him a visa long enough to complete his trip. He was greeted at many of the villages by officials that demanded money for his passage. He was imprisoned, threatened, chased, stalked, and relentlessly harassed for money at every turn. Amazingly, he decided from the beginning that he was not going to pay anybody, which led to quite a few interesting predicaments. That being said, Harwood clearly states and believes that the vast majority of the people he met were good souls, especially the fishermen that served as his guides and bodyguards. He got a lot of help and gave a lot of appreciation and gifts along the way. Another interesting cultural element involved the history of the Democratic Republic of Congo. Through a series of unfortunate events, the areas Harwood traveled have made virtually no progress into the modern era. English colonization seemed to be focused on exploiting resources and people. Plus, there was virtually no infrastructure, thanks to power-hungry dictators supported by said colonial power, a recent civil war, corruption, and general instability. Even in 2008, there were remnants of fighting between the government and rebels who did not fall in line. How Harwood survived these harsh and dangerous environments is beyond me, even after reading the book. He is almost nonchalant when describing vast swamps, extreme waterfalls, and life-threatening rapids. In some places, the river just disappeared into a wall of mangroves that he would have to hack through randomly just to keep going, sometimes turning around after hours when he heard loud waterfalls ahead. In large swamps, he might not have seen land for days, forcing him to wedge his canoe into thick clusters of reeds and tall grass just to sleep at night. There were no maps for many of the areas he traveled, forcing him to rely on locals for guidance. Sometimes, he had no more than a Google Earth image of a large area, which did not reveal clear routes or even great and deadly waterfalls. I thought it quite interesting that a significant portion of his research came from the journals of Victorianera English explorers like David Livingstone. There simply was not further exploration or published knowledge about them. May 2018
Surprisingly, there were not as many references as you would expect to crocodiles, hippos, snakes, and other creatures that live in your nightmares. Yes, Harwood did take precautions, and those creatures were present. He says that most of them were more afraid of him that he was of them. However, I’m going to go back to my original insanity assertion and conclude that he just wasn’t very afraid of them. Since a picture is worth 1,000 words, I also purchased the companion DVD from his website. It is a short documentary, which has appeared and won a few awards at various adventure-themed film festivals. Unfortunately, since Harwood was alone and filmed it all himself, the DVD only includes footage from when he was not under extreme duress. I loved this book and highly recommend it. Few books have presented so much new information and so many novel issues to this Tennessee suburbanite. I even forgot to say that it’s laugh-out-loud funny in places. If you would like to go on Harwood’s adventure, buy the book and get your iPad out to follow along.
Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Jason E. Fisher Fisher Russell PLLC BPR #: 021467 9724 Kingston Pike, Suite 1012 Knoxville, TN 37922 Ph: (865) 259-7777 jfisher@fisher-russell.com
L. Clay White The Angel Law Firm, PLLC BPR #: 033620 213 E. Moody Ave. Knoxville, TN 37920-4203 Ph: (865) 297-4344 clay@mailalf.com
Anna F. Hinds Owings, Wilson & Coleman BPR #: 000424 800 Riverview Tower, 900 S. Gay St. Knoxville, TN 37902 Ph: (865) 522-2717 ahinds@owclaw.com
Daniel F. Wilkins Wilkins Law BPR #: 025753 7632 Gleason Drive Knoxville, TN 37919-6846 Ph: (865) 240-2944 daniel@estatelawknox.com
Jason E. Legg Kennerly, Montgomery & Finley, P.C. BPR #: 018765 550 Main Street, Suite 400 Knoxville, TN 37902-2567 Ph: (865) 546-7311 jlegg@kmfpc.com
Carlos A. Yunsan Law Clerk to Justice Sharon Lee Tennessee Supreme Court BPR #: 032450 505 Main St., Suite 200 Knoxville, TN 37901-0444 Ph: (865) 594-6707 Carlos.Yunsan@tncourts.gov
Adam G. Russell Fisher Russell PLLC BPR #: 027505 9724 Kingston Pike, Suite 1012 Knoxville, TN 37922 Ph: (865) 259-7777 arussell@fisher-russell.com
Kathleen F. Zitzman Covenant Health BPR #: 019383 100 Fort Sanders West Blvd. Knoxville, TN 37922-3353 Ph: (865) 531-5414 kzitzman@covhlth.com
Brian J. Wanamaker United States Senate BPR #: 028983 Office of Senator Cory Gardner Russell Senate Office Building 354 Washington DC 20510-0001 Ph: (202) 224-5941
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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
THE MERE DISTINCTION OF COLOUR In 2003, I took a tour of Monticello. With me was an exchange student from Zimbabwe, a kind, inquisitive girl named Thembie who was staying with my family for the year. As Thembie and I marveled at Jefferson’s elegant architecture, his thousands of books, and his wondrous inventions, another tourist asked a pointed question. She wanted to know about the people who had built the house, who had worked for the money that had bought the books, who had provided Jefferson with the leisure to think and invent. She wanted to know about Jefferson’s slaves. The tour guide gave a well-rehearsed answer. He acknowledged the contradiction between soaring rhetoric about all men being created equal and the fact that the primary author of our Declaration of Independence treated many men, and women, as property. Then the guide moved on: “Now, over here we can see Mr. Jefferson’s tea service . . .” But another guest wanted to talk more about slavery, from a different perspective. In a loud voice, she insisted, “But Mr. Jefferson was a good master!” There was a murmur of approval from the crowd. Thembie looked at me and raised her eyebrows. I could see the hurt and confusion in her eyes. Thembie is, of course, African. People who looked like her were once treated as property at Monticello. A woman not much older than Thembie, Sally Hemings, had been Jefferson’s concubine, perhaps willingly, perhaps not. When Sally gave birth to several children, Jefferson enslaved them. “He enslaved his own children?” Thembie’s large brown eyes grew even larger. “Yes, he did.” Slavery is a terrible subject. But it’s one that we, as Americans, must face. It’s not our fault – the peculiar institution ended in 1865, long before any of us was born – but it is our responsibility to acknowledge it, to understand its central position in our constitutional history. Decades ago, at Monticello, that process was just beginning. Today, it is much further advanced. One place it is particularly advanced is at another president’s home, Montpelier, the home of James Madison. I am often at Montpelier, at its Center for the Constitution, which underwrites my public radio show. Recently, I recorded interviews with Kat Imhoff, Montpelier’s President, and with Elizabeth Chew, its Vice President for Museum Programs. We discussed how Montpelier is trying to tell the stories of the hundreds of human beings who were “held to service or labour” 1 there. The process has taken years, and has included close consultation with the descendants of the Madisons’ slaves, many of whom live nearby. The descendants asked for two things: that Montpelier emphasize the humanity of the enslaved community, and that it not leave slavery entirely in the past, that it acknowledge slavery’s toxic legacy. Montpelier has done just that. Armed with a ten-million-dollar gift from patriotic philanthropist David Rubenstein, and guided by the meticulous research of Montpelier’s professional staff, Kat and Elizabeth have overseen the reconstruction of the quarters of the Madisons’ house slaves, only a stone’s throw from the mansion. For over a century, these quarters had been almost erased, buried beneath the soil. In just past few years, however, aided by old insurance maps and other evidence, Montpelier’s archaeologists located their foundations and erected historically-accurate facsimiles. Visitors can now see the enslaved community as people – people with homes, with children, with aspirations, even within the circumscribed bounds of their daily existence. The Madisons’ slaves are no longer invisible. But Montpelier’s efforts did not end with the slave quarters. In the basement of the mansion, there is now an award-winning, interactive exhibit called “The Mere Distinction of Colour.” The phrase comes from Madison himself, who, like Jefferson, recognized the hideous
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contradiction of slavery, even as he benefitted from it: “We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.” 2 Perhaps the most significant part of the exhibit, for me, is a table display, upon which the entire original Constitution is set out. Several buttons line the edges. A visitor’s immediate inclination is to press them, to see what happens. That’s what I did, anyway. And each time I did so, a clause was illuminated. A clause protecting slavery. There is perhaps no more striking way to see how slavery was woven into our original Constitution. It’s part of our national DNA. Not just the Fugitive Slave Clause.3 Not just the Three-Fifths Clause.4 But several clauses, including a series of provisions which, without ever
mentioning slavery, mandated that one part of the original Constitution that could not be amended was a section protecting the slave trade – arguably the worst part of an evil institution – for twenty years.5 The exhibit brings this history forward to the present day. It includes a video about the modern struggle for civil rights and the challenges we face today, from voting rights to the unjustified killing of unarmed people. The process continues. I hope that one day Thembie will join me at James Madison’s home, and will see for herself that, while we have yet to fully realize Jefferson’s soaring rhetoric, at least we are no longer averting our eyes from our original constitutional sin. U.S. Const. art. VI, § 2 Debate in the Constitutional Convention, June 6, 1787, available at http://avalon.law. yale.edu/18th_century/debates_606.asp. 3 U.S. Const. art. VI, § 2. 4 U.S. Const. art. I, § 2. 5 U.S. Const. art. V: “. . . no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article.” When you follow this constitutional rabbit trail, you’ll eventually discover that, in addition to placing a limit on direct taxes, Article I provides that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” U.S. Const. art. I, § 9. 1 2
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.
DICTA
May 2018
LONG WINDED By:
Jason H. Long London Amburn
WHY WE DO WHAT WE DO A little tangent here. I’m going to go out on a limb and say that there are not many people who have ever attempted to write a humor column about the Donner Party. I realize many would dispute whether my writings could accurately e described as humorous, and that’s a fair critique. Nonetheless, I think some recognition has to be given to a guy who would attempt to write a 1000-word article comparing the nightmares of modern day air travel with the horrors of an infamous American tragedy. Your immediate, gut reaction upon reading that article should either have been one of revulsion at the frivolous manner with which I treated a solemn subject, or admiration at my avant-garde approach to writing. With that understanding in mind, I fully expected to hear back from readers with either condemnation or adulation (likely, and more appropriately, the former). I received neither. Total radio silence. Considering that I have received numerous comments over the years related to much less controversial columns (the article on injuring my feet still holds the record for most comments), I have to admit I was somewhat disappointed to not receive any emails criticizing my choices. It leads me to the conclusion that, either most people agree that air travel today is a brutal and horrifying experience or, people really don’t care, or don’t know, very much about the Donner Party. For my part, I have an unhealthy obsession about that chapter of American history. Odd fact about me – my fascination with the trials and tribulations of the Donner Party is only surpassed by my fixation on the Lizzie Borden murders . . . and monkeys, I always love discussing monkeys. Anyway, as last month’s article appears to prove, nothing in DICTA is off limits and freedom of speech is alive and well in the Knoxville Bar. Having gotten that off my chest, I wanted to start this column off with a little story. My first job growing up was working in the backroom of the pro shop at Holston Hills Country Club. I spent my days cleaning members’ clubs, getting range balls for them, cleaning out golf carts, and generally catering to whatever the members wanted. In hindsight, it was a perfect job. There was low stress (on my worst day, a member had to wait an extra 15 minutes or so to tee off ), I worked outdoors, in my off-hours I got to play the premiere golf course in the city for free, and, to top it all off, the pro hated for his employees to stink at golf so whenever he saw me struggling with my game, he gave me free lessons. On more than one occasion in the past twenty years I have wondered what would happen if I quit practicing law and reapplied for my old job cleaning golf clubs. I could probably stop taking my blood pressure medication, but my family would likely starve on my minimum wage salary. Of course, I no longer work at the golf course. Somewhere along the way, I decided that I should make my career as a lawyer and I eschewed the trappings of free golf. The big question is why? At what point and for what reason did I decide that a career in law was the right one for me? I have come to realize, as I am sure many of you have over the years, that there are easier ways to make a living than practicing law. A number of easier career choices come to mind: medicine, accounting, business, entertainment, education, clergy, street cleaning, Alaskan crab fisherman, road construction, experimental medical trials subject, deep sea welder, third world dictator, county school superintendent, California firefighter, or special counsel to President Trump. All of these jobs, at times, have seemed easier than that of practicing attorney. So why in the world did I decide to become a lawyer? May 2018
One answer, a cynical one, could be money. Sure, I make more now than I did as a golf club employee. However, given the hours we lawyers work and the level of skill and stress associated with the job, the practice of law is relatively poorly compensated when compared to other professions. We may have been lured into the practice with the hopes of getting rich, but that fallacy was exposed upon actually entering the practice. The more noble and high minded may argue that people choose to become lawyers because it is a higher calling of service to others and an opportunity to do good. We all want to be a modern-day Atticus Finch, righting the wrongs of society and holding ourselves to a moral compass above reproach (I sometimes wonder what the legal community would look like today if Harper Lee had published Go Set a Watchman before To Kill a Mockingbird – I’m betting we would have less lawyers practicing today). Of course, none of us look as cool as Gregory Peck practicing law and the opportunities to truly help the oppressed are growing fewer and farther between. Others chose a legal career because it is intellectually stimulating. My nephew recently joined the Marines because he considered it the most physically demanding branch of our armed forces and he wanted to prove his mettle. I suspect there are some attorneys out there who felt lured to the practice of law for the same reason. There could be no greater intellectual challenge. After answering the same interrogatory questions for the umpteenth time, the luster of an intellectual challenge is sometimes lost on me. Prestige, notoriety, independence, a sense of obligation – all of these are reasons one may choose to practice law, but very rarely do any of these factors, in and of themselves, justify the hours and stress involved in the practice – at least for me. At the end of the day, I think the reason I continue to practice is primarily because it is fun. Sure, the practice of law has some mundane moments – quite a few actually. However, investigating cases, arguing on my feet, and interacting with my clients, fellow lawyers, and judges is fun. It is not so much what I plan to get from the practice of law (money, self-worth, prestige) that makes it worth it, but the practice itself that I enjoy. That is a comforting notion and I realize it may be a controversial one. Many of you may have better justifications for being a lawyer or may think I’m crazy for claiming this line of work is fun. If so, I hope you’ll let me know. I truly am interested in finding out why people make this choice in their lives. And when you drop me a note to tell me I’m crazy, don’t hesitate to let me know what you think of the Donner Party.
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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
Phil Hampton
Founder and CEO, LogicForce Consulting
ZOOM VIDEO CONFERENCING We really don’t understand the craze for video conferencing, as we have never had a huge demand for people to see us while talking to us. Have you ever seen us? That may give you a clue. But Bill has hired a make-over artist, and now we are all on-board for face-to-face meetings…electronically. There is no doubt that technology has caused us to withdraw from face-to-face human interaction. Have you noticed what people do while standing in a crowded elevator or waiting for luggage at the airport? You barely can see people’s faces because they are buried in their smartphones. God forbid you actually say something to the person standing next to you. We cry foul over this societal development, and we aim to do something about it. So, if technology has caused the problem, why can’t technology help us solve it? That is why we have been using Zoom (www. zoom.us), a web video conferencing solution that is easy to use and easy on your budget. It is incredibly easy to get started using Zoom with a simple sign-up procedure. You can get a free personal account and a quick download of the client app on your computer, smartphone, or tablet. Zoom is a full-featured web meeting application that allows you to set up instant meetings or schedule meetings for the future. Obviously, our favorite feature is the ability to turn on our webcam and conduct a video conference with one or multiple parties. Within our office, the video conference is a way to bring the personal element back to our meetings, regardless of whether we are interacting within the office or with a colleague who is working remotely. Moreover, when conferencing with clients or potential clients, we think that being able to video conference with them adds value to our interaction and gives us the ability to conduct more business remotely without sacrificing a personal connection with our clients. And, it really works great with expert witnesses and saves money not only in travel costs, but in travel time and out-of-pocket expense. In days past, if you wanted to do a quality video conferencing from your computer, you had to invest in incredibly expensive equipment and software. Those days are over. We simply use the Zoom software with a nice HD webcam that we purchased at Best Buy for less than $100, and the quality of the video conference with this basic setup is outstanding. However, Zoom can be used in a larger setting like a conference room
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where you want to show a room full of people on camera with a little more sophisticated equipment. Zoom works well with these advanced conference room systems as well. The free version of the software limits the duration of your meetings to 40 minutes, but there are various subscription options for corporate use that removes this limitation. (Besides, 40 minutes is more than enough time for an efficient meeting; and you can always take a break and start another one.) So, the scalability of this solution means that we can use it for personal use all the way up to large corporate meetings using enhanced equipment. Beyond just showing our smiling face, the Zoom application is loaded with web conferencing features that are great for business. You can share your screen with the call participants and allow for on-screen annotations by participants on the call. You can directly access cloudbased files from popular file sharing sites such as Dropbox and Google Docs. One feature we really like is the ability to record the video call. So, if we are conducting a training session via Zoom and want to save the session for future use for either new employees or new clients, we can do that very easily. The recording is saved as an mp4 video file and can be uploaded to a cloud repository or even uploaded to YouTube. The recording feature is only available in the paid subscription packages. Even if you are not using the video capabilities of Zoom, the application is still very useful just for audio calls, particularly when there are many call participants. You get a visual representation of who is currently speaking in the app. In addition, with the text chat feature you can send a private IM to someone on the call or send a message to the entire group. In summary, we have used several web conferencing tools over the years, and right now Zoom is our favorite for both its ease of use and its scalability from small one-on-one meetings to large multi-party collaborations. So, if you want to have a meeting with Bill or Phil, get ready to accept our Zoom link (you don’t have to be a Zoom subscriber to respond to a meeting request) and get ready to see our noggins on the screen. (You can always cover your eyes.) We are all about making meetings personal again. We’ve got the technology to do it, and Bill has his make-over artist on retainer. Here’s smiling at you!
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May 2018
BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org NATIONAL LAW FIRM PROMOTES KNOXVILLE PARTNER TO CEO, NAMES NEW KNOXVILLE MANAGING PARTNER National intellectual property law firm Merchant & Gould has named Christopher J. Leonard, managing partner of the Knoxville, Tennessee, office, as CEO staring July 1, 2018. He will succeed Brian H. Batzli as the firm’s CEO, managing director and chairman of the board. John Winemiller has been named managing partner of the Knoxville office as Leonard moves into his new role as CEO. Leonard is a member of the ABA, AIPLA, TBA, the State Bar of Georgia and the Knoxville Bar Association. Winemiller is a member of the TBA, AIPLA, TIPLA, as well as a member and Fellow of the American Bar Foundation and Knoxville Bar Foundation. DRINKS AND JUSTICE Tennessee Justice Center invites you to enjoy drinks and insight into its work at a free happy hour (May 3rd, 4-6pm, at Kramer Rayson LLP, 800 South Gay Street, Suite 2500, Knoxville). TJC is a public interest law firm that helps families access necessities like health care, trains community agencies, and improves policies affecting vulnerable families. TJC has served over 2,000 East Tennesseans and trained many more. Come get to know us! FAITH & JUSTICE ALLIANCE LEGAL ADVICE CLINIC SEEKS VOLUNTEERS The Tennessee Faith & Justice Alliance is a project of the Tennessee Access to Justice Commission. The next clinic will be on June 2, 2018 at CrossWalk Community Church, located at 2131 E. Gov John Sevier Highway, 37920. In the Knoxville area, the program is coordinated by the KBA’s Access to Justice Committee, Legal Aid of East Tennessee, the University of Tennessee College of Law, and the generous lawyers, law students, and others volunteering their time and talent. Volunteer at www.knoxbar. org under Upcoming Legal Clinics. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource. May 2018
CAN YOU DONATE AN HOUR TO HELP A NONPROFIT? The KBA and its participating attorneys recognize that many small to mid-sized nonprofit organization have legal questions, but not the resources to retain legal counsel. Participating attorney agrees to provide up to one hour of pro bono legal assistance to 501(c)(3) tax-exempt organizations with a budget of $1,000,000 or less. Through this partnership, nonprofit staff and boards are assured timely and accurate answers while providing attorneys with a satisfying but not overwhelming way to perform pro bono service. If you are willing to help, contact the KBA Office at 522-6522. PARALEGAL ASSOCIATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, May 10, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Todd Fulks, Esq., of Clayton Homes, will be presenting e-Discovery. A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@smparalegal. org or 865-215-3676 for additional information and/or lunch reservations. NETWORKING OPPORTUNITIES PROFESSIONALS The mission of the KBA’s Interprofessional Relations Committee is to encourage mutually beneficial interaction among lawyers and other professionals in the community, such as physicians, accountants, financial planners, and the like. In addition, where existing relationships may be somewhat strained, the committee aims to find ways to promote a spirit of cooperation and better understanding. The committee welcomes member participation and ideas for networking and/or events or programs to be held in conjunction with other professionals in 2018. Last year the committee joined the Knoxville Chapter of the TSCPAs and the Knoxville Area Psychological Association in a professional mixer involving over 75 members of the three organizations. Committee Chairs Sherri DeCosta Alley and Paul Wehmeier would like to know if you have any ideas for networking with other professionals. If you would be interested in serving on the committee or have contacts with other organizations, please contact KBA Executive Director Marsha Watson at mwatson@knoxbar.org SCHOLARSHIP AVAILABLE TO HIGH SCHOOL SENIORS The law firm of Bond & Botes, PC is offering a $2,000 Financial Hardship Scholarship to high school seniors in Alabama, Mississippi, and Tennessee. Applicants must be entering college in the Fall of 2018. Applicants should have a cumulative GPA of 3.0 or above. Applicants are asked to submit a short essay describing how they have overcome financial hardships and what they have done to help others overcome hardships. The application deadline is July 1, 2018 and a copy of an acceptance letter from an accredited U.S. undergraduate school must accompany the application. The scholarship will be made directly to the student’s school to be
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applied towards tuition. Read the press release under the News section at www.knoxbar.org. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: • Furnished office within established solo practice. Shared use of lobby, kitchenette, two conference rooms. Easy access for clients, located in Bearden area. Month-tomonth lease. Call (865) 474-1284. $600 per month, first and last required. We can provide phone, internet and multipurpose copier/scanner for additional fee. • Fully furnished office in 640 North Building available for sublease immediately. Current lease extends to June 2019. Abundant, free parking. Tastefully appointed waiting area with storage space. Window office with desk and file cabinets. Excellent price. Contact dawnbowie@mac. com for further details. • 3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806. • Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO PROJECT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee
Imagine what we could do with even more Pro Bono Project volunteers!!
What Can LAET Do? Part Two: Types of Cases Legal Aid Places with Pro Bono Project Volunteer Attorneys If you are someone who thinks “I can’t help Legal Aid – the type of law I handle isn’t needed by their clients,” think again! Not only do we likely handle more types of cases than you realize, we also have several types of cases that truly can be handled by just about any attorney (name changes are one example). The more volunteers we have on-deck, the more cases we can accept and place through the Pro Bono Project. What Legal Aid of East Tennessee can handle depends on several factors: • The person’s income-eligibility and asset-eligibility (discussed in an earlier article); • What grants LAET currently has; • How many cases LAET’s Staff Attorneys are already handling; • What Pro Bono Pillar Law Firms LAET currently has helping; and • How many Pro Bono volunteer attorneys LAET currently has helping. When cases come in through our various intake paths, they are either staffed with a Staff Attorney to be handled in-house, or they are brought to me to see if it a case that could be placed with a Pro Bono Project volunteer attorney. In terms of cases that are placed with Pro Bono Project volunteer attorneys, not all of them require full representation in court. Oftentimes, the clients need assistance with demand letters, with drafting documents, with completing forms, or they simply need someone to advise them on the process of dealing with their issue. This means that a Pro Bono Project case could only require an hour or two of your time and still be a significant help to someone who cannot afford to hire an attorney to assist them. At the time I am writing this column, there are Pro Bono Project cases assigned to more than eighty (80) volunteer attorneys in the following categories used by LAET: • Support – Child Support • Bankruptcy/Debtor Relief – Chapter 7 Bankruptcy • Medicaid • Bankruptcy/Debtor Relief – Other Collection • Federal Subsidized Housing • Collection (including Repo/Def/Garnish) – Other Collection • Homeownership/Real Property (not foreclosure) • Collection (including Repo/Def/Garnish) – Medical Collection • Private Landlord/Tenant • Collection Practices/Creditor Harassment – Credit Reporting Prob. • Mortgage Foreclosures (not predatory lending/practices) • Contracts/Warranties – Contracts • Social Security (not SSDI) • Other Consumer/Finance – Public Utilities • SSDI • Other Consumer/Finance – Garnishment • SSI • Other Consumer/Finance – Other • Veterans Benefits • Employment Discrimination – Age Discrimination • Other Income Maintenance • Employment Discrimination – Race Discrimination • Other Individual Rights • Employment Discrimination – Other Employment • Licenses (Auto and Other) • Wage Claim and other FLSA Issues – Wage Claims • Torts (Defense) • Employee Rights – Other Employment • Wills/Estates – Wills • Other Employment – Pensions/Benefits • Wills/Estates – Other Estate/Probate • Adoption – Adoption with Consent • Advance Directives/Powers of Attorney – Power of Attorney • Custody/Visitation – Custody • Advance Directives/Powers of Attorney – Living Will • Divorce/Sep/Annul. – Divorce/No Custody or Abuse • Advance Directives/Powers of Attorney – Health Power of Attorney • Divorce/Sep/Annul. – Divorce with Custody • Advance Directives/Powers of Attorney – Elder Abuse/Exploitation • Divorce/Sep/Annul. – Divorce with Custody & Abuse • Other Miscellaneous – Expungement • Adult Guardianship/Conservatorship • Other Miscellaneous – Non-Profit Formation • Name Change Even this list is not comprehensive – at any time a case can come in that fits into another category or that doesn’t clearly fit into any category and, if the person qualifies for LAET’s services and needs help, could be sent out to Pro Bono volunteer attorneys for possible placement. Furthermore, if you do not feel comfortable accepting a case for direct assistance, there are several volunteer opportunities at advice clinics where all attorneys are welcome and appreciated! These opportunities include our Knoxville and Blount County Saturday Bars, Debt Relief Clinics, Veterans Legal Advice Clinics, Faith & Justice Alliance Clinics, and Pro Se Divorce Clinics. Even more opportunities are in the works – if there is a type of clinic or program you would like to see developed, please reach out with your suggestion!
Want to Volunteer? Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFS
Mark Your Calendars: * * * * * * *
May 5 (9:00-12:00) – Debt Relief Clinic at the Public Defender’s CLO May 5 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knox County office May 9 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO May 19 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office June 2 (9:00-12:00) – Faith & Justice Alliance Clinic/Knox County Saturday Bar at CrossWalk Community Church (2131 E. Governor John Sevier Highway, 37920) June 13 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO June 16 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office
The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162
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May 2018
Q: A:
THE LAST WORD By:
Jack H. (Nick) McCall
Bill, I understand that you are quite a fan of raccoons and might even be called a “raccoon whisperer,” given your talents in rescuing them and having had some as pets, years ago. How did this come to be?
WILLIAM A. SIMMS Arnett, Draper & Hagood, LLP
I grew up in the 50’s and early 60’s in Fayetteville in Lincoln County, Tennessee. Our home was near a woods that was bound on one side by the Elk River and on the other by a creek. As a boy, I spent a lot of time in the woods. I developed a love of nature and animals. My brother and I caught turtles, frogs, snakes, rabbits, ground hogs, and even an owl once. I really had a passion for raccoons: they are smart, curious, and active little creatures. When I was about 9 or 10, I asked my parents if I could have a pet raccoon. My dad, a Fayetteville lawyer, had represented a fellow in town who trapped animals, called “Uncle Henry.” He asked Henry if he could catch a raccoon for me to have as a pet; Henry said he could. When Dad asked him, “How will you do that?” Henry replied that he would go down on the creek, where the raccoons hunt for minnows and frogs, and set a trap with something sweet like fried chicken, but also something shiny like aluminum foil. Henry explained: “The coon will smell the fried chicken and come to it; while he’s eating it and handling it, he will look over to the side, see the aluminum foil, and say to himself: ‘Hmm, what’s that?’ Then he’ll reach over with his paw to grab it, and that’s when I catch ’im.” Employing those tactics, Uncle Henry caught a full grown male raccoon, built a cage for him, and brought him to our house. He was not happy and growled and snapped his teeth. We named him “Uncle Henry,” and we began to take care of him. He eventually calmed down and would eat out of our hand, but he would never let us pet him or pick him up. After about six months it was obvious that Uncle Henry was not going to be a ”pet,” so we turned him loose and started looking for another one. My dad eventually found a Lincoln County man who raised raccoons. We got a little female cub about a month old, and we began to raise her on a bottle. We named her Kitty; she grew up to be very sweet and lovable. She would let you hold her and she would sit in your lap and let you rub her ears and scratch her chin. She stayed in the house with us, sometimes sleeping in the bed like a cat. Sometimes when I would go to bed at night, there would be a bump at the foot of my bed that looked like somebody had put a basketball under the covers. It would be Kitty; when I got in bed and put my feet down against the furry little ball, we both would rest easy and warm. Kitty loved to play with my Collies, Ring and King. After about two years, Kitty got out and was gone for three or four days. When she came back, she was never the same, so we had to give her back to the gentleman from whom my dad had originally gotten her. From then until about 1990, I didn’t have any more pet raccoons. In 1990, I decided that my two daughters should have the experience of having a pet raccoon. At that time, the only place in Tennessee you could legally purchase a raccoon was from an elderly Spring City couple. My oldest daughter, Laura, who was about 11 year old at the time went with me to Spring City. We acquired a female cub about one month old. We brought her home and raised her on a bottle and named her Roxie. Roxie was a true pet. She would sit in your lap while you watched TV and let you pet her. She got along with our cat and our dog. When she was 6 months old, we started walking her on a leash in the neighborhood like a dog. One day, while walking Roxie down the street, we approached a T-intersection. A car pulled up and stopped; its driver first looked to his left, where we were, and then back to his right and then back to his left again and started to pull out. He got halfway into the intersection, stopped his car, threw the door open and said: “Is that a terrier?” I replied, “No, it’s a raccoon.” He said: “That’s what I thought, but I’ve never seen anybody walking a raccoon before.” Roxie was a house pet for about a year; then we built a huge kennel cage for her in the back yard that we named the “Roxie Hilton.” Roxie remained our pet until about 1998, at which time she had a stroke or some other illness that disabled her and we had to have her put to sleep. It was a very sad day. After that, we were coon-less until about 2004. One evening, as I came around a corner in the road, there was a baby raccoon in the middle of the road. I reached out and grabbed it and took it home. It was a male raccoon, about 2 or 3 months old. He was still small enough that you could handle him without him clawing you, but he wasn’t as cuddly as a month-old raccoon. We kept him in the house in a small cage and raised him on a bottle. We named him Zorro. When he was about 6 months old, he moved to the Roxie Hilton. He was friendly and would let me pet him and hug him but he would not let me pick him up. Zorro loved grapes; he and I had a protocol we’d follow when it was feeding time. I would put about a dozen grapes in my pocket. I would take his food to his cage and pour it into his food pan. I would then pull out about 8 or 10 grapes and start feeding them to him out of my hand. Zorro would sit up on his hind legs and take each grape as I gave it to him and gobble it down as fast as he could. After I had given him all the grapes I had in my hand, Zorro would look at me with the question of “Is that it?” on his face, and I would nod at him. At that point, he would stand up on a log beside me and run his hand into my pocket, and get the other 2-4 grapes. We went through this protocol many, many times. Zorro and I were buddies until his death some years ago. I cannot explain why I have had such an affinity for raccoons. I love them. They are very smart little creatures. They can figure out how to get into any kind of container, including your garbage can. They are very inquisitive and they are also strong. They are basically little bears.
“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. May 2018
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Prsrt Std US POSTAGE
PAID
KNOXVILLE, TN PERMIT NO. 3 0 9
P.O. Box 2027 Knoxville, TN 37901
Featuring:
Hon. Debra C. Poplin U.S. Magistrate Judge U.S. District Court
J. Douglas Overbey U.S. Attorney, Eastern District of Tennessee
Herbert Slattery III Tenn. Atty. General
Schedule:
Register:
Dwight E. Tarwater General Counsel Governor's Office
Hon. Kristi M. Davis Knox County Circuit Court Judge, Division I