DICTA.October 2016

Judicial News: An Interview with Hon. Travis R. McDonough . . . Page 7 Management Counsel: Law Practice 101: Addiction In The Workplace: Answers And Solutions. . . Page 13

A Monthly Publication of the Knoxville Bar Association | October 2016

THE PERILS OF POLITICS IN THE WORKPLACE

AROUND THE BAR By: Hon. Deborah C. Stevens Knox County Circuit Court, Division III

MOVING THE NEEDLE

The Chinese philosopher Lao Tzu wrote that the “journey of a thousand miles begins with one step.” These words appear in the August 2016 issue of the ABA Journal as part of the “President’s Message” by Paulette Brown. She is the outgoing President of the ABA and the first woman of color to serve in that role. In that same message, she states “perhaps the most challenging and far-reaching effort of my presidential years has been the Diversity and Inclusion 360 Commission.” The Commission was tasked with reviewing and analyzing the state of diversity and inclusion in the legal profession. The full report of the Commission can be found at www.ambar.org/360commission.

The Commission was charged with producing a tangible body of work that would “move the needle.” In its executive summary, the Commission observed that “moving the needle” implies a level of boldness that would result in “awareness, measurable impact, and discernible change.” They also agreed that “moving the needle” is hard, “not because it isn’t the right thing to do, it is simply an extraordinarily difficult thing to do.”

On a local level, this is the same challenge faced by the Diversity in the Profession Committee of the Knoxville Bar Association. We began the year with a critical review of the success and value of our Law Student Reception. We engaged the opinions of the new Dean of Diversity at the UT College of Law and law student representatives. Wayne Gilroy, Associate General Counsel of TVA, provided wonderful insight into the law student diversity recruitment efforts of TVA’s legal department.

He brought some of the TVA law student interns to a meeting to offer their opinions about the prospect of practicing in the Knoxville area. We reviewed efforts that have been made in other areas of the country to see if there were programs that we could incorporate. Trust me when I tell you that every member of this committee was actively engaged and committed

to making a difference. Our conclusion was that, with some tweaking, our Diversity CLE Program and Student Reception continues to serve an important purpose.

So, mark your calendars! Join us for our Diversity in Knoxville CLE Program and Reception on Tuesday, October 18, 2016, at 4:00 p.m. at the Square Room at Café 4. You will have an opportunity to help us take another step in our efforts at diversity and inclusion. We are honored to have a wonderful and distinguished panel of speakers, including Madeline Rogero, Mayor, City of Knoxville; Phyllis Nichols, President, Knoxville Area Urban League; Avice Reid, Director of Community Relations, City of Knoxville; and Tim Romero, Regional Vice President, Enterprise Holdings, Inc. Christi Branscom, Deputy Director to the Mayor and COO, will moderate an open and honest discussion about the challenges and opportunities in attracting and retaining a diverse workforce in our community. The program is approved for one hour of credit and attendees are invited to stay for a reception from 5:00-6:30 p.m. We also encourage you to sign up for the Buddy Match Program to pair with a student to help facilitate networking at the event. Past attendees have really appreciated the help of their “buddy” in making them feel welcome.

You can find more information and register on the KBA website. A very big thank you to our Program Partners, the University of Tennessee College of Law and Lincoln Memorial University Duncan School of Law. Also, for the second year, members of the Knoxville Area Urban League Young Professionals will also be in attendance.

ABA President Brown has challenged us to shed our patience for change and to “begin to act boldly, courageously, and insistently to dismantle the barriers to diversity and inclusion.” Please join us on October 18 as we continue to work to help our Knoxville Bar Association to act boldly to move the needle.

Photo Ops

Supreme Court Dinner 2016

The KBA’s Annual Supreme Court Dinner was held on September 7, 2016 to pay tribute to the Justices of the Tennessee Supreme Court. The dinner is an opportunity for the bar to thank all of the judges for their service. The featured speaker this year was G. Douglas Jones, Jones & Hawley Law, who led the team of prosecutors and investigators in the re-opened historic “cold case” of the 1963 bombing of the 16th Street Baptist Church in Birmingham, a seminal event in the American Civil Rights Movement.

2

DICTA

October 2016

In This Issue

Officers of the Knoxville Bar Association

Cover Story

October 2016

16 The Perils of

Politics in the Workplace

Critical Focus President Wayne R. Kramer

President Elect Amanda M. Busby

Treasurer Keith H. Burroughs

Immediate Past President Tasha C. Blakney

Secretary Wynne du Mariau Caffey-Knight

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

Rachel P. Hurt Carrie S. O’Rear M. Samantha Parris Cheryl G. Rice Keith D. Stewart

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

The Knoxville Bar Association Staff

5

7

9

11

President’s Message

For Everything There is a Season

Judicial News

An Interview with Hon. Travis R. McDonough

Practice Tips

Back to the Basics

Legal Update

The Lasting Impact of Johnson v.

United States on Federal Criminal Cases

12

Legal Mythbreakers

13

Management Counsel: Law Office 101

What’s With The Sealed Container Doctrine?

Addiction In The Workplace: Answers And Solutions

Engaging in the Unauthorized Practice of Law (From the Comfort of an Office in the State Where You are Licensed)

21

Marsha S. Wilson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

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

Brittany Headrick LRIS Assistant

Volume 43, Issue 9

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 Wilson (522-6522).

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

October 2016

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Editor

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

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

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

Managing Editor Marsha Wilson

KBA Executive Director

DICTA

2

6

8

15

19

20

23

24

25

26

27

4 14 18 18 28 29 30 31

Schooled in Ethics

Conventional Wisdom Around the Bar

Moving the Needle

Hello My Name Is

Liz Anne Bowden

Outside My Office Window

The Bandits

Tempus Fugit - Time Flies

A Tale of Two Caves

Well Read

Book Review: Jerry H. Summers’ “Rush to Justice? Tennessee’s Forgotten Trial of the Century – Schoolfield 1958

Bill & Phil’s Gadget of the Month

Wi-Fi Home Stereo Grudge Match

Long Winded

Confessions of A Modern Parent

Lawyer Hobbies

Kickball Gives Local Attorneys a Chance to Relive Playground Glory

Nice Niche

Adoption Law

Open Service Project

Quarter Three: SEEED

Around the Community

Supporting Our Legal Community

Common Ground

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

3

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

Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. Join the Section for “pro bono power hours” on Tuesday, October 25 from 5:00 – 7:00 p.m. at The Adams Law Firm located at 8517 Kingston Pike, Knoxville TN 37919. Section members will gather together to answer civil legal questions posted to the website, Online TN Justice. Register online by clicking October 25 on the KBA event calendar at www.knoxbar.org. 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. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531).

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

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

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

Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).

4

DICTA

calendar

October

n 1 Saturday Bar n 3 ADR Section CLE n 6 Member Appreciation - Ijams n 7 Bankruptcy CLE n 11 Professionalism Committee n 12 Barristers Monthly Meeting n 13 Judicial Committee n 17 Interprofessional Relations Committee n 17 Diversity in the Profession Committee n 17 Barristers Access to Justice Committee n 18 Diversity CLE & Reception n 19 Board of Governors Meeting n 20 Lunch & Learn n 20 Barristers Corn Hole Tournament n 24 Barristers Golf Tournament n 25 Corp. Counsel Section Pro Bono Night n 29 Professionalism Comm. Hike

November n 1 Access to Justice Committee n 2 Veterans Legal Clinic n 4 Judge’s Ain’t Behavin’ CLE n 4 LawTalk – O’Connor Senior Center n 5 LawTalk – Fellowship Church n 7 New Admittee’s Reception n 7 ADR Section CLE n 8 Professionalism Committee n 9 Barristers Executive Committee n 10 Lunch & Learn n 10 Judicial Committee n 15 CLE Committee n 16 Board of Governors Meeting n 17 In Chambers CLE n 18 Memorial Service n 21 Interprofessional Relations Committee n 21 Diversity in the Profession Committee n 21 Barristers Access to Justice Committee n 30 Veterans Legal Clinic

KBA Annual Memorial Service November 19

October 2016

PRESIDENT’S MESSAGE By: Wayne R. Kramer Kramer Rayson LLP

FOR EVERYTHING THERE IS A SEASON

As the calendar flips from September to October, we really do move from summer to fall. The heat of July, August and September slowly gives way to cool mornings and delightful October temperatures, bright blue skies and changing colors. It is a great reminder, that just like the calendar, life truly is a series of changing seasons. As reflected by words found in the Old Testament, “For everything there is a season, and a time for every purpose under heaven.” Within the context of the practice of law and at the risk of diminishing the significance of the theological message and its application to the important moment in our lives, the concepts of time and seasons are something we see and experience on a daily basis. There is a time to be firm and a time to be gentle. A time to be an advocate and a time to be a reconciler. A time to hold on and a time to let go. There is a time for work and a time to rest. There is a time to be with our colleagues and a time to be with our families. Just as with the days of transition from summer to fall, fall to winter, winter to spring and spring to summer, there is a certain tension that arises in time and seasons in the practice of law.

Whether navigating our way through a business or real estate transaction, addressing family and/or estate issues or litigating a complex set of facts, we, as lawyers, must be keenly aware of the time and the season. To be successful, we must realize there are moments to stand down, moments to stand up, a time to focus on the technical language and a time to see the big picture. We must know when it is appropriate to seek a resolution and when it is better to seek the decision of a judge or jury. We must have the sense of when to say “no” to a client and when to encourage the client’s thinking or behavior. To lose sight of the changing seasons and not to recognize the current season will likely render our legal endeavors less than successful.

No, it is not necessary to be clairvoyant. We can never see or understand everything. That is simply not possible. But just as we have learned how to dress for a cold winter day, recognize that a warm fall day can give way to a cool night and that a strong thunderstorm on a summer afternoon may follow a beautiful clear summer morning, the same understanding must be a part of every one of our “legal projects.”

If we fail to see our case’s weaknesses or seize upon its strengths, the result will be problematic. If we are unable to observe when our client is getting tired of the conflict and that resolution is more important than “full scale victory,” we may have missed an opportunity to bring about positive closure to the matter. In a like manner, we must recognize changes in our adversaries’ seasons as well. How is the case evolving from their perspective? What is the pulse of the other litigant? Or even has there been a new season relative to a particular legal principle? Have the autumn leaves become the barren trees of winter or the barren trees of winter begun to show a “spring green”?

If we are not in tune with the changing seasons, we will miss much of what we are called upon to know and about which we need to be aware as lawyers. Without seeing the changing seasons, it is difficult for us to be counselors as well as “competent, prompt, and diligent” as required by our Rules of Professional Conduct. Even more challenging is the need to recognize the ever-changing seasons on a moment’s notice. Our pace

October 2016

is hectic. Our demands are many and our client’s expectations are high.

On any given day, it is not unusual to address the problems of multiple clients with a wide range of legal issues, complex facts, complicated personalities and very little patience. From eight o’clock in the morning to seven o’clock at night, it is likely that we will have experienced every season imaginable. And that does not even include the season that we are experiencing at home or elsewhere in our personal lives.

There are few professions that must address as many changing realities and evolving seasons throughout the days and throughout our careers as those of us who have cast our lot with the law. It can be exciting. It can be discouraging. It can be energizing. And it can be exhausting. But whatever it is at any given moment, we must never fail to recognize that indeed for everything there is a season and time for every purpose under heaven. If we can grasp that idea and have it ever in mind as we go about the practice of law, I dare say we will be successful.

Not just successful in terms of a legal result, but successful in the way we interact with our colleagues, our clients and all of those with whom we come in contact. For ultimately, that is really what is important. We will not likely be remembered for a particular case we won or a sale that was completed or an estate that was settled. What we will be remembered for is the way in which we dealt with people, reacted to their problems, understood their situations, and whether we were a positive influence in their lives. If we are “winners” in those areas, all will be well in the end.

By recognizing the realities of the seasons in our practice, the chances of being winners in every sense of the word will be greatly enhanced.

DICTA

5

HELLO MY NAME IS

. . .

LIZ ANNE BOWDEN

By: Katie Ogle McDonald, Levy & Taylor

I’ve found it to be the rule, rather than the exception, that many local attorneys have come to Knoxville for their undergraduate studies, continued their education through the University of Tennessee College of Law, and after deciding to remain in the area after graduation, furthered their career to often have a dramatic impact on our legal community. This month’s interviewee is no exception. Liz Anne Bowden is a native of Memphis, who came to the University of Tennessee as a wide-eyed eighteen year old, and has never looked back.

When deciding on a major for undergrad, as many future attorneys are apt to do, Liz Anne majored in English. However, she took it one step further and added a concentration in Rhetoric and Writing, as well as a minor in Linguistics. In addition to preparing for law school during her time in undergrad, Liz Anne was involved in the Student Government Association, and spent much of her time outdoors with the Canoe and Hiking Club. Despite her busy schedule and petite, 5’3’’ frame, she also found time to be a major contributor to the women’s intramural basketball league. During this time, Liz Anne also found herself called to stay in Knoxville and continue her education at the University of Tennessee.

Upon entering law school, she was hopeful that her career path would lead to litigation, and chose to focus on this advocacy track.

“During my second year of law school, I found myself particularly drawn to, and excelling in, evidence and trial practices courses,” she notes. “I was also a member of the National Trial Team, all of which fed my interest and enthusiasm for being in a courtroom advocating for my clients.”

Much like her time during undergrad, Liz Anne found herself incredibly busy in law school. In addition to serving as an ambassador for the law school, she participated in the Knoxville Legal Aid Advice Clinic, was appointed as a student member of the American Inns of

6

Court, and elected as a lifetime member to the Order of Barristers. Liz Anne was also able to gain significant practice experience as an extern in the DUI unit at the Knox County District Attorney’s Office. She also worked as a student attorney in the immigration clinic at the College of Law, and was successful in obtaining permanent asylum for a Syrian client. Not surprisingly, at the end of her third year in law school, Liz Anne was awarded the Jerry Black, Jr. Student Attorney Clinic Award for her outstanding skills.

Today, she has the opportunity to implement these abilities in The Law Offices of James A.H. Bell, and is certainly humble about her accomplishments. “I feel very fortunate to be where I am, and I learn something new every day. The entire litigation process is truly rewarding for me. A few of my more seasoned colleagues in the bar call it ‘youthful exuberance,’ but the joy I receive from accomplishing milestones on behalf of my clients is without equal.”

While Liz Anne is an inspiring young attorney in her own right, she does have mentors to whom she credits much of her legal prowess. “Steve Oberman taught my trial practice class, and I owe him for really sparking my interest in courtroom advocacy. Penny White has also had a substantial influence on me. I had the pleasure of working closely with her my 3L year through moot court, and she’s truly inspirational. It also probably goes without saying that working with James A. H. Bell has been a tremendous influence as well.”

When she’s not practicing law, Liz Anne enjoys exploring the city that she’s called home for nearly the last ten years with her cocker spaniel, Greta. You may also see her frequenting live music events in town or volunteering with local philanthropic projects through the Knoxville Junior League. We at DICTA appreciate Liz Anne’s contribution to this column, and look forward to seeing her future impact as a member of the Knoxville Bar.

DICTA

October 2016

JUDICIAL NEWS By: David M. Eldridge Eldridge & Blakney, P.C.

A PEEK INSIDE THE CONFIRMATION PROCESS: AN INTERVIEW WITH THE HONORABLE TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE

The political winds blow toward November, while the battle for confirmation of a host of judicial nominees at all levels of the federal bench drags on.

Merrick Garland, nominated to fill the Supreme Court seat vacated by the death of Antonin Scalia, awaits a glimmer of hope that his nomination will ever receive meaningful consideration. In Tennessee, Edward Stanton III, of Memphis, a United States Attorney, was nominated to the United States District Court bench by President Obama in May of 2015. Waverly Crenshaw Jr. was similarly nominated a few months before Mr. Stanton to the Middle District bench and was only confirmed by Congress in April of 2016, approximately 14 months after his nomination.1 The Sixth Circuit Court of Appeals also faces a vacancy resulting from the retirement of Judge Boyce Martin, a vacancy that Kentucky Supreme Court Justice Lisabeth T. Hughes has been nominated to fill, but who also faces an uncertain confirmation date. At the time of this article, there are 96 federal judicial vacancies and 58 pending nominees for these positions.2

In considering the consternation of the confirmation process for so many pending nominees, I spoke with Tennessee’s most recently confirmed United States District Court Judge, the Honorable Travis R. McDonough, who was confirmed and then sworn in, in December 2015. I spoke to Judge McDonough to introduce him to the KBA and get his perspective on the judicial confirmation process. In doing so, I was reminded of my age – as I first got to know Judge McDonough working on cases together almost 20 years ago when he was a brand new lawyer at Miller & Martin. I have therefore had the pleasure of watching his legal career shine over the years, culminating with his appointment to the federal bench.

Judge McDonough is a native of East Tennessee, born in Chattanooga and raised just west of his birthplace in Marion County, Tennessee. He attended Sewanee: The University of the South and while there was named a Truman Scholar. He graduated summa cum laude with his B.A. in Economics in 1994, before moving on to Vanderbilt Law School, where he received his J.D. in 1997. Judge McDonough began his legal career at Miller & Martin in 1997, where he later became a partner and Chairman of its litigation section, and where he continued to practice until becoming Chief of Staff and Counselor for Chattanooga’s Mayor Andy Berke in 2013. In that role, he led efforts to reform the pension and pay plans for the City of Chattanooga’s fire and police. He was nominated to the federal bench by President Obama in November of 2014, to fill the seat vacated by the retirement of the Honorable Curtis Collier, and was confirmed by the U.S. Senate 11 months later.

Judge McDonough was more than happy to share his perspective October 2016

on the Senate Confirmation process, based on his own experience.

Judge McDonough recalls first facing the Senate Judiciary Committee, in the summer of 2015, in a hearing streamed live on the internet. He was introduced to the Committee by Tennessee Senator Bob Corker.

In preparation for his confirmation hearing, he watched confirmation hearings that had occurred in the past. He approached the confirmation hearing conscious of how important it was to him then, and now, to protect the citizenry’s perception of the judiciary as a whole. Though the process took 11 months, his confirmation hearing lasted less than an hour. He was confirmed by an 89-0 vote of the Senate.

Judge McDonough told me that he believed the confirmation process had a lot of positives. The process, he remarked, “really is designed to make sure you understand just how big a responsibility you are being handed.” It is a responsibility Judge McDonough takes seriously. He wants to ensure that all parties are given a fair chance to be heard.

He recognizes that he may err along the way, but trusts in the process to correct him on appeal if he does so. For example, in criminal cases, unless the parties agree to a specific sentence, he will not accept a plea agreement that includes the defendant’s waiver of their right to appeal noting that: “I want to know if I get a sentence wrong.”

I asked Judge McDonough if he feels like his peers treat him differently now that he is on the bench. He candidly said he believes so, but although he is serious about protecting the people’s confidence in the fairness of the judiciary, he doesn’t believe isolating himself from his friends in the bar is always necessary. He still goes to lunch with friends and has made a point to reach out to law firms that he doesn’t know as well and get to know them better. He has rejoined the Inns of Court in Chattanooga and is looking forward to interacting with the bar through those meetings.

I am very pleased to see Judge McDonough on our federal bench. I think you will find him a very prepared and very fair Judge in your cases and it will be a pleasure to be in his court. If you have a chance to catch Judge McDonough off the bench, you may be able to talk a little baseball with him. Baseball is a sport that he loves, having played a couple of years in college, and continues to follow - particularly his favorite MLB franchise, the Atlanta Braves.

1

http://www.uscourts.gov/judges-judgeships/judicial-vacancies/confirmation-listing

2 Of the 96 vacancies, there is one Supreme Court vacancy, 12 on U.S. Courts of Appeals, 2 on U.S. Courts of International Trade, 6 on U.S. Courts of Federal Claims, and the remaining 75 vacancies are on U.S. District Courts. http://www.uscourts.gov/judgesjudgeships/judicial-vacancies

DICTA

7

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

Jr.

THE BANDITS

“Time Out!” I yelled as I ran toward the referee at mid-court. The Shockers had just scored to take the lead. I needed to calm my team down and draw up a big play. The Bandits were down three with only 6 seconds remaining in the Championship game. AAU travel basketball gets intense. My players gathered around me as they always had, each of their expectant faces looking up, trusting I would come up with something that would lead them to victory. No one in the Powell gym that night expected us to compete with The Shockers, much less lead the entire game. Their faster and more athletic players had annihilated the rest of the field on their march to the championship. We had played an incredible game. Everyone played. Everyone contributed. Now, we were seemingly yielding to our fate, relinquishing our hard-fought lead with seconds to go. I was so proud. We’d played a great tournament. We’d made it to the finals. The rosy cheeks and excited eyes of the 11-yearold boys gazed up at me. The gym was on fire with excitement and expectation. Connor, the tallest of the kids, circled the huddle nervously.

“Connor! sit still! What are you doing?” I asked. “I’m just so excited, Coach! This is awesome!” It was awesome. I grabbed my dry-erase clipboard. There was still fight in this team. It was the spring of 2009.

Those little boys are now young men, most of them Seniors in high school. Connor Arnold is 6 feet 7 inches tall and an All-State forward at Grace Christian Academy. Caden Harbin is Mr. Everything at Halls High - an All-District and All-State football player. Isaiah Sulack broke the Arby’s Classic (a nationally-recognized tournament) three-point record earlier this year, scoring 39 points in a single game for CAK High School. The kids, most of whom played for me for the better part of a decade (more than half of their lives) are scattered across the city. Griffin Hicks and Ryan Lee are at Webb. Tyler Parker is a talented golfer at Catholic. Haydn Tanner is a two-sport star at CAK, and Tyler Young, aka Big Mac, is also a Senior at CAK. Alex Majoras, the quietest kid I’ve ever known, is at Bearden. Shawn McKay, who I held as a newborn, will graduate from Farragut in May. Then there is my baby boy, Andy Pryor, who is a Junior at CAK and my all-time favorite Bandit. Most still play basketball, but not all. Dozens of other boys have played for me at one time or another over the years. All of them are great kids with wonderful, loving parents. Several have earned athletic honors, but very few, if any, will go on to play basketball in college. The core group has been with me since they were eight years old.

We’ve burned up the roads of this state, singing rap and pop songs and talking about the finer things in life - video games, Krispy Kreme donuts, and girls. We’ve eaten a lot of pizza in hotels, where boys with boundless energy took over indoor pools while parents washed uniforms in bathroom sinks and dried socks on hotel-room air conditioners. The Bandits have spent many a night at my house and my son has been welcomed in each of their homes. When I started coaching them, I thought I was simply coaching a game I loved and bonding with my son.

When I hung it up, I realized that I’d made my own friends for life. I am the beneficiary of a gift I inadvertently gave myself. Coaching these kids has been one of the great privileges and honors of my life. One of my players wrote a school essay about how I influenced his life. Another said I would be one of his 8 invitees on NBA draft night when he would be taken in the first round. I text them after their wonderful high school performances and, more importantly, after the poor ones. They text me to give me a hard time when they see my commercial on television or an appearance on Legal Lowdown. I sometimes just text to check in. Andy

8

and I go to their high school games. They often come to his. They tell me they love me. They hug me whenever I see them in public. Even though it has been over a year since I put down the clipboard, they still call me “Coach” or “Pryor.”

On that night in March of 2009, the Shockers thought they had us.

They didn’t know what a good play I had drawn up. I knew the shot was good before it left Parker’s hands. He was a great shooter. They all were.

When the three-pointer passed through the net as the buzzer rang out, the gym erupted. Tie game. We were going to overtime. A few minutes later, after Connor slid down the baseline and drained a three pointer two minutes into overtime, the game was over. We were the Champions.

As Connor said, “It was awesome.”

There are few better things in life than watching 11-yearold boys celebrate an unexpected and hard fought championship. I became one of those 11-year-old boys.

All good things come to an end. Boys turn into men and seasons conclude despite our begging. I miss it all, but more than anything I miss the sideline huddle with the excitement of a game hanging in the balance. Should I one day be blessed with the gift of reflection during my final hours on this planet, I shall consider the many blessings in my life. Included among them will be my years with the Bandits. I will reach for memories of my precious time in the company of such fine boys and smile gratefully for our days together. I shall immerse myself in the echoes of shoes squeaking on gym floors beneath the hum of fluorescent lights and intermittent whistles, and desperately grasp for the vision of their youthful faces encircling me on sidelines. And, should anyone ask me who I would like to carry me to my final resting place, I will without hesitation say “The Bandits.”

DICTA

October 2016

PRACTICE TIPS By: Daniel F. Wilkins Frantz, McConnell & Seymour, LLP

BACK TO THE BASICS

Recent Tennessee cases that address issues in estate planning have served as a reminder for attorneys to revisit some basic concepts as we prepare estate planning documents for our clients. Over the last year, our appellate courts have reminded us that . . .

. . . witnesses’ signatures on a Last Will & Testament may not necessarily count as witnesses’ signatures. The issue here is proper execution of a will. Tennessee courts have long required strict compliance with the statutory formalities for executing a will, as found in Tennessee Code Annotated Section 32-1-101, et seq.1 The testator must sign the will in the presence of two attesting witnesses, and the witnesses must sign the will in the presence of the testator and each other.2 The problem addressed in last year’s case In re: Estate of Morris concerns a will which contained a self-proving affidavit signed by two witnesses, as allowed by Tennessee Code Annotated Section 32-2-110, but the witnesses did not sign the actual will as required by Tennessee Code Annotated Section 32-1-104, causing the court to find the will invalid.3 The Tennessee legislature responded fairly quickly to the Morris decision by amending Tennessee Code Annotated Section 32-1-104, which now allows for witnesses’ signatures on a self-proving affidavit to act as signatures of witnesses attesting to the will if the signatures otherwise comply with Tennessee Code Annotated Section 32-1-104(a). This helps to avoid the unfavorable result of invalidating a will that a testator and witnesses intended to execute.

However, two important caveats to this amendment exist. First, the witnesses’ signatures cannot serve double-duty as attesting to the will and acting as a self-proving affidavit, and second, the amendment only applies to wills executed prior to July 1, 2016. The practical effect of the amendment is to give practitioners a mulligan on wills that may not have been properly witnessed prior to July 1, 2016, while maintaining the policy of strict compliance with statutory formalities for executing wills going forward. The basic take-away for us: make sure the forms you are using to prepare wills have both an attestation clause for witnesses to sign and a self-proving affidavit for witnesses to sign.

. . . a properly witnessed and executed Last Will & Testament may not necessarily be a valid Will. The critical issue here is testamentary capacity. A natural consequence of an increased life span enjoyed by our society is that individuals are potentially living longer with diminished mental capacity. While advanced age or infirmity does not equate to diminished testamentary capacity4 – (indeed, just this month I met with a 91-year-old client who drove himself to Knoxville from Crossville to make revisions to his estate plan, and who made me covet his mental acuity) – attorneys must not overlook or take lightly the issue of documenting whether our clients have the requisite mental capacity to execute estate planning documents. A properly executed will may be challenged on the basis that the testator’s mind was not “sufficiently sound to enable him or her to know and understand the force and consequence of the act of making the will” at the time the will was executed.5 In addition, a properly executed will may be challenged on the basis that the testator was subject to the undue influence of another in executing the will.6 It is the time of the execution of the will that is the focal point in assessing testamentary capacity.7

The recent appellate decisions are not noteworthy for their continued citation of long-standing law governing testamentary capacity and undue influence, but rather for their extensive reliance on testimony and evidence from the attorneys who participated in or were present at the time of the preparation and execution of estate planning documents.8 October 2016

The basic take-away for us: estate planning lawyers would serve our clients well (and do our litigation colleagues a favor) by documenting the estate planning file with clear and convincing evidence of the soundness of the testator’s mind and the absence of undue influence, particularly if potentially suspicious circumstances exist.9

I hesitated to write about such seemingly basic concepts as the execution requirements for a will or the importance of confirming testamentary capacity; however, these are concepts to which our appellate courts have recently devoted considerable time and attention. We should probably take note as well.

Eslick v. Wodicka, 215 S.W.2d 12 (Tenn. Ct. App. 1948).

Tenn. Code Ann. § 32-1-104(a).

3 In re Estate of Morris, 2015 Tenn. App. LEXIS 62 (Tenn. Ct. App. Feb. 9, 2015).

4 In re Estate of Davis, 2016 Tenn. App. LEXIS 185, *57 (Tenn. Ct. App. Mar. 14, 2016) (“The testator must have an intelligent consciousness of the nature and effect of the act, a knowledge of the property possessed and an understanding of the disposition to be made. While evidence regarding factors such as physical weakness or disease, old age, blunt perception or failing mind and memory is admissible on the issue of testamentary capacity, it is not conclusive and the testator is not thereby rendered incompetent if her mind is sufficiently sound to enable her to know and understand what she is doing.”)

5 Id. 6 Id. 7 In re Estate of Malugin, 2015 Tenn. App. LEXIS 408, *8 (Tenn. Ct. App. May 29, 2015).

8 See, e.g., In re Estate of Davis, 2016 Tenn. App. LEXIS 18; In re Estate of Dukes, 2015 Tenn. App. LEXIS 733 (Tenn. Ct. App. Sept. 11, 2015); In re Estate of Malugin, 2015 Tenn.

App. LEXIS 408.

9 Courts have refrained from prescribing the type or number of suspicious circumstances that may warrant invalidating a will on the basis of undue influence, but examples of suspicious circumstances may include advanced age, physical or mental deterioration, a beneficiary’s involvement in procuring the will, the existence of a confidential relationship between the testator and a beneficiary, seemingly unjust or unnatural nature of the terms of the will, or the testator being in an emotionally distraught state. See In re Estate of Davis, 2016 Tenn. App. LEXIS 185, *64.

1 2

DICTA

9

10

DICTA

October 2016

L E G A L U P DAT E By: Rosana Escobar Brown Assistant Federal Defender Federal Defender Services of Eastern Tennessee, Inc.

THE LASTING IMPACT OF JOHNSON V. UNITED STATES ON FEDERAL CRIMINAL CASES

Thousands of federal inmates may receive sentence reductions as a result of the Supreme Court’s June 2015 ruling in Johnson v.

United States, in which the Court struck down as void for vagueness the catch-all definition of a violent felony under the Armed Career Criminal Act (ACCA) found in 18 U.S.C. § 924(e).1 The ruling has opened the floodgates of post-conviction litigation across the country, with approximately 200 motions being filed in the Eastern District of Tennessee alone. But that’s not all. Issues relating to the Johnson ruling are being litigated in pending cases as well, and the battle appears far from over.

Johnson determined that the “residual clause” of the ACCA’s violent felony definition was void for vagueness and unconstitutional because, as Justice Scalia wrote, “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.”2 Pre-Johnson, the ACCA defined violent felonies three ways: (1) those with an element of physical force; (2) those from a list of enumerated offenses; and (3) those described in the residual clause—any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”3

The residual clause’s language encompassed a wide array of criminal offenses and rendered defendants with at least three prior convictions for a serious drug felony or a violent felony under one of the three definitions subject to the ACCA’s enhanced penalties for possession of a firearm, increasing the sentence from 10 years to a mandatory minimum of 15 years up to life. Before Johnson, the residual clause swept in offenses such as evading arrest by motor vehicle, escape, reckless endangerment, and reckless assault—not necessarily offenses that would indicate a violent nature, but ones that posed a “risk of physical injury” according to the federal courts.4 Johnson held that definition too arbitrary to comport with Due Process.

The Supreme Court has already determined that Johnson announced a substantive rule of constitutional law that applies retroactively on collateral review, but limited the holding to ACCA defendants.5 However, a question remains as to whether Johnson also applies to the identically-worded residual clause definition for a crime of violence in the U.S. Sentencing Guidelines and, if so, whether it would apply retroactively to defendants sentenced under the Guidelines.6 A circuit split exists on this issue, with a sharp divide between government and defense positions.7 The Supreme Court has granted certiorari on the issue and is slated to rule during the October 2016 term.8 Thus, many district courts are delaying decisions on post-conviction motions pending this decision.

It is undetermined whether the Court’s ruling will resolve all remaining issues about Johnson’s application. For example, there is an ongoing dispute about whether Johnson might also apply to the crime of violence definition in 18 U.S.C. § 924(c)(3), which supports a conviction for possessing a firearm during or in relation to a crime of violence.9 And there is a circuit split about whether it might apply to the crime of violence definition found in 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b) under the immigration code and Sentencing Guidelines for immigration offenses.10

These battles represent only the tip of the iceberg, however, and inestimable amounts of litigation remain with respect to particular offenses and whether they qualified as violent felonies only under the now-void residual clause. Take the offense of discharging a firearm into a building for example – some claim the offense would only have qualified under the residual clause definition, but ongoing debate exists in this Circuit, where a doctrine of implied force has been created to sweep otherwise questionable offenses under the force clause.11 Since October 2016

Johnson, novel arguments have succeeded in challenging certain offenses previously considered to qualify under the enumerated clause as well.12 Rightly so, attorneys are taking advantage of the new legal landscape that Johnson has created for federal defendants. In short, nothing should be assumed about prior convictions in the post-Johnson world. It appears that nearly every argument is fair game.

So what is considered a violent felony post-Johnson? The essential question is whether the statute under which the prior conviction is based will qualify under either remaining clause of the violent felony definition – the force clause or the enumerated clause. The force clause requires as an element the use, attempted use, or threatened use of “violent force capable of causing physical injury to another person.”13 The enumerated clause requires that a statute for burglary, arson, extortion, or the use of explosives meets the generic definition of the offense, as defined by the federal courts.14 The jurisprudence with respect to both leaves room for error, and it remains to be seen how the case law will develop moving forward.

Suffice it to say that federal sentencing law is evolving. Johnson and its progeny demonstrate that the ruling extends beyond the ACCA, arguably affecting career criminal sentences, as well as numerous statutory and guideline sentence enhancements, that rely on the definitions for a violent felony or crime of violence. Johnson’s impact is far-reaching, and the issues are far from settled.

135 S. Ct. 2551 (2015).

Id. at 2557.

3 18 U.S.C. § 924(e)(2)(B) (emphasis added).

4 See Johnson, 135 S. Ct. at 2556; Sykes v. United States, 564 U.S. 1 (2011); United States v. Bailey, 264 F. App’x 480 (6th Cir. 2008); United States v. McMurray, 653 F.3d 367 (6th Cir. 2011).

5 Welch v. United States, 136 S. Ct. 1257, 1265 (2016).

6 See U.S.S.G. § 4B1.2.

7 See In re Patrick, __ F.3d __, 2016 WL 4254929 (6th Cir. Aug. 12, 2016) (Johnson is substantive and applies retroactively to Guideline cases on collateral review); In re Hubbard, 825 F.3d 225 (4th Cir. 2016) (same). But see In re Griffin, 823 F.3d 1350 (11th Cir. 2016) (Johnson does not apply to Sentencing Guidelines because they cannot be void for vagueness).

8 See Beckles v. United States, 616 F. App’x 415 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (U.S. June 27, 2016) (No. 15-8544).

9 See United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) (residual clause of § 924(c) sufficiently different from ACCA’s); accord United States v. Hill, __ F.3d __, 2016 WL 4120667 (2d Cir. Aug. 3, 2016) (§ 924(c) definition not unconstitutional); United States v. Graham, 824 F.3d 421, 425 n.1 (4th Cir. 2016) (noting that a Johnson challenge to § 924(c) definition would not survive plain error review); In re Fields, 826 F.3d 785 (5th Cir. 2016) (denying successive motion to vacate based on § 924(c) challenge); United States v. Prickett, __ F.3d __, 2016 WL 4010515 (8th Cir. July 27, 2016) (§ 924(c) not unconstitutional). But see In re Pinder, 824 F.3d 977 (11th Cir. 2016) (granting leave to file successive motion to vacate based on § 924(c)).

10 See Shuti v. Lynch, __ F.3d __, 2016 WL 3632539 (6th Cir. July 7, 2016) (holding residual clause definition of immigration code void for vagueness); accord United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015); Ortiz v. Lynch, 796 F.3d 932 (8th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). But see United States v. GonzalezLongoria, __ F.3d __, 2016 WL 4169127 (5th Cir. Aug. 5, 2016) (crime of violence definitions of immigration Guidelines and 18 U.S.C. § 16(b) are not unconstitutionally vague).

11 See United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015) (discharging firearm into occupied building not a crime of violence post-Johnson); United States v. Ruvalcaba, 627 F.3d 218 (6th Cir. 2010) (Ohio offense of discharging firearm into unoccupied building was residual). But see United States v. Anderson, 695 F.3d 390 (6th Cir. 2012) (threat of any physical injury necessarily requires an element of force). Contra United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012) (threat of physical injury, even death, does not necessarily require the use of physical force).

12 See Mathis v. United States, 136 S. Ct. 2243 (2016) (Iowa burglary statute not enumerated offense because places to be burglarized is overbroad).

13 Johnson v. United States, 559 U.S. 133 (2010).

14 See Taylor v. United States, 495 U.S. 575 (1990).

1 2

DICTA

11

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

“WHAT’S WITH THE SEALED CONTAINER DOCTRINE?”

A plaintiff may sue both a manufacturer and a seller of a product alleged to have caused plaintiff ’s injury.1 The accrual of a products liability action occurs when the plaintiff is aware of an injury, and when, by utilizing reasonable care, plaintiff discovers the manufacturer of the product and identifies the particular product.2

In terms of the sealed container doctrine, courts held traditionally that a seller does not have a duty to inspect because most sellers “have little or no knowledge of or control over whether the products they sell may be dangerously defective” and generally “have no practical way to test products to discover hidden dangers.”3 The Tennessee Products Liability Act of 1978 (“TPLA”), prior to 2011, codified the common law sealed container doctrine. It provided that if the product was acquired and sold by a seller in a sealed container and/or the seller had no “reasonable” opportunity to inspect the product, then a products liability action may be brought against a seller, among other things, only when the manufacturer of the product is not subject to service of process in Tennessee and service cannot be secured by the long-arm statute of Tennessee.4 In such case, a seller is a proper party to a products liability action only when these criteria were met.5

The earlier statute sets forth that ”[n]o products liability action… shall be commenced or maintained against any seller when the product is acquired and sold by the seller in a sealed container and/or when the product is acquired and sold by the seller under circumstances in which the seller is afforded no reasonable opportunity to inspect the product in such a manner which would or should, in the exercise of reasonable care, reveal the existence of the defective condition.”6 In 2011, the General Assembly amended the TPLA. Notably, in Tennessee Code Annotated section 29-28-106, the language codifying the sealed contained doctrine was left out. Moreover, since 2011, Tennessee Code Annotated section 29-28-102 (7) defines a “seller” to include “…a retailer, wholesaler, or distributor, and means any individual or entity engaged in the business of selling a product, whether such sale is for resale, or for use or consumption. ‘Seller’ also includes a lessor or bailor engaged in the business of leasing or bailment of a product…” (emphasis added). Since 2011, in Tennessee, a “products liability action” may not be commenced or maintained against a “seller” of a product unless: (1) The seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the alleged harm for which recovery of damages is sought; (2) the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought;

(4) the manufacturer or distributor of the product or part in question is not subject to service of process in this state and the long-arm statutes of Tennessee do not serve as the basis for obtaining service of process; or, (5) The manufacturer has been judicially declared insolvent.7

The 2011 amendment is more favorable to sellers. The older sealed container doctrine applied a “reasonableness” (negligence) standard. The statute now requires that the “seller” must exercise substantial “control” over not only labeling of the product, but packaging as well. Tennessee Code Annotated section 29-28-105(b) does not sync well with section 106. It provides, among other things, in determining whether a product is defective or unreasonably dangerous at the time it left control of the manufacturer or seller, consideration should be given “…to the customary designs, methods, standards and techniques of manufacturing, inspecting and testing by other manufacturers or sellers of similar products.” Taken together with section 106, should “inspecting” in section 105 be viewed under the “substantial control” standard of section 106 (which specifically mentions “testing” but not “inspecting”)? A strict construction of the language may indicate otherwise, so the sealed container doctrine may not be down for the count if there is, for instance, proof of “customary” inspections on the part of sellers of similar products.

The earlier codification of the sealed container doctrine, and the “apparent” repeal of it in 2011, indicates the legislature strengthened the protections of those persons and entities down the chain by repealing a negligence standard (reasonable opportunity for an inspection) as a threshold matter, but it may not prevent the analysis in situations where the general course of business conduct is otherwise. The consideration is more apparent taken in tandem with Tennessee Code Annotated section 29-28-104 regarding compliance with governmental standards. As in all things, it may very well depend on the factual situation.

Tenn. Code Ann. § 29-28-103(a).

See, e.g., Pivnick, Lawrence A., Tennessee Circuit Court Practice sec. 1.2, p. 28 (20112012 ed.), citing, e.g., Craig v. R.R. Street & Co., Inc., 794 S.W.2d 351 (Tenn. Ct. App. 1990).

3 M. Stuart Madden et al., Madden & Owen on Products Liability, § 19.1 (3d ed.2000), available at MOPL 19:1 (Westlaw).

4 See Tenn. Code Ann. § 29-28-106(a)(2) (2010) (emphasis added); see also, e.g., Lind v.

Beaman Dodge, Inc., 356 S.W.3d 889, 899 (Tenn. 2011).

5 Shoemake v. Omniquip Intern., Inc., 152 S.W.3d 567, 572 (Tenn. Ct. App. 2003).

6 Tenn. Code Ann. § 29-28-106(a).

7 Tenn. Code Ann. § 29-28-106.

1 2

(3) the seller gave an express warranty as defined by Title 47, Chapter 2;

12

DICTA

October 2016

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Christopher A. Hall Hodges Doughty & Carson, PLLC

ADDICTION IN THE WORKPLACE: ANSWERS AND SOLUTIONS

Alcoholism and drug addiction occur at almost twice the frequency in the legal profession than the normal rates of incidence in our country.

As attorneys, we, and the other personnel in our law firms, need to know the hallmarks of these issues to be helpful in assisting the procurement of help for the afflicted attorney. These problems arise in the judiciary and in law schools, of course, and they involve substances other than alcohol, but I have used alcoholism in the law firm as the paradigm for this article.

For the last sixty years, the American Medical Association has classified alcoholism as a disease. Its symptoms include the inability to control one’s drinking, cravings which draw the alcoholic back to drinking when all outside reasons exist for the alcoholic to never drink again, and adverse consequences. Fortunately, these consequences can serve to alert us to the possibility that a partner, associate or friend in our profession may have a drinking problem.

The primary characteristics of alcoholism include (a) drunkenness at functions, (b) failure to timely perform one’s duties as a lawyer, (c) chronic excuses for poor work performance, (d) unkempt personal appearance, (e) disorganization, and (f ) a hazy demeanor. Other indicators, of course, include legal consequences, such as DUIs, and professional problems involving complaints to the Tennessee Board of Professional responsibility and related disciplinary actions.

This is what alcoholism looks like.

What it feels like is much worse, because the alcoholic has to work hard to project an image of normalcy, when, in fact, his or her world

involves misery, fear (of discovery) and anxiety (about the possible consequences of his or her drinking). But the alcoholic knows that in spite of the results that continued drinking yields, drinking alcohol is the only thing that makes the alcoholic feel as normal as he or she can.

The answer to these issues is for the alcoholic or us to seek professional help.

The Tennessee Lawyer Assistance Program (“TLAP”) is the resource our profession has to point attorneys in the direction of help.

That help can include a call for assistance by the attorney or by the attorney’s partners or other office personnel contacting TLAP to stage an intervention or take other actions which are designed to get the attorney to a substance abuse treatment center for an evaluation, and, usually thereafter, treatment.

Calls to TLAP are confidential under Tennessee Supreme Court Rule 33, which serves as the genesis of TLAP. This is important, because the normal reaction of the afflicted attorney who is the subject of an intervention is to try to determine who initiated it.

An alcoholic who obtains treatment for alcoholism, whether the attorney seeks treatment or it is thrust upon him or her, can cease being an impaired attorney and become a repaired lawyer.

The legal community in Knoxville has many attorneys who are in recovery and, regrettably, many more who need to be.

We should not let our fellow attorneys continue to suffer needlessly.

We can call TLAP (1-877-424-8527) and get answers and help.

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.

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records: William E. Baltz BPR # 034137 2237 Lucado Way Knoxville, TN 37909 Ph. N/A FAX: N/A wbaltzut@gmail.com Justin S. Bell BPR # 033200 10419 Merida Drive Knoxville, TN 37931 Ph. (865) 951-4204 FAX: N/A bcs.justin@yahoo.com Thomas Miles Brinson BPR # 032007 Law Office of Miles Brinson 5731 Lyons View Pike Suite 205 Knoxville, TN 37919 Ph. (865) 660-2238 FAX: N/A milesbrinsonlaw@gmail.com

October 2016

Eliza E. Fink BPR # 029154 U.T. College of Law 1505 West Cumberland Ave. Knoxville, TN 37996-1810 Ph. (865) 974-0236 FAX: N/A eliza.fink@utk.edu

Constance C. Herinkova BPR # 020788 Pellissippi State P.O. Box 22990 D-159 Knoxville, TN 37933-0990 Ph. (865) 971-5211 FAX: N/A ccherinkova@pstcc.edu

Richard E. Graves BPR # 034258 Frantz, McConnell & Seymour, LLP P.O. Box 39 Knoxville, TN 37901-0039 Ph. (865) 546-9321 FAX: (865) 637-5249 rgraves@fmsllp.com

Matthew R. Knable BPR # 034587 P.O. Box 926 Knoxville, TN 37901 Ph. (865) 360-5044 FAX: N/A knablelaw@gmail.com

Jackie M. Griswold BPR # 013341 8724 Carriage House Way Knoxville, TN 37923-6136 Ph. (865) 310-7018 FAX: N/A

Philip J. La Nasa BPR # 026148 Law Offices of Julie Bhattacharya Peak 5409 Maryland Way, Ste. 212 Brentwood, TN 37027 Ph. (615) 986-7700 FAX: (800) 293-7597 philip.lanasa@libertymutual.com

DICTA

F. Clinton Little BPR # 033412 6923 Maynardville Hwy. #282 Knoxville, TN 37918 Ph. (865) 405-5740 FAX: N/A fclittlelaw@gmail.com

James K. Scott BPR # 016893 713 Market Street Knoxville, TN 37902 Ph. (865) 254-8739 FAX: N/A jimscott264@gmail.com

Alicia J. McMurray BPR # 032258 General Knox Law, P.C. P.O. Box 26072 Knoxville, TN 37912 Ph. (865) 686-7789 FAX: (865) 686-7792 amcmurrayesq@gmail.com

Dustin Ellis Sharp BPR # 031881 Stokes, Williams, Sharp, Cope & Mann PLLC P.O. Box 2644 Knoxville, TN 37901-2644 Ph. (865) 544-3833 FAX: (865) 544-1849 dusty@stokeswilliams.com

James R. Owen BPR # 018834 Owen Law Firm 800 S. Gay Street, Suite 1400 Knoxville, TN 37929 Ph. (865) 440-6345 FAX: (865) 805-8658 james.knoxdwi@gmail.com

Brian J. Wanamaker BPR # 028983 Morehous Legal Group, PLLC 507 South Gay St., Ste. 1200 Knoxville, TN 37902 Ph. (865) 329-7921 FAX: (865) 971-1776 bwanamaker@morehouslegal.com

13

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

Let the Buyer Beware

Buying a house is undoubtedly one of the biggest and most stressful decisions a person can make. There are the obvious choices of where you want to live, how much you want to spend, the size of the house, the style of the house, etc. And after you’ve found that dreamboat of a house, you then have to worry about the appraisal and the inspection. You also have to make those uncomfortable queries about the history of the house, such as whether someone has died there. Another question to add the list: does the house have a stalker?

In June 2014, Derek and Maria Broaddus purchased what they believed was their dream home, a 6 bedroom, 3.5 bath colonial-style home for them and their three small children in Westfield Town, New Jersey for a cool $1.3 million. (I know what you’re thinking, how can someone’s dream home be in New Jersey? But I digress.). Three days after closing on the home, Derek and Maria received an anonymous letter from someone who went by the name, “The Watcher,” stating, “My grandfather watched the house in the 1920s and my father watched in the 1960s. It is now my time.” “Where are you?” the first letter read. “I will find out.”

More letters ensued from The Watcher — one in June and one in July. Some excerpts: “Have they found out what is in the walls yet?” “I am pleased to know your names now and the name of the young blood you have brought to me.” “Will the young bloods play in the basement?” “Who has the bedrooms facing the street? I’ll know as soon as you move in. … It will help me to know who is in which bedroom then I can plan better.”

The Broadduses never moved into the Watcher home. In the summer of last year, they sued the home’s former owners, John and Andrea Woods, for nullification of their contract, fraud, punitive damages, etc., claiming the couple knew about the home’s long-time stalker and kept the information secret. The Woodses admit to receiving at least one letter from The Watcher, but denied that the note was “disturbing.” (Yeah. Sure. A house with a stalker who sends you creepy, threatening notes is totally normal, and not disturbing at all. ?!?!?!). The Woodses have countersued for defamation and frivolous litigation. Both sides are pushing for their claims to move forward to trial.

At this point, the house remains empty and for sale. The Broadduses haven’t received a letter in the past two years, but are still haunted by the cryptic letters. While the Broadduses have reduced the sale price to $1.2 million, no one is jumping for an opportunity to buy The Watcher house.

The letters remain under investigation, but police have found no evidence pointing to a suspect. An F.B.I. profiler deduced from the envelope handwriting that The Watcher was likely an older individual. Police found DNA from a woman on one envelope, but they’ve still never landed on a suspect.

Also be on the lookout for Derek and Maria’s story coming to a Lifetime movie near you. But for real. It’s happening.

14

DICTA

October 2016

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

A TALE OF TWO CAVES

With one exception (the Batcave), caves are inherently creepy.

Nasty stuff drip, drips from somewhere above you. Equally nasty stuff puddles on the floor waiting for you step in it while you stumble around trying not to bang your head on something. The creatures that live in caves have sharp teeth, too many legs, and probably a personality disorder. They don’t see the light of day because the light of day doesn’t want to see them.

Caves, however creepy, also have stories, and Tennessee is home to a cave so dangerous that it bears a warning label: “No one under the age of 18 without the parent’s consent.”1 You see, according to local legend, this cave is haunted.

In 1804, a North Carolina farmer bought a couple hundred acres of farmland in Robertson County, Tennessee and moved his wife and children into the area. They did what farming families do for about thirteen years, and then things started getting weird. The farmer started having “spells,” twitching in his face and a difficulty swallowing that worsened over time. The family also started hearing the sound of someone beating on the outside of their log house.

It got even weirder. The kids described having their blankets yanked off of them in the middle of the night. The entire family started hearing a female voice singing, cursing, and even quoting word-for-word the sermon preached at the local church. The youngest daughter had her hair pulled and her face slapped so hard, her parents found welts in the shape of a hand on her face and body on multiple occasions.

Things were so strange, General Andrew Jackson and his troops stopped by to investigate after the Battle of New Orleans. They too heard a disembodied female voice, and the men were so spooked that they left early the next morning.

But, then, it got deadly. After a particularly bad spell, the farmer slipped into a coma. He died the next day. The family found a vial of unidentified liquid in the cupboard, and a female voice immediately claimed she had given the liquid to the man. One of the sons gave some of the liquid to the cat which died immediately.2 Surely that is enough to take you beyond a reasonable doubt as to who killed John Bell.

No one has ever been able to explain the mysterious things that happened to the Bell family over 200 years ago or the many reports of odd events since: the sound of people talking, the sight of candles going through the fields, and the weird images that appear in pictures.

But, there was and still is a cave nearby. That explains it all. Now a permanent fixture on the National Historical Registry, the Bell Witch Cave is open for tours by appointment, except after heavy rains and except if you are under the age of 18 and can’t talk a parent into going with you.3 My boys will have to wait until they are 18.

Less than 30 miles from Knoxville, there is another cave with a story. In the late 1700s a group of Quakers, also known as the Religious Society of Friends, settled in Blount County. They founded the community of Friendsville and went about minding their own peaceful, unassuming business.

October 2016

But, with the Civil War looming on the community’s doorstep, they got involved. Friendsville became an important stop on the Underground Railroad, and its inhabitants were pivotal in helping hundreds of slaves escape to freedom. One man, William J. Hackney, had a cave near his house. In that cave, he and his wife housed up to fifty people at a time, providing them with food, bedding, and the other things they needed to continue their journey. Most importantly, the cave provided shelter and safety – at least for a night or two.

You can read all about it on the historical marker at the intersection of West Hill Avenue and Church Street in Friendsville.4 Or, you can taste the flavor of the time in J. T. Trowbridge’s 1863 novel, Cudjo’s Cave, the fictional story of a Quaker schoolmaster and two former slaves in a small East Tennessee town who risk everything to help others trying to escape slavery.5

If the story sounds familiar, that is because Mr. Hackney told his story, including the story of the cave, to Mr. Trowbridge. That story became the basis for the book. Remarkably, this novel was released two years before the Civil War ended and was a powerful tool for reminding war-weary abolitionists of the reason for their cause.6

Two Tennessee caves with two stories have left their mark on Tennessee lore forever. One cave reminds us that there are still some things that we can’t explain. The other cave reminds us that a group of people in a tiny little town can make a real difference by being willing to provide food, clothing, and shelter. That cave also reminds us that two people can impact something as important as a war-torn country – one by telling his story and the other by using his skills and connections to tell that story to the world.

Caves are still inherently creepy. But even a cave, however creepy, can be an agent for change.

1 By the way, a shout out to the attorney who advised the client about posting a warning label. It gives me a rational excuse to avoid the area like the plague.

2 There are a lot of websites which tell the story of the Bell Witch Haunting, but the most complete version may be the book by Pat Fitzhugh, The Bell Witch: the Full Account (Armand Press 2000).

3 If this article has not deterred you from touring the Bell Witch Cave, see the following website for more information: http://bellwitchcave.com/ghost_hauntings/bell_witch_ cave.htm.

4 See HMdb.org, The Underground Railroad, Friendsville Quakers and Cudjo’s Cave, http://www.hmdb.org/marker.asp?marker=81361, last visited Sept. 11, 2016.

5 J.T. Trowbridge, Cudjo’s Cave (Univ. of Ala. Press 2001).

6 Dean Rehberger, introduction, Cudjo’s Cave (Univ. of Ala. Press 2001).

DICTA

15

THE PERILS OF POLITICS IN THE WORKPLACE

Mr. Michael Lotfi, a legislative staffer in Nashville who was fired earlier this year, alleges he was terminated for his political activity. That either makes perfect sense or seems perfectly absurd depending on your perspective. How can one be fired for bringing politics into the workplace if your workplace is politics?

In Tennessee, the Little Hatch Act, enacted in 1974, prohibits certain political practices by public officials and employees.1 The Act prohibits all state employees from using “public buildings or facilities for meetings or preparation of campaign activity in support of any particular candidate, party or measure” without equal access to the opposition.2 The Act also forbids engaging in political activity not directly a part of that person’s employment during any time when the person should be conducting business of the state.3

Mr. Lotfi and Representative Andy Holt, for whom he worked, claim that Mr. Lotfi’s termination was politically motivated.4 In a telephone interview with the Tennessean, Mr. Lotfi stated that his conservative stance and outside work on certain campaigns clashed with the views of Capitol leadership and eventually led to his termination. In addition to his duties as a legislative assistant, Mr. Lotfi has a campaign and consulting business, Brandfire Consulting LLC, which he formed in 2014.5 Connie Ridley, the director of Legislative Administration stated, however, that Mr. Lofti was terminated because his outside employment was in conflict with his service in the legislature. “Our policy states that staff cannot participate in any activities which disrupt or interfere with operations, and staff must maintain satisfactory working relationships with their colleagues,” Ms. Ridley said.6

If Mr. Lotfi was in violation of the Little Hatch Act, his termination would

16

be consistent with the law. But what if his termination was politically motivated? What protections do government employees have in the State of Tennessee to engage in politics and bring politics into the workplace? How is this balanced against the interests of their employers? And what about employees in the private and non-profit sectors?

Generally, federal, state, and local governmental employees enjoy special protections from the First and Fourteenth Amendments related to their employment.

These protections are particularly important because government employees often work directly or indirectly for elected officials who may, upon their election, feel the need to terminate certain employees affiliated with the opposing political party. Under the First and Fourteenth Amendments, public employees are protected from discharge based not only on what they say, but also on what they believe.7 “…[U]nless the government can demonstrate ‘an overriding interest,’ ‘of vital importance,’ requiring that a person’s private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment.”8 This creates the general proposition that a government employee may not be terminated solely for association with a particular political party, voting a certain way, or expressing personal political beliefs, except under certain circumstances.

Those same employees, however, may be terminated for political activity if done in such a way as to imply the State’s endorsement of their actions or for use of government resources for such activity. In addition to the restrictions listed above, the Little Hatch Act prohibits state employees from displaying campaign literature, banners, placards, streamers, stickers, signs, or other items of campaign or political advertising on state property.9 It’s even more

DICTA

restrictive of employees of the executive branch.10 Additionally, Governor Haslam’s Executive Order Number 20 prohibits conduct on the part of executive branch employees that might create the appearance of using a public office for private gain or adversely affecting the confidence of the public in the integrity of the government, among other things. Conceivably, these restrictions could spill over into the political activities of state employees on their personal time.

Generally, however, employees cannot be legally terminated for the way they choose to vote, expressing their political opinions, or participating in politics outside the office, off state property, on their own time, while using personal resources.11 The Tennessee Attorney General has opined that state employees can be engaged actively in a political campaign at times other than during their working hours if that employee’s official position is not used to interfere with the election and state property is not used to aid in that employee’s electoral efforts.12

Thus, the inquiry concerning an employee such as Mr. Lotfi then becomes fact specific.

His daily office life would be put under a microscope: did he perform any campaign work while on the clock as a legislative assistant or use state resources to further his campaign consulting business? Or did he participate only in protected free speech and campaign work on personal time? The analysis would be different if Mr. Lotfi were an employee in the private sector.

Most of Tennessee’s workforce is employed in the private sector, and for-profit private sector employers enjoy the most freedom to control the political discussion within their workplace. Tennessee is an at will employment state. Under this doctrine,13 both the employer and employee are generally permitted to terminate the employment October 2016

COVER STORY By:

relationship at any time for good cause, bad cause, or no cause, as long as the circumstances do not fall within an exception to the doctrine.

Furthermore, unlike their public sector counterparts, private employees do not enjoy the same special protections offered by the First and Fourteenth Amendments, as related to their employment.

Though private, for-profit employers in Tennessee can ban certain political speech within the workplace, there are exceptions to this rule, such as the protection of union organization and related speech.14 Additionally, state law prohibits employers from forcing their own views on their employees. An employer may not direct or attempt to coerce his or her employees to vote for or against a particular candidate or party, including by threat of termination.15 This rule also extends to policy measures on the ballot but does not prohibit discussing the possible fallout from a particular measure.16 For instance, consider wine in grocery stores, which has been a particularly pervasive and divisive topic in the recent past. A local liquor store owner would violate the law by threatening to fire his employees if they vote for wine in grocery stores in the jurisdiction where the store is located. He would not, however, violate the law by explaining to his employees the possible economic ramifications if the measure passed, such as a loss in business and the resulting need to reduce the work hours of his employees.

Tennessee also protects an employee’s right to vote, and even the right not to vote. On election day, if an employee’s work schedule does not allow at least three free hours while a polling location is open, the employer must allow a reasonable amount of time off to vote.17 The employee must request this accommodation the day before, and if the employee complies with the statute, this absence must be PAID.18 Employees, however, also have the right not to vote, and that right is protected by state statute. “It is unlawful to discharge any employee on account of such employee’s exercise or failure to exercise the suffrage…”19

The tax exempt status of non-profit charitable organizations adds another layer of complication to the propriety of politics in the workplace. Participating in, October 2016

Stephanie D. Coleman

or intervening in, a political campaign on behalf of or in opposition to any candidate for elective public office could result in the loss of tax exemption for a 501(c)(3) organization.20 Though a charity may not advocate for or against a candidate for office, it may advocate for or against a particular issue as long as that advocacy furthers its mission.21 Charitable organizations can also participate in non-partisan activities to help people register to vote and to encourage them to do so, but if those efforts seem to endorse a particular candidate, they could be considered impermissible intervening in a political campaign.

These limitations make it particularly important for non-profits to prohibit their employees from campaign participation while at work. Charitable organizations should establish policies that ensure regular staff and employees do not campaign for or against any candidate during work hours or while acting in their capacity on behalf of the organization.

Furthermore, it would be wise to advise even volunteer staff to avoid partisan activities while volunteering, especially if the nonprofit’s activities are closely related to political involvement.

An additional wrinkle is the question of what happens when a non-profit employee requests time off to volunteer on a campaign.

Is the non-profit intervening in a political campaign by granting the request? Federal regulations exclude from the definition of contribution, “the value of services provided without compensation by any individual who volunteers on behalf of a candidate or political committee.”22 As such, neither the volunteer work of the employee nor the employer’s granting time off to work on a political campaign is considered a contribution to the campaign. When an employee engages in political activity while using time off, “no contribution results where the time used by the employee to engage in political activity is bona fide, although compensable, vacation time or other earned leave time.”23 This is similarly true for unpaid time off.24 For the non-profit employer, the key is to treat a request for time off for political participation as it would any other request for time off.

In an election year as volatile as this, employers are finding themselves reviewing

DICTA

Robertson Overbey

their policies to determine what, if anything, they can do to keep political distractions to a minimum without violating their employees’ rights or blocking the flow of valuable information. Conversely, instead of trying to keep politics out of the office, employers sometimes feel strongly about a particular candidate or position and desire to support those political views within their own businesses. Guiding your clients through the patchwork of state and federal laws in this arena is tricky at best, but with careful attention to your client’s special circumstances, it can be done.

1 For further information on this topic, please also see the federal Hatch Act, 5 U.S.C. § 7321 et. seq.

2 Tenn. Code Ann. § 2-19-206(b).

3 Tenn. Code Ann. § 2-19-207.

4 Joel Ebert and Dave Boucher, Andy Holt: Staffer firing ‘100 percent’ political, The Tennessean, August 19, 2016, http://www.tennessean.com/story/news/ politics/2016/08/18/andy-holt-staffer-firing-100-percentpolitical/88943666/.

5 Id. 6 Id. 7 Branti v. Finkel, 445 U.S. 507, 515 (1980)(internal citations omitted).

8 Id. at 515-16.

9 Tenn. Code Ann. § 2-19-206(a).

10 Tenn. Code Ann. §§ 2-19-202 through 205.

11 Tenn. Code Ann. § 2-19-207.

12 Tenn. Att’y Gen. Op. No. 80-245.

13 See Crews v. Buckman Laboratories Inter., Inc., 78 S.W.3d 852, 857 (Tenn. 2002). In addition to the protected classes under Title VII, further exceptions to the employment at will doctrine include military service (Tenn. Code Ann. §§ 8-33-101 et seq.), voting (Tenn. Code Ann. § 2-1-106), exercising right of association (Tenn.

Code Ann. §§ 50-1-201 et seq.), wage garnishment (Tenn. Code Ann. §§ 26-2-101 et seq.), filing workers’ compensation claim (Tenn. Code Ann. §§ 50-6-101 et seq.), and jury duty (Tenn. Code Ann. § 22-4-108).

14 29 U.S.C. § 157.

15 Tenn. Code Ann § 2-19-134.

16 Id. 17 Tenn. Code Ann. § 2-1-106.

18 Id. 19 Tenn. Code Ann. § 2-19-134.

20 Rev. Rul. 2007-41 (Ruling addresses participation of charitable organizations in political campaigns and analyzes several example factual scenarios to provide guidance to readers.)

21 Id. 22 See 52 U.S.C. § 30101(8)(b)(i) and 11 C.F.R. 100.74.

23 11 C.F.R § 100.54.

24 See 11 C.F.R. § 114.12 and FEC Advisory Opinion 1992-3.

17

barrister bullets MONTHLY MEETING Plan now to attend the Barristers monthly meeting on Wednesday, October 12, at 5:00 p.m. at the Bistro at the Bijou. Everyone is welcome.

Get updates on the Barristers on Facebook at www.facebook.com/ knoxvillebarristers.

VETERANS LEGAL CLINIC The inaugural Veterans Legal Advice Clinic was held on Wednesday, September 7, 2016 at the Knox County Public Defender’s Community Law Office. The event was very well-organized and law student and attorney volunteers met with more than ten veterans. The next clinic will held on November 2, 2016 from 12:00-2:00 p.m. and if you are interested in volunteering, click on November 2 in the event calendar at www.knoxbar.org. The Barristers Access to Justice Committee would like to thank the following attorney volunteers for participating: Lauren Biloski, Ritter, Biloski, Miller & Edwards; Dustin Crouse, Quist, Fitzpatrick & Jarrard, PLLC; Devin DeVore, McKellar & Easter; Douglas Dunn; Daniel Ellis, Ellis & Ellis; Jeff Glaspie, Bill Hotz & Associates P.C.; David Headrick, LandAir Surveying, Inc.; Benjamin Lauderback, Watson, Roach, Batson, Rowell & Lauderback; John Lockridge, The Lockridge Law Firm; Jim London, London & Amburn; Channing Miller; David Noel, Justice, Noel & Burks; Melissa Owens; Will Parz, Will Parz Law Office; David Rexrode, David J. Rexrode, Atty at Law; Jessica Vickers, Troy Weston, Eldridge & Blakney, P.C., and David Winstead, TVA Office of Inspector General. In addition, the Committee would like to thank Spencer Fair, London & Amburn, Laura Chambers, with the Knox County Public Defender’s Community Law Office, Tracy Chain, KBA’s Lawyer Referral Coordinator, Deb House and Kathryn Ellis, Legal Aid of East Tennessee, and Brad Morgan and Shawn Ross from the UT College of Law for their assistance in coordinating the event.

GOLF TOURNAMENT The Athletics Committee has scheduled the Barristers annual charity golf tournament for Monday, October 24 at Holston Hills. Sponsorship opportunities are available.

2017 ELECTIONS Seeking Barristers Officers to Serve in 2017: The following officers for the 2017 bar year are open for nominations: Vice President, Secretary/ Treasurer and (2) At-Large Executive Committee Seats. Please notify Lacey Dillon by Monday, November 4th, if you would like to nominate someone or are interested in running for a Barristers office. Please note that the person elected Vice-President in December will automatically become the Barristers President for the 2018 bar year. Candidates must be current KBA members.

WELCOME NEW BAR ADMITTEES Help us welcome our newly admitted attorneys to the local bar on Monday, November 7, 2016 from 5:30-7:00 p.m. at Calhoun’s on the River, 400 Neyland Drive. This event is open to all KBA members and new bar admittees and there is no charge to attend. Register by November 4 at www.knoxbar.org (click on November 7 in the Event Calendar) or call the KBA at 865-522-6522. Members are encouraged to attend this festive occasion. One free drink ticket will be provided to each KBA member and some light refreshments will be provided. KBA members will enjoy mixing and mingling with members of the bench and bar in a relaxed, informal environment.

7TH ANNUAL CORN HOLE TOURNAMENT The Barristers’ Seventh Annual Cornhole Throwdown to benefit Big Brothers Big Sisters will be held Thursday, October 20, 2016 at Bearden Beer Market (4524 Old Kingston Pike). Check-in begins at 6 p.m. and tournament play begins at 6:30. You can register as a two-person team or sign up as a single player to be paired with another player the night of the tournament. The entry fee is $15 per player by October 8; after that date, the registration fee is $20 per player. Register by clicking on October 20 in the Event Calendar at www.knoxbar.org.

CANNED FOOD DRIVE SCHEDULED Join the Barristers for the Seventh Annual Canned Food Drive November 7-21 to benefit Second Harvest! By donating food or money, you can help keep Knoxville fed and healthy this winter! Canned foods, peanut butter and cereal are needed. Rules and instructions for registering your firm will be provided in the coming weeks. In the meantime, if you have questions, please feel free to contact Courtney Houpt at choupt@taylorknightlaw.com or Kourtney Hennard at kourtneylace@gmail.com.

VOLUNTEER BREAKFAST The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. The Barristers Volunteer Breakfast Committee needs volunteers in 2017 to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. Volunteers meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community. Sign up at http://www.knoxbar.org/Job-Placement/volunteer-breakfastsign-up. For more information, please contact Committee Chairs Paul Wehmeier at pwehmeier@adhknox.com or Kati Goodner at kgoodner@ lewisthomason.com.

W O R D P L AY By: Peter D. Van de Vate Finkelstein, Kern, Steinberg & Cunningham

“Flotilla” Well, believe it or not, not everything that has to do with words and ships comes from the British Navy. A flotilla is a small fleet of ships, of course, and we Anglos borrowed it from the Spanish somewhere near 1700, when the power of the Spanish Empire was waning and giving way to Great Britain and the Netherlands. The English word fleet and the Spanish word flotilla are basically cousins. A flota is the diminutive of flotilla, “fleet.” Flota comes from the French flotte, “fleet,” which in turn comes from the Old Norse floti. The old Norse word floti is closely related to the Old English floet and belongs to the same family of Germanic words that also gives rise to the English verbs flow and float. Other nautical terms from Spanish origins include armada, cargo, emargo, and galleon.

18

DICTA

October 2016

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

JERRY H. SUMMERS’ “RUSH TO JUSTICE? TENNESSEE’S FORGOTTEN TRIAL OF THE CENTURY – SCHOOLFIELD 1958”

The author, Jerry H. Summers, is a Chattanooga-based attorney who has served as an assistant district attorney and both a criminal defense and personal injury attorney since entering the legal profession in 1966. In Rush to Justice?, Summers uses this multi-disciplinary background to bring context to the life of a lesser-celebrated (or reviled) character from Tennessee judicial history.

Summers’ goal in writing the book was to provide a full recounting of Raulston Schoolfield’s life controversies – both personal and political.

Based upon his exhaustive research, Summers presents the “enigma” that was Schoolfield. Throughout the entire book, Summers leaves it to the reader to decide what versions of disputed histories of Schoolfield’s life he or she wants to believe. Summers himself admits that his opinion of Schoolfield “vacillated” as he researched and wrote the book. He further forewarns that, “there is the good and the bad.”

Schoolfield’s early life was sparsely documented and remains mysterious. Born in the early 1900s, Scott Raulston Schoolfield grew up in the Chattanooga area and ultimately attended law school at the old Cumberland Law School in Lebanon, Tennessee. But, like many aspects of Schoolfield’s background, questions remain as to how he even met the minimal requirements to attend law school and be admitted to the practice of law in 1926. For example, Summers notes that it is unclear whether Schoolfield even finished high school.

Schoolfield got his start practicing law with his “famous” father, William A. Schoolfield. As Summers describes Schoolfield, he was “fun-loving,” with a “propensity to get into trouble.” His antics started early: Schoolfield and his brother – also an attorney – wired their father’s office chair to a car battery to shock him whenever he sat down. This “fun-loving” lifestyle became a trend and affected his career in many ways: early on, Schoolfield was caught impersonating his friend to pass the bar exam for him and, later, he was disbarred and impeached from the judiciary. The reader may get the sense that Schoolfield’s later success came less from diligent legal study and more from stoking connections and having a well-respected lawyer-father.

Schoolfield did find political and judicial success, albeit with improprieties along the way. After practicing law for several years, Schoolfield was elected as Hamilton County Criminal Court Judge on the Democratic ticket in 1948. He ran again in 1950 for a full term as a judge. Controversially, Schoolfield pushed segregation in his attempt to win the Governor’s race in 1954; he ultimately lost to Frank Clement.

Just a few years later, Governor Clement, John Jay Hooker, Jr., and Jack Norman recommended to the Tennessee General Assembly that Schoolfield be impeached for several improprieties and errors of law while serving as judge.

Schoolfield was found guilty of three of the twenty-four counts in the Articles of Impeachment. Those errors include accepting improper gifts (a new Pontiac), using his judicial position to promote his political candidacies, and “habitually and continuously” bringing the court into public contempt and disgrace due to such things as engaging in partiality and profanity. With that, Schoolfield’s impeachment was completed in 1958.

October 2016

The coverage of the book ends at this point in Schoolfield’s life, but Summers hopes that the people’s interest in this book will fuel his writing of the biography of Schoolfield’s later life (spoiler alert: he was re-admitted to the practice of law, then his reinstatement was reversed; despite his inability to practice law, he became a judge again in the 1970s).

Summers’ book is a valuable addition to the annals of Tennessee legal and judicial history. It is extremely detailed (where possible – again, some aspects of Schoolfield’s early life remain a mystery) and meets Summers’ goal of providing a full recounting of the life of a man whose stories have not been widely told. However, the reader should be aware that this gift could also be seen as a curse. The book is a chronological and slightly dry account of Schoolfield’s activities, and it does not read with any drama or flourish. But, again, the information is presented in a straightforward fashion, which should appeal to any legal-minded reader.

The appendices also provide great documentation that would interest Tennessee legal historians.

With publication of this book, Summers provides the citizens of Tennessee with a quality – and perhaps the only – exhaustive biography of Schoolfield’s life, one that was controversial, in the public eye, and worth documenting. I recommend this book for any well-read lawyer looking to learn more about the contentious life of Raulston Schoolfield.

DICTA

19

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

WI-FI HOME STEREO GRUDGE MATCH CHROMECAST AUDIO VS. AIRPLAY VS. SONOS

Our love of music is legendary—from Robben Ford to Amos Lee to Lake Street Dive to BØRNS. We’ve even been known to listen to a little Tim McGraw, Wiz Khalifa, and Ziggy Marley from time to time.

Unfortunately, we both have spent so much money buying gadgets that we cannot afford to wire our homes or offices for expensive whole-house audio systems like Russound, Niles or Nuvo. Yes, we know, hard-wired systems are more reliable and provide the highest of audio quality. But, we cannot afford to tear the walls out of our houses and completely rewire them for audio in every room. Wireless audio systems are the perfect solutions for us. Plus, as part of our gadget addiction, we can “play” with wireless audio using our smartphones. For us, it’s the best of all possible audio worlds.

There are several wireless audio solutions on the market now, but we have narrowed our favorites down to three: Sonos (the most expensive solution); AirPlay (an Apple-centric product); and Chromecast (Google’s solution). All three systems have their pros and cons, so we put them to the test in a wireless audio grudge match.

SONOS.

Sonos has long been the leader in multi-room wireless speaker systems. The Sonos system (like the Chromecast Audio and the AirPlay systems) connect to your home Wi-Fi system and the Internet. You can play music from almost any available audio service, from iTunes, from Groove Music, from Amazon Music, and so on. If you are creative, you can even use your turntable as an audio source for the Sonos system if you have a device called “Sonos CONNECT.” You can play different music in different rooms or play the same music in all rooms together and still maintain independent, individualized volume controls in each room. You control the music, the sources, and the volumes independently from an app on your smartphone, iPad or other tablet. The Sonos solution is truly elegant.

But, there is a drawback. It is expensive. The Sonos CONNECT (the wireless receiver component) costs $350.00. The Sonos CONNECT with a built-in amplifier costs $500.00. If you use the CONNECT alone, you will have to buy an amplifier or use speakers with built-in amplifiers. It just so happens that Sonos has its own line of amplified speakers. There are three such speakers: the PLAY:1 at $199.00, the PLAY:3 at $299.00, and the PLAY:5 at $499.00. For larger rooms, you will need the PLAY:5. By the way, those prices are for one speaker. If you want stereo, you will have to buy two of each. A subwoofer costs $699.00. Another option is the PLAYBAR which can be installed underneath an HD television, providing audio output for the TV as well as being controllable from the Sonos system. Obviously, at these prices, putting speakers in every room of your house can become very expensive. The Sonos system is rock solid, though, and you rarely will get skips or “hiccups” in your audio streams because of its proprietary networking software system.

Apple AirPlay.

AirPlay is a proprietary Apple software protocol. The technology is supported on all Apple devices, from Apple computers to iPhones, and iPads to Apple TV. In order to use the AirPlay system, you will need either an Apple TV or an AirPort Express device. You will need

20

one such device for each room. You can buy either of these devices for approximately $100.00, or you may be able to buy refurbished ones for approximately $60.00. There is also a limited number of AirPlay enabled speakers; however, those speakers cost the same as Sonos speakers or even more. The best use of an AirPlay system is to use it with your existing stereo equipment. You can connect the Apple TV device or the AirPort Express device to your stereo and stream music from any Apple device.

There are drawbacks, however. The AirPlay system is only useable with Apple products unless you buy a third-party software “hack” that would allow you to use AirPlay with Windows or Android devices. If you are using a Windows computer, however, you can download the Airtunes/AirPlay software and play music only from iTunes. If you use AirPlay with an iPad or an iPhone, you can only stream music to one room at a time. The multi-room capability is only available if you are using iTunes or a third-party hack, such as Airfoil from Rogue Amoeba (cost is approximately $30.00). Thus, the AirPlay solution is certainly less expensive than the Sonos solution, but it is not nearly as versatile.

In addition, in certain homes or offices, you can experience “skips” while streaming music using AirPlay, but the system does support Lossless Audio.

Google Chromecast.

If you are like us, and you’ve spent all of your money on gadgets, you may want to look at the Chromecast Audio system. The Chromecast Audio (not to be confused with Chromecast Video) is the cheapest solution by far. The device costs $35.00. You can connect one of these devices to your existing system or to powered speakers in each room and stream music from almost any iOS Android or Windows device. You can group rooms together, or you can play music in each room separately, although not with as many options as are available on Sonos.

Google Chromecast offers high-resolution audio as well. The drawback is that, unlike Sonos, it does not rely on a single app that simplifies the process. Also, it is not as easy to choose speakers using Chromecast as it is using AirPlay. Instead, Chromecast system is integrated into individual applications and browsers on your devices. Some services (like iTunes) are still unavailable using the Chromecast Audio system.

The bottom line is that it is very inexpensive, but it is not a unified hardware and software solution. On the other hand, Chromecast Audio is very simple to use and works very well with little or no “skipping” because the device itself connects directly to the Internet once you have chosen the source for it to use. At $35.00 per room (plus the cost of a nice but inexpensive set of powered speakers or an existing stereo system), the Chromecast system is the system of choice for the poor and the cheapskates among us.

The Winner(s).

Now that the grudge match is over, we have to award the heavyweight championship to Sonos. It is by far the best and most elegant of the systems—if you can afford it. But, we will give the featherweight award to Chromecast. AirPlay is really only a solution for those that are still addicted to, or restricted to, Apple products.

So, pick one of these systems and jam around your house to a little Electric Love by BØRNS.

DICTA

October 2016

SCHOOLED IN ETHICS By: Paula Schaefer Associate Professor of Law University of Tennessee College of Law

ENGAGING IN THE UNAUTHORIZED PRACTICE OF LAW (FROM THE COMFORT OF AN OFFICE IN THE STATE WHERE YOU ARE LICENSED)

You are a Tennessee-licensed attorney living in Knoxville. Your motherin-law, Sheila, lives in Minnesota. Sheila calls to ask if you can help with her condominium homeowners’ association (“The Association”). The Association obtained a judgment against Sheila for $2,300 in Minnesota state court. She does not have the money to pay the full judgment, but she is willing and able to pay some lesser amount to put the matter to rest. The Association’s lawyer has called her several times, but has been unwilling to talk about a compromise.

Sheila says, “I think the Association’s lawyer is more likely to talk to another lawyer. You deal with things like this, don’t you - negotiating about money with other lawyers? It would mean the world to me if you could help.”

Of course, you handle things like this in your practice. Like all lawyers, you negotiate with other lawyers on a daily basis. You tell Sheila you are happy to help.

The next day you write the Association’s lawyer an email explaining that you represent Sheila and that he should direct all future communications to you. You then propose a resolution of the matter. Opposing counsel emails a reply immediately, addressing your offer and then asking, “By the way, are you licensed in Minnesota?”

You respond, “I am not licensed in Minnesota, but I will associate with local counsel if I need to file suit.” After that, you spend the next few weeks exchanging email with the Association’s attorney, trying to negotiate a resolution of Sheila’s matter.

Weeks after the initial call from Sheila, you receive a letter from Minnesota’s Office of Lawyers Professional Responsibility. A complaint has been filed against you for the unauthorized practice of law in Minnesota.

This hypothetical is based on a recent case involving a Colorado lawyer who represented his Minnesota in-laws by email in a negotiation with Minnesota counsel related to a small judgment obtained by a Minnesota condominium homeowners’ association. In an August 31, 2016 decision, the Minnesota Supreme Court decided that the lawyer had engaged in the unauthorized practice of law in Minnesota, in violation of Minnesota Rules of Professional Conduct.

Practicing Law?

As an initial matter, the Minnesota Supreme Court had to resolve the question of whether the attorney’s conduct involved the practice of law. The court relied upon Minnesota precedent that representing a client in the negotiation of a claim is the practice of law. The attorney conceded he was practicing law.

Practicing Law in Minnesota?

The more difficult question was whether the attorney was practicing law in Minnesota. The attorney argued that he was practicing law in Colorado, the place where he was physically located at all times during his email negotiations. Though Minnesota’s professional conduct rule (which tracks the language of Model Rule 5.5) does not define what it means to practice in a state, the Court noted precedent from other jurisdictions that an attorney can practice law in a state without being physically present there. The Minnesota Supreme Court was persuaded by the reasoning of the California Supreme Court in Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1, 5-6 (Cal. 1998). The Birbrower court explained that the key question is whether a lawyer has “sufficient contact” with a state, and not merely contact that is “fortuitous or attenuated.” Applying Birbrower, the Minnesota Supreme Court concluded the Colorado attorney practiced law in Minnesota by representing and advising Minnesota clients in a Minnesota legal dispute and attempting to negotiate resolution of that dispute with a Minnesota attorney.

October 2016

Authorized Temporary Practice in Minnesota?

Like Model Rule 5.5(c) (and Tennessee’s RPC 5.5(c)), Minnesota’s professional conduct rule allows attorneys licensed elsewhere to provide legal services in Minnesota on a temporary basis that: (1) are undertaken in association with a local attorney; (2) are related to a potential proceeding in Minnesota if the lawyer reasonably expects to be authorized to appear; (3) are related to an alternative dispute resolution proceeding and arise out of the lawyer’s practice in another jurisdiction; or (4) are not within paragraphs 2 or 3 but “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”

The Colorado attorney argued that his conduct was proper under paragraphs 2 or 4 of Minnesota RPC 5.5(c). His first argument was that he reasonably believed that he could associate with local counsel and be admitted pro hac vice, making his conduct appropriate under paragraph 2. The Minnesota Supreme Court rejected this argument, reasoning that litigation was unlikely. The issue already had been resolved in court, and the attorney was simply negotiating resolution of a debt.

The attorney’s argument under Minnesota RPC 5.5(c)(4) was that his in-laws asked him to represent them in a matter within his expertise, such that the matter “arose out of ” his Colorado law practice (a litigation practice that sometimes involves debt collection). The Minnesota Supreme Court also rejected this argument, explaining that the services provided to the Minnesota in-laws were unrelated to the attorney’s Colorado practice. The court reasoned that these “were not long-standing clients” and that there was no connection between their case “and the state or laws of Colorado.”

The dissent asserted that Minnesota RPC 5.5(c)(4) is a “broad, catch-all exception that is intended to exempt circumstances such as those presented here.”

Outcome in the Minnesota Case and Lessons for Attorneys

The Minnesota Supreme Court determined that the appropriate discipline is an informal admonition. The case is In re Charges of Unprofessional Conduct in Panel File No. 39302, --- N.W.2d ----, 2016 WL 4536594 (Minn. Aug. 31, 2016). It is likely that the attorney will face reciprocal discipline in the states and federal courts where he is admitted to practice.

Even if we disagree with the Minnesota Supreme Court’s decision, the case highlights the need for attorneys to think about (and research) the unauthorized practice of law. The Colorado attorney approached the issue as many attorneys would: he did not give it much thought. He was licensed in the state where he was working and knew he could seek pro hac vice admission in Minnesota if the matter somehow ended up in court.

But the issue is more complex than that. If you represent a client from another state, research or advise about the law of another state, negotiate with an attorney in another state, or travel to another state to do legal work, you have a potential unauthorized practice of law issue.

Take the time to look at the other state’s professional conduct rule governing the unauthorized practice of law and any other authority (such as a statute and case law) addressing the issue. You may find that you are not engaged in the practice of law there, that you fit comfortably within a provision allowing your temporary practice, or that there is an easy way to avoid any question about your conduct (such as associating with local counsel).

DICTA

21

Annual Fall Hike Saturday, October 29

The Professionalism Committee invites you to the annual fall hike on Saturday, October 29 at 9:00 a.m. at the River Bluff trail in the TVA River Bluff Natural Area at Norris Dam, approximately 25 miles north of downtown Knoxville. The River Bluff trail is a three mile, pet-friendly loop, with nearly half of its length running alongside the bank of the Clinch River just below the dam.

We will meet at 9 a.m. at the Norris Dam Visitor Center, at the top of the dam. Everyone should bring snacks and water for hiking as well as food and your favorite beverage for a post-hike picnic lunch.

Please confirm your participation by emailing Lars Schuller at LSchuller@LewisThomason.com.

Everyone is welcome to bring their family, and join us on Saturday, October 29!

22

DICTA

October 2016

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

CONFESSIONS OF A MODERN PARENT

Raising kids in the 21st Century can be hard. No question about it.

I took our seven year old, Janie, to a birthday party last night at “Bricks 4 Kids,” a Lego-inspired store where kids are given free roam to build whatever they want, limited only by their imagination and the amount of time they have before the pizza and cake arrives. Now, my daughter is a sweet, loving child, but she is also fiercely confident and independent. In real terms, that means that when she is with her friends she is happy to have her parents around, but equally comfortable when her parents are not “helicoptering” her every move. Therefore, I had no hesitation in telling the host parents that I planned on leaving Janie there and that her mother would be picking her up in half an hour. You should have seen the shocked faces of some parents that I would deign to leave my child at a birthday party in a controlled and supervised atmosphere. You would have thought I was beating her for using wire coat hangers.

The staff at the facility was fine with my decision, so long as I filled out the appropriate forms before I left. With that, I was given an authorization form drafted by a skilled lawyer working on an hourly basis and requiring any and all pertinent information concerning my child and her ongoing medical conditions. They required everything short of giving blood samples before I was allowed to walk out the door. Don’t get me wrong, I was glad that the facility wanted to be prepared in the event something happened to my child while I was gone, but it seemed a bit of overkill. I was going to be less than two miles away and she was in a controlled environment: a 30’ x 30’ room playing with building blocks and eating pizza for ninety minutes. It’s not like she was going to be deep sea welding.

I think back to the parties I attended when I was seven years old and it is evident that there is a stark contrast to how we are raising kids today. My dad would chain smoke with the windows rolled up in our Cutlass Cierra all the way to my friend’s house, allowing me to sit in the front with no seatbelt the entire trip. When we got there, he would not get out to introduce himself to the parents, or ask anything about the party. He’d let me out in the driveway and pull away with the vague promise that he would return at some point, probably whenever halftime of the football game started. Inevitably, a birthday party in 1978 consisted of playing dodgeball or throwing lawn darts at my friends. If it was nighttime, we might break out the sparklers and let a bunch of seven year olds run around waving them at each other like mini light sabers. Snacks consisted of Kool Aid and Cheetos. There was no vegan option and no one cared if you had a peanut allergy. In fact, my parents would not have understood the phrase “peanut allergy” and would not have comprehended putting those two words together. I am allergic to cats and yet, for the 18 years I lived under my parent’s roof, they insisted on continually having a pair of cats in that house. Between my untreated allergies, hay fever, and my parent’s smoking indoors, my lungs didn’t take a full breath until I was in college.

Beyond the comparisons of birthday parties, I am struck by the day to day lives of our children. In the 1970s and 1980s, our parents would let us out of the house in the morning with the expectation that we may come home for lunch but that we weren’t really expected to be home until dinner. We were all expert bicycle riders (sans helmets) so even our friends three or four miles away were within reach. Without any parental supervision, we constructed our own organized hierarchy and dispute resolution system with our peers. Either that, or we devolved into Lord of the Flies. We didn’t walk around with iPhones downloading apps by October 2016

the dozen and hunting Pokémon. We used our imagination to cure our boredom.

I am probably being a bit nostalgic. I have a tendency to romanticize my own childhood, as I think most of us do. Further, I am sure there are those older than me who would tell me I had a soft, coddled childhood compared to those growing up in the 50s and 60s. However, I can’t help but feel that societal fears and the growth of technology have stripped our children of some of their freedom.

Not without good reason. A quick glance at the daily headlines will make even the most laid back of parents paranoid about the safety and innocence of their children. The world is probably not that much more dangerous than it was 40 years ago, but we are more acutely aware of those dangers. We are forced to create a controlled atmosphere for our children to monitor their activities by the minute and then document those activities on social media so the world can see how happy they are.

I recognize that I enjoy tremendous advantages over my own parents when it comes to raising my kids. There is a wealth of information and resources that was never available when I was a child to help me in my journey as a parent. Moreover, I am sure they probably had the same fears and trepidations I do today. They were concerned for my safety and growth. They wanted me to be happy and to grow into a confident and successful adult. They wanted me to learn and practice good values.

These are the same goals I have for my children. And, probably just like in their day, society is changing so fast no one can offer a blueprint on the way it should be done. Maybe I should amend my initial hypothesis.

Instead of stating that raising kids in the 21st Century is hard, I should just posit that raising kids is hard, period, but I’m glad to have the job . . . and thank God my wife is willing to make all the tough decisions.

DICTA

23

LAWYER HOBBIES By: Katie Ogle McDonald, Levy & Taylor

KICKBALL GIVES LOCAL ATTORNEYS A CHANCE TO RELIVE PLAYGROUND GLORY

Beginning in the summer of 2013, a few attorneys and I learned that the Knoxville Sports and Social Club offers several different recreational and semi-competitive sport leagues for adults. Sports are all coed and that particular season included softball, bowling, sand volleyball, and kickball. While the first three on the list seemed to require potentially significant skill and athletic ability, kickball seemed a little easier, and possibly more fun.

“You think ‘Oh, kickball. I was great in third grade. This is going to be easy,’” laughs Assistant District Attorney Nate Ogle. “Once you get out there, it’s not that easy. The ball’s bigger. The bases are further apart than you remember. And we all have a few years and a few pounds on us.”

Kickball, according to multiple sources, was created in 1917 by Nicholas Seuss, supervisor of Cincinnati Park Playgrounds. Originally called kick baseball, Seuss included 12 rules and a field diagram in an overview of the game.

“The game seems to afford equal enjoyment to the children and it give a better understanding of the national game (baseball), and at the same time affords them an exercise that is not too violent and is full of fun,” Seuss wrote in “The Playground Book,” which was published in 1917.

The rules of the game are similar to baseball and softball, with a few variations. Instead of throwing a ball to start play, a large inflated rubber ball is rolled towards home plate and the batter kicks the ball rather than hitting with a bat.

Once the ball is kicked, the batter becomes a runner and races to first base, while fielders try to record an out by hitting the runner with the ball or throwing it to a defender at the base before the runner gets there. Teams often consist of 10 players on the field, which is similar in size to a softball field. Soon after the game was created, adults began gravitating to it. Many found kickball to be an easier – and cheaper – alternative to playing baseball or softball. In fact, World War II correspondent Ernie Pyle wrote that U.S. soldiers played kickball during the Tunisia Campaign in 1942 and 1943.

Locally, some leagues allow females to bunt, and all require tags to be below the shoulders. Of course, the local attorneys who play spend a large amount of time reviewing the rules and making sure game officials are as well versed in the parameters of play. Here in Knoxville, many local attorneys have continued with their same core team over the past several seasons.

After the first season, it becomes much easier to know which players develop a skill for certain positions, and how each team member makes individual contributions. For some of us, that contribution could be a great curveball, the ability to get an RBI, or simply comic relief for the team.

In the Knoxville Sports and Social Club recreational league, seasons last approximately eight to ten weeks, with the victors earning a large team trophy, and the all important title of “Champion.” Registration fees range from $60-$65, and if one doesn’t have a team, there is an option to register as a free agent. Depending upon the number of people interested, kickball is played on Wednesday and Thursday evenings, as well as Sunday afternoons. Leagues are held at Badgett Sports Complex, Rocky Hill, and Safety City fields, among others. For more information, check out the Knoxville Sports and Social Club website at www.knoxssc.com. Good luck out there!

24

DICTA

October 2016

NICE NICHE By: Dawn

Coppock

ADOPTION LAW •

How did you decide to become an adoption attorney?

years, if ever. Sometimes they only spend enough time out of jail to post a few party pictures on Facebook and conceive a child. Yet they litigate and

I have a younger sister who was adopted in an interfamily case these cases are not like shooting fish in a barrel. The burden of proving in Knox Chancery Court that began when she was four and ended clear and convincing evidence is on me, and the various protections for when she was almost eighteen. Boone Daugherty, Amelia Strauss and birth parents and procedural requirements are numerous and technical.

Ben Strand all represented my parents at Most termination cases with court different times. When I was in grade school appointed counsel are appealed. Reversals of rowing up under a cloud of long I remember Boone, in my family’s living term litigation over the security of terminations are frequent, though custody of room preparing my mother and grandfather the children is almost never removed from a loved one makes me particularly the prospective adoptive family. So I have an to testify against my aunt. aware of the emotional and financial cost of appellate practice also.

My parents were teachers and had four biological children. The cost of this a procedural set back or loss on the families Growing up under a cloud of long term litigation prevented them from giving litigation over the security of a loved I represent. us the nice clothes, hotel vacations and one makes me particularly aware of the similar extras that most families with two, emotional and financial cost of a procedural well-educated, working parents might provide. I am not complaining. set back or loss on the families I represent. Even if the child is not leaving Vacations were usually camping. I learned to sew, cook and create thing the home of the prospective adoptive parents, there is no substitute for myself. I remain part of a close, loving and resourceful family. And I for finality, security, and being left alone by lawyers, courts and social have a younger sister who I love. But the litigation was an emotional and workers. financial drain on all of us.

Some people are uncomfortable with loving unrelated people as • Is there anything people would find surprising about your practice? family or the risks of “unknown genetics.” The drone of litigation and related gossip was the background noise of our family life. But whether

My work is often really sad and some days I’m a social worker. Many my sister was one of the rowdy Coppock herd was, and is, never a adoptions are by consent, either newborn babies placed privately, public question. or private agency cases, or voluntary relative placements. These cases

I didn’t go to law school intending to practice adoption law. I was can be almost transactional, identifying parties and issues, negotiating a business major in college and loved representing small businesses. But terms and executing documents. But the outcome is never certain and the I soon found adoption particularly meaningful and begin to actively parties on both sides are afraid and vulnerable. encourage that work before my fifth year in practice.

I have visited birth mother clients in the hospital and held their hand through labor or driven them home, just because they don’t have • What does a normal week look like for an adoption attorney? anyone else. I’ve secured living expenses or food stamps and taken them to the store to teach them how to shop for simple groceries they can

My practice area is the eastern half of Tennessee, so a typical week cook at home. Many of the birth parents have never lived in a functional includes lots of time in the car, usually on the phone. A surrender of family. As much as they need a lawyer, they need a mom even more. parental rights and two to four adoption finalizations a week comprise

The opiate crisis has had a dramatic impact on adoptions in my emotionally intense, but usually uncontested court calendar.

Tennessee. At least half the children in my cases were exposed to

I also have an active litigation practice. Termination of parental drugs pre-birth. I’ve learned the related medical, social and educational rights cases still routinely go to trial, due mostly to the court appointed problems for these children and make referrals to the few programs counsel for the indigent. I have the usual litigation calendar, meeting available for the moms and children. with experts, interviewing witnesses, reviewing medical, child welfare

I track down birth parents in “naked bars,” and prison. I knock on and criminal records, motions, and lots of calming and explaining to doors sometimes with backup sitting in the car outside. People get starry distressed prospective adoptive parents. eyed about what a sweet law practice adoption must be, as if I sit in my office preparing documents and knitting booties. Once a lawyer actually • Tell us what types of problems or issues you typically deal with for said I practiced, “girl law.” I generally just say that my work is very clients? rewarding and that I love it. And that is true. I think I have the best law job in the state.

Contested termination cases are very much like prosecuting a

criminal case. I don’t file a case without strong facts. The birth parents I litigate against often have fat files with DCS or haven’t seen their child in

G

October 2016

DICTA

25

OPEN SERVICE By: Charme Allen Knox County District Attorney

QUARTER THREE: SEEED

Knoxville is fortunate to have people and organizations that focus on lifting people up and helping them become their best selves. Many, if not most, of these organizations operate on a lean budget and depend on grants and donations from members of the community in order to continue their good work. Each organization has its own unique creation story, but each one has invariably started from the spark of a good idea in the minds of passionate people that has grown into visible change.

That is exactly how SEEED, the organization the Open Service Project volunteered with for its third quarter project, began, and the work it is doing in Knoxville has grown in scope to become an organization in which our community can and should take much pride.

SEEED (Socially Equal Energy Efficient Development) started in the back yard of Stan Johnson. Johnson, along with three other compatriots, decided that urban Knoxville needed an education about sustainable energy, or, more practically stated, things people in urban Knoxville could do to lower their utility bills. The founders of SEEED also wanted to equip urban youth in Knoxville with the tools they needed to find success in the workforce. Those seem like easy tasks: educate the public on green energy, work for a change in local energy policy, and empower youth to become a greater force to be reckoned with in the workforce—if you are superhuman. Well, the staff at SEEED has proven themselves to be near heroic.

SEEED describes itself as “a green community development nonprofit focusing on creating and sustaining jobs for Knoxville’s urban young people, as well as ensuring clean energy technologies are available for low income residents.” Consistent with this mission, SEEED has three primary points of focus: (1) community energy workshops and education, (2) a career readiness program for young adults, and (3) a community garden serving residents in an urban Knoxville food desert.

Each of these programs takes the commitment of SEEED’s staff and community volunteers.

The community energy workshops are done as part of the Tennessee Valley Authority’s Knoxville Extreme Energy Makeover. SEEED engages in community canvassing to determine the specific needs of the community prior to these workshops, but each workshop focuses on how to lower utility bills and ways to weatherize their homes. Those in attendance also learn about opportunities to enroll in programs that will provide free weatherization for homes.

The career readiness program provides job-search skills to classes of approximately 10 students who range in age from 16 to 28. Topics that are discussed during the nine-week program include money management, business development, conflict management, and résumé writing. During their participation in the program, students assist SEEED in developing their other programs and are provided with a weekly stipend. Tamira Langs-Hayes, a graduate of the program turned SEEED employee, says that the career readiness program is looking for students who are “willing, wanting, and passionate.” In discussing her own journey, Langs-Hayes talks about finding the program during a time when she had just given birth to a child and was out-of-work. SEEED spoke to her own passion to help people, and after she completed the program, she realized she had already found her professional home.

SEEED’s third initiative, the community garden, serves residents of inner city Knoxville who are in a food desert. Food deserts, according

26

to the Centers for Disease Control and Prevention, are “areas that lack access to affordable [foods] that make up the full range of a healthy diet.”

To combat this inner city Knoxville desert, SEEED started a community garden at its facility on Dandridge Avenue. It boasts 52 fruit trees and plants and has 6 raised garden beds. And so, we have reached the Open Service portion of the article.

On August 20th, local attorneys gathered to spend a morning working in SEEED’s garden. Coordinated by the Open Service Task Force and the Knox County District Attorney’s Office, these volunteer attorneys were tasked with garden maintenance, including weeding and mulching. Oft fickle Mother Nature turned a benevolent eye on the morning, and put clouds in the sky and kept the temperature low. It was a wonderful opportunity to be with fellow lawyers and work on sustaining a project that is, itself, sustaining our neighbors.

Programs like SEEED need your help and attention if they are to survive and continue making a positive difference in our community. If you are interested in learning more about SEEED and opportunities to get involved, check out their website, www.seeedknox.com.

DICTA

October 2016

AROUND THE COMMUNITY By: Reggie E. Keaton Frantz, McConnell & Seymour, LLP

KNOXVILLE BAR FOUNDATION SUPPORTING OUR LEGAL COMMUNITY

The Knoxville Bar Foundation plays a key role in supporting our legal community. Established in the early 90s, the Foundation provides a means for charitable gifts to be made to support important programs and projects. The charitable gifts come primarily from the Fellows of the Foundation, and a new class of Fellows is inducted each year. This year the Foundation held its annual dinner on May 24 at which time the new Class of 2016 Fellows was introduced and welcomed into the Foundation. The members of the 2016 Class are the following: Hon. Suzanne H. Bauknight Jonathan D. Cooper Hon. Kristi M. Davis John W. Elder R. Scott Elmore Elizabeth B. Ford Debra L. Fulton Francis L. Lloyd, Jr. Chris W. McCarty Nathan D. Rowell C. Scott Taylor John T. Winemiller

With its Fellows program the Foundation publicly honors and recognizes attorneys who have distinguished themselves in the legal profession and in service to the Knoxville legal community. Each of the new Fellows for the Class of 2016 falls within this category, and the Foundation is proud to honor and recognize each one. The Fellows were selected from an outstanding list of nominees from the members of the Foundation. This list was narrowed by vote of the Board of Directors due to the limited number of Fellows that can be chosen for each class.

After being selected, the Fellows were introduced at the annual dinner.

The introductions provided a brief summary of their background and accomplishments along with some interesting and humorous anecdotes from their past. The information learned from these introductions along with the reputation that each new Fellow holds in the legal community reveals that the Class of 2016 exemplifies the highest of ethical and professional standards and consists of individuals who continue to have a positive impact upon both our legal profession and our community.

The Foundation is also proud to announce that it has awarded grants this year to the following entities: •

CASA (Court Appointed Special Advocates) of East Tennessee, Inc. for recruitment and training of volunteers

•

Catholic Charities of East Tennessee, Inc. in support of its Children’s Emergency Shelter

•

KBA Archives Committee to support video interviews of senior KBA members

•

KBA Community Law School and Law Talk Series

•

Knox County Juvenile Court in partnership with the University of Tennessee College of Social Work and the

October 2016

Educational Psychology and Counseling Program for the ASIST program •

Legal Aid of East Tennessee, Inc. to continue funding the KBF Fellowship which allows the hiring of a law student for a clerkship for the Pro Bono Project

•

YWCA of Knoxville to support the Victim Advocacy Program

The total sum of all grants awarded this year is $23,700.00. The Foundation’s goal is to facilitate and support projects and programs that seek to improve the administration of justice, to enhance the public’s understanding of and confidence in the legal system, to support access to the legal system, and to serve the legal profession. Since 1997 the Foundation has awarded grants totaling in excess of $370,000.00. Each year the Foundation solicits and receives multiple applications for grants.

This year the grant requests totaled approximately $52,000.00. Each application was reviewed and a determination was made as to what, if any, sum should be awarded for each application.

This year the Foundation is also receiving contributions to fund judicial portraits for the following former judges: Chancellor Daryl Fansler, Criminal Court Judge Mary Beth Leibowitz, Circuit Court Judges Wheeler Rosenbalm, Howard Wimberly, and Dale Workman, and Fourth Circuit Court Judge Bill Swann. The Portraits Committee, chaired by John Harber, is leading the effort to have the judicial portraits made. Contributions for the portraits should be made payable to Knoxville Bar Foundation and forwarded to the Foundation’s treasurer, Harry Ogden.

The Foundation’s Board of Directors for the preceding year included Heidi Barcus, Bill Coley, John Harber, Reggie Keaton, Morris Kizer, Harry Ogden, Mary Ann Stackhouse, The Honorable Deborah Stevens, and Charles Swanson. If you would like to make a financial contribution to the Foundation to help support its important work or if you would like to learn more about the Foundation, please feel free to contact me or any other board member. Contributions to the Foundation are tax deductible in accordance with applicable law.

2016 Fellows DICTA

27

ASK MCLAWYER

Question Presented: Hey McLawyer!

My client has been sued here in East Tennessee by a company that is located in another state. The plaintiff has counsel locally and in the plaintiff ’s home state. Written discovery has been exchanged, and it is time to take some depositions. However, the plaintiff ’s attorney has noticed my client to a deposition to take place in the other state. Can he really do that?

Discussion and Analysis:

The answer to your question is not completely clear. It is ultimately my “two cents” to try to work out an arrangement agreeable to all of the parties. If that is unsuccessful, seek direction from the court. It depends on your judge and the surrounding circumstances, but judges are often willing to side with your client in this situation.

First, the Tennessee Rules of Civil Procedure do not expressly prohibit what the plaintiff is trying to do. A deposition may generally be taken without the court’s permission 30 days after service of the summons and complaint. Tenn. R. Civ. P. 30.01. The notice of deposition must be served on all other parties at least five days beforehand when the deposition is taking place in the same county as the suit, and notice must be served at least seven days beforehand when

the deposition is taking place out of the county. Tenn. R. Civ. P. 30.02.

Tennessee’s rules do not otherwise expressly restrict where the deposition can or must take place.

That said, it seems that you are justified in seeking some direction and relief from the court. Trial courts in this state have broad discretion to direct the course of discovery. “Despite the initially broad scope of pre-trial discovery, courts retain the authority to limit it. Trial courts have ‘broad discretion over discovery matters, . . . , and, on appeal, that discretion will not be disturbed absent an affirmative showing that the trial court abused its discretion.’”1 Furthermore, Tenn. R. Civ. P. 26.03 provides that the court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Specifying the location that depositions must take place is within the court’s authority. Tennessee’s federal courts are similar: “Under the Federal Rules of Civil Procedure, the location of a deposition is initially selected by the party noticing the deposition. . . . When a dispute arises as to the location of a deposition, the court has wide discretion regarding designation of the time and place of the deposition.”2

Try to reach an agreement with your opponent. If you cannot reach that agreement, you should ask the court for direction. Good luck!

1 Krohn v. Krohn, No. M201501280COAT10BCV, 2015 WL 5772549, at *9 (Tenn. Ct. App. Sept. 22, 2015) (quoting Parks v. Mid–Atlantic Finance Co., Inc., 343 S.W.3d 792, 802 (Tenn.Ct.App.2011)).

2 Brasfield v. Source Broadband Servs., LLC, 255 F.R.D. 447, 449 (W.D. Tenn. 2008).

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

28

DICTA

October 2016

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

RED MASS ON OCTOBER 9TH A special invitation is extended to those serving in the legal profession to join Bishop Richard Stika on October 9th at 11:00 am at Cathedral of the Sacred Heart of Jesus. As a time honored tradition of the Church, the Red Mass is celebrated for judges, attorneys, law school professors, students, and government officials, invoking the guidance of the Holy Spirit for all who seek justice. Please direct questions to Paul Simoneau at psimoneau@dioknox.org or 865862-5753.

VETERANS RECOGNITION The Knoxville Bar Association thanks all of our veterans for their service and dedication to our country. If your name is not on this list, please contact Wendy Williams, KBA Membership & Operations Coordinator, at (865) 522-6522 or wwilliams@knoxbar.org. An insert is planned in the November issue of DICTA. SIGN UP AS A BUDDY The Diversity in Knoxville CLE Program & Reception will be held on Tuesday, October 18, 2016. The CLE will start at 4 p.m. followed by a reception until 6:30 p.m. at the Square Room at Cafe 4. Details are included in the CLE insert. The KBA Diversity in the Profession Committee has devised a Buddy Match Program to pair an attorney with a law student for the limited purpose of networking at the reception.

This is an opportunity for local law students to become acclimated with their future colleagues in the Knoxville Bar, to get an inside track on possible job opportunities, and to learn about different practice areas from talented local attorneys and judges. Register by October 7 by clicking October 18 in the event calendar at www.knoxbar.org.

NEED GUIDANCE IN A SPECIFIC PRACTICE AREA? One of the best kept secrets of the Knoxville Bar Association is our Mentor for the Moment program. We want to let the secret out and make sure that our members use this wonderful resource. It’s really simple to ask a question of our helpful volunteer mentors. Log in to the members’ only section of www.knoxbar. org or check out the list in the KBA Attorneys’ Directory and begin your search! Our easy-touse website allows you to search by last name or by subject area experience.

October 2016

BEST LAWYERS RECOGNITION Kramer Rayson is pleased to announce that twelve of the firm’s twenty-seven attorneys were recently selected by their peers for inclusion in The Best Lawyers in America© 2017. In addition, Best Lawyers named five of the firm’s attorneys as “Lawyer of the Year.”

AFFILIATED ORGANIZATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, October 13, 2016, at 12:00 pm. In the U.S. Attorney’s Office, Knoxville, Tennessee. Christa M. Cuccaro will be presenting the topic of Food Trucks and The Law. The presentation will provide 1 hour presentation. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 546-7190 for additional information and/or lunch reservations.

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

Linda C. Cole Montpelier, Cole, Della-Rodolfa & Ford, P.C. Joseph F. Della-Rodolfa Montpelier, Cole, Della-Rodolfa & Ford, P.C. Anita Dsouza Jacob E. Erwin Erwin Law Firm Patrick K. Gallagher

OFFICE SPACE AVAILABLE: • A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants.

Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 3565049.

• Office Building for Sale at 616 W. Hill Avenue. The 3,442 SF building is centrally located and is available for $465,000.

Review the listing at www.kaarcie.com/ listing/299773149. Contact Daniel Odle, Conversion Properties, at (865) 246-1331.

• 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.

DICTA

Carl D. Goins, Jr. Curtis W. Isabell Krystyna Laba Scripps Network, LLC Jodi Bernice Loden Peterson White, LLP Bridgett L. McMahan Broadway Electric Service Corporation Nicholas J. Meanza Jr. Dustin Sharp Stokes, Williams, Sharp, Cope & Mann PLLC Buddy Russell Swafford III London Amburn, P.C. David W. Tipton Humble & Tipton

29

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

PRO BONO PROJECT By: Kathryn Director

Ellis

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 502 S. Gay Street, Suite 404 • Knoxville, TN 37902

phone (865) 525-3425 e-mail:kellis@laet.org fax (865) 525-1162

30

DICTA

October 2016

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Cliff, please share anything you like regarding your role and the role of your office and staff in preparing for and administrating the upcoming presidential election.

CLIFFORD A. RODGERS Administrator of Elections for Knox County

First of all, to place election days in a context most attorneys can understand or relate to, those days are, for me, like trial dates. Whether in my role for over two decades as a law clerk for the late District Judge James H. Jarvis, II, or as an attorney in private practice helping my colleague George R. Arrants, Jr., get ready for two separate week-long trials in federal court back in 2010, you cannot over prepare – period. And that statement holds true whether you are the court or trial counsel. No matter how hard and long you work, there is always something more you can do or feel you should do to prepare for trial. The same mindset holds true in preparing for elections.

With trials, there is always the possibility, if not likelihood, that the lawsuit will be settled, continued, or dismissed on a party’s motion. Not so with elections. They are coming straight at you and virtually all of the deadlines before and even after an election are nonnegotiable unlike trial dates when judges will more often than not grant extensions of time to accomplish various pretrial tasks. Very little forgiveness exists in the controlling law with respect to deadlines surrounding election days.

For example, our office is required, not later than 45 days before a federal election, to mail or email ballots to our military and overseas (M & O) voters. Tenn. Code Ann. § 2-6-503 (a). Thus, with respect to the upcoming election, those ballots must go out no later September 24th. In fact, meeting this deadline could have been extremely problematic in this particular election because of the August 8th felony conviction of Joe Armstrong, the Democratic candidate who on August 4th won his primary election for State House District 15. Under state law, the Democratic Party had until 40 days before the election, i.e., until September 29th, to notify the Knox County Election Commission (KCEC) of the name of its new nominee.

See id. at § 2-13-204 (c). Had the Democratic Party utilized all of its allotted time, our office would have been compelled to mail out one round of ballots (obviously incomplete) by the 45-day deadline and another round of ballots ASAP after we were formally notified of the Democratic candidate. Fortunately, the current chair of the Knox County Democratic Party, Cameron Brooks, had previously served on the KCEC, understood the ramifications of these deadlines on our M & O voters, and was more than willing to accelerate the nominating process so that our office was notified in writing re: the nomination of Rick Staples on August 24th, well in advance of that deadline.

Now, here’s where I make my first plug, at least for those of you who live in the City of Knoxville (COK). You will observe on the sample ballot on our website www.knoxcounty.org/election that one of the COK charter amendment questions seeks, at my request, to move the date of the COK’s Primary Election from the last Tuesday in September to the last Tuesday in August. Why do so? We need look no further than last year. In 2015, we held the COK’s Primary Election on September 29th; yet, even with an extension of the above 45-day deadline to a 30-day deadline in this non-federal election, see id. at § 2-6-503 (b)(1), we still had to mail the Regular (General) Election ballots to the M & O voters on October 2nd, a mere three days after the primary. This resulted in those ballots being mailed to the M & O voters before the counting board had completed counting the provisional ballots from the Primary Election and, in what appears to be an unprecedented action, before the KCEC had an opportunity to certify the Primary Election results. Keep in mind that state law allows the KCEC until the 3rd Monday after any election to certify election results, i.e., in this case, up to and including October 19th, see id. at § 2-8-101 (a); here, however, taking the full allotment of time would have been several days after early voting began, a totally illogical scenario, since the statutory expectation is that one election will be certified before the next one begins. For the record, the KCEC certified the election results on October 6th after staff worked overtime. But what if we had encountered a close election in which the outcome might have been decided by the provisional ballots? And yet, we might have already mailed out ballots to the M & O voters with the wrong candidate’s name on it, having been compelled to “guess” at the winner while ballots were still being counted. Or what if an election contest were filed after the election had been certified? The date of the COK Primary as it is presently set does not allow for any of these possibilities to be addressed in an orderly manner; rather, it ensures the possibility of chaos and could saddle the taxpayers with the cost of another election.

Now, my second plug. I am assuming everyone reading this will be voting in the upcoming election (as to whether you vote in each and every race, well, that’s up to you). Regardless, I want to encourage each of you to seriously consider voting early (which runs from Wednesday, October 19th through Thursday, November 3rd) or if you are – like me – at least sixty (60) years of age or older, to consider voting absentee by mail. Yes, that means you never again have to stand in line to vote once you hit 60, at least in the State of Tennessee. (Word to the wise – bring your voter registration card as it really speeds up the process during early voting.) I’ve also heard from dozens and dozens of frustrated folks over the years who traditionally wait to vote until election day only to be unexpectedly called out of town on business or to have a deal with a family emergency or their own health issue or even car trouble – and the list goes on for all these folks who will not get a “do-over” to participate in that election. Just some things for prudent voters to consider. I can assure you that the folks whom I just mentioned will never again wait until election day to vote – and neither should you.

See you at the polls! And don’t forget your photo ID (from either the State of Tennessee or the federal government)!!

“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 .

October 2016

DICTA

31

NON-PROFIT ORG. US POSTAGE

PAID

P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 6 5 2