Management Counsel: Law Practice 101 - Think You’re Not Covered by a Medical Leave Law? Think Again . . . Page 13 Schooled in Ethics - Harassment and Discrimination Related to the Practice of Law . . . Page 21
A Monthly Publication of the Knoxville Bar Association | September 2016
FLSA SALARY THRESHOLD:
THE FIRST HURDLE JUST GOT HIGHER
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DICTA
September 2016
In This Issue
Officers of the Knoxville Bar Association
Cover Story 16 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
FLSA Salary Threshold: The First Hurdle Just Got Higher
Critical Focus 5
President’s Message
The Coming Together of Lawyers in Community and for the Public Good
7
Judicial News
The Newly Formed Trial Court Vacancy Commission
Preserving and Producing Social Media Records
9
The Knoxville Bar Association Staff
September 2016
10
Practice Tips Legal Update
Tennessee Adopts Delaware Standard for Direct v. Derivative Suits
12
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 8
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. September 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
Of Local Lore & Lawyers
William Francis Yardley: Knoxville Trailblazer, Lawyer, and Gubernatorial Candidate
Think You’re Not Covered by a Medical Leave Law? Think Again
Harassment and Discrimination Related to the Practice of Law
13 21 6 8 15 19
Management Counsel: Law Office 101 Schooled in Ethics
Conventional Wisdom Hello My Name Is
Andrew St. Pierre
Outside My Office Window
Mambo No. 5
Tempus Fugit - Time Flies
Let’s Face It
Well Read
You Can’t Spell the Truth without Ruth
20 23 24 25
27 4 14 18 18 28 29 30 31
Bill & Phil’s Gadget of the Month
BlueSmart Luggage
Long Winded
All the News That’s Fit to Print
Lawyer Kids
Lawyers’ Kids Go Back to School
Nice Niche
Environmental and Health & Safety
Guilty Pleasures
Outdoor Fun
Common Ground Section Notices/Event Calendar Legally Weird Barrister Bullets Word Play Ask McLawyer Bench & Bar In the News Pro Bono Project Last Word
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event
EVENT CALENDAR & SECTION NOTICES
Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section The ADR Section has CLE programs planned for the fall of 2016. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720). Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. The Section is planning “power hours” for Pro Bono Week, October 23 – 29, 2016! If you would like to help in planning this event and/or are willing to commit time during Pro Bono Week, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Daniel Sanders (215-2327). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Joanie Stewart (215-2515). Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on September 14, 2016 at Calhoun’s on the River. The featured speaker with be Tim Priest who will discuss the upcoming Vols football season. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307. Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).
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DICTA
calendar
September
n 6 Access to Justice Committee n 7 Veterans Monthly Legal Clinic n 7 Supreme Court Dinner n 8 Lunch & Learn n 8 Judicial Committee n 12 ADR Section CLE n 13 Professionalism Committee n 13 Fun CLE @ Primo n 14 Senior Section n 14 Barristers Meeting n 15 Solo & Small Firm Section Social n 17 KBA Tailgate n 19 Interprofessional Relations Committee n 19 Diversity in the Profession Committee n 19 Barristers Access to Justice Committee n 21 Employment Law CLE n 21 Board of Governors Meeting n 23 Tort Law CLE n 24 Homeless Vets Stand Down n 27 CLE Committee n 29 Barristers Volunteer Breakfast
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 29 Professionalism Comm. Hike
Plan Now to Attend the Annual Supreme Court Dinner on September 7, 2016.
September 2016
PRESIDENT’S MESSAGE By: Wayne R. Kramer Kramer Rayson LLP
THE COMING TOGETHER OF LAWYERS IN COMMUNITY AND FOR THE PUBLIC GOOD We celebrated the successful construction of the Habitat House on August 25, 2016 and elsewhere in this September edition to DICTA, you will see a “Thank You” to all who donated their time, talents and financial resources to the 2016 Knoxville Bar Association Habitat for Humanity Project. From the beginning of the Habitat Project late last fall, I observed and thought about a number of things, which, in my view, merit further reflection. The commitment of time, talent and financial resources in connection with the Habitat Project did not involve any significant legal issues or legal expertise. However, it represented in so many ways the type of cooperation and community, as well as a commitment to the public good, which lies at the foundation of our practice of law, utilizing our legal expertise and/or otherwise simply interacting with our fellow human beings. I have touched previously upon the commitment to the law and the community along with our obligation to promote justice and the public good. In this article, and in this edition of DICTA, the focus is upon a specific example of what such a commitment means, how it works and how it benefits not only the community at large, but each of us individually as lawyers working together. Among other things, the mission statement for Habitat for Humanity International states that the organization “brings people together to build homes, communities and hope.” The mission statement goes on to provide that “we believe that no one lives in dignity until everyone can live in dignity.” And, finally, the mission statement identifies the importance of “mutual trust” and fully shared accomplishment. All of these principles came together in organizing, raising the requisite funds and completing the construction of the Habitat House. Members of the Knoxville Bar Association from large firms, small firms and individually made significant financial contributions. Young lawyers, middle aged lawyers, and “senior” lawyers contributed large amounts of time. Male and female attorneys with a wide range of legal expertise and interests, varying political and theological perspectives and from all across the economic and social strata came together as one for a common purpose. It was a wonderful mosaic of individuals working, sharing, laughing, and eating together. Some of us had construction skills and others did not. For example, Sam Doak, Judge Greg McMillan, Norm Templeton, Amanda Busby, Wynne Caffey, Jon Roach and many more had numerous construction skills including operating the electric saw, putting on the roof and installing cabinets. Others, such as Marsha and me, were much more comfortable using a pencil and paper to write down measurements. But everyone contributed in his or her own way. And the end result was the completion of a home which will be utilized by Melody McAllister, a special member of the Knoxville community, and her grandchildren, all of whom also participated in the construction effort. As I watched the Habitat Project unfold and come to completion, I thought often about our daily lives as lawyers. Conflict, tension, September 2016
adversarial relationships and other things which at times can be destructive, even as we go about our good faith efforts to represent clients and find solutions to legal issues. I am not suggesting that we as attorneys should abandon the principle of advocacy. Indeed, such is at the foundation of what we do and is an important part of our professional responsibility. However, it strikes me that the cooperation and community effort evidenced over the past 10 months in completing the 2016 KBA Habitat House for Ms. McAllister and her grandchildren are qualities to be included in our legal work whenever possible. Anyone can exacerbate already existing conflict, make a relatively small matter into something large and complicated, and tear down bridges rather than build them. But it takes commitment, intentionality, and hard work to inject a sense of community and find common ground among our fellow attorneys when we find ourselves on opposite sides of lawsuits, business transactions, real estate deals, family conflicts and more. Justice can be an elusive idea in all areas of the practice of law. There is rarely an absolute right answer or legal certainty, or a clear “moral high ground.” Justice in the eyes of one side is often seen as a travesty to the other. But what can be a part of every matter we address is the concept of community, working together, and pursuing the public good. If we, as attorneys, can do that within the context of building a house with little expertise and using skills which most of us rarely use, surely we can do the same as we work with our clients and other lawyers on issues about which we do have significant skills and knowledge. The 2016 KBA Habitat Project is a classic example of what can be accomplished when lawyers row together and not against each other. There is no magic potion. There is no way to simply flip a switch and change everything about how we go about living our lives and the practice of law. But if we work together as lawyers, both when we are in conflict and when we are not, the legal community will be a better place and our clients will be better served. By so doing, achieving justice, rather than merely pursuing it, will become a reality. And in the end, that is a very good thing.
DICTA
5
HELLO MY NAME IS
. . .
A N D R E W S T. P I E R R E
By: Katie Ogle McDonald, Levy & Taylor Since I’ve been writing this column, I’ve had the opportunity to meet many local attorneys with incredibly diverse backgrounds, but this month’s featured attorney has a story that stands out in any crowd. Andrew St. Pierre, an associate attorney at The Stanuszek Law Group, has lived in Thailand on two different occasions, as well as the Virgin Islands. Andrew is a native of the Washington, DC, area and came to Knoxville when he chose to attend The University of Tennessee for his undergraduate studies. So what made the young man from Burke, Virginia choose Knoxville to further his education? Before graduating from high school, Andrew knew that he wanted to attend a large university in the southeast with a strong football program. At the time, he already had an affinity for the color orange, and chose the University of Tennessee as his early decision school. Less than one week after submitting his application, Andrew learned that he had been accepted, and would be calling Knoxville home for the next four years. During his undergraduate career, Andrew studied Logistics and Transportation, which he readily admits doesn’t relate to his day-to-day practice of law, but did prepare him for the studying required in law school. He also worked part time at Downtown Grill and Brewery during his college tenure. In his current job, which also happens to be his first in the legal field, Andrew practices primarily family law. “It sounds pretty corny,” notes the young attorney, “but I went to law school to help people and make a difference.” Much of Andrew’s
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current case load is in juvenile court, where he works as a Guardian ad litem and represents parents involved in child custody disputes. Each day, he has an opportunity to assist families who may have involvement with the Department of Children’s Services, or advocate for children who may have been abused or neglected. But working with children is nothing new for Andrew. During one of his tenures in Thailand, Andrew taught English to children of all ages. He taught at two different schools and at times, his classes exceeded forty-five students. His other stint overseas included a six-month scuba diving internship before he decided to return to the University of Tennessee for law school. As a student at the University of Tennessee College of Law, Andrew was selected as an Ambassador for the school, which involved providing tours to prospective law students. While he only gave a few tours for the program, every individual who was given his tour ultimately decided to attend law school at the University of Tennessee. After graduating from law school in 2015, Andrew chose to remain in Knoxville to begin his career. When Andrew isn’t practicing law, his favorite ways to unwind include spending time outdoors, watching sports, and running. He also noted that karate lessons may be in his future. Andrew lists his brother, David, and his mother, Nancy, as the two people in his life for whom he is most thankful. We appreciate Andrew’s contribution to DICTA and wish him the best as he continues his career as a new member of the Knoxville Bar.
DICTA
September 2016
JUDICIAL NEWS By: David Eldridge Eldridge & Blakney
THE NEWLY FORMED TRIAL COURT VACANCY COMMISSION AN INTERVIEW WITH BEVERLY NELMS, MEMBER OF THE COMMISSION Beverly Nelms and I sat down recently over lunch at Dazzo’s, chosen out of solidarity with Martha Boggs, whose business has been, let’s just say challenged by the seemingly endless Gay Street construction. The purpose of our meeting was to discuss Beverly’s latest undertaking as an unpaid volunteer. In addition to managing a diverse law practice as a partner at Frantz, McConnell & Seymour, taking care of her and husband’s two children, and participating actively in her church, she was recently appointed to a six-year term on the newly formed Trial Court Vacancy Commission by Lt. Governor Ron Ramsey and sworn in by Chief Justice Sharon Lee in April. Beverly is one of 11 members of this commission which was created by the legislature in January of this year and has jurisdiction with respect to filling all trial court vacancies occurring after February 1, 2016. The commission’s 11 members are from across the state, five of which having been appointed by the Speaker of the House and five having been appointed by the Speaker of the Senate, with the Chair, Tom Lawless of Nashville being jointly selected by both Speakers. Although the enacting legislation, found in Tennessee Code Annotated Sections 17-4-301 to 311, requires that only seven of the commission members be attorneys, all but one of the current members are attorneys and include former Supreme Court Justice and now Dean, Hon. William C. Koch, Jr. The enacting legislation requires that its members be United States citizens, at least 30, and have been a Tennessee citizen for at least five years. Attorney members must be licensed to practice in Tennessee. Salaried federal or state office holders, officers in political parties or political organizations, and those who are registered as employing lobbyists or are registered lobbyists may not be members of the Commission with the exception of members of the national guard or reserve. Members of the District Attorneys or Public Defenders’ offices are not considered to be “salaried office holders” and may serve. The legislation provides that the governor shall fill the trial court vacancy with one of three members the commission nominates or may require the commission to submit one additional panel of three nominees and gives the governor 60 days to fill the vacancy following the submission of the second panel. Likewise, after receiving written notice from the governor of a vacancy, the commission has 60 days to select its three nominees. If the judicial district in which the vacancy occurs is one of the five smallest districts by census population, the commission may submit only two names to the governor, and the governor has the option of requiring the submission of two more. Nominees are selected by a majority vote of the commission members present after a public hearing which includes public interviews. However, the commission is permitted to adjourn the public hearing and deliberate in executive session. At the conclusion of the executive session, the commission reconvenes the public hearing and votes anonymously by written ballots. Beverly told me that different commissioners are assigned to take the lead with regard to questioning each candidate at the hearing and conduct pre-hearing interviews. However, each September 2016
commissioner is given the opportunity to also question each candidate at the hearing. Members of the public may voice objections to any candidate at the hearing. Each candidate is given the opportunity to address the commission and may choose to use some of their allotted time to have someone speak on his or her behalf. Beverly informed me that each commissioner votes for three candidates and the candidate with the fewest votes is then dropped from consideration (unless there are only two candidates left), and the balloting continues until there are three candidates (with the exception of the districts noted above) who have received a majority of the votes present so long as there is a quorum. The Trial Court Vacancy Commission has had two hearings to date, one with respect to a Nashville Chancellor vacancy in June and one with respect to a Circuit Court vacancy in Memphis on August 8. Beverly has enjoyed her service on the Commission so far, stating: “I am honored to have been given the opportunity to serve with such an accomplished and talented group of individuals who take their responsibilities to this Commission and the process very seriously. I encourage my fellow members of the bar to get involved in communicating with the Commission about applicants and to seriously consider seeking a nomination to the bench as vacancies develop.”
DICTA
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OUTSIDE MY OFFICE WINDOW By: Robert E. Pryor, Pryor, Priest & Harber robertpryorjr.blogspot.com
Jr.
MAMBO NO. 5 “Play it again, Daddy!” she implores. At four years of age, she is my little rosy-cheeked-head-strong first born. I push the button that returns the electronic thump to its starting point. Shelby’s feet begin to shuffle across the hardwood floor while I do my best imitation of John Travolta in Pulp Fiction. I take her hand and swing her wide. The giggles float skyward. We both dance like nobody’s watching. I’ve taught all of my kids there is no other way to dance. Find your beat and turn it loose. Then, suddenly, someone is watching. Her mother, Cheryl, summoned by the familiar words of a song we cannot remove from our heads, bounces down the stairs to join in, the three of us effortlessly falling into the throes of what has become our small tribal ritual. We are at the mercy and direction of a four-year-old child. “Do this, Daddy!” she implores as she waves her arms. We move around the coffee table in familiar rhythm, singing along with Lou Bega - A little bit of Monica in my life, A little bit of Erica by my side… There is laughter in abundance as our little creation laughs at, mimics, and directs her parent’s moves. It is the spring of 2000. This memory plays in my head like a movie reel as I look out on the landscapes of the Lolo Pass in Idaho this week, the last miles of our journey passing beneath the Michelins. I usually bring it on myself, conjuring the scene from another life and planet. It generally makes me smile. It certainly took the passage of a great deal time for it to trigger a smile instead of tears. For the fathers of little girls, they are always four years old, dancing in a living room, the envied and unknowing possessors of pure innocence and joy. The emotion of the memory is amplified today, cutting and exact and hitting its mark as we make our way to her new school, her new town, her new life so far away. She is 20 years old. The living room from the memory no longer exists, our first house having been leveled years after our move to make room for a church parking lot. The adoring mother, who was born to be her mother and who executed the complexities of the privilege with overwhelming love and skill, suddenly and shockingly departed life on a sad fall day before the melody of laughter and song faded into the doomed hardwood floors. For me, Cheryl will always be 31, dancing to Lou Bega on Belleaire Drive. The music-laden memory is immortal as long as one, or in this case, two people remain. And though I know Shelby has little if any memory of the moment or the mother she lost, here is Lou Bega’s hit emanating from the speakers of my little girl’s car speakers from a CD she made. She’s heard the story. As I write this from the back seat, occasionally glancing at the beautiful Snake River to wipe hidden tears from beneath my sunglasses, I’m struck by the cruelty and beauty of parenthood and the power of music. Over the past four days, we have seen things we’ve never seen - the grandeur of the Rocky Mountains, the majesty of Grand Teton and Yellowstone National Park, the wide open skies of Kansas and the glorious majesty of Montana. Nancy, the courageous and loving woman who married me and who has expertly and lovingly mothered Shelby since she was five, the woman who not only inherited but earned the vaunted title of “mommy,” rides along next to Shelby, gaping at the brilliance of our country. I am a blessed man, no doubt. Yet, I’m in the back seat trying to figure out how I can somehow speed up this song or, in the very least, find and destroy Lou Bega. This child who provided a reason to dance, a reason to rejoice, and for a period of time, a reason to breathe, sings along with Lou just like she did when she was four while I shore myself against the storm of emotion brought on by the most upbeat song I’ve ever heard. Perhaps it is the journey of all parents. We go to soccer, basketball, and football games. We go to recitals and plays, followed by dinners with siblings and
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grandparents. We shop for Christmas presents and work harder to buy the perfect birthday gift while the clock ticks. We pay the orthodontist and give driving lessons while the sound of the ticking of the ever-present clock escapes us. We rarely heed the call or soak up the song. The next thing is always “about” to happen. How can we not see it coming? Those of you with adult children know of the moment you realize it. Those of you with young children should heed the call, pay just a little attention to the ticking of the clock and turn the music up. Way up. And, put on your dancing shoes. She finished two years at Tennessee, an honors student, but was led to a Christian Camp in Washington last summer and now to a new chapter with a new set of friends on what feels like the other side of the world to a father who has done everything to keep her close. I’m once again reminded of my lack of control over life. I’ve ostensibly supported her quest, fearing the airport goodbye, the blow of separation from this joyous and beautiful creature. Silly Daddy. I know she is doing exactly as I directed, as I always hoped she would - she is dancing like nobody’s watching. She has found her beat and is turning it loose. She is happy. What more could a father ask for?
DICTA
September 2016
PRACTICE TIPS By: John T. Phillips Information Technology Decisions
PRESERVING AND PRODUCING SOCIAL MEDIA RECORDS Social Media, including such systems as Facebook, Twitter, LinkedIn, and YouTube, have become a principal means for individuals and organizations today to converse freely, share information, and receive news. Though electronic mail systems still excel functionally in managing person to person topic-focused communications and document sharing, Social Media typically allows reaching a more diverse audience with easy to use application interfaces and robust content sharing capabilities. An intrinsic culture of “self-publishing,” networks of “friends,” and a functional similarity to “posting” messages on public bulletin boards enhances the allure of this digital environment available to everyone with a computer and Internet connection. However, there are also many disadvantages to using these digital environments for communicating, transferring information, and storing records. A major advantage of paper based communications environments has been the inexpensive ease with which these “low tech” records can be validated and preserved. A physical sheet of paper, signed by an individual, does not usually leave much to interpretation and speculation about authenticity. In addition, as long as the volume of such records are kept under control, paper records do not require sophisticated, complicated, and expensive technologies to preserve, store, retrieve, and use at a later date. In contrast, accessing and producing Social Media electronic records requires secure access to the computer application, appropriate technology to capture the records from the system, and the ability to store and retrieve those records in a useful manner and format outside of the system in which they were originally produced. So, with Social Media, it is less likely that an attorney can successfully tell their client “just retrieve, copy, or print these records we will need for the upcoming litigation.” If employed, self-collection will require both the client and the attorney to have some technology awareness and process credibility for assembling this collection of documents. Do they print to paper or digital PDF files screenshots of Facebook postings? Do they replicate Twitter postings and then print them in some manner? Do they use the data download facilities provided by Social Media vendors to capture their records? Will this downloaded data, often in text format without attendant graphical content displayed in context be sufficiently similar to its original appearance to have impact as evidence in court? And where do they store this information for later use – on their own individual computers, in the “cloud” to facilitate sharing, or on secure computer systems provided by an electronic discovery services vendor? Considering the critical nature of document collection and retention in business matters, both the public and legal counsel are increasingly aware of consequences from failing to responsibly preserve and produce digital evidence. Unfortunately, the best means of doing so will vary with each case and the ability of a client to credibly engage in “self-collection” can become a critical factor in the quality of records available and the timeliness within which legal matters may be resolved. Depending on the scope of records collection and the availability of necessary funding, serious decisions must be made regarding the process of data gathering, September 2016
number of records custodians interviewed, and documentation generated as a resource for case management. As with many endeavors, investing more time, labor and financial resources, can improve the quality and effectiveness of legal proceedings. Unfortunately, the rising cost of litigation is often directly tied to document review and the deployment of electronic discovery services. In fact, this environment is often cited as a principal reason for avoiding litigation and seeking mediation as a means of resolving legal disputes. For these reasons, attorneys and their clientele will need to plan ahead for the best means of addressing electronic discovery issues. Should the use of the services of an electronic discovery system vendor seem advisable, a number of decision factors will arise. First, not all such vendors are equally adept at capturing, storing, and subsequently making available all types of Social Media records. Some vendors offer to capture “renditions” of records in PDF format while other vendors offer captures of the original appearance and context of Social Media records. Different services pricing models arise, depending on the frequency and nature of access to captured records and the volume of data stored. Costs can vary drastically depending on the number of users of a system, the number of individuals deployed to capture records, and the time and resources required to set up the data collection project. If an organization has incorporated BYOD into its supported IT infrastructure, the nature and number of devices can drastically affect the scope of ESI collection. In some instances, forensic data services are needed to reconstruct deleted records from systems sabotaged prior to records collection. In addition, there may need to be a close working relationship between ESI collection teams, corporate IT staff, and Internal Counsel to assure access to Social Media accounts, privacy policies and the duty to preserve do not come into conflict. Because of the complexity of these issues, continual self-education regarding Social Media legal and technology issues is critical to delivering responsible contemporary legal counsel. As an example, the American Bar Association offers articles online such as “Discovery and Preservation of Social Media Evidence” by Margaret DiBianca (available at http://www.americanbar.org/publications/blt/2014/01/02_dibianca. html). Information management professional associations such as the ARMA International Educational Foundation offer free downloads of publications including “Social Media Systems Records and Information Governance Challenges” by this author (available at http://www. armaedfoundation.org/report5.html). Organizations specifically focusing on electronic discovery have numerous publications and conferences available including the sites for the Electronic Discovery Reference Model (http://www.edrm.net) and the Sedona Conference (https:// thesedonaconference.org). And many vendors of electronic discovery software are eager to provide educational assistance with respect to deploying such systems in support of legal cases and matters. Taking advantage of these resources only requires initiative and diligence in order to assure being informed about Social Media legal issues in today’s technology driven environments.
DICTA
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L E G A L U P DAT E By: Matthew R. Lyon LMU Duncan School of Law
Grayson Schleppegrell
Woolf, McClane, Bright, Allen & Carpenter, PLLC
TENNESSEE ADOPTS DELAWARE STANDARD FOR DIRECT V. DERIVATIVE SUITS A number of threshold issues can derail suits brought by a shareholder of a corporation against the corporate directors and officers. One of the most crucial determinations a court must make early in a shareholder suit is whether the claim will be characterized as a direct claim of the shareholder or a derivative claim brought by the shareholder on the corporation’s behalf. This decision “may have an expensive impact on the parties to the action” due to the additional procedural hurdles plaintiffs face in a derivative suit.1 It ultimately may determine whether the shareholder plaintiffs have standing to bring their claims at all. And even if the plaintiffs are permitted to proceed with their suit, the direct versus derivative decision will affect whether any recovery flows directly to the shareholders or, in the case of a derivative action, back to the corporation. Having not addressed the matter in nearly thirty years, the Tennessee Supreme Court recently reconsidered the question of how to characterize a shareholder claim. The resulting decision, Keller v. Estate of McRedmond,2 looked to Delaware, the leading corporate law jurisdiction in the United States, and commercial litigators in both the plaintiff ’s and defense bar in Tennessee should study it closely. The Old Tennessee Standard In 1988, the Tennessee Supreme Court established a test in Hadden v. City of Gatlinburg3 for determining whether a shareholder claim is direct or derivative. The rule that the Court adopted in Hadden incorporated three different types of analyses for courts to use in determining whether a claim is properly brought as a direct or derivative suit. These three tests are an amalgamation of the three approaches used in other jurisdictions.4 Under Hadden, courts first considered “whether the harm from the alleged wrongdoing flows first to the corporation and only damages the shareholders or members due to the loss in value of their respective ownership interest in the corporation, or whether [conversely] the harm flows ‘directly’ to the shareholder or member in a way that is not secondary to the corporation’s loss.”5 If the shareholder was “directly harmed,” then he was permitted to bring a direct action. Conversely, if his harm was secondary to the harm suffered by the corporation, then his action must be considered derivative. Secondly, the Hadden rule required courts to consider whether the stockholder suffered a “special injury,” meaning “an injury that is separate and distinct from any injury suffered by the corporation.”6 Without a “special injury,” a stockholder could not bring a direct action. Finally, Hadden required that a court determine “whether a duty was breached and then, if so, determine to whom that duty was owed.”7 If the corporation owed no duty to the stockholder plaintiff, then the suit brought by that stockholder could not be direct, and could only be brought as derivative. The Tennessee Supreme Court was blunt in its recent decision regarding the efficacy of the Hadden decision, stating that “the standard set forth in Hadden is far from clear.”8 To further complicate matters, the Tennessee Court of Appeals, in applying Hadden in a subsequent case,
added a requirement that “a plaintiff shareholder must also establish that his injury is distinct from all other shareholders in order to maintain a direct action.”9 This “misstatement of the Hadden test” led the Sixth Circuit to criticize Hadden and opine that, if faced with the issue of whether a shareholder suit were direct or derivative, the Tennessee Supreme Court would choose not to follow it.10 The New Tennessee Standard Ten years later, the Sixth Circuit’s decision has proven prescient. In Keller, the Tennessee Supreme Court set aside the Hadden approach to determining whether a shareholder suit is direct or derivative, instead adopting the “clear, understandable, and sensible” analysis set forth by the Delaware Supreme Court in Tooley v. Donaldson, Lufkin, & Jenrette, Inc.11 Tooley states that whether a stockholder’s claim is direct or derivative depends “solely on the following questions: (1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)?”12 Accordingly, in order to prevail in a direct action, “the stockholder’s claimed direct injury must be independent of any alleged injury to the corporation,” and “the stockholder must demonstrate that the duty breached was owed to the stockholder and that he or she can prevail without showing an injury to the corporation.”13 In other words, a plaintiff shareholder under Tooley, and now Keller, needs to demonstrate that he or she suffered the harm alleged and that any recovery would flow to him or her directly in order to have the claim classified as direct. If the shareholder fails and the suit is classified as derivative, then in addition to the procedural challenges discussed above, a stockholder plaintiff must plead that the corporation itself was harmed and that the corporation is owed a remedy in order to prevail.14 Implications of Keller for Practitioners Keller demonstrates the importance of properly pleading cases as either direct or derivative. Several of the claims in Keller were dismissed on the basis that they were improperly pled. Given this, lawyers representing stockholder plaintiffs must ensure the suit is brought in the name of the proper party; either as a direct action if the stockholder suffered the alleged harm and would receive the benefit of recovery, or as a derivative action if the corporation suffered the alleged harm and would receive the benefit of recovery. Corporate defendants facing complaints alleging direct or derivative claims should be cognizant of the successful standing arguments made in Keller. A corporate defendant should file a motion to dismiss an improperly pled direct claim if, under the Tooley/Keller standard, the shareholder plaintiff would lack standing to bring such a claim. The Court recognized in Keller that “adoption of the Tooley standard for Tennessee allows our lawyers and our courts to utilize the rich body of law in other jurisdictions for guidance in applying the Tooley standard,” which “should facilitate consistent and predictable outcomes in disputes (Continued on Page 11)
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Legal Update
(Continued from page 10)
involving shareholder claims.”15 Accordingly, while Tennessee’s case law on this topic develops, practitioners should look to Delaware and other jurisdictions that have adopted Tooley for decisions as to which types of claims are direct and which are derivative.16 To some degree, the Court has done a service for Tennessee’s corporate litigators. By disregarding a confusing and unique standard in favor of a widely accepted one, we now have a wealth of guidance from which to draw when arguing the direct versus derivative question. 1 Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1036 (Del. 2004). These obstacles include, for example, the requirement that a derivative complaint “be verified and allege with particularity the demand made, if any, to obtain action by the board of directors and either that the demand was refused or ignored or why the person did not make the demand.” Tenn. Code Ann. § 48-17-401(b) (West 2016). 2 ___ S.W.3d ___, No. M2013-02582-SC-R11-CV, 2016 WL 3688543 (Tenn. July 11, 2016). 3 746 S.W.2d 687 (Tenn. 1988). 4 Keller, 2016 WL 3688543, at *17. 5 Id. at *14 (citing Dinuro Invs., LLC v. Camacho, 141 So.3d 731, 735 (Fla. Dist. Ct. App.
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2014)). Id. at *15 (citing Elizabeth J. Thompson, Note, Direct Harm, Special Injury, or Duty Owed: Which Test Allows for the Most Shareholder Success in Direct Shareholder Litigation?, 35 J. CORP. L. 215, 221 (2009)). 7 Id. at *15 (citing Thompson, supra note 6, at 222). 8 Id. at *17. 9 Cato v. Mid-Am. Distrib. Ctrs., Inc., No. 02A01-9406-CH-00149, 1996 WL 502500, at *5 (Tenn. Ct. App. Sept. 6, 1996). 10 Keller, 2016 WL 3688543, at *18 (citing McCarthy v. Middle Tenn. Elec. Membership Corp., 466 F.3d 399, 408-09 (6th Cir. 2006)). 11 Id. at *19-20 (quoting Tooley, 845 A.2d at 1033). 12 Tooley, 845 A.2d at 1033. 13 Id. at 1039. 14 Id. at 1036 (“Because a derivative suit is being brought on behalf of the corporation, the recovery, if any, must go to the corporation.”). 15 Keller, 2016 WL 3688543, at *21. 16 Id. at *21 and n.30. 6
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OF LOCAL LORE & LAWYERS By: Joe Jarret University of Tennessee, Department of Political Science
WILLIAM FRANCIS YARDLEY: KNOXVILLE TRAILBLAZER, LAWYER, AND GUBERNATORIAL CANDIDATE He was a lawyer, politician, businessman, and civil rights advocate at a time in America’s history when it was dangerous for an African American to attempt any of the aforementioned. Known as an able criminal lawyer “with a quick wit and eloquent speech,” he was partial to wearing Prince Albert coats and derby hats, and was known to the many poor clients he represented as simply “Governor Yardley.” He lived a life of firsts and was referred to by freed slave, abolitionist, and statesman Frederick Douglass as “one of the most remarkable men that I have met.”1 He was William Francis Yardley, and the sobriquet assigned him by Douglass was a well-earned one. Yardley was born in 1844 to an Irish mother and an African American father, making him free by birth. His mother left him on the doorstep of the Yardleys, a prominent white Knoxville family, who gave him his name and raised him as their own. During the 1850s, young William attended a school for African American children (known as a “colored school” back then) taught by St. John’s Episcopal Church rector Thomas William Humes. Following the Civil War, Yardley taught at “the colored school” in what was once the Ebenezer section of present day West Knoxville.2 From there, Yardley began to amass a series of firsts virtually unheard of in the segregated 19th Century South. Contemporaneously with teaching, Yardley read law and studied under Knox County judge George Andrews. He was admitted to the Bar in 1872, making him Knoxville’s first African American attorney. He immediately began practicing law and, while primarily handling criminal cases for African American clients, also represented the Continental Insurance Company. As a lawyer, he advocated for change in the common carrier law, which unfairly required the poor to pay first class fares, albeit ride second class. He fought the privilege tax on dogs, which he likewise deemed an undue burden on the poor. He also advocated for sweeping changes in labor laws that he felt disproportionately targeted society’s poorest members. A concerned citizen, he was elected to Knoxville’s Board of Aldermen, and from 1876 to 1882, served as justice of the peace for Knox County. In 1878, Yardley began publishing Knoxville’s first African American newspaper, the Knoxville Examiner. He established a second newspaper, the Bulletin, in 1882.3 He was a member of Knoxville’s first fire department and served as its second assistant chief during 18761877. He is likewise believed to be the first African American lawyer to argue a case before the Tennessee State Supreme Court (1883). There, he argued that requiring inmates to “work-off ” the costs of their prosecution, unfairly indentured poorer convicts. Although he lost the case, the policy was eventually abolished.4 In the summer of 1876, while starting his new position as the second assistant fire chief and as justice of the peace for Knox County, he was prevented from speaking at a local Republican rally because of his race. Angered over the exclusion, Yardley traveled to the state Republican convention in Nashville where he spoke against proposed miscegenation laws and segregated schooling. In his speech he also proposed removing racial references from the state constitution, startling the almost
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exclusively white convention delegates. He surprised them again when he announced that he would run for Governor. Campaigning as an independent Republican against three other candidates, Yardley became the first Tennessee African American to run for the state’s highest office. He received only one percent of the vote, but his nine-week campaign drew national attention and praise, not to mention a bit of harsh criticism. Following his 1876 gubernatorial run, Yardley maintained a presence in Knoxville politics. Concerned by the lack of support for African American issues by the state GOP, he called on all local residents to support African American candidates. His call was heeded, leading to the election of six African American aldermen in the city’s Fifth Ward between 1880 and 1900.5 At age 76, Yardley was involved in his last high-profile case when he represented Maurice Mays, a man who was accused of climbing through a window and murdering one Bertie Lindsey, a white woman. The alleged murder led to what became known as the Knoxville Race Riot of 1919. The riot began when a lynch mob stormed the county jail in search of Maurice Mays. Unable to find him, the rioters looted the jail and fought a pitched gun battle with local residents. The Tennessee National Guard was ultimately mobilized to restore order. The actual number of deaths that occurred as a result of the riot remains in dispute.6 In 1870, Yardley married Elizabeth Stone, a native Knoxvillian, who was part Native American. They had four children. A State historical marker on E. Summit Street in Knoxville bearing his name is mostly ignored these days. But the legacy of service to his clients and community cannot be. William Francis Yardley died on May 20, 1924, and was interred at Knoxville’s Odd Fellows Cemetery. I believe his daughter, Fannie Yardley Miller said it best: “A liberal nature, extremely proud, yet possessing great humility of character, devoted to his family, a love of people of all types, a desire to help those less fortunate than he was, produced a richness of spirit and a life well-spent in service.”7
See http://www.African Americanpast.org/aah/yardley-william-francis-1844-1924 The West Tennessee Historical Society Papers Issue 49 (Memphis: West Tennessee Historical Society, 1995). 3 Id. 4 Lewis Laska, William F. Yardley, Tennessee Encyclopedia of History and Culture, 2009. Retrieved July 5, 2016. 5 Robert Booker, William Francis Yardley, Tennessee State University Digital Library. Retrieved: 1 July, 2016. 6 Lakin, Matthew , “’A Dark Night’: The Knoxville Race Riot of 1919,” Journal of East Tennessee History, 72 (2000), pp. 1–29. 7 See Thomas, Eugene, (2014). Squire William Francis Yardley, 1844-1924: Knoxville, Tennessee’s first African-American lawyer. Thomas Pub. Press. 1 2
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September 2016
MANAGEMENT COUNSEL: LAW OFFICE 101 By: Cathy Shuck Of Counsel, Wimberly Lawson Wright Daves & Jones, PLLC
THINK YOU’RE NOT COVERED BY A MEDICAL LEAVE LAW? THINK AGAIN If your practice is too small to be covered by the Family and Medical Leave Act (FMLA),1 you may still have an obligation to offer jobprotected medical leave to employees who need it. The EEOC has long taken the view that Americans with Disabilities Act (ADA),2 requires employers to consider leave from work as an accommodation for an employee with a disability. In large part, courts have sided with the EEOC and held that the ADA may require an employer to grant a disabled employee time away from work, unless doing so would pose an undue hardship on the employer.3 Unlike the FMLA, which only applies to employers with 50 or more employees, the ADA covers employers with 15 or more employees.4 This means that even if an employer is too small to be covered by the FMLA, it may still have to accommodate a medical leave of absence. The FMLA contains bright-line rules for what qualifies as a “serious health condition” entitling an employee to time off, as well as clear rules for exactly how much time off an employee is entitled to. The ADA, on the other hand, is frustratingly grey because the ADA requires a case-bycase analysis as to whether an individual has a covered disability and as to whether time off is a reasonable accommodation that does not pose an undue hardship on the employer. When it issued its regulations implementing the ADA Amendments Act in 2011, the EEOC was asked to elaborate rules for time off as a reasonable accommodation, but it did not.5 Shortly after issuing the regulations, in June of 2011, the EEOC held a hearing on leave as a reasonable accommodation, soliciting views from employer and employee stakeholders.6 Finally, five years later, in May of this year, the EEOC issued a “technical resource document” entitled “Employer-Provided Leave and the Americans with Disabilities Act.”7 The document sets forth detailed requirements for considering leave as a reasonable accommodation. Essentially, the EEOC’s view is that if a leave of absence would accommodate the needs of an employee who is unable to come to work due to a disability, the employer must grant the leave unless the employer can demonstrate that doing so would pose an undue hardship. In considering whether the leave would pose an undue hardship, employers should consider a number of factors, including: • • • • •
Whether the employer has a leave of absence policy and/or whether other employees have received leaves of absence in the past; The amount of leave requested; The nature of the employee’s job; The impact that the employee’s absence would have on operations; and The resources of the employer.
See below for a continuum of which factors are likely to be considered less of a hardship versus more of a hardship. In sum, an employer covered by the ADA should not dismiss an employee’s request for time off due to a medical condition out of hand. Rather, as with all requests for accommodation under the ADA, the employer should engage in an interactive process with the employee to determine if there is a reasonable accommodation that will not pose an undue hardship on the employer. And of course the employer should carefully document that process. It is important to note, however, that courts have tended to take a significantly narrower view than the EEOC as to how much time away from work is reasonable.8 Therefore, it is quite likely that a court would interpret the scope of the ADA’s protection for employees who are unable to come to work much more narrowly than the EEOC. Moreover, according to one of the Commissioners involved in drafting the document, Chai Feldblum, the document does not carry the weight of official guidance; it was not voted on by the entire five-member Commission, although it was approved by EEOC Chair Jenny Yang.9 Nevertheless, all indications are that the EEOC will continue to be aggressive in enforcing its view that an employer must grant leave as a reasonable accommodation unless the employer can demonstrate that doing so would be an undue hardship. Employers should therefore continue to tread carefully in this difficult area. 29 U.S.C. § 2601 et seq. 42 U.S.C. § 12101 et seq. 3 See, e.g., Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 783 (6th Cir. 1998) (holding that “a medical leave of absence can constitute a reasonable accommodation under appropriate circumstances”); but see EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc) (rejecting telecommuting as a reasonable accommodation where employee could not establish “regular and predictable attendance”). 4 29 U.S.C. § 2611 (FMLA applies to employers with 50 or more employees); 42 U.S.C. § 12111 (ADA applies to employers with 15 or more employees). 5 See 76 Fed. Reg. 16978 et seq. (Mar. 25, 2011). 6 See EEOC Press Release, “Experts Give EEOC Range of Views on Leave as a Reasonable Accommodation” (Jun. 8, 2011), available at https://www.eeoc.gov/eeoc/newsroom/ release/6-8-11b.cfm (last visited Aug. 12, 2016). 7 The guidance is available at https://www.eeoc.gov/eeoc/publications/ada-leave.cfm (last visited Aug. 12, 2016). 8 See, e.g., EEOC v. Ford Motor, 782 F.3d at 761-62; Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237-38(9th Cir. 2012). 9 To view an on-demand webinar with Commissioner Feldblum and download associated materials, go to the excellent FMLA Insights blog by Jeff Nowak, available at: http:// www.fmlainsights.com/ (last visited Aug. 12, 2016). 1 2
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835.
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L E G A L LY W E I R D By: Latisha J. Stubblefield Pilot Travel Centers, LLC
That’s Just How She (Egg)Rolls: Within the past several years the food truck industry has emerged nationwide and recently has even taken a foothold in East Tennessee. There’s a Knoxville website dedicated to where the popular food trucks will be and where. It’s practically a sure thing that when you visit one of your favorite Knoxville breweries and watering holes, you’ll also find one of the beloved local food trucks. What you may not know is that the food truck industry is pretty darn cutthroat. This past July, Johnson City food trailer, Noli, specializing in tacos and sammiches, was stolen from downtown Johnston City. Surveillance footage showed a dark Chevy Suburban pulling the Noli trailer away from its parked and locked spot in downtown. I know what you’re thinking: Who would steal a food truck? Correction, food trailer. Not an item that makes for a stealthy theft. Its total value is estimated at around $50,000, so perhaps there was some money to be gained from the theft. But, this is a food trailer that doesn’t even have the means to run under its own power. Luckily for Jason Howze, owner of the Noli trailer, it was found a few days later in Marshall, North Carolina. North Carolina police arrested Rhonda Kay Profitt with possession of a stolen vehicle and the Noli food truck trailer. And who is Ms. Profitt? Plot twist: Profitt manages the Asheville, North Carolina Destination Eggroll food truck. Not only is it alleged that Profitt stole the popular Johnson City food trailer, she is also charged in North Carolina with stealing the Chevy Suburban used to loot the Noli trailer. Johnson City police are considering extradition of Proffit from North Carolina to Tennessee for pursuit of the trailer theft charges. No explanation has been given, at this point, as to why Profitt felt so inclined to drive to Johnson City and steal the Noli trailer. Facing criminal charges in multiple states, one can only wonder her motivation. Howze, owner of the Noli food trailer, is more than thrilled to have his food trailer back. Noli is back up and running with its tacos and sammiches. Howze, adding levity to the situation, stated that he was going to run a special: “Grand Theft Tacos.” Well played, sir. Well played.
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September 2016
TEMPUS FUGIT – TIME FLIES By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
LET’S FACE IT In 2014, a district judge for the Western District of Washington declared a mistrial in an employment discrimination case.1 That may not be all that remarkable, but the reason for the mistrial was. The court declared the mistrial because the attorney made faces in court. Two jurors passed a note to the judge indicating that they saw the attorney “move his head and mouth in ways that looked as though he was coaching witnesses as they testified.” The court held a show cause hearing. It found the “making faces” was not contempt but was still a “sanctionable event for wasting the court’s time.” The court then sanctioned the plaintiff ’s attorney $145, 765.83, to reimburse the defendant’s attorneys’ fees up to the mistrial.2 Eventually, a second trial was held, and the plaintiff (same attorney) won a jury verdict of $1,284,000.00. There were lots of post-trial motions, appeals, and cross appeals, but eventually, the only issue that remained was the question about the sanctions. The attorney’s appeal on this issue was just decided by the Ninth Circuit. The Ninth Circuit found there definitely was a problem, but maybe not the kind you would think. At the show cause hearing, the attorney had testified he had a medical condition that caused uncontrollable grimacing and other body movements. The witnesses which were supposedly coached also testified that they just looked at whichever attorney was asking them questions and didn’t look at the plaintiff ’s attorney to try to figure out the answer to the other attorney’s questions. Despite this testimony, the district court still found the “making faces” was still sanctionable because it wasted the court’s time. The Ninth Circuit disagreed. It found this sanction was improper because the district court did not find the attorney had made faces in bad faith.3 At the end of the day, the Ninth Circuit reversed the monetary sanction for making faces and remanded the case for further consider of a contempt finding based on an alleged conversation with a witness. It took two years for this appeal to be decided. Who knows how long it will take before this matter is finally resolved? While we wait, we can make a few observations. After all, stories of attorneys being sanctioned for their courtroom decorum seem to come across the legal blogs and newswires more regularly than anyone wants to admit. This one is different. According to a 2012 U.S. Census Bureau Report, over 56 million Americans have a disability.4 That number equals around 20% of the U.S. population at the time. The ABA’s most recent survey found that 6.87% of ABA members identified themselves as having a disability.5 But, the devil is in the details. The ABA reports that 383,000 members completed the census questionnaire which was basis for the survey. Only 7,731 respondents answered the question, “Do you have a disability?” Of those respondents, only 531 answered, “Yes.” Extrapolating this percentage across the ABA membership means approximately 26,306 members would report having a disability.6 Yet, only 531 out of 383,000 members who completed the
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questionnaire actually said, “Yes.” The ABA commission which compiled the report hypothesized that many lawyers “chose not to answer the question relating to disability status due to confidentiality concerns . . . .”7 One wonders if individuals with disabilities continue to struggle to find a place within the legal profession. Perhaps having a disability isn’t something lawyers can admit freely. Perhaps it doesn’t fit the narrative that lawyers always have it all together. Having a disability is no excuse for bad courtroom behavior. The Ninth Circuit opinion indicates this attorney also made some rather unprofessional comments, and a disability is no excuse for that. But, if a disability causes odd or uncontrollable facial expressions or other behaviors, it is no cause for sanctions. Since 2000, the ABA has had a mentoring program for lawyers and law students with disabilities.8 It pairs law students and newer lawyers with disabilities with more experienced lawyers to provide support and the opportunity to learn from experience. Even better, it helps convey the message that having a disability is not a stigma. It certainly does not mean you have to do it all alone. As the legal profession continues to change and expand through racial, gender, and cultural diversity, there is room for change to find ways to integrate attorneys with disabilities into the legal community. It can only make us better.
1 All of the facts regarding this case are taken from the opinion issued by the Ninth Circuit Court of Appeals in Rolando Hernandez v. City of Vancouver & Thomas S. Boothe, No. 13-3513 (9th Cir. Aug. 9, 2016), available at http://cdn.ca9.uscourts.gov/datastore/ memoranda/2016/08/09/13-35131.pdf. 2 The court also held the attorney in contempt because of a conversation the attorney had in the hall with one of the defendant’s in-house attorneys who the defendant said it contemplated calling as a witness. Attorney to the in-house attorney, plaintiff’s attorney stopped her in the hallway outside the courtroom and told her that, “if she chose to testify, she might be embarrassed by revelation of rumors he had heard.” The in-house attorney understood the hallway conversation to be “a clear intent to intimidate me and prevent me from testifying.” Id. 3 The Ninth Circuit also found that the hallway conversation was not witness intimidation because, the in-house counsel had filed a notice of appearance as attorney for the defendant, had never withdrawn as counsel, and had assisted throughout trial at the counsel table. Apparently, this was just “intimidation of opposing counsel,” which was not worthy of sanctions. 4 U.S. Census Bureau, Newsroom Archive (July 25, 2012), https://www.census.gov/ newsroom/releases/archives/miscellaneous/cb12-134.html. This report was released to coincide with the 20th anniversary of the Americans with Disabilities Act. 5 American Bar Assoc., ABA Disability Statistics Report 2011 (Jan. 28, 2011), available at http://www.americanbar.org/content/dam/aba/uncategorized/2011/20110314_aba_ disability_statistics_report.authcheckdam.pdf. 6 See id. 7 Id. at p. 6. 8 For more information, visit the following website: http://www.americanbar.org/portals/ lawyers_with_disabilities.html.
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FLSA SALARY THRESHOLD: THE FIRST HURDLE JUST GOT HIGHER If you are sleeping well on November 30th and wake to the sudden sound of screaming around midnight, please take a deep breath and just go back to sleep. The screaming should be unrelated to either Donald Trump or Hillary Clinton by that point, but it is still expected as of December 1, 2016. December 1st is the effective date for the new minimum salary threshold under the Fair Labor Stands Act (FLSA). As a quick refresher, the FLSA governs federal requirements for employers when it comes to minimum wage, overtime and child labor. Employees falling under the FLSA – known as non-exempt employees – must receive overtime pay for any work beyond 40 hours in a week. I could spend a while discussing the definitions of overtime and the workweek itself, but this article focuses on the new salary threshold alone. To understand the salary threshold though, you must first realize the overarching goal of the FLSA: most employees in America should be non-exempt (e.g., overtime eligible). Perhaps the quickest way to dump more employees into the non-exempt pool is to change the minimum salary threshold. It affects the minimum salaries allowed for EAP exempt employees. “EAP” refers to executive, administrative and professional exemptions to the FLSA. If an employer can show its employee falls under one or more of those white-collar exemptions, then the employee can legally receive one salary while working 40, 50, 60, etc. hours in a week. Put simply, hours worked have no effect on exempt employees’ pay. To even start determining whether an EAP exemption should apply, however, the employer has to pay the employee a salary equal to or above the minimum salary
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threshold. As of publishing, the salary threshold remains $23,660.00 per year (or $455.00 per week). If an employee is making $20,000.00 per year as a salary, then you have a problem. And that problem still exists no matter what the employee does or is responsible for at work. On March 13, 2014, President Obama signed a Presidential Memorandum directing the Department of Labor to update the FLSA salary threshold. It goes into effect on December 1, 2016, and mandates: a minimum salary of $47,476.00 per year (or $913.00 per week). That is not a typo. As of December 1st, the screaming will start because the effective threshold more than doubles overnight. How does that look practically? I will illustrate with a position we often see at law firms: office manager. For the purpose of this hypothetical, assume the office manager supervises all non-attorney staff members, remains responsible for payroll, handles HR decisions, and negotiates rates with vendors and benefit administrators. This person probably qualifies for an EAP exemption. But what if she makes $40,000.00 a year? Then you have a problem starting December 1st. This is a problem you fix by: (a) increasing her salary to $47,476.00; or (b) putting her on the clock and paying overtime rates when applicable. Instead of going through more factual scenarios, I thought it might make more sense to answer your likely questions: 1.
Does this threshold apply to lawyers?
Let’s go ahead and push this elephant out of the room. In a word, the answer is, “No.” The salary threshold and salary basis requirements do not apply to doctors, lawyers or teachers.
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Those professions are designated as exempt regardless of salary/pay. Of course, it should be noted that it’s probably going to get a lot harder to sell lawyers on those lower salaries when $47,476.00 becomes the absolute floor in almost every other white-collar profession. 2. Can I make up the extra salary with a bonus? The answer here may just be an old standby for lawyers, “It depends.” According to the Department of Labor, nondiscretionary bonuses and incentive payments (e.g., commissions) can satisfy up to 10% of an employee’s salary threshold requirement. But this additional compensation must be paid at least quarterly under the new rules. To better understand this, I will again refer to the same office manager. As a means of complying with the new salary threshold, her pay jumps from $40,000.00 to $45,000.00 a year as of December 1st. She also now qualifies for – and will likely hit – a quarterly bonus. Because the new rules allow up to $1,186.90 in additional compensation to be used toward the salary threshold per quarter, the office manager’s pay and duties are now likely in line to qualify for an EAP exemption. 3.
What’s the big deal about just putting a white-collar employee on the clock?
If you’re going to keep that employee at or under 40 hours a week (tracking the same), then it’s not a big deal to put her on the clock. If you have a formerly salaried employee who will convert to hourly and clock-in/clock-out as of December 1st, however, please remember all work must be accounted for come payday. If she clocks out at 5:00 p.m., then spends two hours at night responding to an e-mail you sent
September 2016
COVER STORY By:
Chris McCarty Lewis Thomason
to her phone, then you better plan on either giving her two hours off on Friday or two hours of overtime on payday. Factory workers are not asked to work after they clock-out each afternoon, hence their hours are fairly easy to track. Yet modern white-collar workers remain constantly connected to their work and their supervisors, so it will be up to those supervisors to ensure their non-exempt employees really stop at the end of each workday. 4. What happens if I ignore the new threshold? Do you want the firing squad behind Door A or the guillotine behind Door B? Nothing good can or will come from simply ignoring the new salary threshold. A quick Google search will reveal hundreds of articles already written on the subject, and we will see more as that December 1st date approaches. Your employees will likely know, and – if they somehow miss the news – you can bet their spouse, uncle or that friend from church saw a headline or two. Never bank on ignorance when compliance remains so straightforward. If you do so here, your company will either face a Department of Labor complaint/ investigation with back wages and penalties, or a class action lawsuit two years down the road from all those employees you failed to pay overtime. So, instead of ignoring the issue or planning how to avoid it, spend your time between now and December 1st figuring out how to implement the new threshold into your workplace. It won’t be fun. It won’t be easy. But it is necessary. Comply with the new rules now or face some very expensive consequences later. Remember that screaming I referenced?
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W O R D P L AY
barrister bullets •
By: Peter D. Van de Vate Finkelstein, Kern, Steinberg & Cunningham
Plan now to attend the Barristers monthly meeting on Wednesday, September 14, 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.
• The Athletics Committee has scheduled the Barristers annual charity golf tournament for Monday, October 24 at Holston Hills. •
The Barristers Access to Justice Committee is planning a monthly Veterans’ Legal Advice Clinic, and the inaugural clinic is set for September 7, 2016 from 12:00 p.m. to 2:00 p.m. at the Knox County Public Defender’s Community Law Office at 1101 Liberty Street, Knoxville TN 37912. This is a general advice and referral clinic which will require attorney volunteers for its operation, and it is anticipated to serve between 20 and 30 veterans in the community each month with a wide variety of legal issues, including family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract disputes, child support, and personal injury, among other issues. The second clinic will be held on November 2, 2016. Volunteer on the KBA website or call the KBA Office at 522-6522.
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The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. The Barristers Volunteer Breakfast Committee always need volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. Volunteers meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community. This is a great chance to partner with members of your firm, or law school classmates or friends or use it as an opportunity to involve staff in your office too. Sign up at http://www.knoxbar.org/JobPlacement/volunteer-breakfast-sign-up. For more information, please contact Committee Chairs Paul Wehmeier at pwehmeier@ adhknox.com or Kati Goodner at kgoodner@lewisthomason.com.
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The “Making a Difference for Families in Need: Handling TennCare Appeals” will train pro bono attorneys to represent TennCare enrollees in enrollment and medical service appeals and contested case hearings. The program will be held on September 12th from 1:30 - 2:30 pm ET and will be provided free of charge to participants. Please RSVP using this link: https://www. eventbrite.com/e/making-a-difference-for-families-in-needhandling-tenncare-appeals-tickets-26828465663.
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“Sugarloaf” Well, it’s Olympics time in Rio. We will be seeing pictures of Sugarloaf and Christ the Redeemer. But where did Sugarloaf get its name? As far back as 12th-century Jordan, sugar was sold in “loaves.” These loaves were the result of the refining process wherein the sugar was boiled. When it reached granulation quality, it was poured into clay molds. These forms were conical (looking like howitzer shells). They were then wrapped in paper and shipped. During Brazil’s sugar heyday in the 16th century, sugar was similarly shaped and shipped. The main port of Brazil is, of course, Rio de Janeiro (River of January). It just happened that the mountain prominent in the port resembled a sugar loaf… These loaves of sugar varied in size, usually depending upon quality, the larger being of lesser quality and weighing up to about thirty pounds and having a base diameter of up to fourteen inches and a height of up to three feet. The loaf, once purchased by the consumer, was usually kept in a box to protect it from the elements and pests. Sugar was taken from the loaf using a device much like pliers, called “sugar nips.” The boxes also usually had a drawer at the bottom to collect the crumbs. Rio received its name from Portuguese explorers who arrived there in January and thought that the harbor was a river mouth.
DICTA
September 2016
WELL READ By: Beth Ford Community Defender
YOU CAN’T SPELL THE TRUTH WITHOUT RUTH: NOTORIOUS RBG: THE LIFE AND TIMES OF RUTH BADER GINSBURG This often light-hearted biography was written by Irin Carmon and Shana Knizhnik, an award winning journalist and a lawyer who is responsible for the viral blog, Notorious RBG. The portrait painted of Ruth Bader Ginsburg is that of a very, very brilliant woman who was just trying to make the world a little better – for women and, sometimes to the consternation of the most rabid feminists, for men. While blissfully ignorant people my age were applying for and being accepted into law schools in the 1970’s, Ruth Bader Ginsburg was busy making the world a better place for all of us while she taught the first women in the law course at any law school and worked for the Women’s Project at the ACLU. By the time that I started classes at the University of Tennessee College of Law in 1975, my classmates and I did not have to worry about justifying to our dean our taking a man’s place in a class as RBG did at Harvard. We (well, not I) did not risk being turned down for a Supreme Court clerkship because one of the nine male justices thought that we might be offended by the language of the justices. That was RBG’s experience even though she was first in her class at Columbia after having transferred from Harvard, where she was also first in her class. As a history of Ruth Bader Ginsburg’s career before being appointed to the United States Supreme Court, the book is an easy read. By 1975, Ruth Bader Ginsburg was well into her carefully mapped out plan for doing away with discrimination based on gender. Each of the five, yes, five, cases that she argued before the Supreme Court was a step in that direction. Amazingly, she was successful in four of those cases, although the chief justice gave her a “C” for her argument. Her long term goal was for the Supreme Court to adopt the standard of strict scrutiny when examining cases of sex discrimination. That goal was attained three years after she was appointed to the Court in a case brought against the Virginia Military Institute. At times, the Supreme Court threw a curve ball in her gender discrimination plan as they did with their reasoning in Roe v. Wade, a case that she often criticizes. To one who had always thought that Roe v. Wade was nothing but a victory for women’s rights, the book helped to explain how all wins are not necessarily wins when looking at the big picture. This is also a book about relationships, most notably the love story of Marty and Ruth Ginsburg. Without Marty as her partner, Justice Ginsburg would have probably starved to death while still a professor at Columbia. Marty, who had been her classmate at Harvard, made sure that his wife took in nourishment by calling her late at night and reminding her to eat. He also cooked fabulous meals for her and later for the other justices when it became clear that she had no culinary skills. Marty also was willing to move for her career and he lobbied heavily for her appointments to the D.C. Circuit Court and then to the United States Supreme Court. At the beginning, it is likely that his family’s financial resources made the couple’s attendance at Harvard and then Columbia possible. His letter to her written 10 days before his death sums up their partnership and is sure to bring a tear to the eye of even the least romantic reader. Justice Ginsburg’s relationships with her law clerks and with her clients are discussed. Each clerk becomes a member of her family. There September 2016
are birthday parties, and there are weddings some of which have been officiated over by the justice. One of her closest relationships is the one that she has with one of her first clients, Stephen Wiesenfeld, the father whose Supreme Court case found the Social Security Administration’s policy of granting survivors’ benefits to mothers but not fathers to be unconstitutional. Of course, the book covers her relationships with her fellow justices, beginning with Sandra Day O’Connor. Although they were never extremely close friends, it is more than clear that they respect each other and that Justice Ginsburg sorely missed Justice O’Conner after her retirement. It is noted that RBG did not ever attend her “sister in law’s” early morning aerobics classes. Despite their disagreements in matters before the Court, Antonin Scalia was one of Ruth Ginsburg’s very best friends. There is a picture of the two of them on an elephant together in India in 1994. That has to be a sign of true friendship. This is a fun book for everyone, lawyers and non-lawyers. There are pictures and great explanations of the opinions and the searing dissents. There are family pictures of the very ravishing Ruth and pictures of Notorious RBG tattoos. Whether you read the book or not, be sure and check out author Knizhnik’s blog at http://notoriousrbg.tumblr.com. Is it acceptable to have a crush on a Supreme Court Justice? Does anyone know where I can get my hands on one of those Ruth Bader Ginsburg bobble heads? I need one to go with my cool Notorious RBG tee shirt.
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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
Phil Hampton
Founder and CEO, LogicForce Consulting
BLUESMART LUGGAGE It is no secret that we like all things classified as “smart” technology. From smart watches and socks to smart light bulbs and coffee makers; we have it all just about covered. For sure, the one area we could use some extra “smartness” is during travel. You know how it is. Long security lines, delayed flights, no power outlets for our drained devices and no comfort for our aching feet. Travel can be a real pain. So when we heard about a new line of smart luggage, we were all ears. The Bluesmart company has developed a suitcase with some embedded technology that we found incredibly intriguing. So much in fact that we purchased their debut suitcase, dubbed Bluesmart One. We are told that this suitcase was featured on the popular television show “Shark Tank”; however, we did not see it there first. We just blindly ordered based on an advertisement we picked up at a tech show. At first we thought we had been scammed as our Bluesmart One suitcase was dead on arrival. There was zero battery life in the suitcase and when we plugged it in to charge, absolutely nothing happened. To their credit, the customer service folks helped with us some troubleshooting measures and when all else failed, they shipped us a brand new replacement suitcase. Bluesmart One II turned out to be a winner. First of all the suitcase is small enough to fit in most overhead luggage bins. It has a hard-shell exterior, which we’re told is water resistant, but we haven’t tested...yet. There is an easily-accessible front compartment for electronics or files. It has hubless wheels that turn in all directions, making it very easy to roll this case across the parking lot or the airport terminal. Aesthetically, this is a handsome little case, if not quite as roomy as we had hoped. Aesthetics aside, though, we had to investigate what made this suitcase so smart. We were quick to find out. First, there is a companion app that we downloaded on our smart phone so that we could pair it with the luggage and watch it do its tricks. The app has the controls for all of the embedded technology. First we noted that we can pull up the location of the suitcase via the GPS tracker function in the app. So when we land in Nashville and our suitcase is on a plane headed for Chicago, we don’t have to wait for the airline folks to track it down. We can tell them ourselves how they screwed up and where to find our luggage. Another useful feature is the ability to lock the suitcase via the app. The instructions indicate that this lock is “TSA compliant” and we have had no security incidents so far. A further safeguard for protecting your luggage is the autolock feature. If this feature is turned on, the suitcase automatically locks when it gets out of Bluetooth range from your phone. It will also automatically unlock when you get within range. Very convenient. With the app you can also determine the weight of the suitcase. This feature is not terribly useful on this unit because of its size. Because it is so small it is unlikely that you will be carrying anything that will be over the weight limit for the airlines. Nonetheless we would love to have this feature on some of our larger non-smart suitcases. Perhaps future Bluesmart products will be larger in size. Another cool feature we really like is the ability to turn on a small LED light on the suitcase via the app. We like to see heads turn in the baggage claim area when our suitcase comes out of the chute with a blue light glowing. Probably one of the most useful features is the ability to charge other electronic devices directly from the suitcase. There is a USB port on the outside of the case and one inside the outer storage pouch. One of our pet peeves is to be on the last leg of a flight late in the day in some far flung airport with no juice left in our phone. In the crowded waiting area all of the “early birds” have commandeered all the electrical outlets; and we’re left to burn as the last bit of battery drains from our phone. No more. We can simply plug our phone or tablet directly into the suitcase via a USB cable. Voila. We have our own portable power supply. After using the Bluesmart One for several months, we really do like it. As we mentioned, we wish it was a little roomier on the inside. As it is, however, it is perfect for short, overnight trips that do not require a lot of packing. It is a little pricey at $449; but we realize you just have to pay sometimes for smartness. If Bluesmart comes out with a larger smart suitcase in the future, we’ll probably get that too, provided it doesn’t break the bank.
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September 2016
SCHOOLED IN ETHICS By: Alex Long Professor of Law University of Tennessee College of Law
HARASSMENT AND DISCRIMINATION RELATED TO THE PRACTICE OF LAW On August 8, 2016, the ABA House of Delegates passed a change to Rule 8.4 of the ABA Model Rules of Professional Conduct. New Rule 8.4(g) prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or should know is harassment or discrimination on the basis of race, sex, religion, and other characteristics (http://www.americanbar.org/content/dam/aba/images/ abanews/2016%20Annual%20Resolutions/109.pdf.) For Tennessee lawyers, this may seem like déjà vu all over again. Tennessee has twice before considered adopting a rule of professional conduct prohibiting discrimination in the practice of law and twice before chosen not to do so. Regardless of whether this latest ABA action spurs a third attempt, lawyers in Tennessee should be mindful that even though there is no black-letter rule of professional conduct that, like new Model Rule 8.4(g), expressly prohibits discrimination in the practice of law, such conduct might still result in professional discipline. Over 20 states already have existing rules of professional conduct that specifically prohibit harassment or discrimination on the part of a lawyer. Some, like New York’s, prohibit a lawyer from engaging in employment discrimination. Others, like Washington’s, make it unethical for a lawyer to commit a discriminatory act that is prohibited by state law on the basis of race, sex, religion, and other protected characteristics. The new ABA rule is somewhat broader in that it is not limited to discrimination or harassment in violation of the law. In states with rules similar to the new ABA Model Rule 8.4(g), lawyers have faced professional discipline for making discriminatory remarks at trial, In re Thomsen, 837 N.E.2d 1011 (Ind. 2005); making discriminatory remarks to third parties in the course of representing a client, In re McCarthy, 938 N.E.2d 698 (Ind. 2010); and employment discrimination. In the Matter of Elliot H. Gourvitz, Supreme Court of New Jersey Review Board, Docket No. DRB 05-117 (2005), available at http://njlaw.rutgers.edu/ collections/drb/decisions/05-117.pdf. As mentioned, Tennessee does not have a rule of professional conduct that expressly prohibits discrimination or harassment. However, it does have TRPC Rule 8.4(d), a rule that prohibits conduct that interferes with the administration of justice. Typically, the rule has been applied in Tennessee and other jurisdictions when a lawyer takes some sort of action that undermines the legitimacy of the judicial process, like attempting to intimidate a witness, Fla. Bar v. Perlmutter, 582 So. 2d 616, (Fla. 1991), and filing frivolous lawsuits. In re Hooker, 340 S.W.3d 389, 392 n.3 (Tenn. 2011). But a comment to TRPC Rule 8.4(d) also speaks to discrimination. Comment 3 to the rule explains that discriminatory words or conduct might violate the rule:
This same comment appears in many state ethics codes. A comment to Florida’s identical rule of professional conduct explains why words or conduct that manifest bias on the basis of race and other characteristics may amounts to a violation of the rule: “Such conduct, when directed towards litigants, jurors, witnesses, court personnel, or other lawyers … undermines the public’s confidence in our system of justice, as well as notions of equality.” Florida R. 8.4(d) cmt. 5. This same theme appears in a comment to the newly amended ABA Model Rule 8.4(g). Several lawyers in other states with the identical or similar rule and comment have faced professional discipline for making discriminatory statements or engaging in discriminatory conduct in the practice of law. Examples include the following: •
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Fla. Bar v. Martocci, 791 So.2d 1074 (Fla. 2001) (disciplining lawyer who engaged in “sexist, racial, and ethnic insults” during depositions); In re Charges of Unprof ’l Conduct in Panel File 98-26, 597 N.W.2d 563 (Minn. 1999) (disciplining prosecutor who filed a motion in limine seeking to prohibit defense lawyer from having a person of color serve as co-counsel); Laddcap Value Partners, LP v. Lowenstein Sandler P.C., 859 N.Y.S.2d 895 (N.Y.Sup. Ct. 2007) (ordering court-appointed referee to supervise future depositions conducted by attorney who engaged in sex-based incivility toward another attorney during a deposition).
It remains to be seen whether the new ABA rule will spur other states to adopt their own versions of the rule. But Tennessee lawyers should be mindful that conduct related to the practice of law that amounts to discrimination or harassment may subject a lawyer to professional discipline, regardless of whether Tennessee has a black-letter rule expressly prohibiting such conduct.
A lawyer who, in the course of representing a client, knowingly manifests, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic status violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d).
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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!
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DICTA
September 2016
LONG WINDED By: Jason H. Long Lowe, Yeager & Brown
ALL THE NEWS THAT’S FIT TO PRINT I was fortunate last night. I happened to be in Nashville to attend in the murder, had recently had his conviction overturned by a federal some meetings and my wife noticed that Dean Strang and Jerry Buting district court in Wisconsin on the grounds that his confession was were appearing at the Tennessee Performing Arts Center (TPAC). Now, unlawfully coerced. That federal judge wrote a ninety-one page opinion those names are not as familiar in our mouths as household celebrities detailing the basis for his decision. Strang pointed out that the decision like Timberlake or Perry, but for lawyers they should be. Some of you was available online for those masochists who wanted to search it out may recall that Strang (no, that is not a typo, that’s how the guy spells his and read it. The moderator asked if Strang thought people should read name) and Buting were lead counsel in the 2007 trial of Steven Avery more judicial opinions to better educate themselves. He said “no” he for the murder of Teresa Halbach in Manitowac County, Wisconsin. did not expect or necessarily want that. However, he did call upon the Still doesn’t ring a bell? Steven Avery and his trial were the subject media to do a better job of reporting and digesting such opinions for the of the hit docudrama (how has that even become a genre?), Making a public. Strang pointed out that, too often, decisions are misreported or Murderer, released by Netflix late last year. In short, if you are a true misinterpreted and the public can not always rely upon the accounts they crime nerd, a conspiracy theorist, or a criminal defense attorney who read in the paper. He was quick to point out that this was not the fault likes to rail against the injustice of the system, Strang and Buting are of the media. We, the consuming public, are to blame. rockstars. Understanding that the producers of the film probably had an In this era of the Internet, we have come to expect our news for free. agenda of their own, Strang and Buting come across as the only reasoned, No one wants to pay for information they can readily get online without compassionate, intellectually capable individuals in the subscribing. Many people rely almost exclusively on are dumbing reposts on Facebook to learn their news of the day. As whole movie (it helps that neither one of them has one of those harsh Wisconsin accents). a result, our journalism industry has suffered massive ourselves Carol Anne and I are true crime fans. We are also down, which cutbacks, and it is simply not possible to adequately staff firm believers in the rights of the accused. Naturally, a newspaper with the number of qualified journalists leads to a society where we are enamored of Strang and Buting. So it was that, necessary to competently cover the legal beat. It our elected officials, last night, I found myself purchasing a ticket to see follows that the reporting can often be inaccurate or two middle-aged, white men sit on a stage in front of miss the important aspects of a story. We are dumbing judges, and lawyers thousands to discuss our criminal justice system. Sadly, are not being held ourselves down, which leads to a society where our I realized that the last time I purchased tickets to see elected officials, judges, and lawyers are not being held accountable to the same any live concert was when INXS and Ziggy Marley accountable to the same standards they were twenty standards they were appeared in Knoxville over 20 years ago. I am really a years ago. nerd. My dad was a newspaper man and worked his twenty years ago. I call these men rockstars, but let there be no entire life at the Knoxville News Sentinel and the confusion, they look like they could fit in at any KBA Knoxville Journal. I am a passionate champion of our meeting or event without much notice. They are your everyday, average, daily paper and I am probably one of the few people of my generation run-of-the-mill lawyers, and yet they drew a cheering crowd of thousands who still subscribes for home delivery of an actual newspaper. I am a on Sunday night, there simply to watch them discuss the law. I try not fan of our reporters who cover the legal and political beat, as I believe to get too caught up in celebrity and I try to keep a balanced view of they are seasoned and knowledgeable. However, as we continue to shows like Making a Murderer, realizing that I am only seeing what the limit the resources of our media, I fear that Strang’s warnings should producers want me to see and that they are telling a story. Nonetheless, receive attention. In order for our system to work, we need an informed I couldn’t help but get caught up in the excitement of the moment. citizenry, and, in an age where information is available 24/7 at our While I found their stories and viewpoints compelling (it probably would fingertips, we are making it increasingly easy to receive bad information. have been better if another viewpoint had been expressed), the part I did not start this column off with the intent that it be an advertisement, that excited me and energized me most was the fact that thousands of but here we are. Pay for your news. It will make it better and will foster Tennesseeans, from all walks of life, had paid hard-earned money to sit the kind of debate I saw Sunday night. We need more of that. in a theater on a Sunday night and listen to people talk about the Rule of Law. This past year, we have seen a rise in legally oriented entertainment: from Making a Murderer to the podcast Serial to The People v. O.J. Simpson: American Crime Story, popular culture has been inundated with stories about our criminal justice system at work. The stories have not necessarily been balanced, and some would question how accurate they are. However, they have sparked debate and interest in our profession. I think that is a good thing. People need to be talking about lawyers and the courts. They need to understand how the system is supposed to work and question daily whether it is, in fact, working. During the conversation, Strang made an interesting comment that touched a nerve with me personally. The moderator pointed out that Brendon Dassey, nephew to Steve Avery and convicted of participating
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LAWYER KIDS By: Lisa J. Hall Hodges, Doughty and Carson, PLLC
LAWYERS’ KIDS GO BACK TO SCHOOL Another school year has begun, and lawyers’ kids everywhere are no doubt enthusiastically returning to their beloved academic institutions, bearing brand new school supplies, inquisitive minds, and positive attitudes. Some of our fellow bar members share stories of their children’s experiences in school. Joan MacLeod Heminway’s son Scott, who is now in sales and customer service in Nashville, once submitted a school project in elementary school with this topic: “If I had a lot of money, I would buy _________________.” Each student awas provided a 5.5” by 8.5” piece of paper with a large box for an illustration at the top and writing at the bottom. Scott’s picture was of a stick-figure man and woman holding hands, each with a briefcase in the other hand. It was a happy, colorful picture – the sun was out, green grass was growing underfoot, and there were blooming flowers and trees. Scott’s response to the prompt, however, was unusual: “If I had a lot of money, I would buy…a job.” Initially, Joan was quite taken aback, as this seemed like an odd choice for a young child to make. Scott thought that jobs were so valuable, they had to be bought with a lot of money, like other fine things in life. Joan chose to attribute her son’s atypical understanding to the way in which she and her husband each respected the work of the other in front of their kids – even (especially perhaps) when the other couldn’t be around for bedtime or something else of importance. They explained to Scott that jobs were indeed valuable, but that they were actually paid for their work, which allowed them to pay for Maegan and Richmond Hall the house and food and clothing and toys, etc. After speaking with her son and thinking through what he had to say, she completely understood, and his project made her proud to be his mother and to be married to his dad. Amye King tells me that her son Jack will “KILL” her if he ever finds out she has told this story, but apparently she is courageous and dedicated enough to make such sacrifices to contribute to DICTA (emphasis in original). At Jack’s school, the high school boys have to wear ties. Mike King had always been around to tie Jack’s ties in the past, but once Jack started high school, Mike left the house earlier than Jack was up and dressed, and Jack was left to his own devices. For a couple of weeks of his freshman year, he watched YouTube videos on tie tying on the ride to school. Meredith Weaver describes her daughters’ enthusiasm for school: When I had Helen, I went to of counsel, which meant no billing requirement, i.e. part time. Mary Reagan was 3 and a half. Her daycare program didn’t have a part time program, so she had to go to a new one. I kept her home with me and Helen the last month of my maternity leave. When I took her to her new school the first time, I was so worried with her starting a new school and making new friends. At the door she said “Please don’t pick me up early. I want to be the last one here.” Helen is now slightly older at almost 4, and we drive by the preschool almost every day in the summer at some point or another (they do not have a summer program). Almost every time she says, “Is it time to go back to school?” in an unbelievably excited voice. So the professional sacrifice was clearly worth it. My children love me. Tasha Blakney asked her daughter Katie Rogers for a funny back to school story, but she said “there’s nothing funny about it.” Some of our Lawyers’ Kids offered up their best guesses for the definition of the term “in loco parentis:” • Katie Rogers: local parents. • Abby, Wesley Stone’s daughter, says the term means, “my parents are crazy.” Wesley thinks she is confusing it with pollo loco, or the crazy chicken. • Angelia Nystrom’s son Trace says, “That means ‘the crazy parents’ in Spanish. My friends and I use it all the time.” When asked if he says that about his own parents, his response says it all: “What do you think?”
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September 2016
NICE NICHE By: M. LeAnn Mynatt Baker, Donelson, Bearman, Caldwell & Berkowitz
ENVIRONMENTAL AND HEALTH & SAFETY What is your primary practice area?
regulations applicable to their facts and help them get from Point A to Point B in the most cost-effective manner.
My practice is comprised of helping (usually corporate) clients comply with environmental and health and safety (i.e. OSHA) laws and regulations. I help clients get into and stay in compliance, and advise companies on environmental and OSHA issues during real estate and corporate transactions. How did you decide to specialize in this practice area? Process of elimination, and UT Law Professor Dean Rivkin. Seriously, after taking classes such as criminal law, tax law, and property law, I found myself actually “getting” and enjoying my Environmental Law class. I cut my environmental and OSHA regulatory “teeth” in Oak Ridge, before joining Baker, Donelson in 1998.
Is there anything people would find surprising about your practice? Believe it or not, mine is a very diverse practice. The Clean Air Act and the Clean Water Act are drastically different in their structure and permit requirements, and the OSHA regulations that apply to a construction company are very different than those that apply to a healthcare facility. I still learn something new every day, and I enjoy representing Fortune 100 corporations as well as family businesses with 20 employees. My geeky environmental and OSHA practice fits me to a “T.”
What does a normal week look like for you? I’m usually interacting with clients via email and phone calls. My anal personality fits this practice area, where I must understand intricate and detailed EPA and OSHA regulations, and then translate them into common English for my clients. The analogy I often use to describe my practice is that I don’t prepare my own taxes. I want to do the right thing, but rely on my CPA to sweat the details and just tell me what to do. My clients are busy developing real estate, transporting goods, or manufacturing things. They are experts in their business, but are probably not well versed in EPA- or OSHA-ese. Tell us what types of problems or issues you typically deal with for clients? I guide clients through problems as dire as a workplace fatality or catastrophe. There might have been an explosion and release of chemicals into the environment. In those situations, EPA and OSHA judge a company’s reaction in minutes and hours, not days. I help make the appropriate phone calls and reports to the government, sometimes as I drive to the facility. Other times, I might help a client redevelop contaminated property, called a brownfield. I help the developer evaluate the contamination, and then coordinate with the government in returning it to productive use, which also improves its value and cleans up the property. Helping a developer with that transformation is very gratifying. Oftentimes, my practice is more routine, helping clients with ongoing environmental and OSHA compliance. OSHA and EPA (and the state counterparts) constantly change their regulations. Only large companies can afford to have internal resources focused on environmental and OSHA compliance, so I’m usually interacting with a Human Resources Director, a Plant Manager, or the President of a family business. Sometimes they have received enforcement from the government; other times they want proactive advice. I determine the September 2016
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September 2016
G U I LT Y P L E A S U R E S By: Angelia Nystrom University of Tennessee Institute of Agriculture
OUTDOOR FUN For months, Hugh, Trace and I have been running around our house, yelling, “The British are coming! The British are coming!” Although Trace is quick to point out that Paul Revere likely did NOT say that, the British are coming to our house. Our friends Rob and Claire, along with their two children, are visiting Tennessee from Bristol, England. It will be Claire and the children’s first visit to our fair state, and we want to make it memorable. Trace has suggested activities like Dollywood and Hillbilly Golf; however, Hugh thinks we can do much better. Given that we live in the shadows of the nation’s “Most Visited National Park” and that this area is known to be one of the most beautiful in the world, I’m certain there are lots of activities we can do that show off the beauty and the culture of our region. But, I have been at a loss as to what to do. Those who know me well know two things: one, I am a planner and get very antsy when there is no plan in place, and two, I am not outdoorsy at all. My outdoor activities are limited to gardening and the occasional round of golf. I refer to the Virginia Creeper Trail as the “Virginia Creeper Hell,” and I have never been on anything remotely resembling a hike. Given those two things (and the fact that I really want our friends to have a great experience here), I have solicited some advice as to relaxing and fun outdoor activities. Rick Carl, an avid outdoorsman, suggests that even those of us who do not regularly enjoy the great outdoors can have a great time in the mountains. Says Rick, “Ever since my days at Maryville College, I have been a lifelong backpacker, canoe, fly fishing, bicycle kinda guy. When my wife, Joanna, moved down here from the Washington DC area, the first time she ever laced up hiking boots in her life was a hike up LeConte. She then gracefully waited for me to catch up at the top. We take an evolving group of 12 up there every year and spend the night. Great memories – many, many sunsets at Clifftops. Son Rick made his first trip at age 8. We also enjoy biking the greenways in Knoxville and along the Little River in Walland and Townsend. And, for the past year, Jo and I have gotten into kayaking – so far this summer, we have been on Calderwood Lake in the Slickrock Creek area, floated the French Broad and are eyeing the Little River. The thing I find fascinating is being able to pull out of the driveway, take a hike, bike, or float in another world, and still make it home in time to grill salmon. That is a perfect day. Along with some Ibuprofen.” Crista Cuccaro also enjoys outdoor activities. “My husband and I enjoy outdoor activities immensely. We feel pretty lucky to have such great amenities in our backyard. We like to hike, paddle board, swim, and mountain bike (and my husband road bikes). Hiking looks different depending on how much time we have. Sometimes, we just head over to Ijams for a short walk, and sometimes we make a day of it and head out into the Smokies. Just recently, my husband went on a long road ride, and I met him in the Park with a picnic. We convened at the Wye and went swimming. That was a great way to cool off when it was super hot in town.” Continues Crista, “We also love paddleboarding in Meads Quarry. As for mountain biking, we just tried this recently for the first time and took advantage of the awesome trails in South Knoxville. I find outdoor
September 2016
activities to be refreshing – it gives me a sense of renewal. And trying mountain biking was exciting! It was also meditative – as odd as that sounds, I was so focused on the trail (and not falling!), that I couldn’t think about anything else.” Heather Anderson has a practical view. “I enjoy outdoor activities as long as there’s a REAL bathroom (no porta-potty) – and a place with air conditioning for cooling off. The national parks in the U.S. only have porta-potties – they look like real facilities, but are not. Just a structure over a porta-potty. But I do like to hike – in fact, before having children, I would often hike a different trail in the Smokies every weekend. I even biked Cades Cove! Now, I don’t even get to shop in Sevierville because I am racing go-carts or in an arcade spending all of my earnings. But it’s worth it, and when they are a little older, I hope they will enjoy hiking or at least shopping with me. If not, I can leave them home alone.” Robyn Askew’s outdoor activities hit a little closer to home for me. “My outdoor activities consist mainly of screened-in porches, with a door very close to an enclosed climate-controlled room. I find such porches relaxing, especially with friends who are lethargic.” These are some great suggestions, and I am looking forward to seeing our friends. Wish us luck as we show off East Tennessee’s finest!
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ASK MCLAWYER
Question Presented: McLawyer, I am a recent law school graduate, and I have my first jury trial coming up. It is a civil case. I know the basics of the voir dire process and that I get a certain number of “strikes” in selecting my jury. However, do you have any “pointers” on how the process works as a practical matter? Discussion and Analysis: Einstein is often credited with saying, “The only source of knowledge is experience.” Unfortunately, the experience of a jury trial is becoming less common for young lawyers. First, the applicable statutes provide the “black and white” rules to know. Parties in a civil case have the absolute right to examine potential jurors. Tenn. Code Ann. § 22-3-101. A challenge of a juror is generally considered either “for cause” or “peremptory.” Parties may challenge and excuse any jurors for cause that are unqualified under the applicable statutes or are unable to be fair and impartial. Tenn. Code Ann. § 223-102 – 103; see, e.g., Ricketts v. Carter, 918 S.W.2d 419 (Tenn. 1996). For peremptory challenges, Tenn. Code Ann. § 22-3-104 provides that any party may challenge and excuse four jurors without cause, and the absolute maximum number of allowed peremptory challenges is eight. Rule 47 of the Rules of Civil Procedure provides more ground rules, and
alternative methods of jury selection that a court may use are outlined in Tenn. R. Civ. P. 47.02 – 47.03. Carefully review these statutes and rules, including the comments, and be familiar with what the cases say constitute “for cause” challenges1. Any important issues should be addressed with your judge in your pre-trial conference. With that broad (and maybe over-simplified) background, the primary “pointer” I can offer is to be sure to speak with the court’s staff, especially your judge’s or chancellor’s administrative assistant. We are extremely fortunate to work with court staff in our area who are friendly and helpful. They are generally happy to explain the procedure you will encounter. Also, make sure to get to court and watch other cases’ voir dire proceedings as much as possible. Each judge and chancellor will have certain processes they like and do not like, and each judge and chancellor will have different preferences and give varying amounts of leeway in attorneys’ juror examinations. Observing those proceedings in your court is often the only way to learn the details of the specific process you are about to encounter as well as your judge’s tendencies and preferences. The court’s staff can inform you of the upcoming jury trials on the docket. “The only source of knowledge is experience,” and if this is your first experience at the voir dire process, be sure to observe and learn from the experience of your fellow attorneys. Good luck and congratulations on your first jury trial. 1 Some common “for cause” challenges are for jurors who have an interest in the case, a close relationship with a party or witness, or a prejudged attitude towards the case.
“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.
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September 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.
NEED GUIDANCE IN A SPECIFIC PRACTICE AREA? One of the best kept secrets of the Knoxville Bar Association is our Mentor for the Moment program. We want to let the secret out and make sure that our members use this wonderful resource. It’s really simple to ask a question of our helpful volunteer mentors. Log in to the members’ only section of www.knoxbar.org or check out the list in the KBA Attorneys’ Directory and begin your search! Our easy-to-use website allows you to search by last name or by subject area experience. AFFILIATED ORGANIZATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, September 8, 2016, at 12:00 p.m. in the U.S. Attorney’s Office, Knoxville, Tennessee. Prof. Rodd Barckhoff of the University of Tennessee College of Law will be presenting the one hour program on the topic of Appellate Brief Writing. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 684-1118 for additional information and/or lunch reservations.
September 2016
OFFICE SPACE AVAILABLE: • A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants. Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049. •
Office 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.
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO PROJECT By: Kathryn Director
Ellis
“FORGING JUSTICE FOR THE PUBLIC GOOD” A sword forged of Damascus steel is strong and beautiful, but it is also one of the most labor intensive pieces a blade smith can undertake. Creating such a sword takes skill, time, and a special dedication to achieving the final product. The blade smith must forge layers of different types of steel together to create an intricate, but strong, tool. Forging a system in which all members of our community have true access to justice takes a similar dedication, a dedication shared by multiple “blade smiths.” By working together, the members of our legal community can forge an intricately layered tool that protects everyone’s right to justice. There are many ways to help Legal Aid of East Tennessee (LAET) in forging justice for our community. Throughout the year, you can volunteer at our monthly Saturday Bar, you can handle individual cases through the Pro Bono Project (PBP), you can send cases to the PBP through a reverse referral, or you can work with me to identify a way for your firm to become an LAET Pillar Law Firm. In September and October, however, you will have even more opportunities to work with LAET while we spend nearly two full months Celebrating Pro Bono. Pro Bono Month (October) is an opportunity for attorneys to join together to provide free legal services to those in need and an opportunity for organizations like LAET to honor those attorneys and other volunteers who help us through our Pro Bono Project. For each of the events below, you can volunteer your time to assist or attend to learn more about LAET’s Pro Bono Project so that you can better assist LAET throughout the year. • • • • • • • • • • •
September 7 – Veterans’ Legal Clinic (with the KBA) – Public Defender’s Office September 10 – Knoxville Saturday Bar – Knoxville LAET Office September 16 – CLE on the Pro Bono Project – Loudon County Bar Association Meeting September 17 – Blount County Saturday Bar – Maryville LAET Office September 24 – Homeless Veterans’ Stand Down – National Guard Armory September 29 – Fall in the Garden – Out of Eden Garden Center October 1 – Knoxville Super Saturday Bar – Public Defender’s Office October 5 – CLE on the Pro Bono Project and Presentation of Blount County Pro Bono Awards – Blount County Bar Association Meeting October 7 – Pro Se Divorce Clinic – Duncan School of Law October 15 – Blount County Super Saturday Bar – Blount County Library October 25 (tentative) – Sevier County Advice Clinic – Courthouse Donuts
After nearly eight weeks of events where dozens of volunteers will work with LAET to assist members of our community with their legal needs, LAET will then celebrate all of you at our Pro Bono Night Celebration! You may have thought you missed our celebration because it is has been held in July for the past several years, but this year we decided to move the event to October so that it could serve as an exclamation point to finish Pro Bono Month. Please mark your calendars now for Friday, October 28 and plan to join us at Ironwood Studios. If you are interested in being a sponsor for the event or have any questions about it, please contact us at ForgingJustice@laet.org or get additional details at tinyurl.com/LAET-ForgingJustice.
Legal Aid of East Tennessee Celebrates Pro Bono Justice for Those in Need Friday, October 28 6:00-9:00 Ironwood Studios @ 119 Jennings Ave. Together, we can forge justice for the public good.
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
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Q: A:
THE LAST WORD By:
Jack H. (Nick) McCall
What exactly got you interested in wildlife photography?
K.O. HERSTON The Herston Law Group, PLC
A: I always enjoyed photography and loved being outdoors. Around five years ago, I started really studying how to do it properly. I began with landscape photography but after my first encounter with a bear and two yearlings I was hooked on photographing wildlife. In the national park I have photographed bears, elk, wild boar, river otters, deer, turkey — you name it. Q: Aren’t you afraid of being alone with bears in the wild? A: No way! I prefer to be alone with them so I can really work the scene. It’s an incredible experience. Contrary to popular opinion, bears are afraid of people. Unless they’ve been fed by tourists, they want nothing to do with you. The only times I’ve been scared involved being surprised by a bear I didn’t know was there. For example, one time I was wading down a narrow, overgrown creek in waist deep water. I was hoping to find bears I knew frequented that area. Unbeknownst to me, a bear was bedded down in the dense foliage a few feet to my right. Suddenly there was a loud commotion, the bushes were shaking, and I heard lots of huffing and snorting. A few feet to my left, three cubs bolted up a tree. I found myself inadvertently between a mother and cubs in an area of the Smokies where there’s no one around to hear me scream, standing in waist deep water with heavy photography gear in my backpack. Let’s just say I was fully present in the moment! I made as much noise as I could and slowly retreated down the creek. Since that day, I now carry bear spray whenever I venture into the backcountry looking for bears. But anytime I’ve known where the bear is, there has been no reason to be afraid. I have lenses that allow me to photograph them at a safe distance. Q: What’s the craziest thing you’ve done to get a photograph? A: On Halloween night in 2014, a freak snowstorm was forecast. As soon as I left a Halloween party, I hopped in the car and drove to the Smokies, hoping I’d arrive before the rangers closed the roads, which often happens after a major snowfall. Around 1 AM I met up with a few photography buddies in the parking lot at Cades Cove. We slept in our cars. We woke up to 3-4 inches of snow and discovered the rangers had indeed closed the roads. We were “trapped” inside the park and had a snow-covered Cades Cove all to ourselves! We spent the day photographing what for that day was our own private national park.
“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 . September 2016
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