April 2020 - Volume 48, Issue 4

Management Counsel: Incubus of Viral Plague . . . Page 11 Schooled in Ethics: Please Don’t Alter That Document . . . Page 13

A Monthly Publication of the Knoxville Bar Association | April 2020

McClay v. Airport Management Services, LLC: THE TENNESSEE SUPREME COURT UPHOLDS THE CONSTITUTIONALITY OF TENNESSEE’S STATUTORY CAPS ON NONECONOMIC DAMAGES

THE JUDICIARY

W R I T T E N

B Y

J U D G E

B I L L

S W A N N

We have come to expect compassion from the representative and executive branches of government. But we aren't so sure about the judiciary. Come with me, writes poet Robert Bly, into abandoned Chevrolet wheels, into things that have felt despair for so long that they howl with a terrible loneliness, lying on their backs in cindery dirt. Come with me into these cast off, once useful rejects which, like the men and women who no longer function in our society, are rejected and alone. Come with me, he says, into

Those shredded inner tubes abandoned on the shoulders of thruways, Black and collapsed bodies, that tried and burst, And were left behind; And the curly steel shavings, scattered about on garage benches, Sometimes still warm, gritty when we hold them, Who have given up, and blame everything on the government, And those roads in South Dakota that feel around in the darkness.

Well, as I say, we are used to compassion from the representative and executive branches of government. But we aren't so sure about the judiciary. We know that sometimes the legislative branch indulges in orgies of hypocritical sympathy, flinging money at problems and bringing no solutions. And we know that the executive branch can sing a similar song, both branches seeking votes even as they say they are about the business of alleviating human suffering.

But our courts? The judicial branch? The guardians of individual rights? How much do they care about the people who come before them? My opinion: The courts should care passionately about the people appearing before them.

The jury system is one way we build feeling back into the rendering of justice. We bring in twelve who are still alive, who can still feel the grit and warmth of the steel shavings, who can still feel the heartbeat of the litigants. Twelve who know that even though these shavings are scattered about on garage benches, they are still part of the whole. Shaved off the engine block of humanity, part of us, our fellow creatures, not waste.

Juvenile courts are another way we build feeling into the rendering of justice. For our young people we relax procedures so that the system can proceed with compassion, can heal, can help.

But in non-jury civil and criminal cases for adults? Well, things are usually different.

Maybe necessarily so when the caseload is too big. Maybe necessarily so to prevent burnout. Maybe this, maybe that.

But shouldn't our goal even here be that judges know they have been, and could again be, roads in South Dakota that feel around in the darkness? That judges know they can be abandoned on the shoulders of thruways, black and collapsed? That they too could be, and can yet be, just as miserable as this John Doe before them, this broken plaintiff? Just as miserable as this Jane Doe, this penniless defendant at counsel table?

Come with us, we might tell our judges, into those things that have felt this despair for so long. Forget your black robes, your degrees hung on walls, your parking permits. Come with us, come feel the grit, the warmth, the black howl of terrible loneliness.

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DICTA

April 2020

In This Issue

Officers of the Knoxville Bar Association

April 2020

COVER STORY 16

President Hanson R. Tipton

President Elect Cheryl G. Rice

Treasurer Jason H. Long

Secretary Loretta G. Cravens

KBA Board of Governors Sherri DeCosta Alley Jamie Ballinger Mark A. Castleberry Hon. Kristi Davis

Elizabeth B. Ford Rachel P. Hurt Allison Jackson Elizabeth (Betsy) Meadows Robert E. Pryor, Jr.

Immediate Past President Wynne du Mariau Caffey-Knight

Michael J. Stanuszek Amanda Tonkin Elizabeth M. Towe Mikel Towe

McClay v. Airport Management

Services, LLC: The Tennessee

Supreme Court Upholds the

Constitutionality of Tennessee’s

Statutory Caps on Noneconomic Damages

CRITICAL FOCUS 5

Bob Ritchie: Head-Hunter

Incubus of Viral Plague

Please Don’t Alter That Document

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13

The Knoxville Bar Association Staff

President’s Message

Management Counsel: Law Practice 101 Schooled in Ethics

WISDOM 2

6

The Judiciary

Written by Judge Bill Swann

Around the Bar

Knoxville Barristers Host the

Regional High School Mock Trial Competition

8 Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Leslie Rowland 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

Rebecca Eshbaugh LRIS Assistant

Dicta

DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment).

Exceptions to this policy must be cleared

by KBA Executive Director Marsha Watson (522-6522).

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe

Managing Editor Marsha Watson

KBA Executive Director

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

April 2020

David Bledsoe

Tennessee, We Couldn’t Get Much Higher (Unless, Of Course, We Legalize Marijuana)

Stefano’s Pizza

Committee Time

Suffragette Lizzie Crozier French and the OTHER “War of the Roses”

Got To Keep Moving

It’s Time to Spring Clean Your Email

Breaking Down the System, One White Person at a Time

Worse Than Your Worst Nightmare

Praise the Lord

The Best Recipes from the Backs of Boxes, Bottles, Cans and Jars

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14 19 21 23 24

Volume 48, Issue 4

DICTA

Hello My Name Is

25 26 27 29

Legally Weird

Passing By

The Noblest Profession Of Local Lore & Lawyers

Outside My Office Window

Bill & Phil Gadget of the Month Well Read

Your Monthly Constitutional Long Winded

Barrister Bites

COMMON GROUND 4 20 22 22 28 30 31

Section Notices/Event Calendar Barrister Bullets Change of Addresses Welcome New Members Bench & Bar in the News Pro Bono Project Last Word

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SECTION NOTICES & EVENT CALENDAR

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. To have your name added to the section list, please contact the KBA office at 522-6522.

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Mediation of Complex Construction Cases” on May 4 featuring David Draper.

If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030).

Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, 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. The section plans regular CLE throughout the year. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515).

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

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and 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. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Lawyers Section The Government & Public Service Lawyers 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 to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2018 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Courtney Walker (292-2307) or Chuck Sharrett (637-0203).

Senior Section The KBA Senior Section will meet next on June 10, 2020 at Calhoun’s on the River. The program title is “East Tennessee Newsmakers: Where Are They Now?” and will feature Georgiana Vines, former News Sentinel Political Columnist & Author. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The registration price includes a buffet lunch and beverage. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307) Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).

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event calendar April

n 7 Law Office Tech Committee Meeting n 8 Veterans Legal Advice Clinic n 8 Diversity in the Profession Committee Meeting n 8 Barristers Monthly Meeting n 9 Lunch & Learn n 9 Judicial Committee n 14 Professionalism Committee Meeting n 15 Board of Governors Meeting n 23 New Lawyers Section Luncheon n 24 LRIS Committee Meeting

n n n n n n n n n n n n n n n

May

1 Law Day Luncheon & CLE 4 ADR Section CLE 5 Law Office Tech Committee Meeting 12 Professionalism Committee Meeting 12 Access to Justice Committee Meeting 12 Knoxville Bar Foundation Dinner 13 Veterans Legal Advice Clinic 13 Diversity in the Profession Committee Meeting 13 Barristers Meeting 14 Lunch & Learn 14 Judicial Committee 15 Chancery Court Bench Bar Conference 19 CLE Committee Meeting 20 Board of Governors Meeting 20 Past President’s Dinner

Check the KBA Events Calendar at www.knoxbar.org for updates.

April 2020

PRESIDENT’S MESSAGE By: Hanson R. Tipton

Watson, Roach, Batson & Lauderback, P.L.C.

BOB RITCHIE: HEAD-HUNTER

This week I was having coffee with a third-year student from the UT College of Law. These conversations have changed over the years.

When I was considered a “young” lawyer, fresh out of law school, I knew a lot more about the law school experience, and it was easier for me to relate to law students. As I got older, my memories of law school were not so fresh, but at least we had the bar exam in common.

Now with the UBE, that’s not even the case anymore!

Anyway, I was talking with this law student about my own experience graduating from law school and beginning my career in the Knoxville legal community. I mentioned to her some of the differences between beginning your practice career in a law firm environment (as I did) and starting your career as a solo practitioner, as new attorneys are doing in increasing numbers. At that exact moment, like a scene from a movie, Mike “Stu” Stanuszek strolled up to our table and said hello. I introduced Stu to the law student, and Stu went on his way. When he left, the law student asked, “Is that the guy with the Law Lab?”

As many of you know, Stu IS the guy with the Law Lab, Tennessee’s first American Bar Association-recognized law incubator launched in Knoxville last year. Called the Tennessee Law Lab Inc., this non-profit organization aims to provide a “solid foundation for new attorneys, solo practitioners, and small firms.” The Law Lab is membership-based, and it includes a workspace and other office services like parking, receptionist services, and conference rooms. In this creative way, Stu is mentoring young attorneys beyond what he teaches as an adjunct professor at the UT College of Law and the LMU Duncan School of Law.

Not all of us can devote the time and resources of the Law Lab or teach at a law school to law students or young lawyers, but we can all be mindful of making efforts to bring our younger colleagues along in the profession. I am sure that everyone reading this column can remember lawyers who reached out to you along your career journey and helped you along the path to where you are now. I know that this writer can recall many such mentors.

When I think of the attorneys and judges who went out of their way to give me a hand or a kind word of advice, one story always leaps immediately to mind. When I was in undergraduate school at Florida State University, I came home most of the summers and so I needed summer jobs here in Knoxville. In the spring of my freshman year, my father suggested that I should contact local law firms about “runner” jobs, and he told me that I should do so early as these jobs tended to fill up quickly.

Naturally, I waited until just before my return to look at the list of Knoxville attorneys Dad had given me. I am sure that the list was a veritable “Who’s Who” of the Knoxville bar, but most of the names April 2020

didn’t sound familiar to me at age eighteen. One name, however, was very familiar to me: Bob Ritchie. I knew Bob’s name well, as he had given Dad his first job out of law school. (A quick aside about that: as my father’s law school graduation approached, my mother was annoyed that he had not actively sought out gainful employment, telling him that law firms were not going to just call him out of the blue and offer him a job.1 To Mom’s chagrin, just before graduation Bob Ritchie did just that, after calling the law school dean to ask if he had any bright students who needed a job. Mom never really forgave Bob for that.)

Back to the spring of 1992: I called the offices of Ritchie, Fels & Dillard, and sheepishly asked if I could speak with Bob Ritchie, fully expecting to be diverted to his assistant to leave a message that might or might not ever be returned. Which was actually fine by me as I was a bit intimidated to be calling someone of Bob’s stature to ask if I could come work for him in a few weeks, doing whatever a “runner” does. But instead of the reprieve of leaving a message, I was greeted by that booming voice: “HOW IS MY FRIEND HANSON DOING?”2 It should be noted that Bob’s friend Hanson hadn’t seen or spoken to Bob since he was a young child coming to work with his father and probably couldn’t have picked him out of a lineup at that point.

Immediately set at ease by Bob’s friendliness, I told him of my predicament. Unfortunately, Bob explained to me, his firm had already hired their runner for the summer (probably back when Dad first told me I should be calling law firms.) “BUT LET ME SEE WHAT I CAN DO,” Bob boomed and asked me for my number. I gave my number to him and figured that was the last I would hear from him. Oh well, on to the next name on the list.

A few days later, I answered the phone to hear, “HANSON? IT’S BOB RITCHIE. I’VE MADE A FEW CALLS AND LET ME TELL YOU WHAT I’VE FOUND OUT.” Bob then told me about the list of people he had contacted in efforts to find me a summer job. I must admit I was a little bit embarrassed to learn that Knoxville’s pre-eminent criminal defense attorney was serving as a personal head-hunter for me.

But of course, that was just the type of person Bob Ritchie was.

I eventually found a job with a law firm for that summer and then again the summer after that. And I made my way to law school and was even fortunate to be able to clerk for Ritchie, Fels & Dillard while in law school. All along the way, I met so many professors, lawyers, and judges who went out of their way to reach out a helping hand to me, blessing me with guidance, assistance, professional advice, and friendship. They continue to do so, and I appreciate every one of them. I try to pay it forward when I take a law student to lunch or out for coffee. I am always amazed by how much more focused and “together” today’s law students are than I remember being at their age.

Meeting law students and new lawyers recharges my legal batteries and reminds me that the future of our profession is bright. I know that I am no Bob Ritchie, but I hope that I can provide a helping hand to others the way Bob did for me. I encourage you make time to do the same. You will be glad you did.

1

Waiting until the last minute to find a job is something I apparently came by honestly.

2

If you had the pleasure of knowing Bob, you just heard his voice in your head as

you read that last sentence.

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AROUND THE BAR By: Erica Green Kramer Rayson LLP

By: Jimmy Snodgrass U.S. District Court

KNOXVILLE BARRISTERS HOST THE REGIONAL HIGH SCHOOL MOCK TRIAL COMPETITION

It has hit us hard this year that, amidst the return of the Roaring 20’s, we have been out of high school for a decade now. My how time flies.

Coordinating this year’s Regional High School Mock Trial Competition has reminded us of our high school years and has given us a new appreciation for mock trial and the benefits it gives these students. Without the volunteers, we would not be able to host this great event and give these students the opportunity to compete for a chance to go to the State competition. Thank you, again, to the judges, attorneys, and law students who served as presiding judges, scoring judges, bailiffs, or were just there to lend a helping hand where needed. We couldn’t have done it without you.

This year’s competition took place February 21st-23rd, and we were happy to open our doors to District 1, who had two teams join us due to unforeseen circumstances. In total, eleven teams from eight high schools represented Districts 1, 2, 3, and 4, including Carter High School, Farragut High School (Blue Team), Farragut High School (Silver Team), Jefferson County High School, Knoxville Catholic High School (Yellow Team), Knoxville Catholic High School (Green Team), Powell High School, Seymour High School, Unicoi County High School (Blue Devils Team), Unicoi County High School (EatMoreChicken Team), and Webb School of Knoxville. Congratulations to each team and student who participated--you all did a great job. To those schools who could not compete this year due to illness or conflicts, we hope to see you back next year. The problem this year centered around an alleged civil claim of battery between the owners of two competing fast food chicken sandwich restaurants.

All eleven teams participated in the preliminary rounds, held February 21st and 22nd at the Knoxville City County Building. The top two teams, Powell High School and Farragut Blue, advanced to the championship round on February 23rd, held at Lincoln Memorial Duncan School of Law. Powell High School won the competition and advanced to the State tournament on March 20th-21st in Nashville. Special congratulations are owed to the students who won individual awards, and they are as follows: Best Attorney-Alia Smith and Best Witness-Jordyn Velez. Both students were from the Farragut Silver team.

The Barristers would also like to specially thank Attorney Nate Ogle for presiding over the championship round, Judicial Clerk Esther Roberts and staff of the Public Building Authority for their assistance with arranging and securing the Knoxville City County Building facilities, and Director of Career Services Allison Starnes-Anglea of Lincoln Memorial University Duncan School of Law for facilitating and hosting the championship round.

Attorneys:

Penny Arning Hon. Suzanne Bauknight Wynne Caffey-Knight Melissa Carrasco Hon. Chuck Cerny Meagan Collver Jason Collver Robert Dziewulski Jenae Easterly David Eldridge Cody Farmer Bryce Fitzgerald Andrew Hale LuAnn Hileman Rachel Hurt Allison Jackson Matthew Knable Lyndsey Lee Elijah Lovingfoss Nate Moore Rameen Nasrollahi Nathaniel Ogle Courtney Read Ashley Salem Charles Sharrett Avery Shell James Snodgrass Michael Stanuszek Allison Starnes-Anglea Elizabeth Towe Mikel Towe Courtney Walker Alveta Watkins Dillon Zinser

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Law Students:

Clark Amundson Kasey Ankrom Amanda Bennett Jennifer Bolt William Cathcart Daniel Chung Brittany Eads Wesley Eke Jessica Gardner Rebecca Horton Elton Hutton Kayla Long Joseph Maus Holly Ownby Holly Phares Tomi Robb Sean Roberts Tyler Shultz Camryn Suggs Chad Taylor Nathan Wallace Bronte Ward Cathy Warmbrod Mark Wegzyn Paige Wiencke Gunner Woolsey

Powell - 1st Place

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April 2020

April 2020

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HELLO... MY NAME IS By: Jennifer Franklyn

Leitner Williams Dooley Napolitan

DAVID BLEDSOE We are featuring David Bledsoe, Associate Attorney at Breeding Henry Baysan, PC, for this month’s issue of DICTA. David is a 2018 graduate from the Lincoln Memorial Duncan School of Law, and he specializes his practice in the areas of criminal defense and investigations. Be sure to introduce yourself to David if you see him at any KBA events!

In addition to the KBA, are you a member of other legal organizations?

Tennessee Bar Association, National Association of Criminal Defense Lawyers, and Tennessee Association of Criminal Defense Lawyers.

What was your first job, and what did you learn from it?

One of my first jobs was working on a landscaping crew for the parks and recreation department in my hometown, Big Stone Gap, Virginia. This involved waking up every morning each summer and weed-eating and mowing grass at the local parks and other municipal properties. This job definitely helped me appreciate those who work in what have traditionally been referred to as blue-collar type jobs and recognize how lucky I am to have had the opportunity to receive an education which has allowed me to be where I am today.

these experiences with my father helped me realize how rewarding the legal profession can be and that attorneys are really able to help people in a unique way when compared to other professions.

Tell me about your favorite thing to do in Knoxville.

Going to football games at Neyland Stadium has by far been my favorite thing to do in Knoxville. There is definitely something special about the UT fanbase, and you can feel it around this city whenever football season rolls around.

What do you like to do outside of work?

I have been trying, unsuccessfully, to learn how to golf for about a year now. While I don’t think a career in the PGA is in my future, I do enjoy going to the driving range to hit balls on the weekends. I also love travelling to new places and try to plan short, weekend trips every few months.

Name your favorite shows to stream.

I have to call this one as a three-way tie between “Stranger Things,” “Game of Thrones,” and “The Office,” all of which were used on a regular basis to procrastinate instead of study while I was in law school.

What other countries have you visited?

I traveled internationally while I was attending Emory & Henry College for my undergraduate degree. This was part of a psychology course that I took in which we studied the “bystander effect” on German citizens during the holocaust. We then travelled to Prague, Czech Republic and Kraków and Warsaw, Poland where we visited a number of concentration camps and ghettos that were built and subsequently used at the height of World War II. Why did you decide to go to law school?

Well, my father is an attorney and like most children of attorneys I did feel some sense of obligation to follow in my father’s footsteps. That being said, I have wanted to be an attorney for about as long as I can remember. As a child, on days when my school would close for inclement weather, my father would take me to court with him, and I would watch him represent people that had been charged with crimes. I think that

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DICTA

April 2020

Photo Ops

ROOFTOP EVENT

April 2020

The New Lawyers Section & Functions Committee hosted a Rooftop event on February 25 at the Radius Bar at the Embassy Suites - Downtown Knoxville.

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L E G A L LY W E I R D By: Lisa J. Hall

Hodges, Doughty & Carson

TENNESSEE, WE COULDN’T GET MUCH HIGHER (UNLESS, OF COURSE, WE LEGALIZE MARIJUANA)

Once upon a time, when I was approximately negative 5 (-5) years old, Jim Morrison and The Doors mounted a rebellious act on live television performing on The Ed Sullivan Show by singing the scandalous lyrics, “Girl, we couldn’t get much higher” in the hit song “Light My Fire.”

The word “higher” was deemed inappropriate for family viewing because it was associated with drug use. The band agreed to alter the lyrics, but Morrison had no intention of doing so: “We’re not changing a word.” In his performance, of course, he sang the line just as written, which resulted in the band being banned from future performances on The Ed Sullivan show. When the producer told them they would not work on their show again, Morrison said, “Hey man. We just did The Ed Sullivan Show.

deserve better.” Spencer Boston certainly fared better than Jim Morrison.

Rather than being banned from the Wilson County General Sessions Court, he was invited back. He received another simple possession charge along with contempt of court, earning him a 10-day visit to jail.

Boston’s stunt garnered a fair amount of attention. (Side note: To be fair, Boston, through counsel, has said, “This is not a stunt.” In response, I would point out that the Merriam-Webster definition of “stunt” is “an unusual or difficult feat requiring great skill or daring, especially: one performed or undertaken chiefly to gain attention or publicity.” Boston’s act was unusual, daring, and undertaken to gain attention or publicity, so I respectfully rest my case. I mean, you know it would be untrue and you

Fast forward to January 2020. Instead of The Ed Sullivan Show, know that I would be a liar, if I was to say to you that this was not a stunt.) the scene is Wilson County, Tennessee General Sessions Court. Instead Googling Spencer Boston’s name yields 70,500,000 results. By contrast, of 23-year-old Jim Morrison, the person of interest is Spencer Boston, 20 Jim Morrison’s name yields 71,600,000 results. (Side note: really??). There years old. is a Go Fund Me page titled “Free Spencer Boston,” and as of this writing $7,375.00 has been raised (“Spencer now has an attorney!”) and with any

luck these fundraising efforts will result in a free Spencer Boston. (Side

note: is he actually not “free” though?).

I write this column every other month for one reason alone, and

that is to change lives. It is my way to “give back.” So, out of every oddball

story, there must be a lesson. In this day and age of Internet presence be ing the single most significant marker of your worth as a person1, it is im portant to note that with all of Jim Morrison’s musical accomplishments

and historical significance in the industry, Spencer Boston was, at the

mere age of 20 years old, able to achieve 98.5% of the number of Google

search results as Jim Morrison by simply lighting up a joint in a General

Sessions courtroom in Tennessee. What can I say? People are strange.

Instead of singing “Light My Fire” with all of its intended lyrics, Boston, who was facing a charge of possession of marijuana, spoke out about his desire to see marijuana legalized in Tennessee and proceeded to light a joint and smoke it. He did not get a chance to get much higher be1

No, I do not mean this literally. This is only sarcasm. It is my first language. fore being led out of the courtroom, saying something to the effect of “We

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April 2020

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Melissa B. Carrasco

Egerton, McAfee, Armistead & Davis, P.C.

INCUBUS OF VIRAL PLAGUE

DISCLAIMER: I am not a physician, biologist, virologist, epidemiologist or anything else with a “gist” in its name. I have never played any of the above on TV. It has been a year since I stayed at a Holiday Inn Select. I have, however, watched The Devil Wears Prada1 at least once a year since it was released, and with that background, I know that your workplace and mine are full of people who have or are about to become an incubus of viral plague.2

With that being said, as this article is being written, COVID-19 (Coronavirus) is the center of attention and the first case has just been confirmed in the State of Tennessee.3 By the time you read this article, at least one person in Knox County likely will have been diagnosed with the virus. So, what is an employer to do? Here are a couple of thoughts.

Do employers actually have to do anything?

The answer is, “yes.” OSHA’s General Duty clause requires employers to provide a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm.”4 That duty includes protecting your employees from exposure to infectious diseases like COVID19.5

If you are general counsel to an organization that routinely provides healthcare services, then the General Duty clause requires those kinds of employer to prevent occupational exposure to COVID-19. This duty also applies to non-profits and charitable organizations whose employees routinely come in contact with members of the public who are likely to have communicable illnesses. This means providing Personal Protective Equipment (gloves, masks, respirators, etc.) to employees who come in contact with and following appropriate protocols to avoid the transmission of blood, airborne, and surface transmitted pathogens.6

If your workplace is a law firm or non-healthcare office environment, you may not have a duty to provide Personal Protective Equipment, but you do still have some duties. At its most basic, the office environment should be kept clean and commonly-used surfaces (doorknobs, light switches, & faucets), equipment (printers, copiers, telephones, refrigerators, & coffee pots), and spaces (conference rooms, restrooms, & lunchrooms) should be sanitized regularly. This may involve increasing the frequency of your cleaning service, or simply making sure that these surfaces and spaces get sprayed or wiped with disinfectant on a daily basis.

Other ways to satisfy this duty may include providing individual supplies of hand-sanitizer and disinfectant wipes for employees to keep at their desks. Educating your employees on COVID-19 and how it is transmitted is also a good idea. OSHA and the CDC have provided several fact-sheets that can be posted or distributed to employees.7 Education can also help employers avoid unnecessary liability for “regarded as” disability claims or national origin discrimination claims discussed below.

What if an employee tests positive for COVID-19?

First, if you do have an employer who is infected with COVID-19 on the job, OSHA says this is a recordable event.8 Remember, this only applies to COVID-19 infections that occur on the job. If an employee contracts COVID-19 through some other source, this is not a recordable event. Also, the recording requirement does not apply for other, seasonal illnesses like colds and the flu. If you are not familiar with OSHA’s recordkeeping and reporting requirements, you can read all about it at https://www.osha.gov/ recordkeeping/.

Second, if your employee contracts COVID-19 as a result of the job, this may need to be reported as a workers’ comp. claim. Generally, if an employee contracts a disease in the course of his or her employment, that should be treated as a workers’ comp. claim.9 Usually, this would apply to

employees of healthcare organizations or those who are exposed to diseases as part of their job duties. It would not apply to a normal office space where one employee may contract an illness from another employee. However, just be aware that you may need to consider workers’ comp. if COVID-19 appears at your workplace.

Third, if your workplace is covered by the FMLA, then treat COVID-19 as a “serious health condition” and go through the FMLA paperwork process. A “serious health condition” is one that makes the employee unable to work for 3 or more consecutive days and requires ongoing medical treatment from a healthcare provider.10 COVID-19 fits the definition.

Don’t forget that FMLA leave applies both when the employee has the illness and when the employee’s “close family member” has the illness. Make sure you are providing FMLA leave in both cases.

Even if the FMLA does not apply, you should still consider providing leave as a “reasonable accommodation” under the ADA, even if the infected employee has used all available leave under your normal policies. You certainly don’t want the employee coming back to the office before a physician says he or she is ready.

Fourth, you can request a doctor’s note confirming the diagnosis and confirming that the employee can return to work. Generally, the ADA prohibits inquiries about an employee’s health condition and prohibits employers from requiring employees to undergo medical examinations.11 However, these kinds of inquiries and medical examinations are acceptable in order to determine if an employee poses a direct threat in the workplace.12

When the CDC, state, or local authorities declare an illness or disease to be a serious public health emergency, that declaration gives employers objective evidence that an employee with a confirmed diagnosis poses a direct threat.13 On January 31, 2020, Health and Human Services Secretary Azar II declared COVID-19 to be a public health emergency, and therefore employers are allowed to make limited inquiries – such as asking for a doctor’s note confirming the diagnosis and confirming that an employee previously diagnosed with COVID-19 can return to work.

What about the other employees?

Remember, even in a “public health emergency” employers still have a duty to prevent harassment on the basis of a perceived disability or national origin. COVID-19 is a virus – nothing more. It infects humans – all of us.

Make sure all employees are treated the same way, regardless of their national origin, and if a physician has cleared an employee to return to work, put him or her back to work. That’s all.

The Devil Wears Prada (20th Century Fox 2006).

Meryl Streep in The Devil Wears Prada, 3

First Case of Coronavirus Confirmed in Tennessee, WVLT (Mar. 5, 2020), https:// www.wvlt.tv/content/news/First-case-of-coronavirus-confirmed-in-Tenn 568521101.html.

4

Occupational Safety and Health Act § 5(a)(1), 29 U.S.C. § 654(a)(1) (2020).

5

See Occupational Safety and Health Administration, COVID-19, https://www.osha. gov/SLTC/covid-19/standards.html.

6

See id.

7

See Centers for Disease Control, Coronavirus Disease 2019 (COVID-19), available at

https://www.cdc.gov/coronavirus/2019-ncov/about/share-facts-h.pdf.

8

See OSHA, Recording Workplace Exposures to COVID-19, https://www.osha.gov/ SLTC/covid-19/standards.html.

9

See Tenn. Code Ann. § 50-6-301 (2020).

10 29 C.F.R. § 825.113 (2020).

11 See 42 U.S.C. § 12112(d) (2020).

12 EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (Oct. 9, 2009), available at https://www.eeoc.gov/facts/pandemic_flu.html#11.

13 Id. 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.

April 2020

DICTA

11

PA S S I N G B Y By: Katie Ogle

McDonald, Levy & Taylor, PLLC

By: Nate Ogle

Knox County District Attorney General’s Office

STEFANO’S PIZZA

When Katie first moved to Knoxville, I had a whole list of places that she needed to try, and at the top of that list was one of my favorite lunch spots, Stefano’s Pizza on Cumberland Avenue, known to most as “The Strip.”

In fact, I think I took Katie there the first time I brought her to Knoxville because it was one of the things I missed most about being on campus.

Before we had children and were both working close to downtown, we would take advantage of the Tuesday through Thursday lunch special, a great deal for two young attorneys. It’s all the beauty of a buffet, but instead of placing all the pizzas on a line for public consumption and germ sharing, Stefano’s keeps the pizzas behind the counter and serves them to you two or three slices at a time.

Included on this lunch special are all the Stefano’s deep dish favorites, including the “Windy City,” (pepperoni, mushroom, and onion) and “Lady Vol” (Cheddar cheese, beef, onion, bacon, and tomato) selections, as well as the more traditional pizza options. Diners also have the option of white or red sauces, and whole wheat or white crust. Also offered at Stefano’s are these delightful, homemade cinnamon sticks, which are more up Katie’s alley than mine, but are not to be missed. They also serve icing for dipping, if you need that extra sweetness to complete your meal.

Fast forward a few years, and Katie and I have found ourselves living further west, and though still occasionally indulging in a Stefano’s lunch, it has become more rare that we have a pizza outing without our two children in tow. In early 2018, we were excited to learn that Stefano’s would be opening a new location in our “backyard” of Turkey Creek on Parkside Drive. All of the offerings were the same as the original, but the location was in a more family-friendly atmosphere. We were able to frequent this location for several months; however, it closed in 2019. Much to my joy, a new Stefano’s Pizza had also opened in 2018 just a few minutes away in Hardin Valley, with the same family-friendly atmosphere and delicious pizza. This location also offers some great food and drink specials, which I’ve listed below: Monday: Small cheese pizza and draft beer $10 Tuesday: $2 off draft beer Sports Trivia at 7:00 with The Trivia Guys Wednesday: $2 Miller High Life bottles and $10 Windy City pies Thursday: 99 cent wings and Singo at 6:30 Sunday: 1/2 price all bottles of wine and $13 mimosa buckets Happy Hour All Day, Every Day from 11:00 -7:00 and $1.00 off everything except bottled beer and wine

While the food at Stefano’s is fantastic, and takes me back to those late nights with my friends on campus, the best part of this updated location has to be the atmosphere. The staff goes out of their way to make our family welcome, which is not always the response we receive upon darkening the doors of a restaurant with two toddlers. One waitress even gave our daughter some quarters to play the Pac Man video game near the back of the restaurant on our last visit. The entire dining area is surrounded with televisions that are showing various sporting events, but always seem to have one that is tuned to a cartoon or kids’ movie for their entertainment, too.

Also, there is a coupon in the Knox County Schools Coupon Book for $5 off a $25 order. In short, Stefano’s Pizza in Hardin Valley offers the same great food that students at the University of Tennessee have loved for decades, but does so in an atmosphere that allows us to enjoy it with our families, without making the trip down to campus.

If you have suggestions for this column, or restaurants you think we should try, we’re all ears! Please contact us at katie@mltlaw.com or nate. ogle@knoxcounty.org. We look forward to sharing some of our favorite eateries with you, as well as trying new places that our colleagues recommend.

12

DICTA

April 2020

SCHOOLED IN ETHICS By: Judy M. Cornett

U.T. College of Law

PLEASE DON’T ALTER THAT DOCUMENT

A recent decision of the Tennessee Supreme Court demonstrates the importance of knowledge in determining whether alteration of a document violates the Rules of Professional Conduct. In Board of Professional Responsibility v. MacDonald, 2020 WL 746584 (Tenn. Feb. 14, 2020), the court unanimously affirmed a hearing panel’s dismissal of disciplinary charges against an attorney, including violations of Rule 3.3 (candor toward the tribunal) and 3.4 (fairness to opposing parties and counsel).

The attorney represented one partner, Huddleston, in a dispute with the other partner, Harper. In response to a summary judgment motion by Harper, the attorney submitted Huddleston’s affidavit, along with an email and attachment that had been sent by Harper to Huddleston. The email attachment was a proposed letter to a third party bearing the preprinted signature of the partnership, but no individual signature. Before submitting the email and attachment to the court, the attorney had his assistant print out the letter and manually type in the following: “/s/ Kenneth Harper.”1

At the hearing on the summary judgment motion, opposing counsel pointed out that Harper’s signature had been added to the letter.2 The trial court expressed its consternation: COURT: Well, . . . it’s interesting that somebody added it.

ATTORNEY: I did, your Honor.

COURT: Why in the world did you do that?

ATTORNEY: So it would be clear who did it.

COURT: I need to see the original document, unaltered, period.

ATTORNEY: Well, you do have the affidavit.

COURT: . . . I don’t think I have ever seen that in the practice of law, where somebody has taken a document that’s been produced and they modify it, add something to it.

ATTORNEY: We produced it, your Honor. The only reason they have it, your Honor, is because we gave it to them.

COURT: I understand that, but why in the world would you add something to it?

ATTORNEY: To make it clear to the Court who signed it.

COURT: . . .[W]hat’s clear is on the face of the document as it originally existed. You don’t add things to it. Don’t do it again in my Court.

ATTORNEY: I won’t.

COURT: Do you understand that?

ATTORNEY: I do, your Honor. The point is, we got a copy of it that was unsigned, but Mr. Harper signed it.

COURT: That’s not a reason for the attorney to go back and add something to it that wasn’t there.

ATTORNEY: I apologize to the Court, your Honor. I thought it was a benefit to the Court to clarify things, and I apologize.3

Opposing counsel filed a disciplinary complaint against the attorney. The Board charged him with violating Rule 3.3(b) and (c): “A lawyer shall not offer evidence the lawyer knows to be false . . . .” and “A lawyer shall not affirm the validity of, or otherwise use, any evidence the lawyer knows to be false,” and Rule 3.4 (a) and (b): “A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, [or] falsify evidence.”

The hearing panel found that the Board had failed to prove a The hearing panel found that the Board had prove a violation of Rule 3.3, which requires knowledge of the falsity of the evidence. There was no evidence that the attorney knew or had reason to know that the letter was not eventually signed. Citing the following facts, the panel found that the attorney had a good faith belief that the letter had been signed: 1. Huddleston told him that Harper had actually signed and sent the letter to the third party.4 2. Huddleston “approved the addition of ‘/s/ Kenneth Harper’ to the Letter as consistent with his belief that Mr. Harper had signed and sent the Letter” and submitted an affidavit attributing the letter to Harper.5 3. “At the time he submitted the exhibit, Attorney did not believe there was a dispute as to who drafted or signed the Letter.”6 4. “[I]f [Attorney] had any doubt as to whether Mr. Harper had signed the Letter, he would not have added the conformed signature.”7

With respect to Rule 3.4, the attorney had neither obstructed the opposing party’s access to evidence nor falsified evidence because he had disclosed the unaltered letter to the opposing party during discovery, and because it is not unlawful to add a “conforming signature” to a document if the attorney reasonably believes the original was signed.8

The Tennessee Supreme Court found that the panel’s decision was supported by substantial evidence and was neither arbitrary nor capricious.9 The court also cited with approval three additional facts: 1. Despite the attorney’s initial failure to mention his alteration of the letter, “once the conformed signature was mentioned, Attorney was forthcoming and candid with the court and also ‘displayed a cooperative attitude’ toward the Board.”10 2. “Attorney received an open admonishment from the trial court judge at the motion hearing.”11 3. “In his over four-decade career as an attorney, he has no prior disciplinary matters on his record.”12

Despite the positive outcome for this attorney, the case is a cautionary tale. The court warned: “[W]e do not recommend that attorneys operate solely off the word of their clients to the point of blind ignorance.”13 Altering a document, even in good faith, risks a public dressing-down by the court and a disciplinary proceeding.

1 2

5

6

7

8

9

3 4

12

13

10 11

Board v. MacDonald, 2020 WL 746584, at *2.

Opposing counsel knew that the letter had been altered because the unaltered version had been produced in discovery. Id. Id. at *2-3.

Id. at *4.

Id. at *2.

Id. at *4.

Id. With respect to the latter finding the court warned: “We emphasize that the facts of each case must be reviewed closely on these types of issues. Each case presents fact-specific issues.” Id. at *11 n.12.

The court reversed the Knox County Chancery Court, which had reversed the panel’s decision and imposed a public reprimand. Id. at *7, 9.

Id. at *6.

Id. Id. at *1.

Id. at *10.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835.

April 2020

DICTA

13

COVID-19 RESPONSE

The KBA is closely following the CDC guidelines to reduce the severity of the COVID-19 pandemic in the days and weeks ahead. To that end, we are postponing CLE and events and exploring telecommuting and work-at-home options. KBA committee meetings will be held whenever possible, using teleconferencing capabilities instead of holding in-person meetings.

At the time DICTA went to press, the CDC had just advised canceling all events with more than 50 people. The KBA is working on rescheduling events and CLE, so please check the KBA event calendar at www.knoxbar.org for programming details.

UPDATES FROM THE COURTS

In response to public health guidance related to COVID-19 (coronavirus), many U.S. courts (state and federal) and agencies are adjusting the way they operate. Each court is making its own modifications under the circumstances, and have included, among other things: restricted courthouse access for individuals who have symptoms, who have been exposed to individuals who have or may have COVID-19, or who have traveled to high-risk countries, cancellation of non-case related activities, and rescheduling of oral arguments.

The KBA has contacted area court clerks and requested information on any changes. Please check the KBA website at www.knoxbar.org/ coronavirusresponse for regular updates.

CORONAVIRUS IN THE WORKPLACE

FREE WEBINAR: Coronavirus (COVID-19): What Your Business Should Do Right Now

The law firm of Baker Donelson Bearman Caldwell & Berkowicz invites KBA members to participate in a complimentary webinar at https://www.bakerdonelson.com/coronavirus-covid-19-what-your-business-should-do-right-now to learn about how you can safeguard your law firm and businesses you counsel from the impact of the Coronavirus (COVID-19) outbreak, including: • COVID-19 medical facts, including risks, prevention, treatment and exposure • Employer perspective about the rights of employers and employees and business travel issues • Planning for a remote workforce: cybersecurity control considerations • Supply chain and other business transactions • Impact on mergers and acquisitions and financial disclosures for public companies • Potential insurance claims, including business interruption

LAW PRACTICE TIPS FOR DEALING WITH COVID-19

By Jim Calloway, Oklahoma Bar Association Management Assistance Program • Good planning is the key to dealing with unexpected circumstances. The plan may have to change as events unfold, but it’s better to start with a plan.

• Determine who can work remotely and who cannot.

• If many are telecommuting, someone may be needed onsite to open mail, scan it and email it to appropriate staff and lawyers.

• Telecommuting workers need a secure method to use for client communication and working with sensitive client information. Virtual Private Network (VPN) connections are preferred.

• In many, if not most, cases, a home computer used by children and other family members would not meet proper security and confidentiality standards. A cell phone used to access email is likely more secure than a typical family’s home computer and it would be very secure if using a VPN. Typing on a phone is much slower, as we know.

• I have long advised solo and small firm lawyers to use laptops rather than desktop computers. Working from home is much easier with the same computer you use at the office. Consider buying a laptop now if the situation warrants.

• If you have many digital documents at the office with no way to remote access them and you have a secure computer at home, consider copying them to a portable hard drive or copying them to a secure cloud storage site.

• Video conferencing is a good way to stay in touch with clients in uncertain times. Apple FaceTime can be used for one-onone meetings. Zoom and Skype are options. If you are an Office 365 subscriber, Teams includes videoconferencing. Microsoft is offering anyone its premium version of Teams for free for six months and has lifted existing user limits on its free version.

• Deadlines are important. Lawyers deal with many deadlines, but now is a good time to triage your deadlines and identify “non-forgivable” deadline dates, like statutes of limitations expiring. To the extent possible, do those now. Offices are one sick person away from sending all of their staff home for 14 days to self-quarantine while courthouses could remain open.

• It is simple to share calendars in Outlook. Lawyers who have not shared their Outlook calendar before should do so with a trusted staff member or, under some circumstances, the office administrator. Keep client information private, but it is unwise to be the only one with a key to the lock.

14

DICTA

April 2020

RESOURCES FOR EMPLOYERS

Recommended strategies for employers to use from the CDC website:

Actively encourage sick employees to stay home: o Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Employees should notify their supervisor and stay home if they are sick. o Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies. o Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies. o Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way. o Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.

Separate sick employees: o CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately.

Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).

Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees: o Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen. o Provide tissues and no-touch disposal receptacles for use by employees. o Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty. o Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene. o Visit the coughing and sneezing etiquette and clean hands webpage for more information.

Perform routine environmental cleaning: o Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. o No additional disinfection beyond routine cleaning is recommended at this time. o Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.

Advise employees before traveling to take certain steps: o Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which you will travel. Specific travel information for travelers going to and returning from China, and information for aircrew, can be found at on the CDC website. o Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick. o Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed. o If outside the United States, sick employees should follow your company’s policy for obtaining medical care or contact a healthcare provider or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A U.S. consular officer can help locate healthcare services. However, U.S. embassies, consulates, and military facilities do not have the legal authority, capability, and resources to evacuate or give medicines, vaccines, or medical care to private U.S. citizens overseas.

Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19: o Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure. o If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).

Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

April 2020

DICTA

15

MCCLAY V. AIRPORT MANAGEMENT SERVICES, LLC: THE TENNESSEE SUPREME COURT UPHOLDS THE CONSTITUTIONALITY OF TENNESSEE’S STATUTORY CAPS ON NONECONOMIC DAMAGES

On February 26, 2020, the Tennessee Supreme Court issued its decision in McClay v. Airport Management Services, LLC, upholding the constitutionality of Tennessee’s statutory caps on noneconomic damages.1 Chief Justice Bivens authored the 3-2 majority opinion, with Justice Kirby filing a separate concurring opinion, and Justices Clark and Lee each filing their own dissent.2 Those of us who practice in personal injury litigation (on both sides of the v.) have been watching the case closely in anticipation of the Court’s release of the decision.3 Certification of the questions:

The case originated in the U.S. District Court for the Middle District of Tennessee in Nashville under federal diversity jurisdiction.4 In August 2016, Jody McClay was injured at a Hudson News store at the Nashville International Airport when a panel fell from a commercial cooler onto her feet.5 She claimed injuries, including lacerations and bruising to her feet – ultimately resulting in a diagnosis of Complex Regional Pain Syndrome, a chronic pain condition – for which she sought medical treatment.6 In January 2019, a jury awarded McClay damages in the amount of $444,500.00 for future medical expenses and $930,000.00 for non-economic damages.7

Following the verdict, the defendant moved the District Court to reduce the jury’s award in accordance with the statutory cap as required by Tenn. Code Ann. § 29-39-102(g).8 In response to the defendant’s motion, the plaintiff asserted that the statutory cap should not be applied because it violates the Tennessee Constitution.9

The district court certified the following questions to the Tennessee Supreme Court: (1) Does the non-economic damages cap in civil cases imposed

by Tenn. Code Ann. § 29-39-102 violate a plaintiff ’s right to a trial by jury, as guaranteed in Article I, section 6 of the Tennessee Constitution?

(2) Does the non-economic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislature branch and the judicial branch?

(3) Does the non-economic damages cap in civil cases imposed

by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discriminating disproportionately against women?10

On June 19, 2019, the Court accepted certification of all three questions.11 The State of Tennessee also entered an appearance to defend the constitutionality of the statute.12 The majority opinion:

Justice Bivens first acknowledged that the Tennessee General Assembly enacted the statutory cap on noneconomic damages as part of the Tennessee Civil Justice Act of 2011.13 In particular, T.C.A. § 29-39-

16

102(a)(2) limits compensation for noneconomic damages for each plaintiff to $750,000.00.14 The limit is increased to $1,000,000.00 for certain “catastrophic loss or injury.”15 The right to trial by jury:

The Court first addressed the plaintiff ’s argument that the statutory cap violates the right to trial by jury guaranteed by the Tennessee Constitution.16 The Court acknowledged that the General Assembly has the authority to legislatively alter the common law, for example the common law tort of negligent control and supervision of a child has been superseded by statute where the damage caused by the child was intentional or malicious, and damages therefrom are limited to $10,000.00 plus court costs.17 Additionally, it has abrogated certain common law actions, including alienation of affections, seduction, and criminal conversation, and the Court has acknowledged the General Assembly’s authority to do so as a representation of “the public policy of the state.”18 Further, “the right to a jury trial does not entitle a plaintiff to any particular cause of action or any particular remedy.”19 Rather, the causes of action and remedies that a plaintiff may seek are determined by the legislature.20 The Court reasoned that the statutory cap “is not disclosed to the jury, but is instead applied by the trial court to any award of noneconomic damages.”21 Therefore, the jury determines the factual question of the amount of noneconomic damages and the judge then applies “as a matter of law determined by the legislature, the statutory cap on noneconomic damages in entering the final judgment.”22 Thus, the Court concluded, “this application of law by the trial judge does not violate the plaintiff ’s right to have a jury determine the underlying facts of the case.”23 In support of this conclusion, the Court found persuasive reasoning from other states that have also concluded a variety of statutory caps on damages do not violate a plaintiff ’s right to trial by jury.24 The separation of powers:

The Court next addressed the plaintiff ’s argument that the statutory cap violates the separation of powers provisions of the Tennessee Constitution.25 The Court noted that it “has the inherent power to promulgate rules governing the practice and procedure of the courts of this state,” and “the General Assembly oversteps constitutional boundaries in violation of the separation of powers when it exercises its legislative power in a way that directly contradicts existing procedural rules[.]”26 On the other hand, “the separation of powers doctrine […] does not prevent the General Assembly from enacting substantive law.”27 Having already concluded that “the statutory cap on noneconomic damages is a substantive change in the law that was within the General Assembly’s legislative authority to enact[,]” the Court concluded that “the statutory cap does not interfere with the judicial power of the courts to interpret and apply law.”28 Rather, “courts exercise their judicial authority by

DICTA

April 2020

COVER STORY By: Hannah Lowe

Trammell, Adkins & Ward, P.C.

applying the statutory cap to the cases before them,” and the statutory cap does not violate the separation of powers doctrine under the Tennessee Constitution.29 The equal protection clause:

Finally, the Court addressed the plaintiff ’s argument that the statutory cap violates the equal protection clause by discriminating disproportionately against women.30 The Court noted that the plaintiff had acknowledged that the statutory cap on noneconomic damages is facially neutral, and she had not alleged that the General Assembly had a discriminatory intent or purpose in enacting the statute.31 Rather, the plaintiff argued only that the statutory cap has a disparate impact on women.32 The Court reasoned that “the United States Supreme Court has held repeatedly that the Equal Protection Clause of the Federal Constitution does not provide for disparate impact claims[,]” and the Tennessee Supreme Court has similarly “held that a party asserting an equal protection violation must show discriminatory purpose.”33 As there was “no allegation or evidence that the General Assembly acted with the purpose of discriminating against women in enacting the statutory cap on noneconomic damages,” the Court concluded the cap “does not violate the Tennessee Constitution by discriminating disproportionately against women.”34

Thus, the majority concluded that the statutory cap on noneconomic damages does not violate the right to trial by jury, the doctrine of separation of powers, or the equal protection provision of the Tennessee Constitution.35 The concurrence:

In her separate concurrence, Justice Kirby wrote that she “join[ed] fully in the majority’s conclusion that the statutory cap on noneconomic damages does not violate either the separation of powers clause or the equal protection clause in the Tennessee Constitution[,]” but “a much closer question is presented on whether the statutory cap violates the clause in the Tennessee Constitution guaranteeing a right to trial by jury.”36 Writing separately to explain her concurrence in this issue, Justice Kirby discussed that she was persuaded by the reasoning of Maryland’s high court in holding that caps do not violate the right to a jury trial because rather than taking the factual determination from the jury the legislature simply provided for the judge to apply the caps to the jury’s award.37 Justice Kirby also noted that she was unpersuaded by the dissenting Justices’ reliance on case law involving remittitur and additur because “[n]one of these cases elucidate how the constitutional right to jury trial, intended to limit judges’ interference with juries, applies to legislative action limiting remedies available to claimants.”38 The dissents:

Justice Clark and Justice Lee each wrote separately to express their dissent and opinion that T.C.A. § 29-39-102(e) violates the Tennessee Constitution.39

Justice Clark would hold that the statutory cap “violates Article I, Section 6 of the Tennessee Constitution by usurping the jury’s essential and constitutionally protected fact-finding function.”40 Reasoning that April 2020

the statutory cap “usurps and replaces the jury’s constitutionally protected function of determining damages with an arbitrary ceiling on damages mostly unrelated to the specific facts and circumstances of each litigant’s claim,” Justice Clark would adopt the reasoning of other high courts that have held such statutes to be unconstitutional.41

Similarly, Justice Lee concluded that the statutory cap violates the right to trial by jury, otherwise reducing the jury’s role to a “mere procedural formality.”42 Justice Lee discussed that “[b]y usurping the jury’s role in awarding noneconomic damages, the General Assembly has, in effect, amended […] the Tennessee Constitution to dilute the right to trial by jury so it is no longer inviolate.”43 Justice Lee would rather permit the voters to decide whether to amend the Constitution to include the caps on noneconomic damages.44 In doing so, the voters “could … consider whether the damages cap is a solution looking for a problem,” considering that “in Tennessee, we do not have a problem with ‘runaway juries[,]’ and “[t]he damages cap applies to only a few cases each year and affects the most seriously injured individuals.”45 The court has spoken:

A discussion of the implications of the Court’s ruling, and how it might impact our practice in this area, must be left for another day. Suffice it to say that the Court has answered the questions that were posed to it, and now we know where the Court stands on this issue.

McClay v. Airport Mgmt. Servs., LLC, No. M2019-00511-SC-R23-CV, 2020 Tenn. LEXIS 84 (Tenn. 2020).

2

McClay, 2020 Tenn. LEXIS 84 at *2.

3

As illustrated by the number of amici curiae who filed briefs with the Court.

4

See Jodi McClay v. Airport Management Services, LLC, Case No. 3:17-CV-0705 (M.D.

Tenn. 2019). McClay was a resident of California.

5

See Brief of Plaintiffs-Petitioners at xi, McClay v. Airport Mgmt. Servs., LLC, No.

M2019-00511-SC-R23-CV, 2020 Tenn. LEXIS 84 (Tenn. 2020).

6

Id. 7

McClay, 2020 Tenn. LEXIS 84 at *3-4.

8

Id. T.C.A. §29-39-102(g) provides that although the caps are not disclosed to the jury,

they “shall be applied by the court to any award of noneconomic damages.”

9

Id. at *4. In addressing whether to certify the question of constitutionality to the

Tennessee Supreme Court, the district court judge noted that the issue of whether

Tenn. Code Ann. § 29-39-102 violates the Tennessee Constitution was presented

to the Tennessee Supreme Court in Clark v. Cain, 479 S.W. 3d 830 (Tenn. 2015).

However, in Clark, the Supreme Court found that the issue was not ripe because the

case was at the summary judgment stage (i.e. a jury verdict had not been entered

awarding damages above the statutory cap). Because the jury had awarded damages

in excess of the statutory cap, the district judge found that the challenge to the

damage cap in McClay was ripe for determination. See Order Certifying Questions

of State Law to the Supreme Court of Tennessee, No. 3:17-CV-0705 (M.D. Tenn.

March 18, 2019).

10 McClay, 2020 Tenn. LEXIS 84 at *4. In certifying the questions, the district court noted

that on May 3, 2018, the United States Court of Appeals for the Sixth Circuit

addressed a challenge to Tennessee’s statutory cap on punitive damages, found at

Tenn. Code Ann. § 29-39-104, and found that it “violates the individual right to a

trial by jury set forth in the Tennessee Constitution.” Lindenberg v. Jackson Nat’l Life

Ins. Co., 912 F. 3d 348, 364 (6th Cir. 2018), but neither the Tennessee Supreme Court

nor the Sixth Circuit had issued any opinion as to the constitutionality of the statutory

cap on non-economic damages. See Order Certifying Questions of State Law to the

Supreme Court of Tennessee, No. 3:17-CV-0705 (M.D. Tenn. March 18, 2019).

11 See McClay v. Airport Mgmt. Servs., LLC, 2019 Tenn. LEXIS 229, *1 (Tenn. 2019).

12 McClay, 2020 Tenn. LEXIS 84 at *4. See also T.R.A.P. 32. The Court also noted that

“[n]umerous amici curiae also have filed briefs to address the issues before the

Court, and we appreciate the perspectives they have provided.” McClay, 2020 Tenn.

LEXIS 84 at *5. The amici included: (1) Center for Urological Treatment, PLC, a

defendant in a healthcare liability action filed by Cynthia and Eric Yebuah pending

in the Tennessee Court of Appeals; (2) Cynthia and Eric Yebuah, the plaintiffs in

the action against Center for Urological Treatment, PLC; (3) the Tennessee Chamber of

Commerce and Industry, Chamber of commerce of the United States of America,

Tennessee Medical Association, American Medical Association, National Federation of (Continued on page 18) 1

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17

MCCLAY V. AIRPORT MANAGEMENT SERVICES, LLC: THE TENNESSEE SUPREME COURT UPHOLDS THE CONSTITUTIONALITY OF TENNESSEE’S STATUTORY CAPS ON NONECONOMIC DAMAGES (Continued from page 17)

Independent Small Business Legal Center, American Tort Reform Association, and Coalition for Litigation Justice, Inc.; (4) Tennessee Defense Lawyers Association; Peter Baldschun, a plaintiff in a civil action pending in the United States District court for the Eastern District of Tennessee; (5) Tennessee Trial Lawyers Association; (6) Barbara Patterson, a plaintiff in a civil action in the circuit Court for Davidson County.

This author is a board member of the Tennessee Defense Lawyers Association but did not participate in the drafting or submission of the amicus brief in this case.

13 McClay, 2020 Tenn. LEXIS 84 at *6.

14 Id. 15 Id. See T.C.A. § 29-39-102(c)-(d). Certain types of cases are also exempted from the

caps, such as where the defendant had a specific intent to inflict serious physical

injury, the defendant was intoxicated, or the defendant committed a felony in causing

the injury. T.C.A. § 29-39-102(h).

16 McClay, 2020 Tenn. LEXIS 84 at *10-16. Article 1, Section 6 of the Tennessee

Constitution states that “the right of trial by jury shall remain inviolate[.]”.

17 Id. at *8-9. See, e.g. Lavin v. Jordan, 16 S.W.3d 362, 363 (Tenn. 2000) (holding that

the common law tort of negligent control and supervision of a child was superseded

by statute when the damage caused by the child was intentional or malicious).

18 Id. at *10-11. See T.C.A. § 36-3-701; T.C.A. § 39-13-508(a).

19 Id. at *11.

20 Id. 21 Id. at *12.

22 Id. at *12.

23 Id. at *12. In a footnote, the Court acknowledged the Sixth Circuit’s ruling in

Lindenberg v. Jackson National Life Company, 912 F.3d 348 (6th Cir. 2018) that the

statutory cap on punitive damages violates the right to a jury trial under the

Tennessee Constitution. Noting that federal circuit court of appeals decisions

are not binding on the Court, the Court further found “the reasoning of the majority in Lindenberg unpersuasive in this case.” The Court further discussed that in

Lindenberg the Court declined to accept the certified question from the district court

regarding the constitutionality of the statutory cap on punitive damages because

antecedent questions regarding the availability of those damages had not been

certified.” The Sixth Circuit chose not to certify those questions but instead to hold

the cap on punitive damages to violate the right to trial by jury under the Tennessee

Constitution. Noting that the statutory cap on punitive damages was not at issue in

the case, the Court would not express an opinion on that issue.

24 Id. at *13. See, e.g. Murphy v. Edmonds, 601 A.2d 102 (Md. 1992) (in which

Maryland’s highest court held that a statutory cap on noneconomic damages did not

18

violate the right to a jury trial).

Id. at *16-18. Article II, Section 1 of the Tennessee Constitution provides that “[t]he

powers of the Government shall be divided into three distinct departments: …

Legislative, Executive, and Judicial.” Section 2 further provides that “[n]o person or

persons belonging to one of these departments shall exercise any of the powers

properly belonging to either of the others, except in the cases herein directed or permitted.”

26 Id. at *17-18.

27 Id. at *17.

28 Id. at *18.

29 Id. 30 Id. at *18-21. Equal protection is guaranteed by the Fourteenth Amendment of the

United States Constitution, as well as Article I, Section 8 and Article XI, section 8 of the

Tennessee Constitution.

31 Id. at *19.

32 Id. 33 Id. at *19-20.

34 Id. at *20-21.

35 Id. at *21.

36 Id. 37 Id. at *22-23.

38 Id. at *27.

39 Id. at *29-59.

40 Id. at *29-30.

41 Id. at *33-35. Justice Clark references decisions from the high courts of Alabama,

Georgia, Kansas, Missouri, and Washington.

42 Id. at *42.

43 Id. at *46.

44 Id. at *47.

45 Id. at *47. Justice Lee illustrated her opinion with the example of Billy Meals, a six year-old plaintiff who was seriously injured in a car accident and was awarded a

substantial verdict including more than $1,000,000.00 in noneconomic damages,

which would have been significantly reduced had his injuries occurred after October

1, 2011 (the date the statutory caps went into effect). See Meals ex re. Meals v. Ford

Motor Co., 417 S.W.3d 414, 417-18 (Tenn. 2013).

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DICTA

April 2020

THE NOBLEST PROFESSION By: Melissa B. Carrasco

Egerton, McAfee, Armistead & Davis, P.C.

COMMITTEE TIME

If you are anything like me, the fastest way to lose a friend is to put them on a committee. The organization might be interesting. The subject matter might be important. The people might be smart. The issue is the inefficiency. As Elbert Hubbard once said, “A committee is a thing which takes a week to do what one good man can do in an hour.”1 There is a reason why we say something “died in committee.” Very few things can maintain their will to live after they have been in a committee meeting for a while.

For some inexplicable reason, people always want lawyers to serve on their committees. Maybe it is our charm, charisma, and well-honed analytical skills. Maybe it is a blatant attempt to get free legal work.

Either way, there seems to be some unwritten rule that every committee must have a lawyer.

So, when Harry was putting together a committee, he asked attorney Sadie Tanner Mossell Alexander to serve. Sadie was no lightweight. Raised by a single mother, by the time she was twentythree, she had earned a Ph.D. in economics from the University of Pennsylvania.2 A few years later, she went back to the University of Pennsylvania, this time to attend law school. She was named to the editorial board of the Law Review, graduated, and passed the Pennsylvania bar, all while raising her own two daughters.3

She and her husband, attorney Raymond Pace Alexander, started their own firm and practiced together for the next thirty-two years, with Sadie also serving as assistant city solicitor for the City of Philadelphia in her spare time.4 Raymond was appointed to serve as a judge on the Pennsylvania Court of Common Pleas,5 but undeterred at losing her law partner to the bench, Sadie maintained a solo practice for the next eighteen years. Eventually, she joined the Philadelphia law firm of Atkinson, Myers, and Archie for her final years before retirement.6

In the middle of all of this, Harry had the nerve to ask her to serve on his committee – for a year – without compensation. They say that, if you want to get something done, ask a busy person to do it, and Harry needed people on his committee that would get things done. You see, he had done something rather bold. He had already publicly declared that things were changing. Harry issued Executive Order 9808: Freedom From Fear is more fully realized in our country than in any other on the face of the earth. Yet all parts of our population are not equally free from fear. And from time to time, and in some places, this freedom has been gravely threatened. It was so after the last war, when organized groups fanned hatred and intolerance, until, at times, mob action struck fear into the hearts of men and women because of their racial origin or religious beliefs.

Elbert Hubbard, Think Exist, http://thinkexist.com/quotes/with/keyword/committee/ (last visited Mar. 8, 2020).

2

Nancy Elizabeth Fitch, Sadie Tanner Mossell, American Nat’l Biography (Fe.

2000), https://www.anb.org/view/10.1093/anb/9780198606697.001.0001/anb 9780198606697-e-1500988 (last visited Mar. 8, 2020).

3

Id. 4

Id. 5

H. Viscount Nelson, Raymond Pace Alexander (Jan. 18, 2007), https://www.

blackpast.org/african-american-history/alexander-raymond-pace-1897-1974/ (last

visited Mar. 8, 2020).

6

Fitch, supra n. 2.

7

Harry S. Truman, Executive Order 9980 (Jul. 26, 1947), available at https://www.

archives.gov/federal-register/executive-orders/1948.html; Harry S. Truman,

Executive Order 9981 (Jul. 26, 1947), available at https://en.wikipedia.org/wiki/ Executive_Order_9981#/media/File:Executive_Order_9981.jpg.

8

President’s Committee on Civil Rights, To Secure These Rights (Dec. 1947),

available at https://www.trumanlibrary.gov/library/to-secure-these-rights#133.

9

Carla Garner, Sadie Tanner Mossell Alexander (Oct. 29, 2010), https://www. blackpast.org/african-american-history/alexander-sadie-tanner-mossell-1898 1989/ (last visited Mar. 8, 2020); Sadie Tanner Mossell Alexander, Britannica,

https://www.britannica.com/biography/Sadie-Tanner-Mossell-Alexander (last

visited Mar. 8, 2020).

10 Harry S. Truman, Special Message to Congress on Civil Rights (Feb. 2, 1948),

available at https://glc.yale.edu/special-message-congress-civil-rights.

1

*** I have, therefore, issued today an Executive Order creating the President’s Committee on Civil Rights, and I am asking this Committee to prepare for me a written report. The substance of this report will be recommendations with respect to the adoption or establishment by legislation or otherwise of more adequate and effective means and procedures for the protection of the civil rights of the people of the United States.

Sadie and the rest of the fifteen-member President’s Committee on Civil Rights did not disappoint. Over the next year, from December 1946 to December 1947, they would review or generate over 21,600 pages of documents. These documents now take up over eleven linear feet of shelf-space in the Harry S. Truman Presidential Library in April 2020

Independence, Missouri. The Committee held public hearings; they examined evidence; they interacted with dozens of federal and state agencies and private organizations with all sorts of perspectives. They did all of this without compensation.

Their final report, “To Secure These Rights,” was 178 pages long. Its recommendations led to Executive Orders 9980 and 9981 desegregating the U.S. military and ending discrimination in the federal Civil Service system in 1948.7 The Committee also made recommendations regarding establishing a Civil Rights Division in the Department of Justice; establishing a Fair Employment Practice Commission (the precursor to the EEOC); protecting the right to vote; and strengthening federal legislation to preserve civil rights – which eventually resulted in the Civil Rights Act of 1964.8

To be clear, this report and all of these changes were a group effort, the result of a hard-working Committee. But, there was a reason why Truman asked Sadie to serve on the Committee. It may have been her charm and charisma. It most certainly was because of her well-honed legal and analytical skills. However, Sadie had something more. Sadie had perspective.

Sadie had the academic and profession credentials, and she also had experience seeing past what is, to what could be. Sadie was the first African-American woman in the United States to earn a Ph.D in economics. She was the first African-American woman to be admitted to the University of Pennsylvania School of Law. She was the first AfricanAmerican woman to be admitted to the Pennsylvania bar. The law firm that she co-founded with her husband was the first African-American firm in Philadelphia. She founded a legal aid organization to assist African Americans who could not afford attorneys. She was secretary of the National Urban League. She helped found the National Bar Association.9

Maybe that is what lawyers bring to committees – perspective – the perspective of a profession that has a long history of solving problems and finding ways to move past what is to what could be. As Truman told Congress when he transmitted the Committee’s findings, “We know the way. We need only the will.”10 Maybe serving our community through committees is not a burden after all but really just one more way that we preserve the nobility of our profession.

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barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m. The next meeting will be held on April 8, 2020. There are many opportunities to get involved, and you are encouraged to contact Barristers President Allison Jackson (ajackson@emlaw.com) or Vice President Amanda Tonkin (Amanda.

Tonkin@ssa.gov) for more information.

approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/ tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two (2) clinics, which will be held on April 8 and May 13 from 12:00 to 2:00 p.m. at the Knox County Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on April 8 or May 13 on the Event Calendar at www. knoxbar.org.

SUPPORT THE VOLUNTEER BREAKFAST

LAW & LIBERTY AWARD NOMINATIONS DEADLINE: APRIL 10, 2020 The Barristers Constitution and School Outreach Committee is seeking nominations for the Law & Liberty Award. The deadline to submit a nomination is April 10, 2020. The recipient should be visible to the legal profession and local bar association, but nominees do not have to be attorneys to qualify for the Law and Liberty Award. The recipient should strive to foster and to maintain good relationships between the legal profession and the community, work to advance the understanding of the law and legal processes in the non-legal community, set an example of good citizenship, make time for volunteer work within the legal profession and otherwise, evidence high professional standards, express concern for the safeguard of personal, political, civil, and religious liberties, and be someone whose work is not normally recognized. Consider those in your firm, local civic and religious organizations, or the community who have worked to improve our legal system and protect civil liberties. Please contact the committee’s co-chairs, Zack Walden (zwalden@eblaw.us) or Mikel Towe (mtowe@lewisthomason.com) with nominations or questions.

The Barristers Volunteer Breakfast Committee would like to thank Todd and Kim Skelton for their sponsorship of the March Volunteer Breakfast and Courtney Walker and Bob Dziewulski for volunteering their time to serve. The Barristers Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. The Barristers Volunteer Breakfast Committee is seeking volunteers to serve food for the August 27 breakfast. We 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! Please contact Matt Knable (knablelaw@gmail.com) or Mitchell Panter (mpanter@ lewisthomason.com) for more information.

DONATE TO THE PROFESSIONAL CLOTHING DRIVE Spring Cleaning? Make room in your closet and help others at the same time! The Hunger & Poverty Relief Committee is collecting professional clothing from April 6-20, 2020. Requested items include: slacks and skirts, suits, blouses and shirts, dresses, ties, and dress shoes. Multiple donation locations will be available, including locations on Gay Street, Main Street, and in West Knoxville. Please do not donate any items with holes, stains, or rips. Women’s clothing will be donated to the YWCA, Connect Ministries Career Closet, and LMU Law Career Services’ Career Closet. Men’s Clothing will be donated to Knox Area Rescue Ministries (KARM) and LMU Law Career Services, Career Closet. For more information please see www.knoxbar.org/clothingdrive or contact committee co-chairs, Charles Sharrett (Csharrett@londonamburn.com) or Meagan Collver (MDavisCollver@londonamburn.com).

VOLUNTEER TO STAFF THE VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/ Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox County Public Defender’s Community Law Office, the UT College of Law, LMU Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. We serve

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DICTA

April 2020

OF LOCAL LORE & LAWYERS By: Joe Jarret

Attorney, University of Tennessee

SUFFRAGETTE LIZZIE CROZIER FRENCH AND THE OTHER “WAR OF THE ROSES”

Speak to most historians, and they’ll tell you that the “War of the Roses” consisted of a series of bloody civil wars for the throne of England between two competing royal families: the House of York and the House of Lancaster, both members of the age-old royal Plantagenet family. Waged between 1455 and 1485, the War of the Roses earned its flowery name because the white rose was the badge of the Yorks, and the red rose was the badge of the Lancastrians. 1 However, I’d like to explore a different War of the Roses, one that, perhaps not as bloody, but every bit as important as it concerned the very souls of America’s women and ultimately a nation as a group of women warriors valiantly fought for the right to vote.

It was a hot, humid August in Nashville, Tennessee as opposing forces gathered to meet at the special session called by the governor to address the 19th Amendment to the United States Constitution.

2 Supporters for women’s suffrage wore yellow roses and those opposed wore red American Beauty roses.

Discussions and arguments continued night and day and were ultimately dubbed by the media as the “War of the Roses.” Preceding the special session of the Tennessee House of Representatives, clubwoman and suffragist Lizzie Crozier French traveled the hills and valleys of Knoxville and East Tennessee, lobbying lawmakers to vote yes on the 19th Amendment.

Born in Knoxville in 1851, formally educated at the Covenant of Visitation School in Washington, D.C. and widowed at 23, Lizzie devoted much of her life to women’s causes. In 1885, Lizzie visited the Sorosis Woman’s Club in New York City and returned to Knoxville inspired to organize a literary club that became the General Federation of Women’s Clubs (GFWC), Ossoli Circle. 3

Lizzie’s suffragist activities began as early as the 1880s, when she spoke to passersby at Knoxville’s Market Square. As the suffragist movement gained momentum, she was elected president of the Tennessee Suffrage Association, and organized a writer’s club to help women write letters-to-the-editor to newspapers across the state. In 1885 she established the Knoxville Female Institute, of which she would later become Principal. Lizzie was also an eloquent public speaker, and wrote a book called “A Manual of Elocution.” She founded the Women’s Educational and Industrial Union, and was the first woman to address the Knoxville City Council, where she advocated for the appointment of a female police matron for women offenders. She assisted in the founding of the Knoxville branch of the League of American Pen Women, the PTA, the League of Women Voters, and the Unitarian Church. She was the first woman to speak before the Tennessee Bar Association, and frankly said to them, “I wish I could say ‘Fellow citizens’, but since I am not accepted as a citizen by the government, I must say ‘Citizens and Fellow Servants.’” In response to the argument that women should not be permitted to vote because they could not serve in the army, Lizzie, in her indomitable style responded, “Bullets and ballots are not companions; but ballots in the hands of people are supposed to be a substitute for bullets in the hands of hired agents...Thanks be to God that in giving woman April 2020

the crown of motherhood he made her the giver not the taker of life.

Woman has no greater claim to the rights of the ballot than that she is the producer not a destroyer of life.” 4

Despite her long list of accomplishments, Lizzie primarily described herself as a suffragist and was active in the National Women’s Party. She influenced Harry Burn’s mother to write a letter to Harry, a young representative from Niota, Tennessee, to convince him to change his vote for the 19th amendment to YES. He was wearing a red rose that morning as the special session was called to order, but in his suit coat pocket he had that eight-page letter from his mother and a yellow rose.

Harry Burn cast the deciding vote for the 19th amendment to the Constitution of the United States. Supporters watching from the balcony threw their yellow roses into the air and over the railing onto the floor of the Tennessee House of Representatives. The 19th Amendment was ratified.

Tennessee was the “Perfect Thirty-Six” and Lizzie Crozier French had finally achieved her life-long dream for the women of the United States – they now had the right to vote. Lizzie died on May 14, 1926, while in Washington, D.C. to lobby for a bill that would benefit working women and to attend the dedication of a room in the National Woman’s Party Building established in her honor. She is buried in Knoxville’s Old Gray Cemetery, just a few miles from the Tennessee Woman Suffrage Memorial, located at Market Square in downtown Knoxville. .

See, https://www.history.com/topics/british-history/wars-of-the-roses.

Amendment XIX: The right of citizens of the United States to vote shall not be

denied or abridged by the United States or by any state on account of sex. Congress

shall have power to enforce this article by appropriate legislation.

3 https://www.gfwc.org/lizzie-crozier-french-and-the-war-of-the-roses/.

4

Freije, M. (2012, February 3).

1 2

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Address Changes WELCOME NEW MEMBERS

Please note the following changes in your KBA Attorneys’ Directory and other office records:

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

NEW LAW STUDENT MEMBERS

Dustin S. Crouse Knoxville Elder Law

Michael L. Bendall Hannah-Claire P. Boggess Caleb L. Burton Jordan Caroway Shelby V. Davis Jordan L. Franklin Lillian G. Heckman Olivia Rose Kennedy Katharine Nutting Brianna C. Riley Victoria R. Rome Jonathan D. Russell Harper Sainson Caleb Smith Daisey A. Smith Peyton N. Smith Rebecca J. Spicer Kelsey Stelly Michael B. Trotter Morgan T. Webber Gunner M. Woolsey

Paul E. Drozdowski Eric A. Freeland Keith E. Lowe Daniel B. Morrell Garza Law Firm, PLLC Brian Sableman Cole Stinson AF Group, Inc. Joshua R. Walker University of Tennessee R. Luke Widener London Amburn, P.C.

22

Laurie Ball Consolidated Nuclear Security, LLC Y-12 National Security Complex P.O. Box 2009 Oak Ridge, Tennessee 37831-8014 Ph: (865) 576-0218 laurie.ball@cns.doe.gov R. Scott Carpenter BPR #: 014263 P.O. Box 191 Knoxville, TN 37901-0191 Ph: (865) 556-5252 r.scottcarpenter@gmail.com L. Clay White BPR #: 033620 LaFevor & Slaughter P.O. Box 20701 Knoxville, TN 37940-1701 Ph: (865) 637-6258 clay@lafevorslaughter.com

DICTA

April 2020

OUTSIDE MY OFFICE WINDOW By: Robbie Pryor

Pryor, Priest & Harber robertpryorjr.blogspot.com

GOT TO KEEP MOVING

“I’ll come by next week,” I promised again. I’d been promising for months. I was avoiding the task of cleaning out the closet of my childhood bedroom. My parents sold their house. It is a house they’ve lived in for 38 years, and the closing is occurring as I write this. I knew the process would be one cloaked in emotion, and not just for them.

“Nomi’s House” is a fixture in the life of our entire family and has been my home twice.

When my parents purchased the home at 136 Seven Oaks Drive, I was 13 years old. I put up a fight. I didn’t like change. Still don’t. Kids don’t win those battles. Dad sat me down with my younger brother and sister and implored that “Home is where we are all together.” It was 1983.

He was right and how proud he was when we walked through the doors. Through the years, the house became a gathering place basketball games in the driveway, spend-the-night parties in high school, pool parties in college, and an open invitation to family and friends where everyone was greeted at the kitchen door with food and drink and a hug from my sweet mother. No one entered through the front door, and the house was bathed in the smell of clean linens, fried chicken (or the day’s dish), and freshly cut flowers. Friends came and went like it was their home. I got my first good kiss on the couch downstairs. It is where I proposed to Cheryl as I could hear my nervous parents and siblings pacing upstairs, so much joy and excitement in their hearts. It is where we have entertained so many - office parties, Kentucky Derby parties, graduation, and birthdays. My mother has always insisted on celebrating family birthdays in her house. Then there’s Christmas. Oh, Christmas. It was certainly magic for “the core 5,” as my sister calls us. Still, when the spouses and grandchildren came along, my parents created a tradition on Christmas Eve where a special dinner is shortly followed by dashing upstairs to a wonderful bounty of their love for all of us. Santa Claus is on a bench holding a clipboard with “Bob and Nomi” in the game. That’s what the grandkids call them - “Bob and Nomi.” It’s what we all call them, and their house is where a great deal of our lives have taken place.

We have no power to stop the changing seasons. Grandchildren went to college. Mom had knee surgery - twice. Dad had some health scares. Although they are well, age brings challenge and the need for practicality. The laundry room is upstairs, the pool sits empty and weeds are beginning to cover the unused tennis court. A buyer wandered by one day. Dad found another neighborhood. Contracts were signed. My parents began building a new house, one where everything is on the first floor and there’s very little upkeep outside. They have friends across the street. Very practical - unusual for our kind - and just like that, it is time.

Sometimes “practical” hurts. There is excitement, of course. They are moving into a beautiful house, but I see the nostalgia behind their eyes.

The tears will come.

of Andy’s nursery, great sadness came to my home. A great deal of her things and the remnants of our life went into the closet, and Shelby, Andy and I settled in for a longer stay.

The house I’d shunned and then accepted, the address of my adolescence, the place of such great joy and laughter, the place where my children always begged to be taken and, finally, the place of my onceagain home became my unexpected home for a bit longer. For that long year, my mother and I would put children to sleep before I would make my way to the bonus room to read, write, and grieve. There wasn’t a better place to find our footing. Amid the laughter of children, mutual encouragement, chicken n’ dumplings and overwhelming love, we all began our assent. Like the roses on the fence by the pool, we came back.

It is the only place life could have possibly made sense again. Christmas and birthdays came and were welcomed. It became all that it had ever been - a place of safety and love where darkness might come for a visit but was not welcome to linger. The sting of death is no match for Bob and Nomi’s home.

So, nineteen years after the healing, the closet remained. When I entered my room for the last time this past week the memories came - running to the window at days first light to see if we’d get a snow day, listening to Bon Jovi and AC/DC while making mixed tapes for my car, and talking to friends on a phone attached to the wall. Then I lifted boxes from the closet. They were full of things from a different time, a time of sadness and healing. There were condolence cards and journals.

Then there were her things - scrapbook supplies, checks that would never be written, and a few photographs of the kids on playdates. I packed up her make-up case, the one adorned with stitched flowers that use to sit on the bathroom counter. It was just like she left it that day. As I lifted it and heard the long lost and distinctive rattle of its contents - pencils and lipstick, mascara and blush banging against the compact mirror and brushes inside, I could see her reaching for its contents in the bathroom while a little girl at her feet asked the purpose for each item. There was more. No need to dwell. It all came back in the hour of good work as I packed and carried away the bits and pieces of a distant and different life to make room for a new family. There were more smiles than tears. The good memories prevail. I’m more concerned about Bob and Nomi. Much of the week will be spent quoting the wise - “Home is where we are all together.”

Frozen in time since 2000, the closet was my responsibility.

Cheryl and I were building a house, and as a result of selling our home we needed a place to live for 3 months while it was being built. Bob and Nomi’s was an easy solution. I came home and brought my family with me. We set up Andy’s nursery in my brother’s old room and Shelby got my sister’s “Princess Bedroom.” Cheryl and I moved into my old bedroom where I’d spent high school nights on the phone with her.

When she suddenly passed away on a warm October day in the floor April 2020

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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

By: Phil Hampton

Founder and CEO, LogicForce Consulting

IT’S TIME TO SPRING CLEAN YOUR EMAIL

It’s spring cleaning time! Now that we have “sprung forward” to Daylight Savings Time, we should all start thinking about cleaning up our clutter, or as Marie Kondo would say: It is time to engage in the “lifechanging magic of tidying up.” Your email inbox is an excellent place to start. There are many methods for cleaning your email box. Here are some of them.

Old Fashioned Methods (Manual Clean up)

There are many methods for manual clean up. It seems that, like opinions, everybody has one. The question is, though, which ones work?

We will try to summarize and synthesize them here. In other words, we will try to “declutter” the methods here.

The first step is to delete the items that are trash at the outset.

One easy way to get this done is to sort your email inbox by the sender.

Simply delete messages that are from social media accounts, retailer ads, past event reminders, deliver confirmations, newsletters that are out of date, etc. Then sort again by subject line and do the same thing. In other words, delete the emails from senders or with topics whose messages are no longer important (or were never critical). The next step is to clean out your oldest messages. Start with the oldest unread messages and deal with them. Then go to the oldest messages that you have already read and responded to. If they are no longer needed in your inbox, archive them, and put them into folders by category.

Speaking of folders, the next step is to create folders and labels that apply to topics or senders that have several messages that would fall into the same category. But be careful. If you create too many categories, you will defeat the purpose. Add “labels” or Outlook “categories” to further organize each folder. Then create an “on hold” folder for emails for which you cannot decide to keep, act upon, or folder. Work on this folder when you are on a break. Do not keep the items in this folder for more than one week. Then, identify all emails with the word “unsubscribe” in the text somewhere. If it a newsletter or email that you are not interested in anymore, go ahead and unsubscribe so that you can avoid recurring clutter.

Now, you should be left with only emails that need action. If you can act on the email in two minutes, go ahead and “git ‘er done.” If you need more time, add it to your to-do list and send yourself a notification to remind you to do it. (You can do the same thing with Gmail’s “snooze” feature, or Outlook’s “follow up” feature.)

The last step is to keep the clutter from coming back. Set up filters in Gmail or Outlook to automatically folder emails into categories for a response. Again, if you can respond quickly, go ahead, and respond asap. If not, put in a “respond later” folder. And use the autoreply function with messages if you are away for an extended period.

Of course, Bill insisted that we include advice from his hero, Marie Kondo. Her steps are as follows. First, tidy your home. This will heighten your sensitivity to joy, and you will learn to choose what is valuable to you. Then start on your digital cleanup, which must be done all at once. Fully commit yourself to tidying. Then begin making decisions. First, does the email “Spark Joy”? If the answer is yes, keep it and put into a “spark joy” folder. Then, create an “important documents” folder and put the emails you need to keep in that folder. Then, delete the rest. Stop keeping “komono” (items to keep “just because”). If the item is not important or does not “spark joy” thank it for its service and let it go with gratitude. Then begin to organize into folders. Keep the folders simple. Marie recommends only “saved” and “unprocessed.” Use

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the “search” function to find emails you are looking for. Delete or archive emails when you are finished with them, but, again, thank them for their service.

The “Hitech” Method – (Let the computer do it for you)

There are several digital tools available to email you spring clean you email box. Here are some of them.

ZERØ Email Management Software. We have not tried this one yet, but we are intrigued by it. We are certainly going to order a demo of the app and try it out. ZERØ supposedly applies “artificial intelligence and smart automation” for an email management solution designed specifically for lawyers. They claim that it allows lawyers to save time filing emails. Allegedly, it automatically analyzes your emails together or individually and automatically files them by client. It works on mobile devices, desktops, and laptops. It also tracks the time you spent on the email, assigns it to a client, and creates a matching time entry. We will see if it works.

Mailstrom is another tool that supposedly uses Artificial Intelligence (AI) to help you clean out your inbox. It “guesses” what you think is important and then identifies bundles of emails and allows you to deal with them as a group. It also allows you to block unwanted emails with one click, to unsubscribe from emails with one click, and so forth

Cleanfox works with all messaging providers and apps. It finds all the newsletters you receive in your inbox, sorts them by criteria (such as whether you open them or not, or how long you look at them), and recommends deleting and/or unsubscribing.

Boomerang only works with Gmail. With this tool, you can write an email now and sent it later “at the perfect time.” It will also remove messages from your inbox and put it back in your inbox and marked at the time of your choosing. It will also remind you to follow up if you don’t hear back from an email you send.

SaneBox has been around since 2010 and is a great tool. It works with you and your habits to identify important messages, will stop emails when you trigger “do not disturb,” will get rid of annoying senders, will remind you to follow up, etc. You begin the process by giving SaneBox access to your entire inbox, whether it is Outlook, Gmail, iCloud, or any other provider. It will then determine what emails are important by determining whether you open them, for how long, and whether and how quickly you respond. It never looks at the content of the emails. It then determines what is important, and you then go to your Inbox for the important emails, and the others are moved to your “SaneLater” folder for you to deal with later or trash.

Happy Cleaning!

DICTA

April 2020

WELL READ By: Gwyn Herbein

BREAKING DOWN THE SYSTEM, ONE WHITE PERSON AT A TIME

A Review of “White Fragility: Why It’s So Hard for White People to Talk about Racism,” by Robin DiAngelo (Beacon Press, 2018)

I have a confession to make: I am a racist. There. I feel better.

After all, isn’t acknowledging the problem the first step toward recovery?

The funny thing is until I read “White Fragility: Why It’s So Hard for White People to Talk About Racism,” I would never have said that about myself. Yet, according to author Robin DiAngelo, a sociologist, diversity trainer (and yes, a white woman), nearly all white people are racist.

D

iAngelo coined the term “white fragility” to describe the defensiveness that white people display when their ideas about race, racism, and their participation in the system writ large, are challenged.”

employees who refused to participate in race-related conversations; white women who try to play the victim because of the sexism they have encountered. DiAngelo doesn’t give herself a pass, either, recounting a situation in which she made an inappropriate remark about a black colleague’s hair. It’s hard work, but work that we all must do.

So how do we end racism, according to “White Fragility”?

There is no clear and obvious solution, but DiAngelo does offer some guidance. First and foremost, stop and listen. Don’t immediately jump to, “But not me!” Good intentions and having black friends is not enough to dismantle centuries of oppression. Talking about race is uncomfortable, but white people need to sit with that discomfort, rather than run away from it.

Before you start arguing your case, undoubtedly bolstered by proof that you are “colorblind,” treat everyone equally, or are otherwise not racist (DiAngelo has pretty strong feelings about this tired list), note that she differentiates between racism and overt discrimination.

DiAngelo coined the term “white fragility” to describe the defensiveness that white people display when their ideas about race, racism, and their participation in the system writ large, are challenged. These tired tropes that we offer in a vain attempt to absolve ourselves of guilt instead expose our fragility, and with it, our racism.

DiAngelo’s book exposes our bias that racism is only committed by “bad” people (like the torch-bearing white supremacists who descended upon Charlottesville in 2017), rather than “good” people like us (white liberals). By definition, a person who has participated in and thus benefited from the unequal social and economic systems that have been in place for more than 400 years in this country is a racist.

As members of the criminal justice system, you have likely witnessed firsthand a number of injustices, ranging from offensive remarks or jokes to disproportionate sentences handed down for minor crimes. But who is responsible for these inequities, and what can be done to balance the scales?

White progressives are the key to ending racism, but according to DiAngelo, they’re also the ones most likely to read this book with a complete lack of self-awareness as to their own complicity in the racial system. Untangling our fraught history is where the real healing begins, and, most importantly, the onus for dismantling the system falls on whites, not on people of color.

It doesn’t matter if you marched in the 60s, have black friends, or claim to treat everyone the same. People of color know that the deck is stacked against them, and it’s time the rest of us recognize it, too.

DiAngelo gives many examples from her work as a diversity trainer: April 2020

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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris

Lincoln Memorial University Duncan School of Law

WORSE THAN YOUR WORST NIGHTMARE

Early one morning in July 1995, twenty-year-old Kristine Bunch awakened to smoke and flame. Her trailer was on fire. More properly, one bedroom was on fire – the bedroom occupied by her three-year-old son, Tony.

Screaming, she ran to the bedroom door. The fire pushed her back. Screaming, she ran outside. No one was there. Screaming, she picked up Tony’s tricycle and used it to smash his bedroom window.

Screaming, she climbed halfway inside, into the inferno, before a neighbor, Tom Claxton, pulled her out.

Soon after, Tom would have a nervous breakdown. Every time he closed his eyes, he said, he heard Kristine screaming.

Kristine’s home was a vision of hell. She tried to run back inside.

Several neighbors grabbed her by the arms, their grips so tight they left marks. An ambulance arrived. The neighbors pulled her to it. Tom rode with her.

“Did they find him?” Kristine asked, her face a mask of soot and tears.

“Yeah, they’ve got him.”

Kristine’s father met her at the hospital.

She spoke to him. “I need to be in Tony’s room. And I need to take care of him.”

Her father was the first to tell her: “Sissy, he didn’t make it.”

Kristine shut down. Her mother and stepmother had to help her into the shower to clean off the soot, to cut away the burned hair, to assure her that her eyebrows and lashes would grow back.

Losing a child is every parent’s worst nightmare. Almost the worst. How much more horrible to lose a child to an agonizing, perhaps prolonged, death.

It got worse. The police told Kristine that someone had murdered her son.

It got worse. The prosecutor charged her with arson and murder and demanded the death penalty.

Then, a glimmer of hope: There was no motive; she had no insurance – not on her home, not on her car, which was also destroyed, and certainly not on the life of her three-year-old son. And the only hint of an accelerant in the home was not in Tony’s room, where the fire had started, but in the living room, where the previous occupant had operated a kerosene stove. Indeed, the traces of kerosene were in the wooden floor, beneath carpet and padding that did not contain any accelerant. The kerosene had clearly spilled before the carpet was laid. The court released Kristine on a five-thousand-dollar cash bond.

She stayed home with her family. Almost every time she ventured out, someone shouted, “baby-killer!” Old friends abandoned her. She had no job, no car, no home. No son. She sank into depression and began abusing alcohol and pills. “I just literally wanted to go to sleep and not wake up.”

Then she discovered that she was pregnant. The prospect of another child did not overwhelm her; it gave her hope. God clearly thought she deserved to be a mother. She got clean. She prepared for her trial.

But then it got worse. A long-awaited test performed by the federal Bureau of Alcohol, Tobacco, and Firearms showed some kind of “unidentified” petroleum distillate in Tony’s room. So it was arson, after all, and she remained the prime suspect.

In March 1996, after deliberating four hours, a jury convicted her.

The prosecutor had dropped his demand for death, but the judge was in a hanging mood. He sentenced Kristine to sixty years and vowed that she would never see her baby. He would make it a ward of the state.

Kristine endured abuse in prison, from both guards and inmates, despite her pregnancy. Baby killers are universally despised. She went into labor in irons, shackled to her hospital bed. Her appeals failed.

But she could not give up hope. Her family gained custody of her new son, Trent. Kristine earned her paralegal certificate. She studied an arson investigation manual with the help of a retired fire captain.

“Cap” zeroed in on the ATF’s “unidentifiable” test result. “It’s bull.

You need to get your hands on that file.”

Kristine sent a FOIA request to the ATF. No response.

Kristine convinced a former public defender to help. Then she convinced the Center on Wrongful Convictions at Northwestern University to fund an action for post-conviction relief. Her new lawyers subpoenaed the ATF’s test results.

They had been altered. There was no accelerant in Tony’s bedroom. The report was a fake.

The same prosecutor who had charged her with murder appeared at the hearing for post-conviction relief. The same judge presided. But Kristine now had a bevy of her own lawyers and some of the most prominent arson investigators in the country. The evidence introduced at her murder trial had been bogus – not just the fake ATF report, but also the faulty forensic analysis used by the state’s experts. The fire was no arson; it was likely caused by an electrical fault.

The guards who escorted her to and from court were nice to her.

Her food improved.

The judge denied relief.

Kristine’s lawyers appealed. Her lead counsel brought his wife and children to oral argument, to show them what he had been doing for so many months, to show them how important it was to fight for justice.

Six months later, the appellate court reversed and ordered a new trial.

Without any motive or evidence, the prosecutor dropped the case.

Kristine was free. After seventeen years in prison.

Kristine now works with the Innocence Project. She recently spoke at a law review symposium at LMU’s Duncan School of Law. She also sat down with me, for two tearful hours, and recorded her story for my public radio show, Your Weekly Constitutional. The podcast version of our interview is available online. It’s called “Exonerated!”

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.

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DICTA

April 2020

LONG WINDED By: Jason H. Long London Amburn

PRAISE THE LORD

My mother is a huge fan of Irish blessings. She is always ending conversations by saying something like, “May you be in heaven thirty minutes before the devil knows you’re dead” or “May the good Lord hold you in his fist, but not too tight.” It is disconcerting because she knows so many sayings, and they almost never bear any relation to the conversation you just had with her. Plus, I’m not really sure my family is even Irish (maybe a little bit, but there is no doubt we are predominantly Scottish and Scandanavian). Whatever. It makes her happy, so we indulge her.

For years, she has ended many conversations with me by saying, “May you live in interesting times.” She always insisted it was another of her Irish blessings. Well, I looked it up. According to the always authoritative Wikipedia, that phrase is not an Irish blessing. In fact, it is not a blessing at all, but rather a curse thought to be coined by the Chinese. Well, if it is a curse, I can honestly say we are currently living in interesting times. Financial markets are collapsing, political parties are fracturing, presidents are being impeached, people constantly fear that Big Brother is watching us and the NBA recently suspended its season. Most disturbing is the fear over the spread of the coronavirus, a true pandemic if there ever was one.

a “witch hunt.” He used the incident as motivation to ask for more contributions from his followers so that they could “give the Devil a black eye.” Apparently, his followers obliged, and opened up their pocketbooks.

Things died down for awhile, and the Bakkers prospered. Then, in March of 1987, Jim was forced to resigned from the PTL when it was discovered that a $270,000 payoff was made to Jessica Hahn, who claimed that Bakker, and another minister in the PTL, drugged and raped her. Mr. Bakker admitted to being unfaithful and having intercourse with Ms. Hahn (causing Tammy to stand by her man while mascara streamed down her face) but denied the allegations of rape. Ousted from the spotlight, Mr. Bakker’s taunting of the federal government finally came back to bite him, as he was indicted on eight counts of mail fraud, fifteen counts of wire fraud, and one count of conspiracy related to fundraising activities between 1984 and 1987. It is estimated that, during that period of time, he diverted nearly 3.5 million dollars, raised in the name of the PTL, to his personal use. He was sentenced to forty-five years in a federal penitentiary (later reduced to 8 years).

As all of these developments are taking place around us, overloading our senses with news on an hourly basis, it is easy to become overwhelmed and believe that we truly are a cursed society. And yet, the more things change around us, the more some things stay the same. Take, for example, Jim Bakker.

You all remember Reverend Bakker, don’t you? From 1974 to 1987, he worked as the original televangelist, hosting the immensely popular PTL (Praise the Lord) Club, a sort of talk show featuring prominent religious and cultural figures of the day. He established a worldwide ministry and even opened up Heritage USA, a Christian-themed amusement park in North Carolina (I read where, at its height, Heritage USA was the third most popular theme park in the United States – is that even possible?). His co-host and wife, Tammy Faye, was at his side throughout his rise. She is best remembered for her creative application of cosmetics and the fact that said cosmetics were not waterproof.

Rumblings started in the early 1980s that perhaps the money being raised by Mr. Bakker through the PTL Club was not being used exclusively to fund altruistic pursuits, but rather was finding its way into his personal bank account to finance the rather lavish and public lifestyle he and his wife were leading. An investigation by the IRS and the Justice Department did uncover mismanagement, but no legal action was taken, many believe because the Reagan Administration did not want to upset the evangelical religious community, central to his political support. In any event, it appeared that Mr. Bakker dodged a bullet.

Now, lesser men would have thanked the Lord that their indiscretions had been overlooked and apparently forgiven, would have seen the error of their ways, and would have taken swift action to right the ship and conduct future business aboveboard. Not our boy Bakker.

He double downed and called out the Justice Department for conducting April 2020

Mr. Bakker dutifully served his time and, upon release in December 1994, he returned to the airwaves and started his new career as a prophet. Over the years, he has prophesized the attacks of 9/11, he claimed that, days before a school shooting, he had a dream in which God came to him wearing a camouflage vest with an AR-15 strapped to his back and told him he supported President Trump’s plan to arm teachers. He has accused Barack Obama of causing Hurricane Matthew and he claimed Hurricane Harvey was the “judgment of God.” In short, Mr. Bakker is back to his old ways of manipulating the masses to increase his popularity and financial gain.

It should therefore come as no surprise that Mr. Bakker has attempted to capitalize on the fears and hysteria surrounding the coronavirus. Within the last month, he has been on his talk show promoting the use of Silver Solution as a cure all for COVID-19. He is the classic travelling medicine man with an elixir to cure all ills, and he doesn’t care what his sales pitch does to the vulnerable people he is preying upon, so long as he can cash in. Earlier this month, the New York State Attorney General ordered him to stop making false claims concerning the supplement. He received a warning letter from the Federal Trade Commission and the Food and Drug Administration, and the Missouri Attorney General has filed a civil lawsuit against him for making false and misleading representations.

I, like many curmudgeons, often lament that the world is becoming a very different place, much more “interesting” than the one of my youth. I am concerned that my children are having to navigate their adolescence in a much darker and more difficult environment.

Then someone like Jim Bakker comes along and I am comforted. Jim and Tammy Faye were an iconic part of my childhood, growing up in the 1980s. It is strangely comforting that my kids will also grow up knowing him to be a charlatan, taking advantage of vulnerable people in desperate times. The more things change, the more they stay the same.

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BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org.

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation.

The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

DISCOUNTED CLE! 2020 CLE SEASON PASS The KBA is offering a discounted CLE package exclusively to KBA members licensed within the last ten years. The CLE Season Pass allows you to get all of your required 15 hours of CLE credit for just $300. You are welcome to participate in any program, including monthly Lunch & Learns, extended seminars like the popular Bench-Bar Conference, Ethics Bowl, or the Law Practice Today Expo. Online CLE programs, typically $40/credit hour, are also available as part of your CLE Season Pass. The KBA annually offers 100 Live and 135 Online CLE programs to help members fulfill their CLE requirements, so there are lots of options! KBA seminars focus specifically on the educational needs of East Tennessee attorneys. The KBA offers innovative and timely seminars to satisfy your professional development needs and MCLE requirements using unbeatable local talent and national speakers.See www.knoxbar.org or call 522-6522 for more information.

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LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons.

It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE: • Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email jfanduzz@gmail.com for inquiries •

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DICTA

April 2020

BARRISTER BITES By: Angelia M. Nystrom

University of Tennessee Institute of Agriculture

THE BEST RECIPES FROM THE BACKS OF BOXES, BOTTLES, CANS AND JARS

If you have ever read this column, you know that I love to cook.

You can often find me at Butler and Bailey on the weekends and at the Fresh Market every night on the way home from work. I love madefrom-scratch creations, and I rarely buy processed foods. I’m not a fan of salt, and I very much prefer to use fresh ingredients when I cook.

A couple of weeks ago, I sent Hugh to the grocery store to pick up a couple of things. Hugh is usually pretty slow, but this trip was especially long even for Hugh. After he returned home, Hugh retreated to the garage. I found him there with the trunk open to his 1975 Chevy Caprice convertible. “I’m working on my car,” he told me. I’m no dummy – and I know that the engine to a Chevy Caprice is not in the trunk. When I looked inside, I saw bags full of canned goods, non-perishable milk, multiple bags of coffee, bottled water, and various other non-perishable items. “You may have to suck it up and eat Vienna sausages or canned tuna at some point,” he told me.

Hugh was preparing for potential coronavirus quarantine.

I’m a bit of a picky eater, and I was worried how I could make these cans and boxes palatable. Then, I remembered my mom’s favorite cookbook from the 1980’s: “Best Recipes from the Backs of Boxes, Bottles, Cans, and Jars.”

My mother was the OG working mom. She worked in a hospital laboratory, kept our house running, drove us to cheerleading and whatever else we were doing, sewed cheerleading uniforms (and Barbie clothes and whatever else we could dream up) and always managed to have a hot meal on the table every night when my dad got home from UPS. We ate lots of Banquet fried chicken and Salisbury steak. We ate salmon patties made from canned tuna, and leftover mashed potatoes were fried into potato cakes. She loved the Schwan’s truck that delivered frozen foods, and she loved recipes from the backs of cans and boxes. She always said that companies were not going to put crappy recipes on the boxes and cans and risk losing customers.

My mom’s recipes were not generally gourmet dishes, so if you like to make really complex dishes that make people say, “Oh, wow!”, then her dishes are not for you. My mom liked things that were easy to make and tasted good. She was a master with the use of cream cheese and cream of anything soup, and she could turn a roll of Ritz crackers into about 100 different meals. She did “quick and easy” really well… because that is all that she had time to do.

And most of her dishes will be great in the event we are quarantined.

My favorite of her dishes either came from a package of Crescent dinner rolls or a can of chicken – I’m not sure which, but both should April 2020

claim it. I think the technical name for the dish is “Savory Crescent Chicken Squares,” but we just call them “Chicken Pockets.” They are easy and require very little work. To make, heat oven to 350. In a medium bowl, blend 1 package cream cheese (softened) and 2 TBS melted butter.

Add two 5 oz. cans of chicken (boneless, skinless chicken breast), ¼ tsp salt, 1 TBS pepper, 2 TBS milk and 1 TBS chopped onion (dried ones are fine). Separate 1 tube of Crescent rolls into 4 squares and seal the perforations. Spoon ½ cup of the chicken/cheese mixture onto the center and pull the 4 corners together to the top center of the chicken/cheese mixture. Place on ungreased cookie sheet.

Brush tops with 1 TBS butter. Sprinkle with ¾ cup Ritz crackers, crumbled. Bake at 350 for 20-25 minutes or until golden brown.

I am also a fan of her “Easy Lasagna,” which really isn’t lasagna at all…but it is easy and really good. To prepare, brown one package of ground beef with a chopped onion. Add oregano and salt to taste. Boil 1 package of egg noodles, drain and pour into a baking dish.

Soften 1 package of cream cheese and mix with 1 small can of Carnation milk until blended well. Pour over the noodles. Top with ground beef mixture. Add 1 medium jar of spaghetti sauce. Top with 1 package shredded mozzarella cheese. Bake at 350 until bubbly, and cheese is melted.

As a general rule, I don’t eat desserts.

I love them… but I don’t eat them. If I am quarantined at some point, then we will have to have some sort of sweet at our house.

My favorite of my mom’s desserts from my childhood was called “Chocolate Heath Bar Trifle.” I just call it “Chocolate Sin.” Begin by preparing a family-sized box (18-20 oz) of brownies according to package directions and allow them to cool. Note: I like Ghiradelli chocolate chunk brownies. Prepare 1 (5.9 oz) package of instant chocolate pudding according to directions on box. Crumble half the brownies into the bottom of a trifle bowl. Top with crushed Heath bar (I use the packages of already-crushed in the baking aisle). Top with one-half of the pudding mixture, being sure to spread to the edges of the bowl. Top with half a container of Cool Whip (spreading to the edges of the bowl). Repeat the layer process with the remaining ingredients. Top with additional chopped Heath bar. Refrigerate overnight.

I am not one to mix my foods. Hugh has often said that the kid plates that are divided were made for me. However, this dessert gets better as it gets mixed together. I have been known to dish it out into smaller containers just so that it will be well-mixed.

They say that you always return to your roots. My mom was a master at making creations from boxes and cans. If we are quarantined (or if we just want to practice social distancing), then I think she taught me well.

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

PRO BONO SPOTLIGHT By: Kathryn Ellis

Pro Bono Director Legal Aid of East Tennessee

IT IS IMPORTANT TO REPORT YOUR PRO BONO TIME TO LAET, EVEN IF YOU DON’T NEED CLE CREDIT. HERE’S WHY. There are two ways most of you help the Pro Bono Project and our LAET clients. You either volunteer at one of our advice clinics for a few hours or you agree to assist a client directly with their legal issue.

And, most of you volunteer for two reasons: (1) to help someone from the community who could not otherwise afford legal assistance and (2) to help LAET increase our ability to serve our community.

If you volunteer at a clinic, I hand you a Lawyer Time Report form and make sure you fill it out and return it to me before you leave. Some of you resist, but I am able to explain to you, in person, why reporting your time is so important.

“I don’t need the CLE hours, and I don’t need recognition.”

help at clinics or through direct representation. While we make every effort to tell our potential grantors about the impact our Pro Bono volunteers have on our clients’ lives through compelling narratives, the bottom line is that objective data about our volunteers and about our clients must be included.

On one recent grant application, we were asked to provide an FTE for staff time and for volunteer time donated in the focus county for the grant. For that county, we indicated that staff accounts for 3.5 FTEs and that volunteers account for 0.5 FTEs. This means that for that county Pro Bono volunteers (attorneys, law students, paralegals, and others) contributed approximately 900 hours of work last year. When potential grantors see that others in our community believe in LAET’s mission and vision to the tune of 900 hours, it strengthens our application for funds.

~ Well-Meaning Volunteer Attorney

So, the next time you catch yourself thinking, “I don’t need any more CLE, and I volunteer because it’s the right thing to do, not to be recognized,” remember that the simple act of reporting the Want to Volunteer? amount of time you volunteered on behalf of LAET could help Fill out our new Pro Bono Volunteer Survey: us receive even more support https://www.surveymonkey.com/r/DCTWYFSt from funders and enable us to assist even more members of our community.

If, however, you volunteer to assist a client directly, you might decide not to fill out the Status and Closure Reports I send you.

Even more common is that you fill out the details about what you did to assist the client but leave the “Summary of Time” portion blank.

You do this because you “don’t need the CLE hours,” because you volunteered to help and are “not looking for recognition or credit,” or because you don’t typically track your time in the type of cases you handle.

Here is why reporting Pro Bono time helping LAET is so important – Organizations that support LAET with grants consider how much time volunteers donate.

There are several questions potential grantors ask us about how members of the private bar support LAET.

• How many Pro Bono attorneys assisted clients from a certain county or service area?

Interested in

sponsoring this year’s

Forging Justice Pro Bono Celebration?

• Please provide a full-time equivalent (FTE) for time donated by volunteers.

• What is the value of the time donated by volunteers?

It is important for LAET to have concrete numbers to provide potential grantors, in addition to stories about clients who received

Contact me for details at kellis@laet.org or (865) 251-4951

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902

phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

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DICTA

April 2020

THE LAST WORD

Q:

By: Jack H. (Nick) McCall

Will, you’ve been quite a traveler, maybe even what one might call a “globetrotter.” What is it about the traveling life that animates and inspires you?

A:

WILLIAM H. SKELTON

Many people love to travel. Even our local newspaper once had an entire weekly “travel” section. However, with the slow demise of print journalism, only the larger newspapers have retained a travel section, which is the first thing I read in the Sunday NY Times. I’ve always loved all kinds of travel, starting with my first trip outside of East Tennessee, with my grandmother and two brothers in the 1950s. We caught a train in Bulls Gap, Tennessee, to see a favorite aunt in Mobile, Alabama. It involved driving from my home in Surgoinsville to the train station and, yes, there was a passenger train stop in Bulls Gap back then. From that original train ride onward, I’ve used just about all methods of seeing places away from home, throughout the world, traveling by car, ship, train and airplane, as well as by canoe, trekking, bush flights, and backpacking on more adventurous trips. I’ve been lucky to have had the health and finances to travel and the indulgence of two wonderful law firms, first, Baker Worthington, followed by Bass Berry & Sims, both of which allowed me to take time off pre-retirement. I’ve continued to travel in the dozen years since retirement, seeing a lot more of the world, including all of our states and the Canadian provinces, all the continents except Antarctica, all of our National Parks except four, and almost 70 countries. So I’ve obviously been busy. And enjoyed the travel immensely.

Why do some of us love seeing other places so much? There are lots of reasons but some of us plain love travel and others don’t (I have a brother who would almost always just as soon stay home). So there’s maybe a genetic desire to explore new places, have different experiences, meet people that differ in religion, customs, cuisine and looks. And for me, travel is always rewarding and satisfying, even with the unavoidable hassles and things going wrong (for example, this year in Cusco, Peru, I broke my foot, the first bone-break ever). There’s also something about travel that reinvigorates and revitalizes me, and I’m always feeling a sense of joie de vivre before, during and after a trip. I’m like many people who get a sort of “cabin fever” after several months of no “big” trips, with a sense of discontent and lethargy. A good trip relieves those symptoms right away.

Another reason for travel may be that as one ages (or maybe anytime), the years come and go with accelerating frequency. One means I’ve found (of course in a non-Einsteinian way) to slow down time a bit is with new experiences. Especially when traveling or backpacking to new places it seems that time slows down and each moment is more memorable. I still recall many details of each day from an expedition into Alaska’s far-north Gates of the Arctic National Park in 2015, and from five similar trips dating to 1969 and later but, on the other hand, really can’t remember much from a “normal” week this year.

There’s another good reason to travel besides simply liking it.

Anthony Bourdain said it well: “Travel isn’t always pretty. It isn’t always comfortable. Sometimes it hurts, it even breaks your heart. But that’s okay.

The journey changes you; it should change you. It leaves marks on your memory, on your consciousness, on your heart, and on your body. You take something with you. Hopefully, you leave something good behind.” I completely agree and believe that travel and contact with different people in different places make you a better person, more tolerant, more accepting of people that are different from you, more kind and generous, and more thankful for what we have, especially here in the USA. As Mark Twain said, “Travel is fatal to prejudice, bigotry and narrow-mindedness…” And, from an anonymous source: “Travel is the only thing you buy that makes you richer.”

The most common question after a trip is which place you liked most? That’s difficult to answer, as every trip and every place is both different and the same. But my general response is this. First, if you’re doing an adventure-type trip, like backpacking or trekking or canoeing, for me there’s nothing like the Arctic mountain wilderness, north of the Yukon River in northern Alaska where you can spend weeks and see not a single person nor any sign of human presence (in contrast to, for example, the high Andes or Himalayas, where people are living and farming up to 10,000 feet and more). After the Arctic there are our own wild areas in the lower 48, where I especially like the Southern Appalachians, the canyon country of Utah (which, other than the southeast US, is probably my most frequent destination, having done at least 28 week-long backpacks there since 1982), the Wind River Range in Wyoming, the Sierra Nevada Mountains in California, the Beartooth Mountains in Montana, and Boundary Waters Canoe Area/Quetico Provincial Park in Minnesota & Quebec. And second, if you’re doing a more typical stay-in-hotels trip, I’d probably pick Peru, which I’ve visited five times, for its incredible array of archeology going back as far as the Pyramids and Mesopotamian cities, plus great scenery, people, and food. Close second choices would be New Zealand, Norway, Italy (which tops my list for simply wonderful food), and the European Alps.

After what you liked best, people commonly ask travelers where they plan to travel next. For me, it’s probably South Africa, Zimbabwe, and Botswana, which top my bucket list. That list has been winnowed down a lot over the years, but still so many places remain, some of which are simply not safe to visit (and haven’t been for some time), like Angel Falls in Venezuela, and a place in eastern Turkey that features the world’s oldest temple, Göbekli Tepe, located high on a mountainside. Neale Donald Walsch said regarding travel that “Life begins at the end of your comfort zone.” As mentioned above, travel isn’t always comfortable but is almost always rewarding. So, allocate some of your time and money to seeing a few of those places you read about in elementary school or a friend told you about or were featured in a TV documentary, whether a guided tour or an adventure you do on your own, traveling in comfort or by your own arms and legs, whether nearby or far away. You’ll be rewarded in ways you didn’t expect.

“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 April 2020

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