DICTA. February 2022

Management Counsel: Law Office 101: 12 Things I Wish I Knew as a New Associate . . . Page 13 Legal Update: Tennessee’s Noneconomic Damages Cap Does Not Apply Separately To A Spouse’s Loss Of Consortium Claim . . . Page 15

A Monthly Publication of the Knoxville Bar Association | February 2022

SO MUCH IN COMMON

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February 2022

In This Issue

Officers of the Knoxville Bar Association

February 2022

COVER STORY 16

So Much In Common

CRITICAL FOCUS 5 President Jason H. Long

President Elect Loretta G. Cravens

Treasurer Catherine E. Shuck

Secretary Carlos A. Yunsan

Immediate Past President Cheryl G. Rice

KBA Board of Governors Ursula Bailey Mark A. Castleberry Meagan Collver Jonathan D. Cooper

Daniel L. Ellis Magistrate Robin Gunn William A. Mynatt Jr. Vanessa Samano

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Zachary Walden

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13 15

The Knoxville Bar Association Staff 19

President’s Message

The New Normal

Practice Tips

Section 501(c)(3) Organizations – Isn’t That Just Another Way to Say “Non-Profit”?

Management Counsel

12 Things I Wish I Knew as a New Associate

Legal Update

Tennessee’s Noneconomic Damages Cap Does Not Apply Separately To A Spouse’s Loss Of Consortium Claim

Schooled in Ethics

Other Ways of Dealing with Lawyer Misconduct

WISDOM 6 9 Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Chandler Fletcher Database Administrator Programs & Communications Coordinator

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

Jeanie Matthews LRIS Assistant

Dicta

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

February 2022

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Volume 50, Issue 2

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

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Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Brandon Allen Sarah Booher Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

Managing Editor

Cathy Shuck Campbell Cox Melissa B. Carrasco Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson

Marsha Watson KBA Executive Director

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26 27 29 31

What I Learned About Inclusion and Why It Matters

Becoming an Intentional Change Agent

Judicial News

Meet Judge Ryan Spitzer

Well Read

The Second Mountain, by David Brooks

Attorney Profile

Barristers President Meagan Collver

Lessons Learned: Reflections from a Retiring Lawyer

Kindness

Outside My Office Window

The Ring

Better

Freezing but not Frozen

How to Thrive in Law and Life

How to Live a Life with Less Stress

Legal Mythbreakers

Why Did the Lawyer Cross the Road

Urban Legends

New Year, Old History: Revisiting the Legacy of Knoxville’s Founding Father, James White

Bill & Phil Gadgets

Windows 11

Your Monthly Constitutional

Our Enlightened Founders

Mitchell’s Malarkey

Call Me Maude

Tell Me A Story

Leaving this World a Better Place

COMMON GROUND 4 20 28 28 30

Section Notices/Event Calendar Barrister Bullets Change of Addresses Bench & Bar in the News Pro Bono Project

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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. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Betsy Meadows (540-8777) or Joe Jarret (566‐5393).

Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. 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. Join the Corporate Counsel & Government Lawyers Sections for the extended CLE program “Government Contracting 101” scheduled for March 4. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (931-260-5866).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section 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 have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you are interested in getting involved, 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. Join the Government Lawyers & Corporate Counsel Sections for the extended CLE program “Government Contracting 101” scheduled for March 4. For more information, 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 have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and and any member licensed since 2020 will automatically be opted-in to the section. On February 22 the Section will sponsor a “Judge’s Tips for New Attorneys” webinar program from 12-1 pm. The program will feature Magistrate Robin Gunn and Judge Greg McMillan. Register by clicking February 22 on the event calendar at www.knoxbar.org. The program is only open to members of the New Lawyers Section. If you would like to get involved in planning Section activities next year, please contact Section Chairs Courteney Barnes-Anderson (803-341-0196) or Sanjay Raman (607-972-6140).

Senior Section The KBA Senior Section plans to start meeting again in 2022 for lunch. 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 Tim Grandchamp (392-5936), Brittany Nestor (214-7869), or Tripp White (712-0963).

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Law Office Tech Committee Professionalism Committee Veterans Legal Advice Clinic Barristers Meeting Probate and Estate Planning: Legislative Update and Other Interest Items Webinar Judicial Committee Reimaging Public Safety Webinar Board of Governors Trial Skills CLE New Lawyers Section: Judge’s Tips Diversity in the Profession Committee

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Law Office Tech Committee Government Contracting CLE Barristers High School Mock Trial Competition Barristers High School Mock Trial Competition Barristers High School Mock Trial Competition Professionalism Committee Barristers Meeting Health Law Update Webinar Judicial Committee CLE Committee Diversity in the Profession Committee Board of Governors Law Practice Today Expo

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

February 2022

PRESIDENT’S MESSAGE By: Jason H. Long London Amburn

THE NEW NORMAL My freshman high school history teacher was a legend. She was tough and demanding, but genuinely concerned about her students, our well-being, and our education. She did as much as any authority figure in my life, aside from my parents, to set me on my path. She held us accountable for our work and expected us to solve our own problems.

Whenever a student asked her the definition of a word that we did not understand from her lecture, she would say “Go to the Unabridged” in a solemn voice and point to the giant dictionary sitting on a podium in the corner of the room. Of course, that meant that if you didn’t know something, you should go look it up. My classmates and I have countless stories and anecdotes regarding our teacher, but I suspect that if you graduated from Knoxville Catholic High between the years 1986 and 1995, the first thing you would think of when her name was mentioned is the phrase “Necessity Being . . . the Mother of Invention.” It was a rallying cry for her and an exercise in unison recital for the rest of us. Anytime we got to a point in history where a dramatic shift in society was wrought because of a new invention, philosophy, or way of thinking, she would announce “Necessity Being . . .” and the class was expected to respond “the Mother of Invention.” I have thought about her often these past two years.

Regardless of political affiliation or beliefs concerning the origin, spread, treatment or effect of the coronavirus, I believe that we can all agree that we are living through a watershed moment for society that has wrought substantial change on the way we interact and do business. By necessity, we have invented new and, for the most part, better ways to practice law. The term “the new normal” has been bandied about to imply that things have changed and we will not be going back to the old ways any time soon. Lawyers are generally conservative and risk adverse by nature. We spend our days counseling others how to minimize risk and take the prudent path. A cornerstone of our profession is stare decisis, which mandates that we follow what has gone before. Yet, the pandemic has forced us to become entrepreneurs. We have embraced technology, out of necessity, to continue to provide service to our clients through an uncertain time.

Remote and hybrid meetings are here to stay. Zoom, Microsoft Teams, Webex, and a whole host of other platforms that were virtually unheard of three years ago are now ubiquitous to the practice of law and an essential tool for a modern practice. These technologies have made it easier to connect with one another and our clients in a way that can still be meaningful and productive. I will be the first to admit that I prefer inperson meetings when possible. However, if it comes down to a remote meeting or not being able to schedule a meeting at all, the choice is a no-brainer.

February 2022

Along with the rise of remote meetings, our courts have managed to successfully move forward with online hearings. While a significant portion of the business we conduct in court will always be more effective live and in person, the use of digital technology to conduct routine hearings and scheduling conferences has been a godsend to litigators, their clients and, I suspect, the courts. No longer do we have to spend hours in court wading through the docket so that a matter may be scheduled or a non-evidentiary motion argued. A lawyer can now spend that time at his or her desk handling other matters until the case is called. The client is not billed for the time waiting in court.

The judge does not have to juggle the docket, waiting for lawyer Smith to finish up in criminal court on another matter, or delaying proceedings because lawyer Doe is stuck in traffic but promises to be there shortly. Remote technology and our embrace of it in routine court proceedings is something we all should have thought of and implemented years ago. Some were moving in that direction, but it took the pandemic to kickstart the process.

Work from home has become a real thing and promises to bring some balance. We read stories every day about the high stress lawyers work under. Our profession typically leads the list in alcoholism, drug abuse, divorce, and suicide rates. You name it, if there is an indicator of an overly stressed profession, lawyers likely lead it. I cannot help but think that our ability over the past two years to adapt and learn how to work from home on a timeline and in a manner that fits our lives will be a benefit to our collective mental health and contribute to the overall well-being of the profession.

We have learned that we can be flexible. We have given ourselves a crash course over the past two years in how to serve the client regardless of the circumstances. The pandemic has forced us to eschew traditional notions of what the practice of law should be. We have been forced to be creative and problem solve, which has strengthened us and made us more resilient.

Through all of this forced change, the KBA has been there, learning to adapt, alongside its members. Hybrid meetings and online CLE offerings have become routine. The bar has provided education and support for members through CLEs and the Law Practice Expo. The KBA provided a community during a period when people felt isolated.

It learned how to be flexible as well and thrive during a period of uncertainty, thanks not only to the work of the Executive Director and her staff, but also the work of countless volunteers who saw value in and need for the programs and projects of the Association. One day, this pandemic will be over. When it is, the KBA will come out stronger, better, and more resilient, ready to serve the needs of its members in the new normal.

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W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: M. Akram Faizer

LMU Law School

BECOMING AN INTENTIONAL CHANGE AGENT As a racial, ethnic and religious minority immigrant to the U.S., I have been privileged with opportunities that far outstripped what would have been available to me in my birth country of Sri Lanka. My 20 years as a lawyer, however, have educated me on how elusive diversity and inclusion can be. For most of my career I have been, sometimes uncomfortably, the only racial minority in the room. My professional and personal development has been undermined as a consequence. The discomfiting truth, however, is that I certainly could have been more committed to inclusiveness and cultural competence.

There was not one African-American partner at the multi-tiered law firm of nearly 400 lawyers I worked at in Buffalo, NY, and LMU Law currently has no faculty and few students who are African American. To remediate this requires not only intent, which has long been there, but an improved understanding of the underpinnings of racial imbalance, a further understanding of how to change and then becoming an intentional change agent.

The evidence of our profession’s collective failure to integrate minorities is striking. Eighty-five percent of lawyers are White, while only 5% are Black, 5% Hispanic and 3% Asian.1 Although 67% of law school graduates are White, they account for 79.4 % of federal judicial clerks as compared to 3.5% for Blacks.2 This is partly explained by the federal judiciary’s lack of training and cultural competence: 39 of the 94 districts consist only of White judges. Blacks make up only 1.83% of partners at multi-tier law firms and only 1.24% in firms with fewer than 100 attorneys.3 While Asian Americans, at 11% of associates, comprise more than half the racial minority associates nationwide,4 the rate of Black associates, at 5.1%, has been stagnant for more than a generation.

Of course much of the problem precedes entry to law school or the profession: 90% of Black schoolchildren attend underperforming majority-minority schools that receive $23 billion less in aggregate funding than majority-White districts with the same number of children.5 The median LSAT for Blacks is 142, as compared to 153 for both Whites and Asians. Black law students are typically admitted to law schools that charge higher tuition, resulting in median student loan debt for African American graduates of $207,000, compared with $167,000 for Hispanics and $94,000 for Whites.6 But even accounting for institutional failures in early education, the legal profession needs to act differently now than it has in the past.

Recognizing the socio-economic and achievement gaps is but the first step to erasing them; now, we must take concrete measures, such as targeted job ads, internship and mentoring programs, and articulated commitments to create a workforce that reflects the makeup of the surrounding community. All stakeholders must work to eliminate the socioeconomic isolation of racial minorities and, in the interim, work in conjunction with the minority community to demonstrate that the benefits of inclusive employment practices more than make up for the racial achievement gap.

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Like so many of my peers, my career has not benefited from exposure to African American lawyers and clients. My hope for our daughter, who is of half-Sri Lankan and half-German descent, is that she live in a society that has successfully made the transition to inclusivity.

More of us need to be intentional agents of change.

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See ABA Profile of the Legal Profession (2021) at https://www.abalegalprofile.com/ demographics/ https://www.nalp.org/1017research https://www.nalp.org/uploads/2020_NALP_Diversity_Report.pdf https://www.nalp.org/uploads/2020_NALP_Diversity_Report.pdf A Federal Right to Education, p.9 (Kimberly Jenkins Robinson ed. 2019).. https://www.legalevolution.org/2020/07/rocks-on-the-back-of-first-generationcollege-grads-attending-law-school-182/

February 2022

PRACTICE TIPS By: Taylor P. Scott

Bradley Arant Boult Cummings LLP

SECTION 501(C)(3) ORGANIZATIONS – ISN’T THAT JUST ANOTHER WAY TO SAY “NON-PROFIT”?

1. What is a Section 501(c)(3) organization?

A Section 501(c)(3) organization, frequently referred to as a charitable organization, is an organization that qualifies for exemption from federal income tax under, you guessed it, section 501(c)(3) of the U.S. Internal Revenue Code, meaning the organization is federally tax-exempt and donors to the charitable organization will receive a tax write-off accordingly. The organization must be organized and operated exclusively for one or more of the following purposes: (i) religious; (ii) charitable; (iii) scientific; (iv) testing for public safety; (v) literary; (vi) educational; (vii) fostering national or international amateur sports competition (so long as none of its activities involve providing athletic facilities or equipment); and (viii) prevention of cruelty to children or animals.

2. Is a Section 501(c)(3) organization the same as a non-profit?

No, although 501(c)(3) and non-profit are terms that are often used interchangeably, they have different meanings. A non-profit entity is an entity that is organized for a nonprofit purpose. However, as briefly explained above, 501(c)(3) means the non-profit entity has been recognized by the Internal Revenue Service (“IRS”) as being tax-exempt by virtue of its charitable programs.

Non-profit organizations are not required to apply for 501(c)(3) status and many non-profits never seek 501(c)(3) status, depending on the respective goals of the non-profit. For example, non-profit organizations that will not be seeking donations often do not need 501(c)(3) status, because of the lack of need to offer tax-exempt donations to donors.

3. My client wants to apply for and earn Section 501(c)(3) status for their charitable organization. What’s the catch? a. Benefits of classifying as a Section 501(c)(3)? Tax-exemption for the organization and donors of the organization are eligible to receive a tax write-off for said donation. b. Consequences? As noted, Section 501(c)(3) organizations are highly regulated with strict rules that apply to formation, activities, earnings, and governance of the organization.

In addition, Section 501(c)(3) organizations come paired with increased tax preparation and annual expenses, lengthy application process, and compliance requirements at both the state and federal level for annual filing requirements including a corporate annual report, IRS Form 990, and state registration and renewal.

4. How does a company become a Section 501(c)(3) organization? a. Step One: Form a qualifying organization. Which begs the question, what is a qualifying organization? To qualify, the organization must be organized as a corporation, limited liability company, unincorporated association, or trust. Sole proprietorships, partnerships, individuals, or otherwise loosely associated groups of individuals will not qualify. In order for a corporation or limited liability company to qualify, the entity’s charter or articles of incorporation must contain certain language regarding the entity’s charitable purpose, its earnings, and its dissolution. (See IRS Publication 557, Suggested Language for Corporations and Associations for the necessary language). Examples of qualifying organizations include the following: Chapters of the Red Cross, Boys’ or Girls’ Clubs, nonprofit long-term care facilities, charitable hospitals, and schools.

None of the organization’s net earnings may inure to any private shareholder or individual. Additionally, the organization cannot attempt to influence legislation as a substantial part of its activities or participate February 2022

in any campaign activity for or against political candidates. b. Step Two: Apply for and obtain an Employer Identification Number via the IRS’s website. c. Step Three: Create an account on Pay.gov. If the entity has never created a Pay.gov account, simply go to the website and click “Create an Account” at the top right of the website. If the entity has used Pay.gov for other forms in the past, there is no need to create a new account to complete and submit the Form 1023.

Sign into your Pay.gov account and type “1023” in the search bar located at the top right of the website. The search results will display the Form 1023. Click “Continue” under Form 1023 to begin completing the form. d. Step Four: Apply for Section 501(c)(3) status by completing and submitting the IRS Form 1023, Application for Recognition of Tax Exemption. The application is a thorough examination of the organization’s structure, past and future anticipated budgets, governance, and programs. The application is broken down into the following sections: - Part I: Identification of Applicant – Provide basic organizational information including the name and mailing address of the organization, Employer Identification Number, contact information, a list of officers, directors, and trustees, and the name and mailing address of the individual executing the application on behalf of the organization.

- Part II: Organizational Structure – Provide the organization’s formation details. Part II will also request that the applicant upload a copy of the articles of incorporation or bylaws, as applicable.

- Part III: Organization Documentation – Provide a copy of the operating agreement or bylaws, as applicable.

- Part IV: Organization’s Activities: Provide a detailed (but less than 5,000 characters) description of the activities of the organization.

Note that the activities must also note the percentage of time spent on each respective activity, and the percentages must total one hundred percent.

- Part V: Compensation and Financial Arrangements – Provide three to five years of revenues and expenses, depending on how long the organization has existed.

- Part VI: Projected Finances – Provide the number of years the organization has existed, then provide the appropriate number of years of projected or actual financial information. Additionally, the applicant is required to complete a balance sheet within Part IV, which is a snapshot of the assets and liabilities of the organization.

- Part VII: Foundation Classification – Provide the organization’s foundation classification.

- Part VIII: Effective Date of Exemption – Generally, if you file the Form 1023 within twenty-seven months of the end of the month in which the organization was legally formed and the IRS approves the application, the effective date of the exemption status is the same date of the organization’s legal date of formation. e. Step Five: Execute the application, submit the user fee, upload any supporting documentation, and submit the Form 1023. Charitable organizations are permitted to accept tax-exempt donations with the appropriate written disclaimer that the organization’s 501(c)(3) status is pending.

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February 2022

JUDICIAL NEWS By: Broderick Young Arnett, Draper & Hagood

MEET JUDGE RYAN SPITZER Judge Ryan Spitzer was sworn in as the Circuit Court Judge for Tennessee’s 7th Judicial District on September 1, 2021. I recently had a chance to sit down with Judge Spitzer and very much enjoyed learning more about Anderson County’s newest Judge.

Judge Spitzer is originally from Humboldt, Tennessee. After high school, he first attended Jackson State Community College before matriculating to Lambuth University. He originally was interested in a career in medicine and served as a medic in the United States Army National Guard from 1993-1999.

However, a political science class led not only to a change in major but to a change in career. After graduating with a major in Political Science and minor in Philosophy from Lambuth in 1999 and completing his service to the National Guard, he began his legal career at Vanderbilt University Law School in 2000.

After graduating from law school in 2003, he returned to Humboldt where he engaged in a general civil practice, which included bankruptcy, probate, and other general civil matters. However, through some friendships he developed with local law enforcement, he became interested in criminal law. He applied for an open position with the Anderson County District Attorney’s office in 2007, and after a successful interview, was hired as an Assistant District Attorney for Anderson County, Tennessee. As an ADA, he prosecuted various criminal matters before becoming more focused on the prosecution of drug-related offenses.

Early on in his career as an ADA, he also became acquainted with a probation officer by the name of Tracy Loch. It was after watching a painful, but somewhat laughable, preliminary hearing where a seasoned General Sessions Judge torched a notoriously argumentative officer, that the two first exchanged numbers. They married in 2011, live in Oak Ridge where Tracy grew up, and are the proud parents of two young boys.

Tracy Spitzer continues to serve the Anderson County justice system as the Director of Juvenile Court Services for Anderson County.

When health issues forced Judge Donald Elledge1 to seek an earlier than planned retirement this past spring, Judge Spitzer applied for the position of Anderson County Circuit Court Judge. Judge Spitzer was ultimately appointed by Governor Bill Lee to the bench on August the 30th of 2021; Judge Elledge had been retired since the end of June.

While Anderson County was fortunate to have judges from neighboring jurisdictions step up and cover Judge Elledge’s docket during July and August, Judge Spitzer felt a sense of urgency in getting started so that the other judges could return to their dockets. He was sworn in just two days after he was appointed and began hearing cases the next day, on September 2nd, 2021.

Complicating his whirlwind entry to the bench, Judge Spitzer, February 2022

like all judges, had to accommodate the uncertainty of the ongoing COVID-19 pandemic. When he took the bench, the virus was in a bit of a lull, and, up until the holidays, COVID-related restrictions were easing.

However, due to the emergence of the Omicron variant, on January 4, 2022, Judge Spitzer made the difficult decision to reinstate the mask requirement for his Court.2 The Circuit Court caseload is heavily weighted toward criminal matters, which make up 80-85% of the docket. While this case distribution is very much in line with Judge Spitzer’s prior experience as a prosecutor, Judge Spitzer has really enjoyed getting to handle civil cases again, and he mentioned that one of the pleasant early surprises of his tenure had been the quality of the civil lawyers that have appeared before him.

Technology has been a point of focus for Judge Spitzer, and some recent changes include upgraded computer connectors which allow a wider range of devices to connect with the big-screen televisions in the Circuit Court Room and enhanced Wi-Fi, which will improve the streaming and downloading capabilities within the Court Room. A longer-term goal is the implementation of electronic filing of pleadings, which Judge Spitzer views as a pressing need, and one that he believes could provide compounding benefits of efficiency and the smoother administration of justice in both the criminal and civil contexts.

As for the impact Judge Elledge has had on his approach to the bench, “Judge Elledge was a fantastic lawyer before he became a fantastic judge,” whose remarkable attention to detail was a product of his efforts to be “the most prepared lawyer in the room.”

Judge Spitzer noted that Judge Elledge’s practice of being “over prepared” has especially influenced his approach to civil matters, as it has been some time since he has practiced in that area.

As far as his expectations of lawyers that appear before him, essentially, he expects professionalism. He expects lawyers not only to be prepared and to zealously represent their clients but to do so in a civil and professional manner. He further expects this civility and respect to extend beyond the Court and the opposing lawyers to Court personnel and all persons associated with the administration of the case.

Outside of the Courthouse, Judge Spitzer enjoys spending time with his family, his church, and the restoration of classic automobiles.

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I’m happy to report Judge Elledge is doing much better now and is ably enjoying his retirement.

Several of the other Anderson County courts have also reinstated a requirement that masks be worn at all times in their respective courtrooms.

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WELL READ By: Maj. Chris Davis

Staff Judge Advocate 2nd Marine Raider Battalion

THE SECOND MOUNTAIN, BY DAVID BROOKS “When you take away a common moral order and tell everybody to find their own definition of the mystery of life, most people will come up empty. Without a compelling story that explains the meaning of their life in those moments, life gets hard.”1 “The Second Mountain” – a metaphor by award-winning author David Brooks – describes a common story of the well-worn path taken by society today. In that life, each of us climbs a first mountain of individual achievement, most-recognizable to citizens today. During the ascent up the first mountain, we perform certain life tasks, such as, establishing an identity, constructing our professional reputation, achieving personal happiness and independence. Our focus on that journey is individualistic, and, after cresting the ridge of personal achievement, we face the daunting realization that this climb is lonely.

The theoretical foundation of the first mountaintop, as Brooks asserts, is that this path is not fulfilling. Nevertheless, the first mountain epitomizes life in the U.S. today. Following a century of war waged against the principles of fascism and communism, principles rooted in the collective over the individual, the concept of individualism is noble.

Therefore, the result for our society (and therefore our legal profession), is a society that cultivates and encourages the climb up the first mountain.

However, individualism itself has not resulted in a world where everybody is happy. Rather, it leads both the individual and our societies far from the summit of the first mountain and into the valley of suffering and defeat. Brooks is also careful to note that not everyone must climb the first mountain or descend into the depths of a valley to begin their climb up the second mountain.

As stated by Brooks, the second mountain is the mountain of commitment. The second mountain specifies four commitments which, according to Brooks, provide a path towards developing a sense of meaning and fulfilment: to a vocation, to a spouse and family, to a philosophy or faith, and to a community. This is where Brooks spends considerable ink, and consequently is why this book is a great read for KBA members.

Because the second mountain is the mountain of commitment, it is through a deep understanding of these four commitments that you can reach its summit. Brooks echoes the sentiments that, “Learning how to think really means learning how to exercise some control over how and what you think. It means being conscious and aware enough to choose what you pay attention to and to choose how you construct meaning from experience.”2 Failure to exercise this kind of thinking will result in the very pangs plaguing society.

The idea that our commitments to others provides great value should surprise nobody. After all, we are ultra-social animals who thrive in community.3 The challenge to climb this mountain is within our grasp: just like in the case of choosing a vocation, a partner, or a religion, one must put the needs of your community above your needs.

The second-mountain ethos says that a worldview which focuses

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on self-interest does not account for the full magnitude of the human person. Humans are capable of great acts of love that self-interest cannot fathom, and murderous acts of cruelty that self-interest cannot explain.

The main activity of life is giving – humans at their best are givers of gifts.

The inherent problems of a single mountain of individualism are far-reaching.

As Brooks states, “People who are left naked and alone by radical individualism do what their genes and the ancient history of their species tell them to do: They revert to tribe. Individualism, taken too far, leads to tribalism.”4 Tribalism seems like a way to restore the bonds of community, and while it certainly does bind people together, it is actually the sinister twin of community. Community is connection based on mutual affection, Tribalism… is the connection rooted in mutual hatred.

Tribalism always erects boundaries and creates friend/enemy distinctions.

The tribal mentality is a warrior mentality based on scarcity: Life is a battle for scarce resources and it is always us versus them, zero-sum. The ends justify the means. Politics is war. Ideas are combat.5 The Second Mountain argues that radical individualism leads to a random, busy life with no discernible direction, no firm foundation, and in which, as Karl Marx dispassionately describes a life dictated by consumerism: “all that is solid melts into air.”6 It turns out that freedom is not an ocean you want to spend your life in. Freedom is a river you want to get across so you can plant yourself on the other side and fully commit to the climb up your own second mountain.

“We make a living by what we get,” a quote most typically attributed to Winston Churchill starts, “but we make a life by what we give.” The measurement of what we give in this life, therefore, is found on the second mountain of life.

1

2

3 4 5 6

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David Brooks, The Second Mountain: The Quest for a Moral Life (New York: Random House, 2020), 34.

David Foster Wallace, “This is Water” Commencement Speech to Kenyon College (2005).

See generally Sebastian Junger, Tribe (New York: Twelve, 2016).

Brooks, The Second Mountain at 35.

Id. Karl Marx, The Communist Manifesto (Chicago: Pluto Press, 1996), Sect. 1, para.

18.

February 2022

AT TO R N E Y P R O F I L E By: Jason S. Collver Assistant District Attorney General 9th Judicial District

BARRISTERS PRESIDENT MEAGAN COLLVER

Meagan had her sights set on being an attorney since she was ten years old, though it’s likely the idea started to percolate even younger. She was born in Friendsville, Tennessee; for those who do not know where that is, it’s a small town located between Maryville and Lenoir City.

Later on, Meagan moved to Kingston, Tennessee where she was exposed to Court TV and hearing stories from her mom, a court clerk in Knox County in the early 2000s. Meagan’s family says she was destined to be an attorney from a young age for her ability to argue with adults and leave them stumped.

In 2008, Meagan graduated from Roane County High School and was quickly accepted to the University of Tennessee Knoxville. When asked by university advisors what she wanted to study, Meagan asked,

“What do I need to study to go to law school?” After being told there isn’t a particular course of study, she decided to major in psychology and minor in political science. While working towards her minor in political science, Meagan met me (her husband), who she still accuses of stealing her seat in the class. Something so small turned into something really big.

In 2012, Meagan was accepted into a six-month internship program with the Tennessee Legislature. During this program, she worked exclusively February 2022

for House Representative Bill Dunn (District 16) who was the Chairman of the House Calendar and Rules Committee. After graduating in December 2012 from the University of Tennessee summa cum laude with a bachelor’s in psychology and a minor in political science, Meagan was asked by the Tennessee House of Representative’s Clerk’s Office to return to Nashville in January of 2013, which she graciously accepted.

Meagan was accepted at the University of Tennessee College of Law (the only school she applied to) in 2013, where she edged one step closer to her dream. While at UT Law, she continued to show her aptitude for the law. She was a member of numerous law school organizations including Law Women and the Tennessee Journal of Law and Policy.

During Meagan’s 2L summer she clerked at Ritchie, Dillard, Davies, & Johnson (now Ritchie, Davis, Johnson, & Stovall) and for the Honorable Deborah Stevens, Knox County Circuit Court Judge. In this same summer, I asked Meagan to marry me. Her father, Jeff Davis, had a couple of conditions to this matrimony: Meagan had to graduate law school before the wedding, and we had to take her two cats with us. Fortunately, Meagan was a good negotiator and got me out of both of her dad’s conditions, though I’ve never heard the end of it.

In Meagan’s 3L summer, she started clerking for London & Amburn.

Meagan and I married in August 2015, just before she started her 3L year at UT. In May 2016, Meagan graduated from the University of Tennessee College of Law with honors and was asked to join London & Amburn as an associate attorney, focusing on healthcare liability defense, upon her passing the bar in October. Since Meagan’s admittance to practice, she has been an active member of the Knoxville Bar Association and Barristers. She quickly became Chair of the Barristers Hunger and Poverty Committee, where she led numerous clothing, toy, and food drives. Meagan became a shareholder at London & Amburn in January 2021. In addition to the KBA, Meagan is also an active member of the Tennessee Bar Association, Hamilton Burnett American Inn of Court, and the American Bar Association where she Co-Chairs the Legal Project Management Committee and co-chairs Communications Committee of the Women Rainmakers Committee both within the Law Practice Division.

In Meagan’s spare time, she enjoys taking our dogs, Layla and Ira, for walks, spending time with her family, hiking, and traveling together.

Meagan looks forward to leading the KBA Barrister’s into the future through these unprecedented times while preparing the next generation of lawyers to continue the Barrister legacy.

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LESSONS LEARNED: REFLECTIONS FROM A RETIRING LAWYER By: John Eldridge

KINDNESS In the Practice of law, there are certain practices within the Practice that will serve you well, and the greatest of these is kindness. Kindness is the trait that makes the practice of law enjoyable.

You have the heard the expression, “Kill them with kindness.” Well, it works. No difficult situation was ever made better by returning evil to the evil that has been done to you, but most every difficult situation gets better when, instead of evil for evil, you respond with kindness to the evil before you.

Everyone wants to be treated with kindness; it is human nature. So, why do we not do what we know we should? I will go out on a limb here and assert that we are not kind because we are stressed. We don’t have time to be kind. There is too much to do, and that deadline looms.

I have known people who use every encounter with another person, regardless of who it is, to try to bring a ray of sunshine into that other person’s day. That is, they look for some common ground or how they can inject a little humor here, or how can help be given. When you see a smile, a grin, a laugh, these rare people have injected some sunshine on someone else. I deeply admire that ability to enhance others’ days, and when I can, I try to practice just that.

Does practicing kindness pay off ? If you are kind, will it make for

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a meaningful law practice? I learned early in my career that the deputy clerks that enable the machinery of the courthouse to flow smoothly are a wonderful source of help, especially to a beginning lawyer. And to the lawyer in practice for a while, these deputy clerks probably know more about their court and their judges than you do! Smile. Be kind.

Say a thoughtful word. Such actions bring their own reward and may even get you a referral.

Remember Plato’s old adage: “Treat everyone with kindness, for everyone you meet is fighting a hard battle.” How true!

I also learned that kindness to your fellow attorney also pays off.

A lawyer who is always kind will not be avoided. In fact, it will be the kind lawyer who gets his phone message moved to the top of the heap. A lawyer who is kind will get a judge to be more lenient with her. A lawyer who is kind will find that she gets more referrals; no one wants to be represented by a meanie.

Kindness to others is the grease that makes the practice of law enjoyable; use kindness every day, all day long!

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February 2022

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Andrew M. Hale Kramer Rayson LLP

12 THINGS I WISH I KNEW AS A NEW ASSOCIATE Embarking on the practice of law comes with a steep learning curve.

Perhaps one of the most shocking truths with which every new lawyer is confronted is that law school didn’t teach them everything they need to know to actually practice. While our law schools do an excellent job rewiring our brains to think like lawyers and teaching us substantive law, there are simply things in this profession that cannot be learned until you are confronted with them. This can be enormously stressful, adding to the stress that inherently comes with being a lawyer.

I am certainly no exception to this. As I begin my fourth year as an associate, I’ve reflected on all that I’ve learned in the past three years, both about the practice of law and the life that comes with it. While I am well aware I still have much learn, here are 12 things I wish I had fully grasped starting out.

1. It is called the “practice” of law for a reason.

Early on in my career one of the senior partners stopped by my office to ask how things were going. “Good,” I said. “I think I’m starting to figure out how to do everything.” The senior partner responded, “well when you figure it out, let me know.”

It is called the practice of law for a reason. You are always learning and adapting to a unique circumstance. As lawyers, we confront unique sets of issues and, using the law as our tools, obtain the best outcome possible for our clients. No two cases are the same, and you are not going to know all of the answers all of the time – and that’s okay. Our job is to find the answers.

2. You cannot control everything.

Starting out, I would run through the gamut of every single outcome based on every single action I could possibly take, often worrying about facts I didn’t know to be true or to even exist. Then, I would try and game the system and make decisions based on some outcome I thought could potentially happen. Needless to say, this drove me crazy. After going through this maddening exercise with a mentor, he told me that “you cannot practice law or live your life like that. You have to make decisions based on the information you have and can reasonably know at the time.”

You cannot control everything. Take the facts and circumstances in front of you and make an educated and well-informed decision. If you have to alter your course of action later because circumstances have changed, that’s perfectly fine. It’s called “adaptability.”

3. You are just as much a “counselor” as you are a lawyer.

Our clients often call us with complex legal issues that need to be meticulously analyzed and eloquently briefed. However, that’s not the only thing our clients need from us. Sometimes they just need a listening ear, or someone to walk them through a situation and talk them off the proverbial ledge. This is just as important as providing legal analysis.

You’ll sound just as smart doing both.

4. Don’t check your common sense at the courthouse door.

This is an oldie, but a goodie. Not every issue necessitates intense legal research. What you often think is the correct answer – based on your intuition or the practical reality of the situation – is in fact the correct answer. I’m not saying don’t do your due diligence, but don’t think you don’t know the answer because you haven’t logged into Westlaw. Trust your gut. The answer is often more common sensical than you think.

5. There is no substitute for hard work.

I often hear the phrase “work smarter, not harder.” While I agree that we should work efficiently (especially for those of us charging our clients by the hour), there is no substitute for putting in the hard work.

Partners see it, judges see it, and clients see it. Hard work got you through

law school and the bar exam, and it will carry you through your practice.

6. Utilize your support staff.

You have to do a lot of things to do our job right. Many of those tasks can be meticulous and time consuming, and while important, are not an efficient use of your time. So, while there is no substitute for hard work, utilize your support staff to do some of those other important tasks – clean up the file, draft a letter you dictated, and schedule your appointments. This will free your mind and your time to tackle the more pressing issues you’ve got on your plate.

7. Keep a well-documented file.

The practice of law is busy, and it only gets busier the longer you’ve practiced. Sometimes months can go by before you revisit a file. Having that file well-documented will save you a lot of time and heartache trying to figure out where you left off.

8. Pick up the phone.

It is easy to avoid a hard or time-consuming conversation by sending an email. Make no mistake, email is necessary, and we often need it to document a conversation or better convey our thoughts. But as easy and important as email is, it can prolong simple issues that prohibit progressing a matter forward. How many times have you opened an email and said, “I’ll get to that later,” only to forget to get to it later? It is amazing how effective a simple phone conversation can be in moving things along, getting things done, or even quickly finding a mutual resolution to an issue. Then, of course, send a follow up email.

9. Time is your greatest resource.

Lawyers live busy lives. We have a lot of things to remember, numerous professional obligations, and families to take care of in the same twenty-four hours everyone else gets. For many of us, our time is the measure by which we make our living. Think carefully about how you use your time. I don’t mean work all of the time, but choose what you do with your time wisely. Utilize your calendar and plan your days and weeks ahead of time so that you can meet all of your deadlines and be mentally present for your professional and personal obligations.

10. You are never too busy to be a good family member or friend.

This can be an all-consuming profession. Our clients entrust us with what is often one of the most, if not the most, pressing dilemmas of their life or for their business. It’s hard not to carry the weight of that reality home to your family or when you are with your friends, but it doesn’t need to affect your relationships with them. While you are a lawyer, you are first a parent, significant other, sibling, and friend. Continuing to take the time to invest in those roles will make you a better lawyer and help prevent you from burning out.

11. Find a healthy stress relief.

Find something that simultaneously relieves stress and sets you up better to tackle the job the next day. Hit the gym, go for a run, ride your bike, play some tennis, whatever. It is amazing how much better you feel about stressful work situations when that stress fuels your exercise.

12. It’s going to be okay.

I cannot tell you how many times I’ve laid awake at night worrying about this thing or that thing – fearful of the worst-case scenario happening. It’s natural for that to happen, and it will continue to happen.

It happens to everyone. In fact, if you care about your job and your clients, you should be concerned about making sure things get done and get done right. However, for everything thing I’ve worried myself sick over, one thing has always remained true – it’s going to be okay. Be concerned, put in the hard work, and trust that it will work out in the end.

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 Caitlyn Elam at 546-4646.

February 2022

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February 2022

L E G A L U P DAT E By: Hannah S. Lowe Fields Howell LLP

TENNESSEE’S NONECONOMIC DAMAGES CAP DOES NOT APPLY SEPARATELY TO A SPOUSE’S LOSS OF CONSORTIUM CLAIM In Yebuah v. Center for Urological Treatment, PLC, the Tennessee Supreme Court addressed for the first time the application of Tennessee’s statutory cap on noneconomic damages to loss of consortium claims.1 The case arose out of a March 2005 surgical procedure performed

by Dr. Frank Lohrasbi to remove Mrs. Yebuah’s left kidney after a CT scan revealed a potentially malignant mass.2 Mrs. Yebuah recovered, and radiology reports in 2005, 2006, and 2007 indicated no sign of cancer, although the 2006 and 2007 reports both noted a “tubular structure” in her abdominal cavity.3 Dr. Lohrasbi reported the radiology results to Mrs. Yebuah but did not mention the tubular structure.4 In 2012, during an unrelated procedure to remove her gallbladder, the tubular structure was found and determined to be a portion of a Gellport device left inside after the 2005 surgery.5 It was eventually removed in November 2013.6 Mrs. Yebuah and her husband filed suit against Dr. Lohrasbi and his employer, the Center for Urological Treatment, PLC (“the Center”), along with the radiologists and their employer, Radiology Alliance, P.C., for negligence for leaving the device inside her abdomen and failing to discover it during the follow up CT scans.7 Mrs. Yebuah had no permanent injury but sought recovery for noneconomic damages.8 Her husband claimed loss of consortium.9 At trial, the jury awarded Mrs. Yebuah $2,000,000 for pain and suffering, $2,000,000 for loss of enjoyment of life, and $500,000 for Mr. Yebuah’s loss of consortium claim.10 The trial court applied the statutory noneconomic damages cap, T.C.A. § 29-39-102, to reduce the total damage award to $750,000.11 The Yebuahs filed a motion to alter or amend, arguing the cap was unconstitutional and, alternatively, incorrectly applied.12 The trial court found they had waived their constitutional challenge but agreed the cap should apply separately to each plaintiff ’s damages award and amended the judgment to $750,000 for Mrs. Yebuah and $500,000 for Mr. Yebuah.13 The defendant appealed, and the Court of Appeals and affirmed the trial court.14 The Supreme Court granted cert. and, in an opinion authored by Justice Roger Page, reversed the lower courts, finding the statute is a single cap on noneconomic damages that includes those awarded to the primary injured spouse as well as those awarded to the other spouse for a derivative loss of consortium claim.15 The statute states as follows: (e) All noneconomic damages awarded to each injured plaintiff, including damages for pain and suffering, as well as any claims of a spouse or children for loss of consortium or any derivative claim for noneconomic damages, shall not exceed in the aggregate a total of [… $750,000], unless subsection (c) applies, in which case the aggregate amount shall not exceed [… $1,000,000].16 In reaching its decision, the Supreme Court noted the phrase “each injured plaintiff ” is not synonymous with “each plaintiff,” as such an interpretation would render the word “injured” unnecessary, which would be improper statutory construction, as “a legislature is presumed to have used no superfluous words.”17 The Court noted several examples February 2022

in Tennessee law of the distinction between an “injured plaintiff ” and a spouse with a loss of consortium claim,18 and reasoned that while a loss of consortium claim is clearly a separate injury and cause of action, it is helpful to distinguish between a plaintiff who suffered medical negligence and their spouse who did not by using the word “injured” to modify “plaintiff ” when discussing the party with the primary cause of action.19 The Court further reasoned that as a loss of consortium claim is a derivative claim with recovery dependent on the spouse’s recovery, the consortium spouse does not “lose” his or her claim by application of the statutory cap but “[t]heir damages are simply limited”.20 The Supreme Court further reasoned that “[t]he Yebuahs and the Court of Appeals interpretation also render[ed] subsection (e) superfluous,” and as the legislature defined the phrase “noneconomic damages” to include “loss of society, companionship, and consortium,”21 the legislature’s use of the words “in the aggregate” meant all noneconomic damages as a whole must be subject to the single cap of $750,000.22 The Court also disagreed with the Yebuahs’ contentions the Tennessee GTLA supported their reading of the statute, and that allowing one cap on noneconomic damages between spouses had the potential to create marital discord between spouses, as “a loss of consortium claim presupposes the existence of an intact marital relationship.”23 The Court also noted that other states have similarly concluded a single cap applies under similarly worded statutes.24 Finally, the Court found the Yebuahs had waived their constitutionality arguments, which had in any event been properly determined by the Court of Appeals as resolved by the Supreme Court’s decision in McClay v. Airport Management Services, LLC.25 Justice Lee authored a dissent, in which the late Justice Cornelia Clark joined. In line with her dissent in McClay,26 Justice Lee would find the statute unconstitutional as a violation of the right to trial by jury, and as such any application of the cap cannot withstand constitutional scrutiny.27 1 2 3 4 5 6 7

8 9 10 11 12 13 14

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624 S.W.3d 481 (Tenn. 2021).

624 S.W.3d at 484.

Id. Id. Id. Id. Id. The individual doctors were dismissed before trial, and Radiology Alliance PC was granted a directed verdict, so the case went to the jury against the Center only.

Id. Id. Id. at 485.

Id. Id. Id. No. M2018-01652-COA-R3-CV, 2020 WL 2781586, *4 (Tenn. Ct. App. 2020). The Court of Appeals also found the trial court erred in determining the Yebuahs waived their constitutional challenge, but that the Supreme Court’s decision in McClay v.

Airport Management Services, LLC, 596 S.W.3d 686 (Tenn. 2020) had resolved the constitutional issue.

624 S.W.3d at 491.

continued on page 20

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Isaac Conner

Dexter Conner

Anica Conner Jones

Christopher Conner

SO MUCH IN COMMON More unites people than divides them. People share more in common than not. This is obvious when looking beyond social constructs like race and color. Yet, discussions about people and society often focus on differences: black v. white, gay v. straight, East Tennessee v. West Tennessee.

The “v.” abbreviates versus, which is defined as “1. Against; or 2. In contrast to or as an alterative of.”1 The versus, the contrast, may denote an adversarial relationship where one does not otherwise exist, which begs the question, why?

Perceptions surrounding the necessity of inclusion, equity, and diversity too often center around differences with one group v. another group. While acknowledging individual and cultural differences matter, finding commonality in all humanity is vital and arguably a necessary step forward from some dark historical mistakes steeped in innumerable ‘isms like Jim Crowism, racism, and colorism. To find that commonality, consider these actions.

Action One: First, a basic acknowledgement: When you give people a chance, you may discover commonality. Start by acknowledging that, often, individuals are more alike than different.

Ursula Bailey

Bridget Bailey Lipscomb

Hon. Robin Gunn

Denise Phillips Jones

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Action Two: Human nature draws individuals to what the psyche believes is familiar and safe, which is often manifested as monochromatic personal and professional people networks. The “perceive” stems from experiences— like media depictions—that may misinform reality, particularly about people seen as different. Assess your “perceive” to understand your starting point.

Action Three: Make a deliberate effort to change your “perceive,” and “see” people who seem different on the surface, including those in opposite social constructs like race or who have been placed on the opposite side of the “versus.”

Action Four: Broaden your definition of “your kind of people.” Develop diverse authentic relationships, allowing— it is a choice—“your kind of people” to include “others.”

Sameness—A Representative Sample: In making a case for moving forward, challenge yourself to find “sameness” in all types of people, particularly removing “versus” from the equation to see the human being. To assist in meeting that challenge, this article highlights some of our neighbors, who share values, morals, successes, and other indicia of the uniting sameness at the legal profession’s core. In honor of African American

DICTA

History Month, Tennessee history, the state flagship university, and the Tennessee Bar, this group of neighbors is simultaneously and authentically African American, professional, University of Tennessee alumni or faculty, and Tennesseans. Other descriptors that may unite this group with you—successful, hardworking, dedicated to advancing the Bar—apply equally, except, perhaps, maybe skin color.

Let’s start with the Conner family. Some read that name and their mind went to “the Conners,” an American sitcom about a working-class family struggling to get by on modest household incomes—wrong family. While both are all-American families, the Conners highlighted here are African American, Knoxvillian, professionals. Bernice, holding Master of Library Science and Ed.S. degrees, and the late Clarence Conner, a soil scientist and education professional, were college sweethearts married for 47 years.

They have four children: Isaac, Dexter, Anica, and Chris, all born and raised in Knoxville’s Powell community.

Isaac Conner, Esq. is an owner and executive vice president at A3 Athletics, serving as a sports agent for both NFL and NBA clientele, and a partner at one of Tennessee’s only minority-owned law firms, Manson Johnson Conner, LLP. He is a founding member of the Tennessee Alliance of Black Lawyers, a premier bar association for the advancement of African American attorneys. Isaac attended the University of Tennessee system for undergrad, graduate, and law school, earning three degrees. He shares two sons with his better half, Nalini, a clinical psychologist.

Dexter Conner earned bachelor and graduate degrees from the University of Tennessee and the University of California followed by an executive MBA from Emory University. He now serves as Vice President, Wealth Advisor to the stars within Wilmington Trust’s wealth division located in prestigious Buckhead–Atlanta. He found support from mentors like former United States Ambassador Andrew Young and actor and author Sidney Poitier. But, his real claim to fame is that he married his high school sweetheart, a graduate of an East Tennessee premier private institution, Webb School of Knoxville, who became Dr. Jackie Branner Conner, with degrees from Spelman, Georgia Tech, and the University of Southern California. With almost 20 years of marriage, they share three children.

Anica Conner Jones, Esq. did all the things “your kind of people” do. She graduated from Powell High at the top of her class with an over 4.0 grade point average. She earned degrees from Spelman College and Georgia Tech in mathematics and industrial engineering, and a University of February 2022

COVER STORY By: Brooklyn Sawyers Belk

Lyft, Inc. Litigation and Safety Counsel and University of Tennessee College of Law Visiting Professor

LaKenya Middlebrook Tennessee JD. She started her career as a law clerk for the Honorable Bernice Donald, followed by law firm practice.

She then committed her talents to government service with high-level contributions at the United States Equal Employment Opportunity Commission, Department of Justice (“DOJ”), Department of Veterans Affairs, and the Tennessee Valley Authority. Anica, too, is married. Mike Jones, an educator at a prestigious private school, is her partner. They share two children.

Christopher Conner, Esq., after leading Powell High to athletic successes, focused on greater academic pursuits at Hargrave Military Academy, Tennessee State University, and the University of Tennessee having earned MBA and JD degrees. He worked in New York as a National Association of Criminal Defense Lawyers Fellow and is currently a public servant as an Assistant District Attorney prosecuting criminals and vindicating victims.

Professional, successful, Tennessee born and raised— yes—your kind of people! But wait! There are more.

Ursula Bailey, Esq., is University of Tennessee educated with MBA and JD degrees, and developed her bona fides early by assisting in the defense of Serial Killer, Thomas “Zoo Man” Huskey during law school.

She has been appointed to numerous positions by mayors, governors, and the Tennessee Supreme Court.

In December, the KBA honored Ursula with the 2021 DICTA Award for her humbling testimony, “‘I Am Not Ok!’ What I Learned About Inclusion And Why It Matters.’”

Establishing her as unique and well-rounded, Ursula also possesses culinary expertise having been an executive chef.

She once prepared and served canapes to “the” Julia Child.

Her sister, Bridget Bailey Lipscomb, a salutatorian in undergrad, and University of Tennessee JD earner, became the first African American partner at a large Knoxville law firm, Lewis, King, Krieg & Waldrop, P.C. She saw success at the United States Supreme Court when her pro bono death penalty client was released from prison; and in truly great litigator form, she swapped sides and led the United States to a dismissal of the famed Jaycee Dugard litigation.

Bridget continues to bless the world with her talents as DOJ’s Environmental Torts Assistant Director, and District of Columbia Women’s Bar Association President.

And more! The Honorable Robin Phillips Gunn is Knox County’s first African American judicial officer serving as Knox County Juvenile Court Magistrate Judge.

She is University of Tennessee educated. Her husband is an entrepreneur and successful business owner, and they share five children. Like the Bailey and Conner families, it runs in the Phillips family. The daughters of a successful East Tennessee dentist, her sister, Denise Phillips Jones, Esq., is University of Tennessee educated with a long career in executive leadership, currently as the Sarah Cannon Assistant Vice President.

More yet! LaKenya Middlebrook, Esq. is a Knox County native and the daughter of civil rights pioneer February 2022

Rev. Dr. Harold Middlebrook. She earned a University of Tennessee JD. She is the first African American woman to serve as the Knox County Democratic Party chair, and as the city’s Police Advisory and Review Committee executive director. On August 31, 2021 Mayor Indya Kincannon appointed LaKenya as the City’s first-ever Director of Community Safety. An impressive groundbreaking change-agent, that is her!

Still more! TaKisha Fitzgerald, Esq. is a Knox County Assistant Attorney General, who has litigated some of the city’s most high-profile cases. TaKisha is from Knoxville and University of Tennessee educated.

She has received several distinguished awards, including the National District Attorneys Association’s Home Run Hitter’s Club Award, the Dr. Martin Luther King, Jr. Commemoration Commission of Greater Knoxville Advocacy Award, and the Tennessee District Attorneys General Conference’s President’s Award.

And more! Without article limitations, the summaries would include Columbia University and George Washington University Law School educated Donny Young, who has served as one of few African American attorneys on the East Tennessee Criminal Justice Act panel representing indigent criminal defendants; LaToyia Carpenter, University of Tennessee JD earner, Eternal Life Harvest Center ministry leader, and one of approximately five ever and currently the only African American Assistant United States Attorney in the Eastern District of Tennessee; Eboni James, University of Tennessee educated and adjunct professor, former Associate General Counsel and Corporate Secretary for a Y-12 contractor, and current Lyft, Inc. Associate Counsel; Teri Baxter and Dwight Aarons, tenured University of Tennessee College of Law professors; by way of a Chattanooga adoption, the Honorable Curtis L. Collier, who despite not being in Knoxville, earns honorable mention as the district’s first and only African American United States District Judge; and, many others, who may be your kind of people.

This highlights African American professionals with credentials and accomplishments that you may hold dear to earmark the depth of sameness that is all around us.

Should something as non-determinant as skin pigment, made a life category as a societal choice, make a person more or less your kind of people? Better measures of a person are the content of one’s character, work ethic, values, and morals—manifest here as a summary of the things that make “others” your kind of people.

TaKisha Fitzgerald

Donny Young

LaToyia Carpenter

Eboni James

Teri Baxter

Dwight Aarons

Different? No! The Same!: Your Kind of People.

1

“Versus.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/versus. Accessed 12 Dec. 2021.

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Hon. Curtis L. Collier

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OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber

THE RING I walked into Diftler’s Jewelers in downtown Knoxville on a cold December day in 1991. Nathan Diflter had sold my father a great many pieces of jewelry over the years. “Mr. Diftler” was so kind to me, patient, and proud of the love and joy he spread around our town.

Cheryl and I were graduating from college, and I’d been into his shop previously with her so she could show me the “type” of ring she liked. You know, in the event I decided to marry her one day. She liked things done her way. On this occasion, I was by myself and on a mission. I didn’t have any money, or at least not much of it. I was about to go to law school. I wasn’t going without her. She had been very specific when it came to a ring.

She wanted a small diamond with something called baguettes on both sides of the diamond.

She was willing to skimp on the size of the main stone for additional diamonds that bookended them. She didn’t want gaudy or flashy, or even expensive. Instead, she gravitated toward classy and understated, which was the perfect description of the woman. She was and would always be specific on the way things had to be - the temperature in the car, the blinds in our house, the “schedule” of grandparents visiting on Christmas day, and the way we had to put Shelby into the specific Graco car seat she required. It wasn’t control so much as meticulous organization. A plan. Can’t leave anything to chance.

I put a downpayment on the ring and its companion wedding band (they had to be a matched set), signed an agreement for installments, and walked out onto a leaf-covered sidewalk in the midst of the day with the ring in my coat pocket, my breath rising like smoke into the air. I was so proud.

It was a Christmas engagement and a July wedding - just as she wanted. It was perfect, as was the life to follow - Law degree, house purchase, birth of Shelby and Andy, two cars, picket fence, etc.

We were on track and playing by the play book. Right up until October of 2000.

In the emergency department of the hospital, Melissa, her best friend, implored me to take the engagement ring from her hand.

“You have to save it for Shelby.”

It seemed so ridiculous to even consider. All of it. My initial instinct was no - it was Cheryl’s prize. She did not covet material things in her life. She coveted the ring. Against my instinct and at the instruction of people who love me, my last act in her presence was to take her prized possession from her hand for the benefit of her first child, who at the time was only 4 years

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old. What was a 4-year-old going to do with a ring? It felt disrespectful, an act so final when the last vestiges of false hope lingered with the smell of her shampoo and the warmth of her hand.

I walked out onto the sidewalk with the ring, once again, in my pocket.

The ring has rested in a jewelry case for nearly 22 years. It is where I keep a watch, and my own wedding band, the one she slipped on my hand that long-gone July day. There is also a bracelet, a regretful purchase from my junior year in high school. For some reason, I can’t let that one go. I’ll save that for another article.

Stuart asked if he could take me to breakfast. He was visiting with Shelby from Washington for the Georgia game and had heard so much about Pete’s. We took our seats as Stormy and Tecia milled around behind the counter cutting sideways glances. Joey and Pete looked between the shelves in the kitchen.

Along with my usual, blueberry pancakes, I had suspicion of what was about to happen, yet was still unprepared. It was a moment. Our family has loved Stuart since Shelby met him, but one thing we particularly love about him is his sense of history - Shelby’s history. He knew about the ring and humbly asked what I thought about him presenting Cheryl’s prized possession to her little girl when he asked her to marry him. I insisted. Permission was given. We shook hands and hugged, sealing our secret.

When they left to return to Washington two days later, I walked out onto the sidewalk with the ring in my pocket one last time. I was so excited for my little girl.

I slipped it to Stuart with a note. I was proud. More than that, I was happy.

On the weekend before Christmas, at the top of a snow-covered mountain range in Central Washington, near the camp where they met, a good young man placed Cheryl’s beloved ring on her daughter’s finger, completing the circle. A rainbow appeared and quickly slipped away as she said yes.

There will be a July wedding. I stand in awe as Shelby plans with such exacting detail.

You cannot imagine what we inherit. I’ll walk her down the aisle just as we talked about at tea parties with stuffed animals at the peak of our innocence. To a father, his little girl is always 4 years old, dancing in the living room. With darkness comes the promise of light. May the Circle be unbroken. May you find the light in whatever darkness you encounter.

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February 2022

SCHOOLED IN ETHICS By: Alex B. Long

Williford Gragg Distinguished Professor of Law University of Tennessee College of Law

OTHER WAYS OF DEALING WITH LAWYER MISCONDUCT Typically, when we learn that another lawyer has been disbarred, suspended, or otherwise disciplined, we assume that there had been a complaint to the Tennessee Board of Professional Responsibility about the lawyer’s violation of the rules of professional conduct, a formal investigation, and adjudication of the charges. But two of the biggest legal ethics stories of 2021 involved lawyers who were suspended from the practice of law outside of the normal professional discipline process.

The two cases highlight some of the other tools that courts have at their disposal for dealing with lawyers who engage in misconduct.

The first case involved David Traywick, a South Carolina lawyer who was suspended for six months after posting what the South Carolina Supreme Court described as “expressly incendiary” statements on Facebook. According to the court, Traywick’s posts “were intended to incite, and had the effect of inciting, gender and race-based conflict” online. The court suspended Traywick’s license for six months, not because he had been found to have violated any specific rule of professional conduct but because he had (1) engaged in conduct tending to bring the legal profession into disrepute and (2) violated the South Carolina Lawyer’s Oath.1 South Carolina’s Rules for Lawyer Disciplinary Enforcement list a host of grounds for professional discipline apart from violation of the rules of professional conduct, including the two grounds listed above. Other grounds include willfully violating a court order and being convicted of a crime of moral turpitude or a serious crime.2 Some other states take a similarly expansive approach.

While Tennessee lawyers also take an oath as part of the admissions process, violation of that oath is not one of the grounds listed in the Tennessee Supreme Court’s Rules on Disciplinary Enforcement. Nor is engaging in conduct tending to bring the legal profession into disrepute (although the Tennessee Supreme Court has interpreted TRPC R. 8.4(d), which prohibits conduct prejudicial to the administration of justice, in a manner that closely resembles this standard3). But in addition to a violation of the rules of professional conduct, the rule does list willful refusal to comply with a court order and conviction of a serious crime as separate grounds for discipline. The term “serious crime” is defined to include any felony, theft, and willful tax evasion among others.4 It’s also worth noting that under the Court’s rule, a Tennessee attorney “who has entered a plea of nolo contendere or a plea of guilty to, or who has been found guilty” of a serious crime “shall within ten days of such plea or verdict provide adequate proof of the plea or verdict, including a copy thereof, to Disciplinary Counsel.”5 Thus, there is a self-reporting obligation on the part of a lawyer who has been found guilty of a serious crime. Once Disciplinary Counsel receives proof of the plea or verdict, it must then inform the Tennessee Supreme Court, which will immediately suspend the attorney in question pending the formal disciplinary process.6 A lawyer may also face interim suspension for conduct not amounting to a full-blown serious crime. The second major legal ethics case in 2021 involving a lawyer who was suspended from the practice of law without first having gone through the formal professional discipline

process involved former mayor Rudy Giuliani. In 2021, the Attorney Grievance Committee for the First Judicial Department of New York instituted disciplinary proceedings against Giuliani for making false and misleading statements to courts, lawmakers, and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. After completing its investigation of Giuliani, the Committee moved to suspend Giuliani on an interim basis pending a formal hearing.

In June 2021, the Appellate Division of the New York Supreme Court concluded that there was uncontroverted evidence that Giuliani had committed multiple rule violations, including violations of Rule 3.3(a) (candor toward the tribunal); 4.1 (false statements to third parties); and 8.4(c) (dishonesty, fraud, deceit, or misrepresentation). According to the court, interim suspension is “available only in situations where it is immediately necessary to protect the public from the respondent’s violation of the Rules.”7 The court concluded that Giuliani’s conduct met that standard.

Tennessee employs a similar standard. Under the applicable Tennessee Supreme Court rule, temporary suspension is warranted upon petition of Disciplinary Counsel and supported by an affidavit or declaration showing that an attorney has misappropriated funds to the attorney’s own use, failed to respond to the Board or Disciplinary Counsel concerning a complaint of misconduct, has failed to substantially comply with a Tennessee Lawyer Assistance Program monitoring agreement requiring mandatory reporting to Disciplinary Counsel, “or otherwise poses a threat of substantial harm to the public.”8 While most recent temporary suspensions involve one of the specifically enumerated forms of misconduct, some attorneys have been temporarily suspended for engaging in conduct that more generally poses a threat of substantial harm to the public. In a 2019 case, for example, a Nashville lawyer was temporarily suspended for engaging in improper communication with an opposing lawyer’s client “by sending the client an email designed to intimidate the client” and for sending an email to opposing counsel that caused counsel to fear the safety of his family. (The lawyer had been disciplined for similar misconduct before.)9 Of course, courts have other tools at their disposal, such as the contempt power and sanctions under the rules of civil procedure, that allow them to completely bypass the BPR’s formal disciplinary process.

Thus, lawyers should be mindful of the fact that ethical practice may include more than technical compliance with the Tennessee Rules of Professional Conduct and the avoidance of formal disciplinary charges through the BPR process.

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In re Traywick, 860 S.E.2d 358 (S.C. 2021).

South Carolina Appellate Court Rule 7(a).

In re Sitton, 618 S.W.3d 288 (Tenn. 2021).

Tennessee Supreme Court Rule 9, Disciplinary Enforcement, §§ 11 & 22.

Id. § 22.1(b).

Id. §§ 22.1(c)& 22.3.

Matter of Giuliani, 146 N.Y.S.3d 266, 269 (N.Y. Sup. Ct. A.D. 2021).

Tennessee Supreme Court Rule 9, Disciplinary Enforcement, § 12.3. https://docs.tbpr.org/manookian-2914-release-of-information-5.pdf

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

February 2022

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barrister bullets MONTHLY MEETING Plan now to attend the first Barristers monthly meeting of 2022 on Wednesday, February 9, starting at 5:15 pm at outdoor patio at The Firefly at the Hilton, located at 501 W. Church Avenue, Knoxville. Register by clicking February 9 on the event calendar at www.knoxbar.org.

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 Co. 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. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on February 9. There will be NO clinic in January. Sign up at https://www.knoxbar. org/?pg=Upcoming-Legal-Clinics.

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast.

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 either Matt Knable at (865) 360-5044 or Laura Wyrick at (865) 297-5511 with any questions and/or about volunteering.

VOLUNTEER FOR ANNUAL HIGH SCHOOL MOCK TRIAL COMPETITION The High School Mock Trial Regional Competition will occur during the first weekend of March in the City County Building on March 4 and 5, and the final two teams will advance to the championship round held in LMU’s Business Courtroom on March 6. The competition consists of five rounds, and each round requires, at a minimum, six bailiffs, 16 scoring judges, and six presiding judges. This program is supported entirely by volunteer efforts. Traditionally, East Tennessee law school students, attorneys, and judges have donated their time to serve in the roles of bailiffs, scoring judges, and presiding judges during the competition.

Please contact either Bridget Pyman at (865) 546-7000 or Isaac Westling at (865) 637-2900 with any questions, and if you are interested in volunteering, you can sign up at: https://memcentral.wufoo.com/forms/ z11pjxd21x2jchv/.

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T.C.A. § 29-39-102 (2012).

624 S.W.3d at 487 (citing In re. Hogue, 286 S.W.3d 890, 896 (Tenn. 2009)).

Id. See Ki v. State, 78 S.W.3d 876, 880 (Tenn. 2002); Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 557 (Tenn. 2001); Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn. Ct. App. 2005). The Court also noted the Tennessee Pattern Jury Instructions make a similar distinction between the “injured spouse” and the “other spouse.”

See TPA Civil 14.20 (20th Ed. 2020).

Id. Id. 29-39-101(2) (2011).

Id. at 488-489.

Id. at 489.

Id. at 490 (citing Wessels v. Garden Way, Inc., 689 N.W.2d 526, 528 (Mich. Ct. App. 2004) (finding Mich. Comp. Laws Ann. §600.2946a(1) limited claim to single cap on noneconomic damages as it used the word “total,” which meant “the total amount; sum; aggregate” and the statute defined “noneconomic loss” to include “loss of consortium”); Oaks v. Connors, 660 A.2d 423, 425 (Md. 1995) (finding Md. Code Ann., Cts & Jud. Proc. § 11-108(a)(2)(i)(2) limited claim to single cap on noneconomic damages as “noneconomic damages” definition included “loss of consortium”) Id. at 490-491.

596 S.W3d 686, 701-09 (Tenn. 2020) (Lee, J., dissenting).

Id. at 491.

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February 2022

BETTER By: Melissa B. Carrasco

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

FREEZING BUT NOT FROZEN Most people remember 1914 as the year the First World War began with the assassination of Archduke Ferdinand, heir to the AustroHungarian empire, and the many declarations of war that followed shortly thereafter.1 However, while all of this upheaval was occurring in Europe, across the Atlantic, a young woman’s world was also turning upside down.

Marjorie was only twenty-seven years old when her father took his own life.2 He thought he had appendicitis, and traveled from Santa Barbara, California to Rochester, Minnesota to be treated by the famous Mayo brothers.3 When the pain did not subside, he put a shotgun to his head.4 That would be a heavy weight for a young adult, but it was about to get heavier. Marjorie was an only child, and her father was C.W. Post—founder of the Postum Cereal Company, inventor of Postum and Grape Nuts (so named because it smelled like grapes and crunched like nuts), and the man whose cereal empire was being challenged by young upstart William Kellogg.5 One month after Mr. Post died, Archduke Ferdinand was assassinated, and now the weight of running a large cereal business while the world was at war fell squarely on the shoulders of young Marjorie.

She was immediately the boss of over 2,500 employees and responsible for overseeing production factories covering 20 acres in Battle Creek, Michigan.6 Keep in mind that, at the time, women comprised less than seventeen percent (17%) of the workforce, and most of those were employed in factories and manufacturing—supporting the early days of the war effort—not running multi-million-dollar businesses.7 But that is precisely what Marjorie Merriweather Post did.

Fortunately, she was not unprepared. From an early age, her father had made it a habit to take her on business trips, let her sit in on business meetings, and have her work in the factories.8 So, when her father passed away, she started commuting from her home in New York to Battle Creek, Michigan.9 Eventually, she started expanding the business, buying the companies that produced many of the items you have in your pantries today: Calumet Baking Power, Swan’s Down Cake Flour, Minute Tapioca, Jell-O, and Baker’s Chocolate.10 In 1922, she took the company public.11 About the same time that Marjorie was beginning her career running a multi-million-dollar business, a young man named Clarence was working in Labrador as a fur trader.12 During his five-year stint in the Arctic, Clarence noticed that the Inuit often froze foods during the winter because it was so difficult to obtain fresh food when the ice and snow came. He thought it was a great idea, and when he returned to the United States, he started working on a process to quickly freeze fresh fish.13 This was easier said than done. In the Arctic, the combination of ice, wind, and incredibly low temperatures caused meat and vegetables to freeze almost instantaneously. This flash-freezing preserved their flavor and texture.14 But, getting fresh food to a sub-zero temperature really fast was more than a little difficult below the Arctic Circle in 1917.

It also made no sense. In 1917 and the early 1920’s a refrigerator was a true icebox—an insulated box with a block of ice in it.15 Granted, you could buy one for less than $10.00 ($224.55 today), but it did not exactly keep things very cold let alone frozen.16 In 1927, General Electric introduced the first electric refrigerator, but at $525.00 ($7,725.92 in 2021 dollars), it wasn’t exactly affordable for most people.17 By 1930, only 8% of Americans even had an electric refrigerator, and household freezers did not go into mass production until the 1940s, after World War II.18 Clarence did not know that it would be over twenty years before freezers were as a common household appliance. Instead, in 1922, he February 2022

founded a company freezing and selling frozen fish fillets.19 Two years later, he invented a process to flash freeze food by putting the food between two refrigerated surfaces while under pressure.20 That was also the year that he filed for bankruptcy—mainly because he had no way to ship his flash-frozen fish very far, and even if he did, consumers did not have freezers where they could store the fish.21 Undeterred, he kept inventing, and in 1927, he started flash freezing other food: vegetables, chicken, meat, and fruit.22 Around that same time, Marjorie and her husband, E.F. Hutton, were on a trip, and Marjorie got a taste of what she thought was a very fresh, very delicious roast goose.23 It wasn’t fresh. It was one of Clarence’s frozen products. Marjorie was hooked. She visited Clarence’s plant, and then she told her husband, who was also her business partner and Chairman of the Postum Board, that they needed to acquire Clarence’s company for $2 million.24 His answer was a resounding, “No.” In 1927, there were no freezers in homes or even in grocery stores. There was no such thing as freezer trucks. Buying a frozen food company was a terrible business idea.25 Two years later, at Marjorie’s insistence, Postum purchased Clarence Birdseye’s frozen food company and his patented process for flash freezing for $20 million.26 Marjorie changed the name of the company to General Foods Corporation, and General Foods made Birdseye frozen foods and many other brands Kool-Aid, Oscar Mayer, Tang, Entenmann’s Bakery, etc.) household names.27 It was one of the few companies that did not lose money in the Great Depression, and in 1958, it reached over a billion dollars in revenues.28 Marjorie served on the General Foods Board for 22 years and was its principal stockholder until 1965.29 What possessed Clarence Birdseye to start a company selling frozen food 20 years before the average person even knew what a freezer was?

What possessed Marjorie Merriweather Post to purchase that company before there were freezers in homes, grocery stores, or even a way to keep food frozen in transportation? That is what happens when someone is willing to look for something better rather than being frozen in the past.

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History.com, First World War Erupts, https://www.history.com/this-day-in-history/ first-world-war-erupts#:~:text=On%20June%2028%2C%201914%2C%20 in,Gavrilo%20Princip%20in%20Sarajevo%2C%20Bosnia, last visited Jan. 9, 2022.

Erna P. Eaton, Marjorie Merriweather Post & a Life of Difficult Privilege, The Buffalo News (Mar. 19, 1995), available at https://buffalonews.com/news/marjoriemerriweather-post-and-a-life-of-difficult-privilege/article_15ad8e47-3528-5ba6b0d7-a12a56e8d84f.html.

Gary Hoover, Forgotten Giant: General Foods, American Business History Center (Oct. 23, 2020), https://americanbusinesshistory.org/forgotten-giant-generalfoods/#:~:text=At%20the%20age%20of%20twenty,wealthiest%20women%20 in%20the%20world.&text=In%201920%2C%20Marjorie%20married%20 her,stockbroker%20and%20yachtsman%20EF%20Hutton, last visited Jan. 9, 2022.

Dr. Gabe Mirkin, C.W. Post, Entrepreneur & Huckster (Dec. 9, 2019), https://www. drmirkin.com/histories-and-mysteries/c-w-post-entrepreneur.html, last visited Jan. 9, 2022.

Id.; see also Encyclopedia Britannica, C.W. Post, https://www.britannica.com/ biography/C-W-Post, last visited Jan. 9, 2022; Hoover, supra n. 3.

History of Kraft General Foods, Inc., https://www.referenceforbusiness.com/ history2/12/Kraft-General-Foods-Inc.html, last visited Jan. 9, 2022.

See Social Security Administration, Employment of Women in War Production (Bulletin 1942), available at https://www.ssa.gov/policy/docs/ssb/v5n7/v5n7p4. pdfl see also Hoover, supra n. 3 (estimating that the Postum Cereal Company was averaging annual revenues of $20,000,000.00 when Mr. Post passed away).

Kenneth Lisenbee, Marjorie Merriweather Post: a Biography, available at http:// www.paulbowles.org/marjoriemerriweatherpost.html.

Id. Hoover, supra n. 3.

Lisenbee, supra n. 8.

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February 2022

HOW TO THRIVE IN LAW AND LIFE By: Emily Heird, LPC/MHSP Vantage View Coaching

HOW TO LIVE A LIFE WITH LESS STRESS It is no secret that being a lawyer comes with tremendous responsibility and stress. Between retaining new clients, billable hour requirements, administrative duties, deadlines, challenging clients and colleagues, and complicated legal puzzles to solve, it is easy for lawyers to accept that a chronically stressed life is part of the deal. Technology brings work to your fingertips at all hours, making it difficult to disconnect. Many of you work with case material that can result in experiencing vicarious trauma. These factors can lead to high rates of anxiety, depression, substance abuse, and burnout in the profession.

With the Great Resignation, many workers cite a desire for increased work-life balance and wellness support as the reason for leaving their current job. A shift is happening in the legal profession to tackle the systemic issues of high rates of mental health and substance abuse issues. In this bi-monthly column, I will be sharing actionable, bite-sized strategies you can easily implement to reduce stress in your life so you can thrive in law and life.

What about the firms and workload, you ask? Yes, firms benefit by improving employee wellness. Retention rates increase; as does profitability. When individuals change, organizations either adapt and thrive or resist and languish. That topic is for a different article. For now, focus on what you can control - yourself.

It is easy to blame the industry and external circumstances on why life is “this way” and feel like you do not have control. Lawyers try strategies to get ahead of the workload: working more hours, sleeping less, relying on stimulants (caffeine, nicotine, Adderall), sacrificing time with family and friends, getting new planners to improve ‘time management,’ and forgoing vacation. However, it is practically impossible to get ahead of the workload. There will always be work to do as long as you are employed. You have developed habits to deal with the stress. Drinking alcohol, consuming other drugs, scrolling on the phone, eating unhealthy foods, working more, spending money, and zoning out to entertainment are common ones I see with my lawyer clients who are experiencing anxiety, depression, and burnout.

The key to less stress is NOT working more hours. It is not waiting for the brief to be filed, the trial to be over, the deal to be closed, or that vacation in 6 months to then relieve stress, relax, or make changes. It is not about quitting your job. It is about deciding to take daily, small action steps to release stress and build wellness. You have more control than you realize.

James Clear, the author of Atomic Habits, says that in times of stress, “You do not rise to the level of your goals. You fall to the level of your systems.” Research shows that about 40% of everyday life is shaped by habits. Unhealthy behaviors became habits because they were practiced repeatedly and were automated by your brain. You can do the same with healthy habits. It takes work to create new habits, but it is possible. Start with small changes. You do not need to overhaul your whole life at once.

This is another common pitfall I see with clients. It is not sustainable and sets you up for failure. Small changes in your behavior and your identity who you are becoming - add up over time.

February 2022

You are your most important client and your most valuable asset.

If you do not treat yourself as the most important person, you will neglect yourself and burn out. Become the person who takes care of yourself and your clients.

5 Actionable strategies to start to release stress daily: 1. Incorporate movement into your day. Lawyers live a sedentary lifestyle with many hours in a chair behind a computer.

Movement provides your brain with all the neurotransmitters it needs to function optimally: dopamine (associated with motivation, memory, attention, pleasure, and reward), serotonin (associated with stabilizing moods and happiness), and endorphins (reduces the perception of pain). Exercise also boosts your immune system.

2. Get outside. Nature has a natural calming effect on us. Your body produces Vitamin D from sunlight, which boosts immunity and mood. You give your brain a break from highlevel thinking, allowing it to synthesize information. You may have a lightbulb moment on a case that you were gridlocked on earlier.

3. Practice gratitude. Spend one minute a day writing down what you are grateful for. This immediately boosts happiness and contentment.

4. Set and keep a regular bedtime. Sleep is your superpower for high performance. It improves focus, concentration, memory, problem-solving abilities, and mood. Physical health also improves with being well-rested.

5. Eat healthy foods and hydrate. Similar to an athlete, you must fuel your body for high performance. The brain burns glucose while thinking, and cognitive performance decreases when dehydrated. You must refuel throughout the day. Start with small changes: bring healthy snacks to the office, replace one unhealthy meal a day with a better alternative, and have a large water bottle on your desk reminding you to hydrate.

“I don’t have time” is a frequent response I hear to the idea of making changes. The truth is, you have time for what you prioritize. You devote a tremendous amount of time to client work. Take a tiny sliver of it and invest in yourself and your well-being.

Repeat to yourself daily, “I take care of myself. I invest in myself daily so I can thrive in this profession.” This begins the identity shift to help solidify the behavior changes. You can take care of yourself and your clients. If you miss a day performing these new habits, do not give up.

It takes time to automate new habits. After all, if you miss brushing your teeth on Tuesday night, you don’t stop forever - you brush them on Wednesday.

Let 2022 be the year you develop the high-performing habits necessary for building a sustainable career.

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LEGAL MYTHBREAKERS By: Brad Fraser

Leitner Williams Dooley Napolitan PLLC

WHY DID THE LAWYER CROSS THE ROAD?

TO CERTIFY OR NOT TO CERTIFY? THAT IS THE QUESTION. I like songs that ask questions. Are You Experienced? Does Your Mother Know? Is She Really Goin’ Out with Him? How Deep is Your Love? Should I Stay or Should I Go? What’s Love Got to Do with It? How Will I Know? Who Let the Dogs Out? What Does the Fox Say? Okay, that is obviously enough.

“Certify the Question”: Depending on whether you are in state court or federal court, in a deposition or some other posture of litigation, the phrase “certify the question” can have different meanings.

“Certifying the Question” in a deposition The first time I heard the phrase “certify the question” as a lawyer, I was a newly minted lawyer sitting in on a deposition. When the witness refused to answer the question, the lawyer told the reporter, “I would like to ‘certify the question’”. The unanswered question was repeated. On the transcript was the notation and location of the “certified question.” I was quite impressed.

When I asked what “certifying the question” meant, I was told an attorney had to certify a question to request a court to compel the witness to answer. The Tennessee Rules of Civil Procedure do expressly state that a “deponent may be instructed not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate or limit examination.” 1 While the latter portion of that citation is further explained the following section governing a Motion to Terminate or Limit Examination,2 it does not address the procedure for clarifying on the record the question or questions for which no response is provided. Perhaps certifying the specific question makes it easier to locate. Also, this practice can require any objections to be made clearly on the record, if you choose to take it up with the court.

Similarly, in Federal Court, the Federal Rules of Civil Procedure provide: “Evidence objected to shall be taken subject to the objections.”3 Additionally, in the Eastern District of Tennessee, there is a standing “Order Governing Depositions” entered in every civil lawsuit. This standing Order requires that “[c]ounsel shall not direct or request that a witness not answer a question, unless that counsel has objected to the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by the court.” As such, at least in the Eastern District, any question certified to be addressed to the court for lack of a response should be limited to a specific privilege, or an area addressed by prior order of the Court.

Certification of a question by a Federal Court to the Tennessee Supreme Court Rule 23 of the Rules of the Tennessee Supreme Court provides that the Supreme Court may, at its discretion, answer questions of law certified to it by the United States Supreme Court, or any U.S. Court

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of Appeals. The Rule also allows certification when a District or Bankruptcy Court situated in Tennessee certifies such a question.4 “[C]ertification of novel or unsettled questions of state law for authoritative answers by a State’s highest court . . . may save time, energy, and resources and help build a cooperative judicial federalism.” 5, “A federal court faced with a novel or unsettled issue of state law may certify a question to the highest court of the state for resolution of the issue.” 6 Tennessee Supreme Court Rule 23 provides that court discretion to “answer questions of Tennessee law certified by any federal court when there are questions of law [in Tennessee] which will be determinative of the cause” and when “there is no controlling precedent in the decisions of the Supreme Court of Tennessee.” 7 “[A]nswering certified questions from federal courts promotes judicial efficiency and comity and protects [Tennessee’s] sovereignty.” 8 In the Order issued by the appropriate federal court, the Tennessee Supreme Court requires the following information be provided, including the formal name of the case and the parties, a statement of the facts, contact information for all counsel and a designation of the “moving party.”9 Additionally, the federal court is to provide instructions to the clerk, such as to serve copies of the certification order upon counsel for the parties and to file the certification order under the seal of the certifying court with the Supreme Court of Tennessee, along with appropriate proof of service.

Of course, the Tennessee Supreme Court may choose to decline such certification. 10 A common rationale for declining such certification is due to the procedural posture of the case. 11 So, there you have it. Most of you are probably asking, “What Have I Done to Deserve This?”

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Tenn. R. Civ. Pro 30.03.

Tenn. R. Civ. Pro. 30.04 Fed .R. Civ. Pro. 30 (c) See Tenn. Sup. Ct. R. 23, § 1.

American Booksellers Foundation for Free Expression v. Strickland, 560 F.3d 443, 446 (6th Cir. 2009) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997)).

State Auto. Mut. Ins. Co. v. Frazier’s Flooring, Inc., No. 3:08-CV-178, 2009 WL 693142, at*7 (E.D. Tenn. Mar. 13, 2009).

Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 803 (Tenn. 2015) (quoting Tenn. Sup. Ct. R. 23, § 1).

McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 689 (Tenn. 2020) (quoting Yardley, 470 S.W.3d at 803).

Tenn. Sup. Ct. R. 23, § 3 (A)-(E).

See Tenn. Sup. Ct. R. 23, §9; Seals v. H & F, Inc., 301 S.W.3d 237, 241 n.3 (Tenn. 2010).

February 2022

URBAN LEGENDS By: Sarah M. Booher Garza Law Firm, PLLC

Allison Cyrus-Walker

3L at LMU Duncan School of Law

NEW YEAR, OLD HISTORY: REVISITING THE LEGACY OF KNOXVILLE’S FOUNDING FATHER, JAMES WHITE January, the beginning of the new year, certainly seems a fitting time to engage in reflection—reflections on the past that has been, along with thoughts of the future yet to come. It always seems that cold, overcast days in January spent in a room with a city view lend to a sharp increase in reflective thoughts. Looking out across downtown Knoxville, the rich, prolific history of the region is readily evident in the numerous historic sites and buildings. Among these sites across the scenic cityscape of Knoxville, the First Presbyterian Church stands out, stately and serene.

There, within the church’s graveyard, the founder of Knoxville, James White, is buried alongside his wife, Mary Lawson White.1 As most native East Tennesseans are well aware, James White and his progeny were immensely impactful, both politically and economically, in the development of the region and the state as a whole.2 White was born in Rowan County, North Carolina in 1747.3 After serving as a militia captain during the Revolutionary War, he purchased numerous land tracts in the territory that would later become East Tennessee through North Carolina’s Land Grab Act of 1783. By 1786, White and his wife had built their home and surrounding fort in the area that he would soon come to establish as the city of Knoxville.4 Land for the town common, the Presbyterian church, and Blount College—which would later become the University of Tennessee—came from tracts originally purchased by White. Indeed, White’s skillful land management had made his fort the capitol of the Southwest Territory prior to the establishment of Knoxville.5 A number of historians have noted White’s propensities for tactfulness and diplomacy, both in the public service offices he served in, as well as through his military service.6 He was responsible for negotiating a number of peace treaties with Native American tribes in the region, particularly the Cherokee.7 White was recognized honorably by the Cherokee for his diplomatic relationship and peaceful disposition.8 This distinguished White from most of the Appalachian settlers of the time.9 Although his military service put him on the opposition at times (particularly while serving under Andrew Jackson), White was credited with quashing would-be skirmishes between angry white settlers and Native Americans in favor of more peaceful, diplomatic resolutions.10 White served in the legislative bodies of both the State of Franklin and the State of Tennessee.11 In 1797, the senate of the First General Assembly of Tennessee elected him as Speaker of the Senate. During Tennessee’s early years of statehood, White would go on to serve in a variety of public offices, including the state’s Indian Commissioner and as justice of the peace.12 Even after resigning from his state senate seat to allow William Blount to run for the office, White was elected to Tennessee’s senate for two more terms following Blount’s death in 1800.13 The political and economic prowess White possessed carried on through his descendants, many of whom continued to be driving forces in the growth of Tennessee, both in the Eastern region and beyond.14 February 2022

White’s eldest son, Hugh Lawson White, served in a number of legislative and judicial capacities.15 Hugh began his political career as private secretary to William Blount while Blount served as governor of the Southwest Territory, prior to Tennessee’s statehood. In 1796, Hugh Lawson White was admitted to the bar, and began a successful legal practice.16 His father’s legacy, along with his reputation for dedication and honesty, bolstered his public service career.17 He was appointed as a judge on Tennessee’s Supreme Court of Law and Equity, and later served on the Tennessee Supreme Court of Errors and Appeals.18 For much of the early part of the 19th century, Hugh served as a senator, first for the Tennessee General Assembly and later for the United States Senate.

Indeed, he was so well-regarded in public office that by 1836, he had been selected to run for United States President by the Whig Party.19 Though ultimately unsuccessful in his bid, Hugh did manage to secure all the electoral votes for Tennessee and Georgia.20 While influential statesmen came from all parts of our state during its early years, the legacy of James White endowed Knoxville and East Tennessee with a significant share of prominent leaders.21 Fierce loyalty and dedication became the hallmark of political leaders in East Tennessee, particularly in the mid-19th century when East Tennessee became the state’s bastion for unionists.22 Inevitably, our historical reflections evoke both points of pride and sorrow. Still, we reflect on our past knowing that it is a critical component in ensuring a far better and brighter future for all.

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Charles F. Faulkner, James White, Tennessee encyclopedia, http:// tennesseeencyclopedia.net/entries/james-white/ (last visited Jan. 9, 2022).

Id. Id. Id. Id. Mary U. Rothrock, the French-broad Holston country: a history of knox county, tennessee 503-505 (East Tennessee Historical Society 1972).

Id. Id. Id. Faulkner, supra note 1.

Id. Id. Id. Rothrock, supra note 6; Faulkner, supra note 1.

Jonathan M. Atkins, Hugh Lawson White, Tennessee encyclopedia, http:// tennesseeencyclopedia.net/entries/hugh-lawson-white/ (last visited Jan. 9, 2022).

Id. Rothrock, supra note 6, at 501-502.

Faulkner, supra note 1.

Id. Walter T. Durham, A Rocky Road for Tennesseans: Vote Counts, the Electoral College, and Tennessee Candidates, 60(2) Tennessee Historical Quarterly, 108, 110–111, http://www.jstor.org/stable/42627632.

Id.; Faulkner, supra note 1.

Martha L. Turner, The Cause of the Union in East Tennessee, 40(4) Tennessee Historical Quarterly, 366, 367–369, http://www.jstor.org/stable/42626233.

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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

WINDOWS 11 Call us naïve, but we really believed Microsoft experts back in 2015 when they told us that the new version of Microsoft’s flagship product, Windows 10, was the “last version” of Windows, and that, henceforth, Microsoft would just continually update Windows 10 until the end of time or the end of Microsoft (whichever came first). So, we, like so many others, were surprised when Microsoft announced in mid-2021 that there would be a new version of Windows coming out later in the year. With this announcement also came the news that Windows 10, which many of our colleagues had begrudgingly adopted after Microsoft’s support for their beloved Windows 7 terminated in 2020, would similarly be discarded on the ash heap of unsupported software in 2025.

For a moment, it was all too much. We had made it through pandemic lockdowns, travel restrictions, conference cancellations, and endless Zoom meetings. We were finally feeling as if we were approaching normality. Then Microsoft goes and pulls the rug out from under our comfortable computing platform. Would we have another steep learning curve for a brand-new operating system? Would we have to buy all new hardware for the office and home? Why is Microsoft treating us like lab rats? The questions came fast and furious.

Fortunately, we have learned over the years that initial quick reactions to new technology are usually overreactions.

We generally warm up to the new, after our tantrum has subsided. So, our initial reticence to embrace Microsoft’s new Windows 11 gave way to acceptance when we woke up one morning and discovered that one of our desktops had auto upgraded to Windows 11 overnight. (We think we must have been forewarned that this was happening; we just don’t remember).

After the initial shock of discovering a brand-new operating system controlling our home desktop computer, we were greatly relieved to note that Windows 11 was not so radically different from Windows 10. Ah yes, we will live and work again. But this relief lasted only for a minute as we frantically searched for the trusted Start button that had been in the same location on the Windows taskbar for as long as we can remember.

We clicked on the extreme left of the taskbar and nothing happened… no Start menu button. Microsoft engineers have defaulted the task bar icons, including the trusted Start menu button, to appear centered in the middle of the task bar. We quickly learned that we could change a setting to make it default to the left as it had been since the beginning of the millennium, and we were happy again.

All kidding aside, the biggest beef with Windows 11 from some pundits is the enhanced hardware requirements needed to run the new operating system. As it turns out, the combination of CPU, RAM, storage, and security protocols required for Windows 11 means that most PCs manufactured before 2018 will not make the cut. Quite honestly, this policy does not bother us too much as we rarely have any computing device that we use on a regular basis that is over 3 or 4 years old.

Furthermore, pre-2018 computers will be almost prehistoric in terms of usefulness by the time Windows 10 is put out to pasture in 2025. So,

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we decided to have no problem with the hardware requirements for Windows 11.

The biggest visual change we have noticed so far is the reconstituted Start menu when you click the Windows logo button (Start menu button). The Windows 11 Start menu is much more sleek and “businesslike.” Gone are the live tiles we initially hated in Windows 10 but had grown to love (and indeed customized) for our own Start menus.

Sadly, many of the apps we had pinned to our Windows 10 Start menu were no longer pinned after the Win 11 upgrade. They had to be “repinned.” Despite this annoyance, we are beginning to appreciate the more orderly appearance of the new Start menu.

Another annoyance that still bugs us (and hope that Microsoft will fix in a future update) is the fact that taskbar icons are automatically grouped by application and cannot be ungrouped. For example, if you have four Excel spreadsheets open on your desktop and you want to bring up one of the spreadsheets to work on, you must first click the Excel group icon on the taskbar to present the list of open spreadsheets. Only then can you click the one you want to work on. In all previous versions of Windows that we can remember, you could ungroup those icons so that four open spreadsheets presented you with four separate icons on the taskbar. Microsoft overlords, if you are listening, fix this ASAP. One of our favorite new features in Windows 11 is the new ability to create custom layouts with multiple windows open on our desktop. The ability to “snap” windows into certain areas of the screen was present in Windows 10, but to do so was a little clumsy, so we rarely used it. With Windows 11, you can very easily create various configurations for your open screens simply by hovering the cursor over a window’s maximize/minimize button. It is hard to describe but very easy to use, and we have been using it abundantly to reclaim wasted real estate on our desktop.

Another feature we noticed right away was the inclusion of a Microsoft Teams icon automatically on the taskbar. The use of Teams exploded over the past two years with the increase in remote work and remote meetings. Microsoft has now subtly included a Teams link automatically with a Windows 11 installation. Will this persuade people to discard Zoom for Teams? We don’t know. Maybe.

Another new icon on the taskbar lets you easily create multiple desktop instances on your PC. Again, the ability to create multiple desktops running at the same time is not new. Microsoft has just made it very easy to do. With so many people working remotely, one great “use case” for multiple desktops is to have one desktop dedicated to “work” and another dedicated to “home” use. We also have a third desktop dedicated to “play,” but we won’t elaborate on that one.

So, after we recovered from our initial shock that Microsoft misled us back in 2015 with all the “last version” of Windows talk, we have begun to get familiar with (and even like) many of the new things in Windows 11. Now, where is that Start menu again?

DICTA

February 2022

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

OUR ENLIGHTENED FOUNDERS In August 1793, yellow fever swept through Philadelphia, our young nation’s capital city. Attorney John Todd fell ill and died. So did his infant son, William. His older son, John Jr., survived, as did his wife, Dolley.

Dolley Todd lost several other relatives to the fever, including both of her in-laws and two of her brothers. According to historian Richard N. Côté, she never recovered from this avalanche of personal tragedies.1 But tragedy sometimes leads to triumph.

Dolley’s good friend Aaron Burr introduced the widowed mother to a congressman from Virginia.

The congressman was short and slight and spoke so softly that sometimes he was difficult to hear.

At forty-three, he was seventeen years her senior.

But he was smart and wealthy and accomplished and admired. He was also the primary author of the brand-new Constitution of the United States.

James Madison was a good catch.

So was Dolley. She went on to become her husband’s closest political confidante and perhaps the most beloved First Lady in history.

Today, there is a safe and effective vaccine against yellow fever. In the Eighteenth Century, there was not. The only defense against the disease was to run away from the mosquitos that carried it. And that’s what people did. Still, like the Todds, many suffered and died.

It’s a safe bet that, if a yellow fever vaccine had been available in 1793, someone of Dolley Madison’s sophistication and good sense would have made sure that her entire family was protected. She would have supported widespread vaccination. Indeed, that’s precisely what her husband and political partner did twenty years later, when, as president, he signed into law “An Act to Encourage Vaccination.” The federal statute not only encouraged vaccination, it established a National Vaccine Agency and provided free postage for vaccine materials.2 Thomas Jefferson, a close friend of the Madisons, also supported vaccination. Indeed, he provided Lewis and Clark with the recently-invented smallpox vaccine to distribute to Native Americans.

He wrote, “Every friend of humanity must look with pleasure on this discovery, by which one evil more is withdrawn from the condition of man. . . . I know of no one discovery in medicine equally valuable.”3 Jefferson’s frenemy, John Adams, agreed.4 A word about smallpox: Like COVID, it was a highlycontagious and frequently-deadly disease that left terrible scars on survivors. But while COVID’s scars are invisible, damaging internal organs from the lungs to the brain, smallpox’s scars were apparent. Many who recovered were left with ravaged, pockmarked skin and, sometimes, blindness. If you’re not familiar with smallpox, count your blessings. If you have the stomach for it, Google a few pictures of smallpox victims.

You’ll see them, in agony, covered in festering pustules. They resemble the Stone Men from Game of Thrones. Smallpox was eradicated in 1980,

worldwide, through—you guessed it—aggressive vaccination campaigns.5 George Washington contracted smallpox on a trip to Barbados in 1751. He was scarred, something that doesn’t show up in Gilbert Stuart’s famous portraits. No doubt his illness informed his decision, early in the Revolution, to mandate inoculation for the entire Continental Army. He was supported in this effort by Benjamin Rush, a signer of the Declaration of Independence and Surgeon General of the Continental Army.6 A word about “inoculation:” It was a precursor to vaccination. Long practiced in many other parts of the world, inoculation exposed healthy people to small amounts of the smallpox virus. If all went well, the patient would develop a mild case of the disease and acquire lifelong immunity. If all didn’t go well, the patient would, well, suffer horribly and possibly die.

But the risk of inoculation was far less than that of infection, a fact documented by the most scientific of our Founders, Benjamin Franklin.7 Franklin had an intense interest in inoculation. He was a longtime supporter of the practice. Yet, when faced with the decision to inoculate his four-year-old son, Francis, Franklin hesitated. The boy was sickly. How would inoculation affect him? Was the risk too high?

That question was never answered. Franklin did not inoculate his son. In 1736, Francis contracted smallpox and died. In his autobiography, Franklin lamented his indecision: “I long regretted, and still regret, that I had not given [smallpox] to him by inoculation. This I admit for the sake of parents who omit that operation, under the supposition that they should never forgive themselves if a child died under it; my example showing that the regret may be the same either way, and that, therefore, the safer should be chosen.” 8 Our Founders were men and women of the Enlightenment.

They believed in reason. They believed in science.9 Perhaps we should do the same.

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3 4 5 6

7 8 9

Côté, Richard N., Strength and Honor: The Life of Dolley Madison, 101 (2005).

“Life, Liberty, and the Pursuit of Immunity,” Center for Science and Democracy at the Union of Concerned Scientists, 7 (August 2014). Available at: https://www. ucsusa.org/sites/default/files/attach/2014/11/founding-fathers-vaccines.pdf.

Hereinafter “Union of Concerned Scientists.”

Id. at 5.

Id. Id. at 2.

Quoted in Liebowitz, “Smallpox vaccination: an early start of modern medicine in America,” Journal of Community Hospital Internal Medicine Perspectives, 61-63 (January 2017). Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC5463674/.

Union of Concerned Scientists. at 4.

Id. at 1.

Valsania, “The American founders didn’t believe your sacred freedom means you can do whatever you want – not even when it comes to vaccines and your own body,” The Conversation, October 21, 2021, available at: https:// theconversation.com/the-american-founders-didnt-believe-your-sacred-freedommeans-you-can-do-whatever-you-want-not-even-when-it-comes-to-vaccinesand-your-own-body-169924.

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

February 2022

DICTA

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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. $750,000 AWARDED FROM TENNESSEE IOLTA PROGRAM The Tennessee Bar Foundation has awarded $750,000 from the IOLTA (Interest On Lawyers’ Trust Accounts) program to law-related organizations across the state. The grant amount for 2022 exceeds that of 2021 by $250,000, bringing total awards since the IOLTA program’s inception to $24,141,000. The grants will be paid to 23 organizations, headquartered in major cities and smaller towns, that touch all 95 Tennessee counties.

The projects provide a wide array of services, including individual legal representation, dispute mediation, assistance for survivors of domestic violence, immigration counseling and housing advocacy. The complete list of organizations and awards is available on the Foundation’s website at tnbarfoundation.org.

receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 522-4964 for inquires.

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1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!) and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545.

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Private office building for Lease at 5301 Kingston Pike. 1,907 square feet with 2 entrances, 4 offices, 2 conference rooms, and workspace located in the heart of Bearden! Space previously occupied by Landry & Azevedo. Email justin.cazana@avisonyoung.com or call 865-450-8883 for inquiries.

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.

Address Changes

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

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: •

Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area,

Thomas Miles Brinson BPR #: 032007 Law Office of Miles Brinson 2606 Greenway Dr., Suite 315 Knoxville, TN 37918-1907 Ph: (865) 660-2238 milesbrinsonlaw@gmail.com

Kacie Flinn McRee BPR #: 028261 Bradley Arant Boult Cummings LLP 4823 Old Kingston Pike, Suite 130 Knoxville, TN 37919-6473 Ph: (615) 252-3505 kmcree@bradley.com

Joshua W. Leach BPR #: 039258 Foster and Potter, P.C. 8 Emory Pl. Knoxville, TN 37917-7317 Ph: (865) 690-8144 jleachlaw@gmail.com

Michael W. Moyers BPR #: 012732 Knox County Law Department 400 Main Ave., Suite 612 Knoxville, TN 37902-2495 Ph: (865) 215-2327 mike.moyers@knoxcounty.org

Magistrate Jill E. McCook BPR #: 033813 U.S. District Court 800 Market Street, Suite 142 Knoxville, TN 37902-2303 Ph: (865) 545-4260 McCook_Chambers@tned.uscourts.gov

Patrick G. Noel Guyton & Frère BPR #: 028154 1001 E. Broadway Lenoir City, TN 37771-2004 Ph: (865) 694-0373 pgnoel@gfelderlaw.com

B E T T E R , continued from page 21 12

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Britannica, Clarence Birdseye, https://www.britannica.com/biography/ClarenceBirdseye, last visited Jan. 10, 2022.

Id. Id. Nancy Mitchell, A Brief but Fascinating History of the Refrigerator, Apartment Therapy (May 19, 2018), available at https://www.apartmenttherapy.com/historyof-the-refrigerator-248166.

Id. Id. Id.; see also History of Refrigeration, http://www.historyofrefrigeration.com/ refrigeration-history/history-of-fridges, last visited Jan. 10, 2022.

Famous Scientists.org, Clarence Birdseye, https://www.famousscientists.org/ clarence-birdseye/, last visited Jan. 10, 2022.

Id. Id. Id. Hoover, supra n. 3.

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Id.; see also New York Times, Mrs. Marjorie Merriweather Post is Dead at 86, N.Y. Times (Sept. 13, 1973), available at https://www.nytimes.com/1973/09/13/ archives/mrs-marjorie-merriweather-post-is-dead-at-86-a-rich-working-woman. html.

Hoover, supra n. 3.

Mrs. Marjorie Merriweather Post is Dead at 86, supra n. 24. She divorced her husband six years later. No one is saying if there was a correlation.

Id. Hoover, supra n. 3.

Mrs. Marjorie Merriweather Post is Dead at 86, supra n. 24.

February 2022

M I T C H E L L’ S M A L A R K E Y By: T. Mitchell Panter

Lewis Thomason, P.C.

CALL ME MAUDE “Misery loves company” is an immutable law of human nature. It also serves as the only explanation for the radical shift in the composition of my friend group, which is now 90% attorneys or their spouses.

Seriously, despite the fact that I have developed a number of meaningful friendships with non-lawyers in my life, I have somehow found myself always surrounded by lawyers or the lawyer adjacent. I blame law school, at least in part. From day one, their stated goal was to rewire our brains to “think like lawyers,” which they defined as being “critical thinkers and problem solvers.” That’s a load of crap. What they really meant was, “Be neurotic.” In my case, they succeeded.

I have become the person who can’t help but discuss work in social settings. My pastimes are trash talking difficult opposing counsel and deleting emails. I now walk into a room and immediately identify risks. Seriously, if I had a dollar for every time I’ve walked into a store and said to myself something like “those steps are uneven” or “that sidewalk is too slick,” my retirement account wouldn’t be such a reminder of my many failures. I have become a paranoid curmudgeon. “No” is my favorite answer.

Notice my repeated use of “have become” in the preceding paragraph. In all honestly, that may not be a fair use of that verb tense.

The truth is, I don’t really remember what I was like before I became a lawyer. Did my personality lead me to this profession or was it the other way around? This question is an interesting exercise in introspection, which is something most of us should do more often.

I’ve considered the issue more times than I can count, but I was most recently faced with it this weekend when a friend (also an attorney) asked everyone in our group text (also attorneys) to name ten T.V. shows “that would explain your personality.” There are no time or genre limitations, and the basic idea is that someone wanting to know more about you could watch these shows and get a feel for who you are what you’re about.

Like Buzzfeed clickbait, I’m a sucker for creating these kinds of lists, so I couldn’t help but participate.

This group text where I was first introduced to this exercise has an unwritten confidentiality rule, so its constituent members will remain anonymous (unless you cross me). Lucky for them because their lists were hilarious, sometimes scary, but totally on point. Each had at least two shocking titles. Some of the more notable ones were Buffy the Vampire Slayer, Supermarket Sweep, Lost, and Dr. Phil. Honest to God, that Dr. Phil or a show about a teenage vampire hunter would explain you as a person is frightening for many reasons, and going forward, I will approach my friendship with the Lost sympathizer with the utmost caution.

Fortunately for my friends, my list was equally as embarrassing.

Because I have no shame and anonymity is the antithesis of what I signed February 2022

up for when I agreed to do this monthly column, here are my choices in no particular order: The Golden Girls, The Critic, East Bound and Down, Curb Your Enthusiasm, Seinfeld, King of the Hill, The Righteous Gemstones, Judge Judy, The Real Housewives of Atlanta, and Nash Bridges.

I’ll spare you the rationale for each, but suffice it to say, these create an interesting profile: female, mid-sixties, erratic, loves canasta, and bitter. I’ll admit that some are aspirational. East Bound and Down, for example, doesn’t necessarily describe me. Kenny Powers and I share an accent and have similarly limited vocabularies, and while we both have strong senses of justice, we right wrongs in different ways. Kenny trashes your car or knocks out your eye with a fastball.

Meanwhile, I ignore emails and hold grudges.

The largest personal escalation I can remember is stealing my mom’s Hootie and the Blowfish tapes after she took away my Gameboy.

Others on my list are more personal. The Golden Girls, for example, (weird as it may be) has deep personal ties to the especially close relationship I had with my paternal grandmother. This show was one of her favorites. We watched countless episodes in her living room, and everyone in our small, unincorporated community of Irving College, Tennessee, which is just ten miles (give or take) outside the epicenter of Southeast Middle Tennessee, McMinnville, referred to my grandmother’s immediate friend group, which was comprised of my Great Aunt Wavie (that was her God-given name) and my Aunt Gladys, as the “Golden Girls.” My grandmother was always partial to Bea Arthur’s character, Dorothy. She always called me her “Maude,” having been a devoted viewer of the Norman Lear show of the same name that Bea Arthur headlined in the 1970s.

Identifying with Dorothy made sense. She and my grandmother shared a number of similarities. They were both tall, thin, and had beautiful white hair—often in a perm so tight that no modern-day chemical could replicate. Beyond their physical similarities, they shared several personality traits as well. Both were sharp as tacks, full of oneliners, suffered no fools, and lacked any fashion sense. I can relate with some of those characteristics. I don’t have the brains, thin frame, or the perm, but I do have a low threshold for ignorance and despise bullies, and no one has ever remarked favorably on my fashion choices. (My favorite articles of clothing are gym shorts and short-sleeve button-ups.)

By now, most of you are wondering is there a point to this article?

To that I say two things. First, no. Second, you were warned. In last month’s opener, I told you that this column would provide no benefit— personally or professionally. I’m just following through on that promise.

That said, I will leave you with this challenge: make your own list. It might surprise you. But one word of caution: respect yourself enough not to share it with the entire bar.

DICTA

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

PRO BONO SPOTLIGHT By: Mary Frances DeVoe

Legal Aid of East Tennessee, Chattanooga Office Pro Bono Attorney

NEW YEAR’S RESOLUTION 2.0 “New year, new you” the motto of every well-intentioned person as the clock strikes midnight on December 31. The new year often inspires new beginnings, new goals, new challenges, maybe even a new outlook.

It makes sense, humans love a deadline, an important date, a marker of time past and time to come. Thus, the new year is the perfect excuse to start something: go to the gym more, lose weight, read more books, learn a new skill, spend less money, get organized, the list goes on and on. We have all stepped into one new year or another with one of these “resolutions” in mind, aiming to improve ourselves.

The first few days are easy, maybe (if you are particularly dedicated) even the first few weeks. However, soon February rolls around and suddenly it’s harder to go to the gym every day, you find yourself too tired to do anything other than mindlessly scroll through Facebook or stare at a television. Perhaps your poison is an expensive pair of shoes you really want or a trip to McDonalds. Either way, some desire or excuse comes along and makes your good intentions harder.

Personally, my new year’s resolution was to read thirty minutes a day- briefs, case files, and the news do not count. Seems simple enough, surely! A week in and I’d already failed at least once.

According to a 2015 study conducted by the University of Scranton, by the second week of February, 80% of new year’s resolutions have failed.1 In 2018, Strava, a social networking site for athletes, discovered that the second Saturday of January was the date most people reported failing their new year’s resolution.2 As I write this, the second Saturday of January has just passed.

Given this article is appearing in the February issue of DICTA and probably arrived in your mailbox right around the second week of the month, it is safe to say my audience failed to keep their New Year’s resolution. Maybe time was your excuse, or exhaustion, a bad mood, perhaps even circumstances outside of your control. The point is, at one moment or another over the last month and a half we fell off the New Year’s resolution bandwagon.

It is no wonder our resolutions failed, more likely than not, the only motivation behind them was self-serving. So often our New Year’s resolutions are selfish, about bettering ourselves, usually in the form of diet and exercise. At the end of the day, it is easy to make an excuse not to follow through on our resolutions for self-improvement. Usually, those excuses come with ties to things outside of ourselves. If your excuse is not enough time: you’re likely choosing to prioritize your job, children, spouse, friends, church, etc. If your excuse is exhaustion, it probably means you’re giving your all at work, engaging with your co-workers, dedicating yourself to your practice. These excuses work because they favor community connection over solitary self-improvement.

I’m not pointing this out to shame you, in fact, I have a proposition for you. Let’s try again! It is February 2022; we are swiftly approaching our second year of a global pandemic. Thus, there are no more rules!

No one can stop us from coming up with a New Year’s resolution approximately a month after the new year has started. This time, however, I think our resolutions should be less about improving ourselves and more about improving our community.

My recommendation is that your 2022 New Year’s resolution 2.0, starting when you read this article, be to take more pro bono cases.

East Tennesseans need your help, they need your skill, they need your time, they need you! The pandemic has made it even harder than before for East Tennesseans to navigate a court/legal system that isn’t designed for those without representation. Pro bono work, volunteers, and attorneys are essential to providing legal assistance to the 13.6 percent Tennesseans who live in poverty3. Pro bono work is more than just several

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recommended hours of service or a good thing to do. Pro bono work is your duty to your profession and your community.

In 2020, our office helped 11,655 individuals and created $72.4 million in economic impact for East Tennessee4 5. That is a direct and provable affect on your community. I don’t know about you, but I am way more likely to maintain my New Year’s resolution if I see a $72.4 million result.

It might be too late for a “new year, new you” but it isn’t too late for 2022 New Year’s Resolution 2.0.

Here are just a few people who need you to make their case part of your 2022 New year’s Resolution 2.0 • Ms. T lives in Loudon County and would like to ensure that her family and future are protected as she ages. She would like assistance preparing as simple will, a health care power of attorney, and a financial power of attorney. 21-0272775.

• Mr. C is a twenty-eight-year-old working father in Knox County.

His license has been suspended until 2026. Mr. C would like help getting a restricted license to that he will be able to commute to and from work. Mr. C has joint custody of his daughter and need to be able to do school pickup and drop off, as well as drive her to appointments when she is in his care. 21-0267085.

• Ms. B is in Sevier County and needs help adopting her thirteenyear-old granddaughter O. Ms. B already has custody of O though Sevier County Courts. Moreover, all parties, including O’s mother and father, agree to the adoption.

If you are interested in helping any of the individuals above, email CTorney@laet.org or check out Pro Bono Matters on our website: www. laet.org.

Upcoming Clinic Opportunities Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available.

• Wednesday February 9th Noon – 2pm • Wednesday March 9th Noon – 2pm • To sign up, please use the form on the KBA Website or email ctorney@laet.org.

Faith and Justice Clinic: In person at Cokesbury United Methodist Church 9919 Kingston Pike in Knoxville. Saturday February 12th 9 AM – Noon.

Debt Relief Clinic: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Saturday February 26th.

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https://health.usnews.com/health-news/blogs/eat-run/articles/2015-12-29/why80-percent-of-new-years-resolutions-fail https://nypost.com/2018/12/21/new-years-resolutions-last-exactly-this-long/ https://www.census.gov/quickfacts/fact/table/TN/IPE120220#IPE120220 https://www.laet.org/laet-annual-report-2020/ https://www.laet.org/laet-annual-report-2020/

February 2022

TELL ME A STORY By: Elizabeth Carroll

Manager of Compliance, Tennessee Valley Authority

LEAVING THIS WORLD A BETTER PLACE When asked to share for the “Tell Me a Story” column I first thought, what story do I have to tell that would cause a reader to stop what he/she is doing to read? I have come to the conclusion that in the wisp of time we have on this Earth, we all have some meaningful nuggets in our journeys that may be worth sharing with someone. It is a honor to share a brief snapshot of my professional story.

After graduating UTK with a bachelor’s degree in Social Work in 1995, my concrete desire was to pursue further education that would allow me to continue serving the public. After much deliberation, I ultimately decided to attend the University of Tennessee, College of Law. Unbeknownst to me, this would start a unique professional journey that I could have never anticipated or predicted.

After graduating law school in 1997, the next 5 years brought marriage, moving to Nashville and then on to Memphis and starting a family. During these early years, I was blessed to work in a variety of settings and hold several positions at the same time; the Tennessee Human Rights Commission in Nashville, the Community Legal Center of Shelby County, the Juvenile Court of Shelby County, providing pro bono and reduced-fee services to low-income individuals and more.

My early career path was, in many ways, untraditional, as compared to other attorney career paths. But during those early years, I was blessed to connect with opportunities that always allowed time to balance raising my children with meaningful and varied work. The experiences I was offered provided me the opportunity to work inside and outside of the home. As I have gotten older, I realize what a gift those early years were. Learning to juggle multiple things, working inside and outside the home, and utilizing my education and passion to serve others, all built a foundation for my career that were critical for the years to come.

After returning to Knoxville in 2005, I served as an associate in a local law firm before being asked in 2007 to serve as in-house counsel and ultimately Executive Director of a non-profit organization that served the state of Tennessee. After serving in that capacity for over 11 years, it was time for a change. In 2019, I began working at the Tennessee Valley Authority, in the Office of the General Counsel where I have served in the employment law group and most recently, as Manager of Compliance (in the Ethics and Compliance group of the OGC).

At times over the years, I have been asked why I did not practice law like other attorneys. Particularly, when transitioning from a law firm setting to a non-profit setting I was asked multiple times, “why are you not an attorney anymore”. While likely well-intentioned, these questions gave me opportunity to analyze my professional identity. What does my work mean to me? Who am I in terms of my professional space? Is my work less impactful because others may have deemed me to not be an February 2022

attorney anymore (given a particular position I may have held)? Several things resulted from this analysis. Three primary themes emerged over time that, in large part, define my story and who I am today.

Focus – if nothing else, my career has been and remains foundationally focused on serving others the best I can. When I graduated law school 24 years ago, I knew I wanted to and was meant to passionately serve the public. I earned a social work degree, law degree and a license. Whatever my work would look like, I knew I would utilize my degrees and license to serve others, even if at times it did not look similar to many of my attorney peers. The shape and form that has taken has changed over time as opportunities have arisen, but my focus has remained the same. The years have shown me that staying focused on what we feel led to do and commit to those things that are of primary importance (family, work/life balance, professional passions, personal interests….) are key elements to everyone’s story. While this may seem elementary, remaining focused on professional goals, whatever they may be, and undistracted by what others may think or say is of key importance.

Relationships – having been through many professional leadership programs and being heavily involved in the community, one of the key pieces to my story is the building of strong relationships. I cannot tell you how numerous relationships built and earned over time have come back to be a great blessing and benefit. We have all heard the sage advice of “don’t burn bridges,” but the building of meaningful, sincere, intentional relationships is the highest of honors and greatest of opportunities. I truly believe we work better when we work together. Serving in a wide variety of settings and being exposed to a diverse array of individuals has continually supported this truth.

Open-minded – would I have ever thought I would have served in some of the settings I have served? The simple answer is no. My journey has been a long and winding road. Keeping an open mind about opportunities has resulted in a diverse network of professional colleagues and friends, has given me the opportunity to grow and develop multiple professional skills, and has opened many doors. Had I kept a narrow mind about different professional opportunities, I would have missed out on many things including significant experiences of service, connection, and development.

In closing, my story is not an exciting one or significantly impactful.

But as I reflect on my journey, I am reminded that our stories are not only about the positions we hold but about the influence we can have on this world and the lessons we learn along the way. What I have seen over the years is staying focused on our priorities, serving our relationships with others well, and leaving this world a better place than we found it (in big and small ways) is part of what makes all stories worth telling.

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