DICTA. November 2021 by Knoxville Bar Association

Management Counsel: Law Office 101: Religious Accommodations . . . Page 13 Schooled in Ethics: Bad Blood and the Attorney-Client Privilege . . . Page 19

A Monthly Publication of the Knoxville Bar Association | November 2021

THE U.S. SUPREME COURT’S SHADOW DOCKET

“UN-REASONED, INCONSISTENT, AND IMPOSSIBLE TO DEFEND” OR A NECESSARY EMERGENCY PROCEDURE?

Photo Ops

Barristers Constitution Day – September 17, 2021

Constitution Day is observed every year on September 17 to commemorate the signing and adoption of the Constitution of the United States of America by the Founding Fathers in Philadelphia on September 17, 1787. The Knoxville Barristers celebrated Constitution Day with the third and fourth grade students and teachers at Dogwood, South Knox, and Christenberry Elementary Schools. A week prior to Constitution Day, Barristers taught the third and fourth graders about the Preamble, The Bill of Rights, and branches of government. Then, the students prepared presentations to local members of the judiciary, who then spoke about how the Constitution impacts their roles as judges and answered the students’ questions. The Barristers would like to thank the following judges and lawyers for participating: Hon. Suzanne H. Bauknight, Brian R. Bibb, Richard Graves, Rebekah Harbin, Hon. Kyle A. Hixson, Ariane Hookman, Luke P. Ihnen, Hon. Lisa A. Lowe, Sallie Neese, Hon. Debra C. Poplin, Hon. Clarence E. Pridemore, Jr., Jacob P. Refner, Hon. John R. Rosson, Jr., Mikel A. Towe, Shanna Fuller Veach, Zachary R. Walden, Courtney D. Walker, and Grant T. Williamson.

DICTA

November 2021

In This Issue

Officers of the Knoxville Bar Association

November 2021

COVER STORY 16

President Cheryl G. Rice

President Elect Jason H. Long

Treasurer Loretta G. Cravens

Secretary Catherine E. Shuck

Immediate Past President Hanson R. Tipton

KBA Board of Governors Sherri DeCosta Alley Mark A. Castleberry Meagan Collver Jonathan D. Cooper

Daniel L. Ellis Elizabeth B. Ford Rachel P. Hurt Allison Jackson Eric M. Lutton

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Carlos A. Yunsan

CRITICAL FOCUS 5

President’s Message

“Friends and Family”

You’ve Been Served . . . But Have You, Really?

Religious Accommodations

High Tech, Low Tech, and Privacy Rights

Bad Blood and the Attorney-Client Privilege

9 13 15

The Knoxville Bar Association Staff

The U.S. Supreme Court’s Shadow Docket: “Un-reasoned, Inconsistent, and Impossible to Defend” or a Necessary Emergency Procedure?

Practice Tips

Management Counsel Legal Update

Schooled in Ethics

WISDOM 6 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 DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).

Dicta is the official publication of the Knoxville Bar Association

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

Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Eddy Smith Elizabeth Towe

Managing Editor Marsha Watson KBA Executive Director

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. November 2021

Learning to Listen: Why Inclusion Matters

Alternative Sentencing Update

The Weight

Life (and Your Practice) is Fragile

Determination of Appearance

For the Love of Otto

Strong Emotional Intelligence Makes Us Better Lawyers

Between The World And Me

Toasted Almonds, Fire and Double Ovens

We Flipped for the Samsung Galaxy Z Flip 3

We the People

Giving Thanks

My Calling to Serve as a Justice Advocate

7 11 14 21 22 23 24

Volume 49, Issue 10

DICTA

What I Learned About Inclusion and Why It Matters

25 26 27 29 31

Around the Community

Outside Your Office Window Building for the Future: Advice on Succession Planning Boat Builders

Of Local Lore and Lawyers Grammar Grinch Well Read

Barrister Bites

Bill & Phil Gadgets

Your Monthly Constitutional Long Winded Tell Me A Story

COMMON GROUND 4 20 28 28 30

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

SECTION NOTICES & EVENT CALENDAR

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Mediation: Practice & Ethics Update 2021” featuring Chad Hatmaker on December 16. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on November 6, and volunteer registration is available at www.knoxbar.org. Join the Bankruptcy Section for the upcoming CLE program “Bankruptcy Case Law Update 2021” scheduled for December 14. If you have a program topic or speaker suggestions please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) or David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Join the Criminal Justice Section for the upcoming CLE program “Criminal Law Rowdy Roundup 2021” scheduled for November 17. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) 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. Join the Family Law Section for the upcoming CLE programs “The Ins and Outs of the Child Support Worksheet” on November 11 and “Tennessee Family Law Update 2021” on December 7. 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. 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. Join the Juvenile Court & Child Justice Section for the upcoming CLE program “Case Law Review” featuring Doug Dimond on November 2. If you have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2019 will automatically be opted-in to the Section. KBA New Lawyers Section members are invited to attend the upcoming program “Tips for Managing Stress Going into the Holidays” featuring Candice Reed, EVP & Partner, Latitude Legal. The program will be held on Tuesday, November 16, from 12-1 p.m. via Zoom. If you would like to get involved in planning Section activities, please contact Section Chairs Campbell Cox (330-2577) or Mary Newton (224-6591). Senior Section Please join the Senior Section for the upcoming free Zoom Webinar “East Tennessee Veterans Memorial: A Pictorial History of the Names on the Wall, Their Service, and Their Sacrifice” on November 3. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).

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event calendar n n n n n n n n n n n n n n n n n n n

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November 2 2 2 3 5 6 9 9 9 9 10 10 10 11 11 12 16 17 17

LRIS Committee Law Office Tech Committee Juvenile Court Webinar CLE Veterans Webinar Judge’s Ain’t Behavin’ CLE Professionalism Committee Fall Hike Election Law CLE Professionalism Committee Access to Justice Committee Barristers New Admittees Reception Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Family Law Section CLE Judicial Committee Memorial Service CLE Committee Meeting Criminal Law CLE Board of Governors

December 3 7 7 8 8 8 9 10 14 14 16

Ethics Bowl CLE Law Office Tech Committee Family Law Section CLE Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Holiday Party & Elections Judicial Committee KBA Annual Meeting Professionalism Webinar Bankruptcy Section CLE ADR Ethics CLE

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

November 2021

PRESIDENT’S MESSAGE By: Cheryl G. Rice

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

FRIENDS AND FAMILY November is here. The year is drawing to a close, and I find myself thinking, as I seem to do more and more often in recent years, “How can that be? This year has flown by!” I love fall, and I especially look forward to November each year. In November, we finally have sweater weather. November brings the official start of basketball season. I enjoy watching my husband and other men I know take on “No Shave November” for a cause. Last and certainly not least, as October ends and November begins, I start looking forward to the season of gatherings with family, friends, and colleagues, and one of the highlights of that season for me is Thanksgiving. Like many, I enjoy the Thanksgiving meal, but more significant to me is the opportunity to gather with those I care about. For many years, our firm held a “Firm Thanksgiving” during the week of Thanksgiving. We all brought in food and the entire firm, from the most senior attorney to the newest runner, turned off the phone, paused our workday and enjoyed a traditional holiday meal together, mid-day, in the office. Though the size of that gathering has grown and the meal has moved to early December, the firm’s tradition remains, as does the firm’s reason behind it: to recognize, as an organization, the many blessings we have received, including the clients we are privileged to serve and our opportunity to work with one another in that service. More than just the official Thanksgiving holiday, the whole of November is a season of gratitude. Rev. Dr. Mark Roberts says, “Gratitude is like savoring a fine meal, enjoy every bite, rather than racing through a meal as if it’s some sort of race.” In 2019 at the KBA’s inaugural Wellness Conference, local radio and television talk show host Hallerin Hill kicked off the programming with plenary remarks that focused on finding joy in our lives. He explored the concept of gratitude and suggested the first step to finding joy is to align our minds, each day, by naming three things for which we are grateful that day. This practice helps our brain chemistry to bring about a state of peace and joy, and also hope for the future. So, while our national day of giving thanks is still a few weeks away, I’d like to encourage us all to practice gratitude this month. I’m going to start now by sharing a few bits of my own gratitude with you. In this season of thanks-giving, I want to recognize a few of the many people who have contributed to making 2021 a great year for the KBA and, in turn, a great experience for me as KBA President. First and foremost, I am grateful to my husband, Bill, and to my firm, Egerton, McAfee, Armistead & Davis, P.C., for supporting me in this role. You’re the best. I am deeply grateful for KBA Executive Director Marsha Watson and her team: Tracy Chain, Chandler Fletcher, Jonathan Guess, Jeannie Matthews, and Tammy Sharpe. They are the “sine qua non” of the KBA--all that the KBA does, it does thanks to their involvement and support! I also want to thank the current KBA Board of Governors, our Committee and Section Chairs, and each Committee member, through whom the work of the KBA is carried out. And, I want to express special thanks to this year’s President of the KBA Barristers, Amanda Tonkin. Amanda has shown grace, strength, flexibility, optimism, and leadership November 2021

as President of the Barristers. And the Barristers continue, as they have for many years, to give of themselves greatly to better our bar and our community. Looking at the Barristers, it’s clear to me that the future of the KBA is bright. I’m also pleased that the KBA has experienced increased access to and participation in the efforts of the KBA as a result of embracing technology. I am especially glad the KBA has been able to, at least in some forms, safely gather members together in person to work, learn, and build relationships over this year. Those events have been and continue to bring joy to me and many others who have missed the chance to gather as we did in past. Last but not least, I also want to express my gratitude for each of you as KBA members. I’m appreciative of the so many of you who have said “yes” without hesitation when approached by me, to Marsha or to another KBA leader to serve the in some way. While every organization needs leaders, the KBA does not exist or have success without its members. And what members we have! Members who write; members who edit; members who study and consider rule changes; members who educate others; members who support one another; members who explore the future of the law and our society and are willing to share their ideas, successes and failures to help better us all; members who plan ways for us to connect with one another outside of the practice of law; members who show up and participate, both virtually and in person; members who support the judicial system in Knoxville and beyond; members who share their gifts with the bar and with our community at large in many different ways. If you are reading this article, I’m talking about you. If you scroll through your own list of contacts or thumb through the KBA Directory, I’m sure you can think of numerous KBA members who fit one or more of these categories. We are blessed to have a diverse range of interests and talents reflected within the KBA. I am truly thankful for my increased involvement in the KBA as President this year. At times it has been challenging (and I’m sure that will continue for the next little bit), but overwhelmingly it has been rewarding and fun. I’m glad for the chance to have met so many KBA members whom I did not previously know and to better my relationships with many of you I already knew. I invite you to join fellow members for the KBA Fall Hike on November 6th, get involved in a Committee or Section, or find another way to better connect with the KBA—you will be glad you did. More than 20 years ago, a good friend told me that I was forever a part of his family. As a part of that conversation, he told me something that I’ve kept with me ever since. I had never heard it before, but now I see it on greeting cards and social media posts. He said, “Friends are the family we make for ourselves.” As life brings me more experience, these words continue ring true. I’m thankful for each of you and grateful that I can count so many of you as a part of my chosen family.

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Happy thanks-giving!

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: Joshua D. Hedrick

Whitt, Cooper, Hedrick & Wojcik

LEARNING TO LISTEN: WHY INCLUSION MATTERS As lawyers, we are charged with building and maintaining relationships. Sometimes they are our own, such as relationships with clients and other lawyers. Sometimes they are our clients’, such as their relationships with their family members or their employers. Sometimes they are between strangers, such as the jury and a witness, or the jury and our client. When I began my career as a criminal defense lawyer, I had to learn a new world. I had to learn to navigate difficulties that I had never experienced. People who had difficulties that I had never encountered and could not imagine, but whose difficulties formed the lens through which they viewed the world. Inclusivity is, in my opinion, making an effort to understand someone else’s story rather than to expect them to act and think in a way convenient to you. There were people that I met and worked for who came from a background totally different from my own. I had to learn and understand their stories so that I could understand how to talk with them. Talking at people is easy. It is much harder to find a way to approach someone in a way that you can build a connection with them and have a real impact. This is true for clients, juries, and witnesses. We are all comfortable in our own world, but we make the most impact when we are able to reach out and build a connection with another world. There is a Yiddish word “rachmunis”, which means empathy, or

understanding. To me, that’s inclusivity. It means that if you find that your client had a traumatic childhood, you go beyond a dutiful note in the case file to find out what that was like and how it impacted her by finding a way to truly understand those feelings as best you can given the limits of your own experience. An ability to connect with someone on their level, whatever that might be is a sign of respect – to come to them as they are, make an effort to understand where they come from, and connect with them. Most of you probably do the same, but when I first meet a new client, I don’t like to talk about the case. I usually like to talk about them first, to find a way to build a connection as two people. In my opinion, that’s the core of inclusivity. Oftentimes people will talk about ways to make someone who is different feel welcome, but inclusivity really is finding a way to make someone feel as though they are unique without being unusual. If we can find a way to connect with people from all backgrounds and all walks of life, then we will make ourselves into more effective communicators and more effective relationship builders. It will make us more effective at relating to witnesses, to clients, and to juries. The best lawyers are, in my opinion, the best communicators. Inclusivity is a matter of understanding and relating to your audience.

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November 2021

AROUND THE COMMUNITY By: Mitch Eisenberg Assistant District Attorney Knox County

ALTERNATIVE SENTENCING UPDATE Alternative sentencing is a recognized part of Tennessee law.1 There have been recent changes to the Sentencing Reform Act that significantly affect judicial authority for probationary sentences and revocations of probation. This article will highlight three of those changes that reduce the amount of time authorized for probationary sentences and alter judicial discretion to extend or revoke a defendant’s probationary sentence in certain situations Changes to the Maximum Time Period of Probation A change to T.C.A. § 40-35-303(c)(1), effective July 1, 2021, limits a sentence to probation to eight years for one conviction and ten years for more than one conviction. Prior to this change, there was no limit to the total period of probation, only that each guilty offense must be a probation eligible offense with an individual sentence of 10 years or less.2 The new law applies a time limit per “conviction” and not “sentence.” Conviction, as used throughout the Tennessee code, likely means the final cumulative result of a single criminal court case.3 Therefore, the 8 or 10 year limit is a ceiling per total cumulative sentence, either for an individual conviction of 8 years on probation for one or more sentences in a single case or 10 years for more than one conviction across separate cases with possible separate counts. It’s not clear what is allowed when a defendant picks up a new conviction while already on probation. Arguably, when a court “imposes a period of probation” for a conviction, they are acting on the new case before them. Therefore, with a prior conviction where probation has already been imposed, the court is instead acting on a revocation of probation and not imposing a period of probation. So, if a new conviction is ordered consecutive to a revocation of probation sentence, it’s possible the effective period on probation could exceed the 10 year limit imposed on new convictions under this change. Extensions of Probation A change to T.C.A. § 40-35-308(c), effective July 1, 2021, significantly changed the substance and procedure for court-ordered extensions of probation. This is the process whereby a court, after a revocation hearing, instead of revoking a probationer to serve a sentence in custody or restarting the sentence, can choose to extend a defendant’s probation. Prior law allowed this extension “for any period not in excess of two (2) years” and was silent as to any process for determining when an extension was warranted, only stating the court “shall have the authority.” Now, courts are guided by a process with required findings on the record prior to extending probation. Extensions are now limited to one-year, BUT subsequent one-year extensions are authorized for subsequent violations of probation. Lastly, extensions under this section are only authorized when the defendant fails to comply with court-ordered treatment programming, has unlawfully contacted a victim or victim’s family, or has willfully failed to pay restitution. The failure to comply with treatment must be more than a single instance as the law states “repeatedly” and must be intentional. In addition, the treatment must be court-ordered. Victim contact must be intentional and have violated “conditions of probation regarding contact.” Lastly, the failure to pay restitution must be intentional, the defendant must have the ability to pay, and extending the period of probation would be more effective than other available options to ensure the defendant pays the restitution. November 2021

Revocations of Probation Multiple changes were made to the substance and process for revocations of probation under T.C.A. § 40-25-310 and 311. Two important changes include providing judicial discretion to grant sentence credit for time served successfully while on probation and a limitation on revocations for technical violations. First, the change to T.C.A. § 40-25-310(a), effective July 1, 2021, allows a trial court to exercise their discretion to give credit against the original judgment by the amount of time a defendant successfully served on probation. The law is silent as to the process and procedure for such a finding, only stating the court “may” grant credit for time “successfully served.” These credits could significantly reduce the amount of time a probationer is ordered to serve should they be revoked to serve a sentence. Second, changes to T.C.A. § 40-25-311, effective July 1, 2021, limits a judge’s authority to revoke probation for purely “technical violations.” A “technical violation” is defined as an act that violates the terms and conditions of probation but does not include a new felony, a new Class A Misdemeanor, a zero tolerance violation as defined by the department of correction community supervision sanction matrix, or absconding. Importantly, with this change, a judge is prohibited from revoking probation based upon one instance of a technical violation. The language is a little confusing for second or subsequent violations since the code switches between violation and revocation. However, for technical violations, the court is limited to a specific maximum time of temporarily revoking probation to incarceration as follows: fifteen days (15) for a first revocation (the second violation since for the first purely technical violation the judge would have been prohibited from any revocation); thirty (30) days for a second revocation (the third violation); ninety (90) days for a third revocation (the fourth violation); and the remainder of the sentence for a fourth or subsequent revocation (the fifth or greater violation). The important things to consider in these situations is what type of violation is before the court – technical or non-technical? If purely technical – how many technical violations have been found by the court previously? Lastly, in any situation, if there are non-technical violations, among other options, a judge may revoke probation and suspension of the sentence and make the defendant serve that sentence. The changes highlighted above are significant and alter the allowable terms and conditions of alternative sentencing. These are not the only changes recently made and history shows us the process and procedure of alternative sentencing will continue to change. The newly amended sections discussed above are worth reading in their entirety, as is the current Sentencing Reform Act in order to get a sense of the general nature of how the parts all work together. 1

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This was not always the case. In 1911, the Tennessee Supreme Court found courts had no authority to suspend sentences. See, Spencer v. State, 125 Tenn. 64, 140 S.W. 597 at 599 (1911). In 1931, the legislature granted trial judges some authority to suspend sentences and that authority has continued to evolve. Public Acts of 1931, Chapter 76. State v. Langston, 708 S.W.2d 830 (Tenn. 1986)(“sentence” refers to each individual offense defendant was guilty of and not the cumulation of all charges). See e.g., T.C.A. § 40-30-101 et al. Post-Conviction Procedure; T.C.A. § 40-35-106 to 108 discussing prior convictions which qualify for defender classification in sentencing; and T.C.A. §40-35-115 discussing sentencing for multiple convictions.

ANNUAL FALL HIKE SATURDAY, NOVEMBER 6

The Professionalism Committee invites you to the annual fall hike on Saturday, November 6 at 10:00 a.m. at Frozen Head State Park in Wartburg, approximately an hour from downtown Knoxville. Frozen Head State Park is situated in the beautiful Cumberland Mountains of Eastern Tennessee. Appropriately for lawyers, we will hike the Judge Branch Trail, which is about a 3-3.5 mile round trip. It is listed as a moderate hike. We will meet at 10 a.m. at Picnic Shelter A (it’s on the right, about two minutes from the park entrance). Everyone should bring snacks and water for hiking as well as food and your favorite beverage for a post-hike picnic lunch. Please confirm your participation by registering online (click on November 6 on the event calendar at www.knoxbar.org). If you have questions about the hike, please contact Eddy Smith at esmith@kmfpc.com. If you’re bringing food or drink for lunch, please let James Stovall know at jstovall@rdjs.law.

Everyone is welcome to bring their family and join us on Saturday, November 6!

The Members of

Butler, Vines and Babb, P.L.L.C. are pleased to announce that

Grant E. Mitchell

has been admitted as a Member of the firm &

Matthew Stombaugh

has joined the firm as an associate The Butler, Vines and Babb practice includes Personal Injury, Medical Malpractice, Auto & Truck Accidents, Food Borne Illnesses, Lender Liability, Products Liability, Business & Securities Law, Corporate and Banking, and Alternative Dispute Resolution.

Butler, Vines and Babb, P.L.L.C., 2701 Kingston Pike, Knoxville, TN 37919 Telephone: (865) 637-3531; Fax (865) 637-3385 – Online at www.bvblaw.com

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November 2021

PRACTICE TIPS By: Sallie Papajohn Neese

Associate Attorney Lewis Thomason, P.C.

YOU’VE BEEN SERVED... BUT HAVE YOU, REALLY? After hobbling along in my first year of practice following law school, several aspects of the practice of law still remain mysterious to me (and hopefully the majority of my contemporaries!). However, one thing that has become clear is that service of process can be a technical nightmare that can have fatal effects on legal actions if not timely remedied. Because this area of practice can ground a suit before it takes flight, I wanted to write a couple practice tips on service of process, from both a plaintiff and defendant perspective, which I hope will be of assistance to those new, green attorneys, as well as the more practiced attorneys who need a brush up on some of the nuances. These tips are based on Tennessee Rule of Civil Procedure 3 and 4, which contains the meat of the rules governing service of process. Practice Tips for All You Plaintiff Attorneys: In my, albeit limited, experience practicing law, the main mistake I have encountered with service of process usually involves serving process on defendants that are not natural persons by mail. Of course, it’s the easiest and arguably most efficient way for attorneys to provide notice to their defendants, but it is also the easiest to mess up. (Let’s be honest, there’s nothing better than hand-delivering that summons.) For instance, attorneys serving process by mail must ensure that the registered return receipt or certified return receipt mail is properly addressed and that the right person signs for the service of process. Otherwise, service is ineffective.1 As an example, if the defendant is a corporation, the certified mail must be addressed to and signed by an officer or managing agent of the corporation or an authorized agent.2 Of course, as the sender we have control over how the certified or registered return mail is addressed. The problem usually arises with who signs for the certified mail. Often, its secretaries, gatekeepers, or the mailperson himself who sign. Unless the secretary or mailperson is the individual designated by Rule 4.04 or by statute, this is insufficient service of process and is ineffective. Unfortunately, it’s hard to control who the mailperson allows to sign for the certified mail. One way to combat this problem is to make it clear on the envelope itself that the person signing for the return receipt must be the person addressed. This could be as simple as acknowledging this requirement on the envelope itself by hand-written notation or through use of a stamp or similar marking. Either way, plaintiff attorneys must be hyper vigilant in confirming who signed for the mail containing process. Obviously, this is not groundbreaking or novel advice, but I have already seen this issue come up several times in my one year of practice, so it’s worth mentioning and reminding people of the nuances of service by mail. Defense Attorney “Need to Knows:” Generally, improper service of process is not the most excitable error plaintiff ’s counsel can make. But it can certainly be a death knell for a Plaintiff ’s cause of action. Under normal circumstances, once a defendant pleads improper service of process as an affirmative defense or in a separate motion to dismiss, plaintiff ’s counsel can generally remedy the error and properly serve November 2021

the defendant. But what happens if the defendant properly pleads insufficient service of process in his or her answer and a plaintiff fails to cure service? Well, a defendant can bide her time and continue participation in the suit until the statute of limitations has run on the claim and the issuance of process under Tennessee Rule of Civil Procedure 3. To that end, Tennessee courts have consistently held that participation in litigation does not constitute a waiver of insufficient service of process after the defense has been properly pled in an answer.3 Upon the running of the limitations period, a defendant can then bring a motion for summary judgment based on insufficient service of process and running of the statute of limitations, which, if granted, will be with prejudice. (Ah, those two simple words are music to our defense-ears!). A couple of things to look out for if implementing this strategy: under Rule 3, a plaintiff originally has 90 days after issuance of a summons to effect process but may obtain new summonses “from time to time” if service is not made within that ninety-day (90) period. Meaning, a plaintiff who wishes to rely upon the original filing to toll the statute of limitations must obtain service of process within 90 days or procure its reissuance before the expiration of one year from the previous issuance of process. A concrete example may help understand this aspect of the rule. Let’s say a Complaint was filed in Knox County Circuit Court on October 11, 2021 and summons issued same day. Under the original summons, the plaintiff would have until January 10, 2022, to serve the defendant with process. If plaintiff incorrectly serves the defendant and the defendant properly asserts this defense in an Answer, the plaintiff must then have process reissued and properly served before October 11, 2022, which is one year from issuance of the previous process, to rely on the tolling of the statute of limitations. If the plaintiff fails to do so, maybe because she didn’t realize that insufficient service of process was raised as a defense, the case should be dismissed as untimely, even if the defendants participate in the litigation.4 The October 11, 2022 deadline is subject to change, however, if the plaintiff reissues service of process before October 11, 2022 and the ninety (90) days once again expires before proper service can be made. Although this column is more akin to “practice reminders” rather than “practice tips,” I sincerely hope you found it instructive. Service of process is an easy thing to get wrong and can be the sleeping giant in your legal action. Don’t get caught on your heels!

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See Tenn. R. Civ. P. 4.04(10) and 4.03(2). See Tenn. R. Civ. P. 4.04(4). See Krogman v. Goodall, 2017 Tenn. App. LEXIS 580, at *23 (Tenn. Ct. App. Aug. 29, 2017); Barger v. City of Huntsville, 63 S.W.3d 397, 399 (Tenn. Ct. App. 2001); Regions Bank v. Sandford, 2016 Tenn. App. LEXIS 874, at *2 (Tenn. Ct. App. Nov. 16, 2016) (citing Barger); Doyle v. own of Oakland, 2014 Tenn. App. LEXIS 435, at *3 (Tenn. Ct. App. 2014) (citing Barger); Eaton v. Portera, 2008 Tenn. App. LEXIS 722, at *3 (Tenn. Ct. App. Nov. 21, 2008) (citing Barger). Id.

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November 2021

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

THE WEIGHT It was Wednesday, the third day of a week-long trial. The trial

wounds that come with learning even though it takes time to heal. The

was my first since the pandemic arrived on our doorstep and set in the

scars come from the out-of-bounds hit that we carry for the duration

middle of our beautiful state. I moved into a hotel room the weekend

before, a room I shared with trial exhibits, boxes of files, and an alwayspresent belief that I will prevail. We were in the Defendant’s case and in a ten-minute break. I sat slumped in my chair, my normal posture

and are the ones that sit next to you at the retirement party. You have

all experienced it. It doesn’t matter how many years you’ve practiced or the tricks you’ve learned to manage it all, the weight is always there. I

teach at the law school, and I tell the students that you must have thick

according to my family and my secretary, coming off of a long night of

skin and carry yourself with a “deliberate nonchalance.” My father loves

torturing myself over every detail of each of the cross examinations I

that quote from W.C. Fields. The weight is why divorce, addiction and

would perform. My clients were in the restroom. The only souls on the

depression are so prevalent in our world. It is why we wake in the middle

battlefield were me and my opponent. I heard

of the night or drive to the office 3 hours

my name from across the aisle. “You know,”

earlier than planned. I tell them you must have

he began. “You can’t really even explain what

things outside our weird little world to ground

this life is like to someone who doesn’t do

you, to fill in the empty spaces - love, family,

it.” I smiled. Barely. Truth on a Wednesday

spirituality, a football team, and a good dog,

afternoon.

usually of the Golden Retriever breed.

I wanted to respond, but I could only

I tell them to go to seminars, watch great

nod. What a statement. An adequate response

lawyers exercise their craft - the lions of the

break. I knew I was feeling exactly what he was

who can tear you apart. I’ve tried to learn from

needed more than the time we had left in this

bar, the superstars, and the simple mechanics

experiencing. The weight. I was a bit surprised

every one I’ve been lined up against and those

because we all have tunnel vision in a trial,

I haven’t yet had the privilege. I’ve learned

unable to comprehend the toils of others, but

more in defeat than ever in victory, but I can

I was also so surprised because he had an entire “team” with him. I had

always remember a moment from every trial that made me cringe at

had co-counsel, a clerk, a paralegal, and an IT guy who worked all of his

you think a pilot ever looks around up there and says “Wow, I’m flying

help, primarily back at the office, but I’d been impressed by his “team.” He equipment, including a printer, and audio-visual system - “The Machine,” as I call it. His was a slick operation. However, in that moment, I realized it didn’t matter - we are all in the same world, a world outside the one

everyone else sees. It is a world that requires a law degree, a client, a bit of confidence and a great deal of insanity.

Why do we do this? If you can clearly answer, and quickly, then you

are not one of us. Each of you, voluntarily, has agreed to take up a load,

a weight to move down a path and to the top of a hill. The load includes the client, their problems, your partners, your staff, your reputation,

the skills you have honed and a belief you will win. Inside all of it are

insecurities - will I make the right objections, or worse, the wrong ones? Can I meet the burden of proof ? Am I the intellectual equal of my

opponent, my witness, am I being condescending, a smart ass (that may only be in my wheel barrow). Is my best, genuine self, coming through

my insufficiency and smile at the fact I can do things others can’t. Do a plane?” We need to do that more. We are human. So much we do is

fueled by courage - putting one foot in front of the other when the edge of the cliff feels a couple of steps away all in the hope we can make a difference in someone’s life or feel the rush of accomplishment.

Still, we do it because there is a love beneath it all. I don’t care if

you’re jaded, exhausted, and beaten. You are one of those that loves to

stand when the door opens and the bailiff calls out for all to rise. You feel

the rush when the jury and judge file in the room for in that moment you feel the history of the republic, the thrill of the arena, and the weight of

it all culminating in the moment, and nothing can tell you that even the

low-speed rear-ender is anything less than the most important case ever

tried. It is because you can do something very few can. You belong to the club.

I lost the trial. It is never easy. Opposing counsel and I shook hands

the insecurities, and is it good enough? Hell, is my hair too long, coffee

and genuinely offered words only we understood. Clients always seem

outwardly confident. There is always a concern our opponent is trying to

lose. If a lawyer doesn’t, something enormous is missing. I think it is an

on my tie? We are a fascinating sort, meant to study, always on guard, but screw us over in some way, an insecurity burned into us by another lawyer whose name we will never forget. It is always an event that goes beyond

a clever or “in bounds” tactic, and he/she knew it. We can appreciate the

November 2021

amazed that we shake hands with our opponents after a trial - win or

act that defines our profession and serves as our mutual recognition of the weight we all must carry. Carry on.

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L E G A L LY W E I R D By: Lisa L. Hall Hodges, Doughty & Carson

LITIGATION IN BEDROCK:

A (FLINT)STONE’S THROW AWAY FROM SAN FRANCISCO In my extensive research for this column, I have explored the history of The Flintstones. I was surprised to learn that the beloved cartoon was actually already about 15 years old before I started watching it as a child. I thought the birth of Pebbles and the discovery of Bamm-Bamm had basically occurred in real time with my own childhood, but Pebbles is about nine years older than I am. If Pebbles follows a fairly traditional career track, she will be ready to retire in about seven years. As a slightly older child visualizing my future career as a hotshot1 lawyer with regular mic-dropping2 performances in the courtroom, uncovering smoking guns, exonerating innocent defendants in the most dramatic ways, serving the interests of justice everywhere I went, I certainly did not imagine myself one day as a fully grown lawyer writing articles about The Flintstones. This is nothing short of a full circle moment, but it feels right for an article written in Rocktober, even if I will never achieve “hotshot” status. I don’t know if you were a Flintstones fan, but I’ll bet you weren’t the biggest one. That honor has to go to retired publishing mogul Florence Fang of Hillsborough, California, a suburb outside San Francisco. Ms. Fang’s house, generally described as “bulbous,” is widely known as the “Flintstone House” and features 15-foot dinosaur statues, a Bigfoot, pigs3, two pterodactyls, as well as life-size statues of Fred, Wilma, Barney, Betty and…Great Gazoo4.

a confidentiality provision (which, in retrospect, does not appear to have been airtight). In 1976, the house was designed by architect William Nicholson, whose plans for the Modernist structure specified spraying concrete over a structure molded from rebar, wire mesh, and giant aeronautical balloons. At the time, there was no architectural review board to enforce design standards. The Hillsborough Architecture Design and Review Board was established shortly after the Flintstone House was constructed, which was no coincidence according to one former resident who stated that the board was formed so “there would never be another home like that built in Hillsborough.” The 78-page list of design guidelines says that Modernism itself is not objectionable but “when this style is designed badly or executed poorly, the results can be dramatic” and that Modernist dwelling plans “will be subject to a higher level of scrutiny.” Of course, the Flintstone House was there first. After Ms. Fang purchased it from the prior owner in 2017 and started installing dinosaur statues and concrete mushrooms, the town issued a permit for a retaining wall but an inspection “found other improvements outside the scope of the permit” and Ms. Fang was ordered to stop work on those things. Ms. Fang did not stop working on those things. Ms. Fang hired a lawyer who held a press conference, suggested that the city’s motive might have been discriminatory, and threatened to file a “very ferocious5 counterclaim.” Ms. Fang did indeed file a counter-claim, the ferocity of which is unknown. Fast forward to the resolution, as many details seem to be missing (guess that confidentiality provision had some efficacy), but Ms. Fang agreed to drop her lawsuit and to apply for permits in the future, and the city agreed to approve permits submitted retroactively for the existing improvements. The town will also pay Ms. Fang $125,000, which the settlement agreement states is “solely to cover expenses incurred by Flintstone6 related to the lawsuit, and shall not be as a payment related to any claim for discrimination.” Chalk one up for the prehistoric good guys. I can just hear Ms. Fang screaming “YABBA DABBA DOO” from here! (In case you are wondering, to date, it appears that Fred has yet to win the fight regarding the cat staying out for the night, as the Fred statues are outside and there is no mention of saber-tooth tiger statutes anywhere.)

Perhaps all you HOA lawyers should keep these photos handy and tell your clients, “It could be worse!” The town sued Ms. Fang in 2019, alleging a public nuisance and that she did not obtain permits for many of her improvements. She counter-sued. The case settled in April but received no publicity due to

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A past version of myself definitely aspired to be a “hotshot lawyer,” stated specifically that way. This vision included a forest green Jaguar. Mic dropping as a concept existed in the 1980s, but I was not aware of this phrase until much later. So, I did not actually imagine myself dropping the microphone in the courtroom. You all remember all the pigs in The Flintstones, right? Yes, perhaps this was the Jump the Shark moment for The Flintstones, but this is neither the time nor place to have this debate. I know he was just trying to talk a big game, but can a counter-claim actually rise to the level of being ferocious, let alone “very ferocious?” That is a tall order. It is unknown whether this was a Freudian slip by the reporter or if the house (“Flintstone House, Inc.”) was also a party suing on its own behalf.

November 2021

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Cathy Shuck General Counsel East Tennessee Children’s Hospital

RELIGIOUS ACCOMMODATIONS There has been much talk recently of religious “exemptions” from vaccine mandates, but “exemption” is not really the right term. Employers generally don’t have to exempt employees from bona fide employment requirements, even for religious reasons. They may, however, have to make “reasonable accommodations” for a religious belief. Background The U.S. and Tennessee Constitutions each protect individuals in the free exercise of their religious beliefs.1 However, Constitutional protections only restrict government entities from infringing on an individual’s right to exercise their religion; they do not restrict private employers. Private employers are subject to Title VII of the federal Civil Rights Act of 1964 (“Title VII”), which protects employees and applicants from discrimination because of religion.2 Title VII defines religions as “all aspects of religious observance and practice, as well as belief.”3 Employees are entitled to a reasonable accommodation of their “religious” beliefs unless the accommodation would work a hardship on the employer.4 Title VII only applies to employers with 15 or more employees.5 The Tennessee Human Rights Act (THRA) provides similar protection from religious discrimination and applies to employers with eight or more employees.6 Critically, however, unlike Title VII the THRA does not include a reasonable accommodation provision.7 The imposition of most terms and conditions of employment, from shift scheduling to vaccine mandates, are generally not discriminatory, whether based on religion or on any other protected characteristic. But if a nondiscriminatory requirement affects an individual negatively due to their religious beliefs, they may be entitled to a reasonable accommodation—if the employer has 15 or more employees.8 Determining Eligibility for a Religious Accommodation Employers must follow an “interactive process” when an employee requests a reasonable accommodation.9 This means asking the employee about the basis for requesting the accommodation and then working together to determine whether an accommodation can reasonably be made. The first step is to ask the employee to articulate, in writing, the accommodation requested and the sincerely-held religious belief(s) that support the request. Importantly, the fact that the employee does or does not belong to a recognized religion, adhere to a religious text, or even have a spiritual leader is not dispositive. The Equal Employment Opportunity Commission’s (EEOC) Title VII regulations provide that religion includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views[.]” Moreover, “[t] he fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee[.]”10 Recent guidance from the EEOC notes that The employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.11 In other words, employers should generally move on to the discussion of a reasonable accommodation unless there is a reason to question the “religious nature” or “sincerity” of the belief. So, for example, if the employee’s written request appears to be downloaded from the internet, or leans more heavily on politics and personal opinion than spirituality, there may be a reason to

doubt the sincerity of the belief. If the employee’s written request raises questions, the employer should follow up with a discussion(s) to probe the nature of the belief(s). Whatever the employer ultimately decides, it should be well-documented.12 Types of Reasonable Accommodations Reasonably accommodating a sincerely-held religious belief does not always mean eliminating the requirement that conflicts with the belief. It may mean allowing the employee to satisfy it in a different way. For example, if vaccination conflicts with the belief, an accommodation could be allowing the employee to instead wear a mask at all times and/or be routinely tested. Alternatively, it could mean allowing the employee to work remotely to avoid being present in the office. Undue Hardship Exception The employer is not required to make an accommodation for an employee’s religious beliefs if doing so would be an undue hardship.13 If a religious accommodation imposes more than a “de minimis cost” on the employer, it constitutes an undue hardship. However, employers should be cautioned that judges on the Sixth Circuit and the U.S. Supreme Court are critical of the “de minimis” standard.14 Employers and employees are better served to try to work together to accommodate the employee’s legitimate beliefs and concerns, while still meeting the employer’s objectives.

4 5 6 2 3

13 14

See U.S. Const. Am. 1 and Tenn. Const. Art. 1 § 3. Note that the rights protected by the Tennessee Constitution are significantly broader than the federal protections, including the statement that “no human authority can, in any case whatever, control or interfere with the rights of conscience[.]” 42 U.S.C. § 2000e(2)(a). 42 U.S.C. § 2000e(j). See id. See 42 U.S.C. § 2000e(b). See Tenn. Code Ann. §§ 4-21-102(5) (defining employer) and -102(4) (defining discriminatory practices) and § 4-21-401(a) (protecting employees from discrimination based on race or creed). For discussion see Waverly D. Crenshaw, Jr. and Brian A. Pierce, Tennessee’s Unique Religious Protections in Employment: Do They Mean What They Say? 1 Belmont L. Rev. (2014). This author is not aware of any cases finding a right to religious accommodation in the THRA; note that courts have rejected arguments to read a right to a reasonable accommodation into Tennessee’s Disability Act (TDA), which is similarly silent on the right to a reasonable accommodation. See, e.g., Jones v. Sharp Elecs. Corp., No. W2013-01817-COA-R3-CV at *5 (Tenn. Ct. App. 2014) (“Unlike its federal counterpart, the [ADA], the TDA does not impose a duty on employers to make reasonable accommodations to accommodate a disabled employee.”) See Tenn. Op. Atty. Gen. No. 21-16 (Oct. 6, 2021) (noting that Tennessee law does not prohibit private employers from requiring their employees to be vaccinated). See 42 U.S.C. § 12112 (ADA interactive process). 29 C.F.R. § 1605.1. Courts have generally agreed with the EEOC that whether a religion is “traditional” or even “recognized” is not determinative as to whether Title VII’s protections apply. See, e.g., United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970); and Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 1:11-cv-00917, 2012 WL 6721098 (W.D. Ohio Dec. 27, 2012). https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-adarehabilitation-act-and-other-eeo-laws#K.12 (citing 29 C.F.R. 1605) (posted 12/16/20, updated 5/28/21) (emphasis added). For guidance in navigating requests for COVID accommodations, see, e.g., Robin Shea, “Vaccination accommodation: Is that religious request sincere?” including links to a number of downloadable religious exemption requests, available at https://www.constangy.com/employment-labor-insider/vaccinationaccommodation-is-that-religious-request-sincere (posted Sept. 3, 2021). See 42 U.S.C. § 2000e(j). See Small v. Memphis Light, Gas & Water, 952 F.3d 821, 826-29 (6th Cir. 2020) (Thapar, J., concurring).

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. November 2021

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BUILDING FOR THE FUTURE: ADVICE ON SUCCESSION PLANNING By: Eddy R. Smith Kennerly, Montgomery & Finley, P.C.

LIFE (AND YOUR PRACTICE) IS FRAGILE If the COVID-19 pandemic has taught us anything, it is that life is fragile. Most of us know of (and some knew intimately) someone who has died within the past 18 months, many of those folks under age 65. Lawyers are not immune to the fragility of life, and the tragedy of an early death creates additional problems when a lawyer dies without a sufficient succession plan. For lawyers with colleagues who can absorb clients and existing work, the worst outcome for those colleagues might be a several-month, unanticipated, significant increase in workload (think canceled vacation plans and missed kids’ activities). For solo and small firm attorneys, an unexpected death or disability can create a catastrophe for clients, the local bar, and the lawyer’s family. The stakes are high. What happens to clients and their critical legal matters? How will your practice continue, at least long enough to handle the transition? How is staff comforted, assisted and retained when a key lawyer/employer is suddenly out of the picture? How do you protect and provide for your family? Several KBA members have been called upon to close a law practice upon the death of a solo or small firm practitioner. Fiona Hill and Tom Ramsey closed the practice of colleague Jack Piper, who died suddenly in the office. Scott Hurley (with another attorney) was appointed by Judge Harold Wimberly to wind up a deceased attorney’s practice. All three were quite generous with their time to talk about their experiences, providing several principles and lessons for those in law practice. There is an “unbelievable” amount of work to close another attorney’s practice (for which serving attorneys likely will be paid nothing or significantly less than their hourly rates). The task is significantly harder when no other attorneys know the clients or the projects; the attorney does not keep detailed notes regarding the status of legal work; billing is allowed to fall behind, sometimes with significant amounts in the client trust account without sufficient explanation of the client’s and firm’s shares; and there are no staff members who know what the attorney knew. In short, the attorney kept too much in his head without written documentation and knowledge by key personnel. Scott was so impressed by the difficulties of his situation that he resolved to plan better for his practice. He created a law firm contingency plan, communicated the plan to staff and family, and rehearsed the plan with them. Such a plan should address notifying clients, courts, opposing counsel and co-counsel, the Board of Professional Responsibility, experts, vendors, insurance carriers (life, health, professional liability), and financial institutions; handling client files (transfers within the firm, if possible, and referrals to other counsel where necessary);

addressing pending deadlines (motions for stays, extensions of time and continuance); attending to law firm financial matters (billing statements to clients and prompt action on receivables and payables); and paying and retaining staff. As stated in prior articles and CLE programs, there are quality resources at your disposal. The KBA and ABA have significant online resources.1 The KBA’s “Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death” provides detailed step-by-step instructions addressing appointing another attorney as receiver to take control of your practice, naming an authorized signer to take control of your client trust account (an urgent matter to clients awaiting recoveries in the law firm’s possession), special considerations in the death of a solo practitioner, and answers to frequently asked questions regarding sensitive matters those closing your practice might encounter. The Guide provides checklists for your own succession planning, closing another attorney’s practice, closing your own office, and closing your trust accounts. The Guide also includes many sample agreements and document language, such as long-form and short-form agreements with another attorney to close your practice, advance consent to close your practice, a limited power of attorney to handle firm bank accounts and safe deposit boxes, a letter of understanding regarding a trusted person to keep the power of attorney until needed, notices to the Tennessee BPR of designated receiver/assisting attorney and authorized account signer, provisions for your will regarding closing your practice, letters to clients advising that you are unable to continue in practice or are closing your practice, a letter from your firm offering to continue representation, and forms regarding transfer of files. Leaving no stone unturned, the Guide provides a file tracking chart, a law office list of contacts and contracts, and primary and secondary sources regarding applicable ethics rules and best practices. You really have no excuse for failing to plan. Yes, it will take significant time. Of course, it will be unpleasant to think about. It might even lead to some difficult conversations and realizations. None of that changes the fact that it is necessary. Good lawyering often involves anticipating what could go wrong and planning to prevent or ameliorate bad outcomes. Let’s be good lawyers by planning for the closing of our practices to protect our clients, staff, colleagues and families.

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https://www.knoxbar.org/?pg=SuccessionPlanning; https://www.americanbar. org/groups/professional_responsibility/resources/lawyersintransition/ successionplanning/.

November 2021

L E G A L U P DAT E By: Ann Short The Bosch Law Firm

HIGH TECH, LOW TECH, AND PRIVACY RIGHTS Alison Taylor lived in Saginaw, Michigan and received several parking tickets from the City of Saginaw. Each time, Parking Enforcer Hoskins chalked the tire of Taylor’s vehicle several hours before issuing the ticket. Every ticket noted the time Taylor’s vehicle was first “marked” with chalk in the regulated area. Hoskins also documented the ticket with one or more photographs of the offending vehicle. Much aggrieved, Taylor instituted a 42 U.S.C. 1983 civil rights action against the City and the Parking Enforcer. In round one of this case, the district court held that the tire chalking did not violate Taylor’s Fourth Amendment rights. The Sixth Circuit disagreed and remanded for further proceedings.1 In round two, the district court granted summary judgment to defendants, ruling that tire chalking fell within an exception to the Fourth Amendment for administrative searches. In a unanimous decision, the Sixth Circuit again disagreed and remanded on August 25, 2021.2 So, what do we make of Taylor? Is it legal foolishness? Is it a constitutional anomaly? Is it sui generis, like a dog sniff ? Does anyone (except those who have received parking tickets based on tire chalking) really lose any sleep. If he were alive, Supreme Court Justice Scalia could answer these questions in person. Since he is no longer with us, what follows is my modest attempt to explain. I recall being struck at the time by three sentences Justice Scalia wrote in 1987 in Arizona v. Hicks,3: [T]he “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent -- serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable. Fast forward to 2012 and United States v. Jones.4 Federal agents (without a warrant) installed a GPS tracking device on the undercarriage of a vehicle registered to a suspected drug-trafficker’s wife while it was parked in a public lot. Over the next 28 days, the Government used the device to track the vehicle’s movements. The appellate court found that admission of the evidence obtained by “warrantless” use of the GPS device violated the Fourth Amendment. The U.S. Supreme Court, per Justice Scalia, determined that the Government’s installation of the GPS device, and its use of that device to monitor the vehicle’s movements, constituted a “search,” because under the common-law trespassory test, the Government physically occupied private property for the purpose of obtaining information. Such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Jones exposed a tension between a Fourth Amendment search based on the common-law trespassory test and the more recent legal formulation that a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable – the so-called Katz test.5 Justice Scalia did not view the two approaches as mutually exclusive. Katz’s reasonableNovember 2021

expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it. So, too, Justice Scalia pointed out that the Court was not deviating from the understanding that mere visual observation does not constitute a search and that a person “traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”6 If GPS tracking is regarded as “high tech,” tire chalking ranks as “low tech” along with old-fashioned police stakeouts. Being “low tech” does not, however, insulate law enforcement conduct from Fourth Amendment scrutiny. Touching and chalking a person’s vehicle constitutes a common-law trespass. Or does it? In Taylor I, the Sixth Circuit pointed out that Jones did not provide boundaries for the meaning of common-law trespass. The Sixth Circuit ended up resorting to the Restatement (Second) of Torts to conclude that tire chalking, “regardless of how slight, constitute[d] common-law trespass” and, therefore, a Fourth Amendment search.7 In Taylor II, and because Jones did not address the precise situation, the Sixth Circuit ruled that qualified immunity protected the parking enforcer because every reasonable parking officer would not have understood from Jones that suspicionless chalking of car tires violates the Fourth Amendment. At least in the Sixth Circuit, it is now settled for now that warrantless and suspicionless tire chalking does violate a person’s Fourth Amendment rights. And, at least for now in the Sixth Circuit, tire chalking does not fall within an exception to the Fourth Amendment for administrative searches. The United States Supreme Court may yet weigh in on the issue, as the Sixth Circuit denied a petition for rehearing on September 14, 2021, and the time to file a petition for writ of certiorari has not expired. Justice Scalia is no longer available to weigh in on the Fourth Amendment’s Katz’s reasonable-expectation-of-privacy test and the common-law trespassory test. Nor was he available when a bare 5-4 majority in 2018, in United States v. Carpenter, held that the government’s acquisition from wireless carriers of defendant’s historical cell-site location information (CSLI) was a search under the Fourth Amendment and invaded the defendant’s reasonable expectation of privacy in the whole of his physical movements, despite that the government obtained the information from a third party.8 Justice Gorsuch replaced Justice Scalia on the Supreme Court, and Justice Gorsuch dissented from the majority opinion in Carpenter. High tech, low tech, and privacy rights will continue to be finetuned by the courts. Reasonable expectations of privacy “may” continue to evolve in the digital age, but nothing is guaranteed. Justice Ginsburg voted with the majority in Carpenter. Justice Kennedy dissented in Carpenter. Justice Barrett, who replaced Justice Ginsburg, may hold the key whether Fourth Amendment privacy decisions, such as seen in Carpenter, prevail or are discarded. ³ 4 5 6 7 8 1 2

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Taylor v. City v. Saginaw (Taylor I), 922 F.3d 328 (6th Cir. 2019). Taylor v. City v. Saginaw (Taylor II), ___ F.4th ___ (6th Cir. 2021). 480 U.S. 321 (1987). 565 U.S. 400 (2012). Katz v. United States, 389 U.S. 347, 361 (1967). Jones, 565 U.S. at 412. See Taylor I, 922 F.3d at 332-33. Carpenter v. United States, 138 S. Ct. 2206, 2208 (2018).

THE U.S.SUPREME COURT’S SHADOW DOCKET “UN-REASONED, INCONSISTENT, AND IMPOSSIBLE TO DEFEND” OR A NECESSARY EMERGENCY PROCEDURE? It is rare for an order from the United States Supreme Court to make national news. But the Court’s one-paragraph order in Whole Woman’s Health v. Austin Reeve Jackson1 did just that. The order summarily denied an application to enjoin Texas’s abortion bill, Senate Bill 8.2 The unusual bill permits private citizens to sue anyone who provides or “aids or abets” an abortion in violation of the Act, regardless of whether they know the abortion is prohibited under the Act or even intends to engage in violative conduct. The bill provides for injunctions against such parties and allows courts to award private-citizen plaintiffs at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. The Act prohibits most abortions after six weeks of pregnancy (when most women do not even know they are pregnant) and makes no exceptions for incest or rape. Critics argue that Texas crafted the law to deliberately evade judicial review by making citizens, not the state, responsible for enforcement. This unique state legislation was helped along by the Supreme Court’s summary order procedure, which has come to be known as the “shadow docket.” The Shadow Docket The term “shadow docket” was coined by Professor William Baude in 2015 to describe the Court’s summary orders that issue without public briefing, argument, or written authored opinions.3 Traditionally, such orders are used to deny petitions for certiorari that do not meet the necessary high bar, to deny emergency petitions for relief that are not truly emergencies, or for housekeeping orders.4 They have also been used in death penalty cases, resolving requests for last-minute stays of execution that could not wait for the slow wheels of justice to turn for resolution.5 In his 2015 article, Baude expressed concern over this part of the Court’s operations, opining that these orders undermined transparency

and, in turn, tarnished the Court’s credibility. Baude assured his audience was that he was not making a normative judgment, only that the orders “raise questions of procedural regularity.”6 Baude noted that “procedural regularity begets substantive legitimacy,” with the Court’s procedural regularity is at its zenith with merits cases. These cases are announced in advance, have briefing and argument that can be accessed by the public, are determined under voting rules that are well known, and have results that are explained in reasoned written opinions that identify which justices agreed with what result and under what reasoning.7 Orders, he argued, have none of these things. As the Court is increasingly viewed as a partisan body rather than an impartial one whose “province and duty [is] to say what the law is,”8 this uptick in orders which have wideranging, real-world impacts out of public view has raised concern. Applications for summary relief have increased dramatically. Whereas the Department of Justice filed eight applications for emergency relief between 2001 and 2017, the Trump DOJ filed 41 emergency motions in its four years.9 And, as the numbers have grown, the nature of the relief moved closer to merits decisions on controversial social issues. Extra-judicial Action or Necessary Triage? Justice Kagan highlighted the troubling nature of the Court’s increased utilization of its “shadow docket in her particularly pointed dissent in Whole Women’s Health: Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. . . the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely

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November 2021

COVER STORY By: Maria V. Gillen

Attorney, Tennessee Valley Authority Office of the General Counsel

bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decision-making—which every day becomes more un-reasoned, inconsistent, and impossible to defend.10 Justice Sotomayor too bemoaned the short cuts—“The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”11 Chief Justice Roberts echoed these concerns, stating that he would have granted the application to preliminarily enjoin the bill to “preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”12 In so doing, he acknowledged the defendants’ argument regarding the procedural difficulties in taking such action in this particular case, but felt “the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.”13 Roberts highlighted the lack of the usual deliberative processes as a precaution against denying the petition: We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument. . . . I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims.14 Similar controversial summary orders of recent years have reshaped the legal landscape on high-profile matters like immigration enforcement, election rules, and public-health orders barring religious gatherings and evictions during the pandemic. For example, last year in an emergency petition in a case over a controversial immigration order from the Trump Administration, Justice Neil Gorsuch bemoaned the lack of procedural safeguards such rushed “emergency” orders present, while supporting the end result achieved by the Court’s order (allowing the immigration rule to stand): Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to November 2021

another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.15 Not all court watchers, or Supreme Court Justices, see these orders as anything other than business as usual. Instead, they separate the process from the underlying content of such orders to say they are a necessary part of the Court’s busy docket. During a recent speech at Notre Dame, Justice Alito attempted to tone down the rhetoric by referring to Baude’s “shadow docket” as “the emergency docket.”16 Alito compared such orders to the type of actions taken by emergency medical personnel at the scene of an accident. He said that the Court had often issued orders in such cases without substantial briefing or oral arguments because immediate action was needed. He noted that “[y]ou can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way.”17 Whatever one’s politics, legal practitioners should find common ground in ensuring that the careful, deliberative process of the Supreme Court’s appellate docket is preserved. The process is designed to ensure that issues and the legal arguments supporting or critiquing them are sufficiently honed such that this court of last resort has all the law and facts necessary to make a reasoned, legally sound ruling. The results of such controversial rulings will continue to be debated, but their legal underpinnings will be on firmer ground and not easily dismissed as “political” rulings from an increasingly partisan Court.

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Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021). S.B. 8, 87th Legislature (Tx. 2021) (enacted). William Baude, FOREWORD: THE SUPREME COURT’S SHADOW DOCKET, 9 N.Y.U. J. L. & Liberty 1 (2015). Miscellaneous Order List (9/30/2021), available at https://www.supremecourt.gov/ orders/courtorders/ 093021zr_c07d.pdf Order in a Pending Case, Rick A. Rhoades v. Martinez, 21A43, available at https:// www.supremecourt.gov/ orders/courtorders/093021zr_c07d.pdf Baude, 9 N.Y.U. J. L. & Liberty at *9. Id. at 9-10. Marbury v. Madison, 5 U.S. 137 (1803). Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket: Hearing Before the Senate Committee on the Judiciary, 9/29/2021 (testimony of Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law). Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021) (Kagan, J., dissenting). Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021) (Sotomayor, J., dissenting). Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021) (Roberts, C.J., dissenting). Id. Id. Dep’t of Homeland Security v. New York, 140 S.Ct. 599, 600 (Mem) (2020) (Gorsuch, J., concurring). Adam Liptak, Alito Responds to Critics of the Supreme Court’s ‘Shadow Docket,’ N.Y. Times, October 1, 2021, at A17. Id.

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November 2021

SCHOOLED IN ETHICS By: Alex B. Long

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

BAD BLOOD AND THE ATTORNEYCLIENT PRIVILEGE As I sit down to write this column, the government’s fraud case against Theranos founder, Elizabeth Holmes, enters its third week of trial. It will likely go on for several more. Holmes’ tale was told in the book Bad Blood by John Carreyrou. For anyone who has not read the book or any of the myriad news stories, documentaries, or podcasts about the case, you should do so. Immediately. It’s fascinating. But the short version is that Holmes, as a 19-year old wunderkind Stanford dropout, set out to revolutionize the blood-testing industry through her company Theranos. According to the government, Holmes, unable to crack the scientific code necessary to make good on her claims about Theranos’ revolutionary blood-testing procedures, “engaged in a multi-million dollar scheme” to defraud investors, doctors, and patients. From a legal ethics standpoint, the case raises numerous issues. But one of the more timely ones is an issue concerning the attorneyclient privilege as it applies to corporations, officers, and employees. Superstar lawyer David Boies and his Boies Schiller Flexner firm represented Theranos and Holmes in an intellectual property matter beginning in 2011. Boies eventually filed an action as counsel for both Theranos and Holmes in the matter. Thus began what Holmes calls a “unique relationship” between Boies and Holmes, which involved Boies advising Holmes and Theranos on a variety of matters over the years up until 2016. But there was never an engagement letter designating Holmes as a client of the firm or designating Boies as engaging in a dual representation of the two parties. Moreover, Boies stated in an interview that he did not represent Holmes individually. Nonetheless, Holmes claims that she reasonably believed that Boies’ representation was joint throughout the entire period and that he represented her as an individual in addition to representing Theranos. The reason why any of this matters is because the Department of Justice may end up using thirteen documents involving communications between Holmes, Theranos’ in-house counsel, and Boies Schiller Flexner attorneys during the fraud trial. In most instances, Holmes was the author of the communications and was seeking legal advice. Holmes argued that the communications were subject to the attorney-client privilege based on what she claimed was the firm’s dual representation of Theranos and Holmes. But in July, the trial court ruled that that the documents in question were subject to the corporate privilege but that Holmes could not personally assert the privilege. The judge noted that “[a] party asserting the attorney-client privilege has the burden of establishing [the existence of an attorney-client] relationship and the privileged nature of the communication.”1 Holmes argued that the court should apply a “subjective belief ” standard, under which an attorney-client relationship exists where the client’s belief that such a relationship existed was subjectively reasonable. Instead, the court held that the appropriate test to determine privilege issues involving corporate employees is the Bevill/Graf test, named for a pair of decisions from the Third and Ninth Circuits.2 Under this test, the party asserting individual privilege must satisfy each of the following factors to establish a joint representation: First, they must show they approached counsel for

the purpose of seeking legal advice. Second, they must demonstrate that when they approached counsel they made it clear that they were seeking legal advice in their individual rather than in their representative capacities. Third, they must demonstrate that the counsel saw fit to communicate with them in their individual capacities, knowing that a possible conflict could arise. Fourth, they must prove that their conversations with counsel were confidential. And fifth, they must show that the substance of their conversations with counsel did not concern matters within the company or the general affairs of the company.3 According to the court, Holmes could not establish a joint representation because she could not satisfy several of the elements of the Bevill/Graf test.4 Most notably, Holmes failed to establish that when she approached Boies and his firm for legal advice, she made it clear that she was seeking legal advice in her personal capacity. The court specifically pointed to the absence of any engagement letter and the absence of any evidence of financial records establishing that Holmes paid the firm from her own personal finances.5 In addition, the court observed that the communications concerned “general affairs of the company” as opposed to Holmes’ individual legal interests. Therefore, Holmes could also not satisfy the fifth requirement from Graf. As such, Holmes could not assert the attorney-client privilege. Holmes’ situation should serve as a cautionary tale for lawyers who represent corporate entities and, possibly, their employees. While the Sixth Circuit Court of Appeals has not expressly adopted the Bevill/Graf test in this context, it has cited Bevill with approval and noted that many federal courts have adopted the test. Moreover, consistent with Bevill’s first element, the court has stated that a corporate officer seeking a personal privilege must “clearly announce a desire for individual advice.”6 The Tennessee Supreme Court has likewise cited Bevill and Graf with approval in a 2019 decision involving a related question.7 Thus, it seems likely that if confronted directly with the question of the applicable test where a corporate employee claims an individual privilege, both courts would adopt the Bevill/Graf test. Holmes’ case also serves as a reminder to corporate lawyers of the need to clarify the scope of representation at the outset of representation and to remind corporate employees throughout the representation of the fact that, unless otherwise agreed to, the lawyer represents the corporation, not the individual employee. As such, the privilege belongs to the corporation.

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3 4

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United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009). In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 05 F.2d 120, 124 (3d Cir.1986); U.S. v. Graf, 610 F.3d 1148 (9th Cir. 2010). Graf, 610 F.3d at 1160. United States v. Holmes, Case No. 18-cr-00258-EJD-1 (NC), 2021 WL 2309980, *3 (N.D. Cal. June 3, 2021). Id. Ross v. City of Memphis, 423 F.3d 596, 605 (6th Cir.2005). Dialysis Clinic, Inc. v. Medley, 567 S.W.3d 314 (Tenn. 2019).

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. November 2021

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barrister bullets BARRISTERS NOVEMBER MONTHLY MEETING Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. The November Barristers Monthly Meeting will be held on November 10, 2021 at 5 p.m. at the Firefly, the outdoor patio of the Hilton Knoxville. Networking will begin at 5:00 p.m., and committee reports will begin at 5:15 p.m. To attend, register for the meeting at www.knoxbar.org. KNOXVILLE BARRISTERS SEEK NOMINATIONS FOR OFFICERS The Barristers are seeking nominations for the following Officer positions for 2022: Vice President; Secretary/Treasurer; and (2) AtLarge Executive Committee Seats. If you are interested in running for an Officer position or want to nominate someone, please notify Chandler Fletcher, KBA Programs & Communications Coordinator, at cfletcher@ knoxbar.org or 865-522-6522 by Monday, November 1. The person elected Vice-President in December will automatically become the Barristers President for the 2023 bar year. Candidates must be current KBA members. The Knoxville Barristers Holiday Party and Elections will be held on December 8, 2021 at 5 p.m. at the Firefly, the outdoor patio of the Hilton Knoxville.

in the outdoor courtyard at The Press Room, located at 730 N. Broadway, Knoxville, Tennessee 37917. Experienced attorneys, law students, and recent Tennessee Bar admittees are encouraged to attend this informal meet and greet event. We hope attorneys will share words or wisdom with the new admittees and warmly welcome them to the local legal community. Light hors d’oeuvres and drink tickets will be provided to all KBA members. RSVP at www.knoxbar.org by clicking November 9 in the event calendar. SECOND HARVEST FOOD & FUND DRIVE BEGINS NOVEMBER 8

BARRISTERS ANNUAL COAT DRIVE ENDS NOVEMBER 5 The Knoxville Barristers Annual Coat Drive will end on November 5. The Knoxville Barristers have partnered with Knox Areas Rescue Ministries with the goal of collecting thousands of coats for those in need in our area. Coats will be donated to KARM’s Coats for the Cold Program. The Knoxville Barristers Hunger & Poverty Relief Committee is asking for gently used men’s and women’s items, including but not limited to: coats, jackets, parkas, dusters, rain coats, and trench coats. Drop-off locations for the coat drive include: First Horizon Plaza, BB&T Building (Riverview Tower), U.S. Federal Courthouse, UT College of Law Registrar’s Office, City County Building (3rd & 6th floor), Baker Donelson, LMU Duncan School of Law Admissions Office, and the Bank of America Building Lobby. 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 November Veterans Legal Clinic will be held in-person at the Knoxville Community Law Office on November 10, 2021 from 12 p.m. until 2 p.m. VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS The Knoxville Barristers Volunteer Breakfast Committee is now able to prepare and serve breakfast again at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee at 6:15 a.m. on the fourth Thursday of every month. Please contact either Mitchell Panter at (865) 546-4646 or Matt Knable at (865) 360-5044 with any questions and/or about volunteering. WELCOME RECEPTION FOR NEW ADMITTEES The Knoxville Barristers Membership Committee will be hosting a New Admittees Reception on November 9, 2021 from 5:30 p.m. until 7 p.m.

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CALL THE KBA AT 522-6522 BY NOVEMBER 5 TO REGISTER November 2021

B O AT B U I L D E R S By: Melissa B. Carrasco

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

DETERMINATION OF APPEARANCE Charles Swan Benton was a lawyer in Little Falls, New York.1 Correction: he was the lawyer of Little Falls, New York, a tiny town about seventy-five miles east of Syracuse. Like many lawyers practicing in a small town, Mr. Benton wore a lot of hats. He was a Colonel of the New York State militia, was the clerk of the New York Court of Appeals, and eventually was elected for two terms to the U.S. House of Representatives.2 He also had a side hustle as the founder, publisher and editor of the local newspaper: the Mohawk Courier & Little Falls Gazette.3 And, that may be precisely the reason why his son did what he did. Young Linn Boyd Benton (they called him Boyd) lost his mother when he was only three years old.4 A few years after that, Mr. Benton moved Boyd and his brother Charles to Milwaukee, Wisconsin, and Benton bought a 1/3rd interest in the Milwaukee News and became its editor.5 In fact, it was at the young age of 11 that Boyd had his first experience with typography in the composing room of Benton’s newspaper, and young Boyd was hooked.6 ****

“Typography” the design or selection of letter forms to be organized into words and sentences to be disposed of in blocks of type as printing upon a page. . . . The word typograph without modifier usually denotes the activities and concerns of those most involved in and concerned with the determination of the appearance of the printed page.7

**** “Typographer” –this is a term that perfectly describes Boyd. He honed his art cutting letters onto tombstones (hence the phrase “set in stone”) and got his foot in the door at the age of 22 when he got a job as a bookkeeper for a Milwaukee type foundry—the sort of place where the metal type used in printing was cast and produced.8 When the financial markets crashed in 1873, Boyd saw the typing on the wall and bought the Western Type Foundry, and Benton Waldo & Company was launched.9 That was when Boyd, the typographer, got to work and invented two things that have revolutionized the legal field to this day. Until the 1880s, magazines, newspapers, and other publications had a real problem. There was no such thing as standardized type. Publications basically were held hostage by the type foundries because each type foundry turned out its own type (no pun intended) of font, size, width, etc. So, if a publication liked the look of a particular type of font, it had to do business with the foundry that made it.10 That was great for type foundries and bad for the mass publication process, but that was about to change. In 1886, the United States Type Founders Association adopted the American System of Interchangeable Type Bodies, which officially standardized a method for measuring type.11 By adopting the “pica and point” system, publishers everywhere could specify exactly how big or how wide each character should be. This standardized the characters themselves, but what about the spaces between the characters and the words? Honestly, how could anyone comply with the Tennessee Supreme Court’s requirement that all Appellate Briefs that are electronically filed be fully justified?12 At the time, if you wanted to justify a line of type, the printer had to carefully, and manually arrange each and every individual character and spacers using trial and error to space them out evenly across the line of type.13 That took a long time . . . a really long time. Considering the fact that newspapers require justification for each and every column, this was November 2021

killing the publishers’ efficiency rates. Boyd wasn’t having it. In 1883, he received US Patent 290,201 for Self Spacing Type. The publishing industry never looked back, and we are still using the computerized version of Boyd’s invention to this day. But, Boyd made one more, significant contribution to the legal field. In 1895, his friend Theodore Lowe DeVinne made a request. Mr. DeVinne was the publisher of The Century, a magazine that was published—you guessed it—at the end of the 19th century.14 Mr. DeVinne wanted something special for his magazine, so he commissioned Boyd to create a new typeface to replace the current fonts which, when reduced in size for the magazine, were very difficult to read.15 Boyd got to work and the first of the Century typeface family was used in publication in 1895.16 With heavier hairlines and an increased height, Century was easier to read when it was reduced to a smaller size. It also had less space between the characters, which meant you could put more characters on a line—precisely what a magazine would need.17 In 1975, forty-three years after Boyd passed away, the Century typeface was formally recognized by the International Typeface Corporation.18 If that was not enough of an honor, consider the fact that Boyd’s typeface is the only one acceptable to the United States Supreme Court. Look it up. Rule 33(b) is quite clear that only fonts in the Century family are acceptable.19 The same goes for the Tennessee Supreme Court and Court of Appeals, if you plan to file electronically.20 However, you should note that the rule for paper-filed briefs still calls for Times New Roman, 12 point font, so just keep that in mind.21 These are details. . . tiny details, but these details were Boyd’s world. And, Boyd’s meticulous attention to detail and devotion to the art of the printed letter changed your world and mine to this very day. That is the essence of a boat builder—someone who changes the world by simply doing her or his job each and every day.

Multimediaman, Linn Boyd Benton: 1844-1932, available at https://multimediaman. blog/2014/09/20/linn-boyd-benton-1844-1932, last visited Oct. 9, 2021. U.S. House of Representatives, History Art & Archives, BENTON, Charles Swan, available at https://history.house.gov/People/Listing/B/BENTON,-Charles-Swan(B000394)/#biography, last visited Oct. 9, 2021; see also Proceedings of the State Bar Association of Wisconsin, vol. 3, 260 (1901), available at https://books.google. com/books?id=3nRMAQAAMAAJ&pg=PA206&lpg=PA206&dq =charles+swan+benton+milwaukee+news&source=bl&ots=YdHQ_0QxWw&sig =ACfU3U2htcD3w79cvFEbcOD3kXg-TgwEsA&hl=en&sa=X&ved=2ahUKEwjV5L7 z1L7zAhV8kmoFHfWXAFMQ6AF6BAgeEAM#v=onepage&q=charles%20swan%20 benton%20milwaukee%20news&f=false. 3 Id.; see also Library of Congress, Mohawk Courier, and Little Falls Gazette 18321834, available at https://www.loc.gov/item/sn84031847/, last visited Oct. 9, 2021. 4 Multimediaman, supra n.1. 5 Id.; see also Proceedings of the State Bar Association of Wisconsin, supra n. 2 at 260. 6 Id. 7 Encyclopedia Britanica, Typography, https://www.britannica.com/technology/ typography, last visited Oct. 9, 2021. 8 Multimediaman, supra n. 1. 9 Id. 10 Id. 11 Id. 12 See Tenn. S. Ct. R. 46 § 3.02. 13 Multimediaman, supra n. 1 14 ITC, ITC Century, https://www.fonts.com/font/itc/itc-century/story, last visited Oct. 10, 2021. 15 Id. 16 Id. 17 Id. 18 Id. 19 See U.S. S. Ct. R. 33(b). 20 See Tenn. S. Ct. R. 46. 21 See Tenn. R. App. P. 30. 1

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OF LOCAL LORE AND LAWYERS By: Joe Jarret Attorney, University of Tennessee

FOR THE LOVE OF OTTO “Dogs do speak, but only to those who know how to listen.”

– Orhan Pamuk

As Veterans Day approaches, I thought I’d share a bit of the lighter side of military life. I first met Mike during my first deployment to Germany, compliments of the United States Army. Mike was an Army attorney with the Judge Advocate General Corps, and I was an armored cavalry officer. We were stationed along the border that separated communist East Germany from West Germany. 1 Mike was the kind of guy who would actually volunteer to go on patrol with my troops and me, suffering the same dangers, inhospitable weather, lack of sleep, and hot food. We both loved Germany, its people and its culture, and he was one of my inspirations to eventually attend law school. After my tour in Germany was over, it was back to Ft. Knox, Kentucky, for advanced training. You can imagine my delight when one day while walking across post, I espied Mike about to get into a car. I ran up to him, and we engaged in the usual handshaking and back-slapping comrades in arms put one another through after not seeing one another for a couple of years. This was the era before email, the internet, and social media, so keeping up with your friends was no mean feat. After we caught each other up, Mike announced that he was “off to get a dog.” He was going to the local animal shelter to adopt a pup, and I decided to tag along. When we arrived at the shelter, we were greeted by three very eager and cheerful young women, who, in unison, asked, “May we help you?” Mike, not one to stand on ceremony, asked in his usual direct manner, “Who is your biggest, most unadoptable dog?” Without hesitation and once again speaking in unison, the women emphatically replied, “Otto!” “Take me to him,” Mike ordered. When we reached Otto’s kennel, Mike and I immediately knew that the large black and brown dog sitting there was a Rottweiler, a breed with which we both became familiar while stationed in Germany. Mike opened the kennel, knelt and said, in a gentle voice, “Hey boy. Come here, boy.” No response. One of the women spoke up and said, “He’s been like that since he’s been here. He won’t eat; he hardly drinks his water; he just sits there with his head down. We know he’s sweet, but he’s just so sad.” “What’s his story?” Mike asked. The spokesperson

continued. “His owner had to go to a nursing home, so his daughter surrendered Otto to us. She told us her dad used to be a high school German teacher and was a widower, so he and Otto lived alone.” Mike then turned to me with the same glint I’d seen in his eyes on the eve of a trial and said, “I wonder?” He again bent down and this time said to the forlorn pup, “Hier kommen Otto!” It was as if the proverbial switch had been thrown. Otto exploded from the back of the kennel and barreled into Mike, knocking him over. He then began barking, whimpering, and lavishly licking Mike’s face. Mike then turned to the gawking shelter workers (I was doing a bit of gawking myself ) and commanded, “Get him something to eat.” They immediately complied and returned with a large bowl of dog chow. Mike knelt down, stroked Otto’s massive head, placed the bowl in front of him and said, “Bitte essen Sie etwas Otto” (please eat something), and eat he did. This accomplishment caused all three of our hosts to burst into tears and me to get a little misty-eyed. After Otto devoured his dinner, Mike announced he was taking Otto home. And that was that. Immediately, the two of them became inseparable. So began what Mike describes to this day as a “Nine-year love affair.” 2 When Mike and I first reconnected, he mentioned that he was dating a woman in the Army Medical Corps and that he was looking forward to the three of us having dinner sometime. I had to leave for a training exercise in another state, and upon my return two months later, I asked Mike when I was going to meet his lady friend. “We broke up” he said, matter-of-factly. “Wow,” I responded, “What happened?” “She didn’t like Otto,” came the reply. And that was that. A year after adopting Otto, Mike was offered a career-making assignment in South Korea. When he learned he couldn’t bring Otto, he resigned his commission, returned to his native Michigan, and began practicing municipal law. Several years later, he called and announced that he was getting married. “What’s she like?” I asked. “She loves Otto,” he said. And that was that!

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In 1990, Germany once again became a unified country, and the border between East and West was removed, thus creating one unified German state. Otto was loved for the next nine years of his life. He died, peacefully in his sleep at age 12, with Mike at his side.

November 2021

GRAMMAR GRINCH By: Sarah M. Booher Garza Law Firm

STRONG EMOTIONAL INTELLIGENCE MAKES US BETTER LAWYERS Lawyers are great at many things. When it comes to research, attention to detail, mental recall, and analytical skills, we’re top notch. Where we don’t necessarily excel is in Emotional Intelligence, also known as EI. THE EMOTIONAL INTELLIGENCE STRUGGLE FOR LAWYERS EI is the ability for each of us to recognize, understand, and manage our own emotions as well as the ability to recognize, understand, manage, and influence the emotions of others. In other words, EI helps us in four primary ways: self-awareness, self-management, social awareness, and relationship management. Unfortunately, our struggle with fostering good EI within ourselves begins long before we become practicing lawyers. As young people, those who are inclined to venture into the legal field already place a high value on academics, dominance, and leadership.1 Yet, empirical evidence indicates that the legal field has an inherent bias against EI awareness. Studies have shown that the LSAT places a preference on applicants who suffer from mild depression.2 As fully practicing lawyers, we prioritize thinking and suppress feeling to the point that the two become mutually-exclusive in our minds. Don’t believe me? Let’s look closer. The general public ranks in the 50th percentile in skepticism, sense of urgency, and resilience. On the other hand, lawyers average in the 90th percentile for skepticism, in the low 70s for a sense of urgency, and 20 points lower than the general public when it comes to resiliency.3 This means, as a group, we have difficulty navigating situations that require trust and collaboration, we rush critical relationships which then causes tension. Moreover, we are more sensitive to our own mistakes and failures. EMOTIONAL INTELLIGENCE BENEFITS IN OUR LIVES AND IN OUR WORK For attorneys who have a naturally-developed EI or who put in the effort to increase their EI, the payoff can be huge in a variety of ways. Sometimes, the little things mean the most. For example, when we have strong self-awareness, we can recognize our own bad days and how our emotions are impacting our work – and process that without blowing up at support staff for being out of our favorite K-cups, the printer being out of toner, or our spotty internet service. For those of us focused on earning a good living, there’s good news there, too. Partners who scored higher in EI-related competencies also earned higher in revenue and gross margin. Employees who feel valued remain at a firm longer, lowering recruitment and training costs. Additionally, the capacity to hone in on the strengths of team members yields greater productivity and happier evaluations. But for younger attorneys who don’t necessarily think more money solves more problems, good EI skills still win the day, because they make bosses and teams put more emphasis on manners, personal attention, and more enjoyable business culture. Perhaps the best news for all of us is that emotionally intelligent lawyers are better communicators, in both the written and spoken word. Not only does this make us more effective at our jobs, it decreases our professional liability and exposure. Poor communication is the number one reason for disciplinary and malpractice claims in the United States.4 Clients respond to warmth and competence, in that order!5 What’s more, attorneys with good EI can anticipate and read emotional reactions in those around them before the conflict starts, and when we communicate November 2021

optimism, flexibility, and recognition of other human beings around us, we create the resilience we need for long term professional success and personal happiness. HOW WE CAN BETTER DEVELOP OUR EMOTIONAL INTELLIGENCE 1. Don’t take my word for it. Read about it. There’s the seminal 1996 bestseller from Daniel Goleman called Emotional Intelligence. More recently and specifically, publications like Herding Cats: The Lawyer Personality Revealed by Dr. Larry Richard, Evolutionary Road by Jordan Furlong, and Beyond Smart: Lawyering with Emotional Intelligence by Ronda Muir have all done deeper dives into how lawyers are affected by good EI. 2. Watch muted movies or television shows and see if you can follow the plot by reading emotional cues.6 3. On a regular basis of your choosing, assess what you’re feeling. Doing so with frequency will help you build your emotional vocabulary and expand your awareness. There are also apps for that. 4. Start at the top of your firm and work your way down. Often leadership is less-emotionally intelligent than its charges and chosen for reasons other than leadership qualities (such as seniority or professional connections).7 5. Actively seek feedback and carefully listen to the speaker and their words. Or, find a buddy strong in EI who can provide feedback on your reads of emotional conversations or situations. 6. Learn to monitor your and/or your firm’s “pulse” before and after major changes. Managing to identify, anticipate, and mitigate expected negative reactions before a change occurs creates opportunities for better risk management, decision-making, and succession planning, all of which create competitive advantages.8

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Polly Botsford, Why lawyers need to be taught more about emotional intelligence, international bar association, available at https://www.ibanet.org/article/bc769d24a76e-447a-aff1-fd92903bbd60. How emotional intelligence makes you a better lawyer, american bar association, Oct. 2017, available at https://www.americanbar.org/news/abanews/publications/ youraba/2017/october-2017/how-successful-lawyers-use-emotional-intelligenceto-their-advan/. Gina Alexandris, Emotional Intelligence and Lawyers—an Old New Frontier, law practice today, Oct. 12, 2018, available at https://www.lawpracticetoday.org/article/ emotional-intelligence-lawyers/. See How emotional intelligence makes you a better lawyer, supra note 1. Ronda Muir, What Good is Emotional Intelligence in Law Management?, american bar association, Oct. 22, 2018, available at https://businesslawtoday.org/2018/10/goodemotional-intelligence-law-management/. See How emotional intelligence makes you a better lawyer, supra note 1. Id. Marissa Vessels, Emotional Intelligence: A Critical Skill for Lawyers, meruscase blog, May 19, 2015, available at https://blog.meruscase.com/emotional-intelligence-acritical-skill-for-lawyers.

WELL READ By: Sherri D. Alley, J.D. Pinnacle Financial Partners

BETWEEN THE WORLD AND ME, BY TA-NEHISI COATES I believe that the key to understanding race and racism in the United States must begin with empathy. Particularly for those of us “who believe themselves to be white,”1 we must suspend what we think we know from our experience of American life and attempt to see and feel the world entirely through the eyes and experience of a person whom we would identify as being of another race. To do so honestly, we must discard any skepticism or inclination to doubt and wholeheartedly embrace the validity and credibility of other person’s point of view, just as we would for the main character in any moving novel or blockbuster movie. This exercise typically cannot and should not be attempted within the context of a personal relationship; the costs and risk of injury (even if unintentional) are simply too great. Instead, we must educate ourselves. Toward that end, I propose Between the World and Me, by Ta-Nehisi Coates, is a necessary part of one’s personal curriculum.2 In this #1 New York Times Bestseller, Ta-Nehisi Coates lends readers his eyes as he writes a poignant letter to his adolescent son about what it means to be a black American male. His style is both eloquent and deeply emotional as he recounts and reflects on his experience of American life in various stages as dark-skinned adolescent, college student, new father, American tourist abroad, and father of a teenaged dark-skinned American boy. The vignettes Coates shares in this work vividly portray the feelings of internal conflict, powerlessness, sense of belonging, and thirst for knowledge that mark his life story. I suspect it was this emotionally evocative writing style that propelled Between the World and Me to win the 2015 National Book Award, become a Pulitzer Prize Finalist, and be labeled “required reading” by celebrated author Toni Morrison. The title, Between the World and Me, is borrowed from Richard Wright’s 1957 poem about a lynching and reflects how race is an omnipresent lens for black Americans, constantly interposing itself on one’s experience of life in American society with both visceral and physical effects. Coates first points out that the concept of race was a invented by people with power, aimed at categorizing people by “hue and hair” for the purpose of maintaining a power hierarchy through cruel acts “meant, first and foremost, to deny [black people] the right to secure and govern [their] own bodies.”3 Thus begins theme that emerges throughout: “Race” has no biological basis, but throughout the entire history of America and into the present, racism entirely delineates the relative value of black bodies in America, thereby indelibly shaping black minds, behaviors, and lives. Coates’s goal for his son is clear: “My work is to give you what I know of my own particular path while allowing you to walk your own. You can no more be black like I am black than I could be black like your grandfather was. And still, I maintain that even for a cosmopolitan boy like you, there is something to be found there—a base, even in these modern times, a port in the American storm.”4 And so, through deeply personal narratives, Coates examines his life and its lessons: the violence and fear of his youth; his euphoric sense of belonging and the breadth of black culture at Howard University; and self-taught knowledge gained

through voracious reading, writing and questioning. Because these narratives are written for the purpose of guiding his son into wisdom, they are intimate and unvarnished, allowing readers a precious and rare glimpse into precisely how the experience of growing up as a black American can be vastly different than for many white Americans. Between the World and Me also masterfully illustrates, as the title suggests, Coates’s perpetual sense of separateness or distance or “otherness” in relation to American society at large, which I understand is shared by many black Americans. White Americans often struggle to understand this feeling, precisely because American society does not interact with us in the same manner as it does black people and many of us have the luxury of refusing to consider any perspective beyond our own experience. Describing suburban white Americans as if they exist in the perpetual dreamscape of a “most gorgeous dream,” Coates writes, “I have seen that dream all my life. It is perfect houses with nice lawns. It is Memorial Day cookouts, block associations, and driveways. The Dream is treehouses and the Cub Scouts. The Dream smells like peppermint but tastes like strawberry shortcake. And for so long I have wanted to escape into the Dream, to fold my country over my head like a blanket.”5 Coates, who is atheist, concludes his work by expressing his mixed emotions of fear and hope for the future “because [the Dreamers] must ultimately stop themselves.”6 As a Christian, I am more hopeful and implore every American to read this book and attempt to understand through Coates’s eyes, especially those who wonder why race is “such a big deal” or who care to improve themselves and America.

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In order to emphasize the fact that racial classifications have no basis in biology, but rather exist as a social construct with fluid definitions, Ta-Nehisi Coates often refers to people typically thought of as “white people” as “people who believe themselves to be white.” For the sake of brevity, this article will hereafter use the terms “black” and “white” as they are typically used in modern American parlance, but I mean neither disrespect to nor disagreement with the phrasing Coates uses or its purpose. For those who have little time or inclination to read it in print, Between the World and Me, is available in audio format on both Audible and Apple Books. On both platforms, the work is read by the author himself, which may be even better than the print version! Ta-Nehisi Coates, Between the World and Me, 6-8 (2015). Id. at 39. Id. at 11. Id. at 151.

November 2021

BARRISTER BITES By: Angelia Morie Nystrom

The University of Tennessee

TOASTED ALMONDS, FIRE AND DOUBLE OVENS My mom always said, “Be careful what you wish for.” In the last Barrister Bites, I lamented the fact that, for 20 years, I was met every night with one question: “What are you making for dinner?” I was so proud that Trace not only accepted a job in the snack bar at the Knoxville Racquet Club (where he expertly made burgers, salads, quesadillas, and other fast-food delicacies) but that he also was often cooking dinner for the family. Hugh apparently read the column (or someone spilled the beans about it) and wanted in on the action. On the Sunday night before the GKAISA City Championship Swim Meet (which included 2,000 swimmers and of which I was in charge), Hugh decided that HE was going to prepare dinner. He found some sort of baked chicken dish and broccoli salad on the internet and decided that would be the evening’s fare. I was busy and hungry, so I was thrilled. Unbeknownst to me, the broccoli salad required toasted almonds. Hugh put them in a roasting pan on broil and continued to work on the other items. During that time, he received a phone call. If you know Hugh well, you know that he can be hyper-focused but that he can be easily distracted by things like telephone calls. He took the call outside (so as not to bother me). This meant that he forgot about the almonds. When Hugh realized that he had forgot about the toasting almonds, he ran back into the kitchen. In case you did not know, almonds combust. I was upstairs and did not realize anything was wrong until I heard the fire alarm going “FIRE. FIRE.” And Hugh shouting expletives, which I will not publish. Apparently, when Hugh opened the oven door, flames shot out. I heard the commotion and ran down the stairs when I heard Hugh yell, “Trace, get the fire extinguisher!!” They were able to extinguish the flames, but the controls on the oven were melted, and soot and fire extinguisher foam covered our kitchen. Hugh was surprised that I was not mad. I had wanted a husband that cooks… and he was trying. And I got something else that I had wanted: new double ovens. When we moved into our house and remodeled our kitchen in 2005, I wanted double ovens. However, the appliance salesman told me that would be wasteful in a family of 3 and that I would be better served with a wall oven and a convection microwave. He was wrong. I have always regretted not getting double ovens. I love to cook, and I love to entertain. November 2021

There have been multiple instances in which two ovens would have made things so much easier. After the Great Fire Fiasco, we headed to Friedman’s to look at appliances. There were lots of really nice ones, but I had my eyes on what had eluded me 16 years ago. Although it took almost a month (and lots of eating out), I got my double ovens… Wolf M-Series ovens with red knobs that match my kitchen! When they arrived, I read over the Owner’s Manual with the same attention to detail that I use when reading the Internal Revenue Code. The ovens also came with a cookbook that featured dishes made using all 10 cooking settings. I knew that I needed to try one of them as the first meal. I chose Pork Tenderloin and Roasted Cauliflower, which was prepared on convection mode. With convection mode, I had the benefit of cooking both dishes at the same time so that the whole meal came out of the oven together. This recipe also benefitted from the oven not needing to be preheated, which meant that we had food that much sooner. To prepare, I placed a 1 lb pork tenderloin on a large plate and patted it dry with a paper towel. I then combined 2 tsp chopped fresh rosemary, 2 tsp chopped fresh thyme, 1 tsp freshly ground pepper, 1 clove of chopped garlic and 2 TBS olive oil in a small bowl and then rubbed it on the tenderloin. The tenderloin was placed on a baking tray and set aside. I then broke 1 lb cauliflower into florets and halved them. I tossed the cauliflower with 1 TBS olive oil and ½ tsp kosher salt and placed it on a baking sheet lined with parchment paper. I set the oven on convection at 400° and placed both dishes in the oven. When the pork reached an internal temperature of 160°, I removed both dishes from the oven, allowed the pork to rest for 5 minutes and then served both dishes together. They were amazing. Since we had the ovens installed, my grocery bill has increased, and my dining-out bill has gone down considerably. I cook something in those ovens almost every night. And the food just tastes better. My mom was right. You do need to be careful what you wish for. I wished for a husband that would cook and ended up with a kitchen fire. But I also wished for double ovens—which I now have. It’s safe to say that I no longer wish for a husband that cooks.

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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

WE FLIPPED FOR THE SAMSUNG GALAXY Z FLIP 3 phone function is activated automatically.

We remember the exciting “pioneer” days of tech. Back in the mid-to-late 1990s, Microsoft was hawking a revolutionary new PC platform called Windows 95; Amazon and Google were startups; and we were the coolest kids in the office with our new flip phones (the legendary Motorola StarTAC). Some things never change. Fast forward to the 2020s, and Microsoft is hawking a new PC platform called Windows 11; Amazon and Google resemble startup nation states; and we are still the coolest kids in the office with our new flip smartphone (the shiny new Galaxy Z Flip 3).

Unlike the nostalgic flip phones of old, you really can’t “unflip” the phone with a simple flick of the wrist (darn it…that always looked so cool). The phone is rigid enough that it takes two hands to unfold it. Once unfolded, you get the full 6.5” x 2.8” screen to work with. There is a crease in the glass right in the middle where the phone folds. At first, this crease is very noticeable and maybe a little distracting. The more we used the phone, however, the crease just sort of faded from our focus.

Yes, we recently purchased Samsung’s modern-day equivalent of those ultra-cool flip phones from a quarter century ago. The Galaxy Z Flip 3 was announced in August of 2021, representing the third generation of Samsung’s efforts to market a foldable phone. The Z Flip’s cousin, the Galaxy Z Fold 3 was also introduced at the same time. Both unique phones feature a special type of flexible glass that allows the device to actually fold in half. The Z Fold 3 folds horizontally and the Z Flip 3 folds vertically. While the bendable glass of the Z Flip 3 phone makes it seem like a novelty, it actually is a really good Android-based smartphone. Aside from all the unique features, we found the phone to be comparable to a Galaxy S21 phone except for a slightly less robust battery life. When unfolded, the phone display is vivid and tall (taller than the iPhone 12 Pro Max or the Galaxy S21). The phone has both facial recognition and fingerprint unlocking options. We especially like the fingerprint sensor being located on the side of the phone as opposed to on screen or on the back of the phone near the cameras. The phone has two rear cameras and one front-facing camera, which is fine for our purposes but is less than the three rear camera configuration found on the latest iPhone and Galaxy S models. And, of course, the Z Flip 3 is 5G-enabled. While the phone compares favorably to top-of-the-line iPhones and Galaxy S models; the bendable glass is what makes it shine. You can literally fold the phone in half to a compact 2.8-inch by 3.4-inch form factor that fits nicely in your pocket. Samsung has included a small cover screen on the reverse side of the phone so that you can see the date, time, and other notifications while the phone is folded. You can even answer calls directly from this screen without unfolding the phone; and the speaker

If you leave the Z Flip 3 flat, you use it just like any other smartphone with a giant display. However, when you bend the display at a 90-degree angle, you can set it up on a desk and watch a video or participate in a video call hands free. This “desktop” configuration is what we love the most about the Z Flip 3. It is especially handy when travelling. You can even configure one app to show in the top half of the display and another app in the bottom half. Or you can take advantage of the natural split in the display to use a single app in the dual-screen mode. If you are into selfies (we have been advised to refrain from selfies), you will love the ability to sit the phone up in “desktop” mode and shoot selfies from the more powerful rear cameras hands free. Your selfies never looked so good. Maybe we’ll try shooting some ourselves. More useful to us than the hands-free selfie capability is the ability to shoot a hands-free video while the phone is stationary in ‘desktop” mode. No more shaky-hand problems for our videos when we are capturing an important lecture at a conference. There are many things to love about our new Galaxy Z Flip 3. The price is not one of them. It is priced at a premium, although the price point has gotten lower from the previous foldables from Samsung. Phone retailers are, however, offering good incentives on trade-ins; so, we took advantage by trading in an older Galaxy S10 phone and got a nice rebate. We probably would not pay full price for the Z Flip 3 (although it is tempting); but given the rebate incentives offered, we jumped at the opportunity to pocket our first flip phone since 1998; and we love it!

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November 2021

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

WE THE PEOPLE My mother is dying. It’s sad, but not tragic. She’s eighty-eight years old. She’s had a long and happy life. No, strike that. It is tragic. It’s tragic because her final two years, which should have been filled with family and friends and good times, were isolated and lonely. She had the bad luck, you see, of nearing the end of her natural life during the COVID-19 pandemic. Before vaccines were available, my siblings and I mostly stayed away from Mom for fear of infecting her. My sister (God bless her) bore the burden of caregiving virtually alone. Even after we were all fully vaccinated, we had to be extra cautious. We could still have been carrying deadly viral loads. None of us wanted to be the disease vector that killed her. So she has spent the last years of her life stuck at home, mostly by herself. That’s tough for anyone, but especially, I think, for my mother. She has never liked being alone. She is happiest in a crowded house, talking and arguing and playing Scrabble, or cards, or Trivial Pursuit. She could never understand why my late father would occasionally carve out a few hours of solitude. When Dad would go to his basement study and close the door, she would follow him, interrupt him, pester him with trivialities. She would complain to me: “Your father is down there again, counting his money.” Well, Dad was a CPA. He probably was counting his money, at least sometimes. And thank God for it. He did very well by her, by all of us. But that was beside the point. How could anyone want to be alone? To Mom, life is about relationships, about people, about company. Earlier this year, she, and I, and millions of Americans, got our shots and rejoiced at the imminent return of normal life. Soon, we could hug one another without fear. Life would be good again. We did not anticipate that millions of our fellow citizens would decline the opportunity to be vaccinated. And so the pandemic rages on. The Delta variant kills tens of thousands, hundreds of thousands more Americans, day by day, week by week, especially in states that refuse to recognize the seriousness of the pandemic, that actually prohibit commonsense measures to protect their own citizens. And COVID kills untold millions overseas. But wait, why am I writing about my mother and COVID? This column is supposed to be about the Constitution, right? Fair enough. So let’s look at the Constitution, especially its first three words: “We the People.”1 Full stop. That’s what the government of our country is. It’s we. It’s the people. What does that mean? Well, as George Washington

noted rather forcefully during the Whiskey Rebellion, it means that we govern ourselves, and you can’t ignore a law created by your own elected representatives just because you disagree with it.2 If you’re an American who professes to love the Constitution, you can’t hate the government the Constitution created. It makes no sense. It’s like loving Mother’s Day and hating children. And what does our Constitution aim to do? Well, it tells us, quite explicitly: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.3 We’re the “Posterity” the Founders were talking about. We’re their progeny, their heirs. And how fortunate we are. Thank you, George—and Alexander, and James, and the thousands of common people who ratified the document more than two hundred years ago. You had your own problems, your hopes and dreams, but you thought of us. Take particular note of that statement, “promote the general Welfare.” It’s a part of our fundamental law that often gets overlooked. But there it is, right in the Constitution itself, right in the first paragraph. Which brings us back to 2021. Many of our fellow citizens—not most, but far too many—question our ability to act as a community, as a People, to come together and defend ourselves against a deadly pandemic. They deny the role of government—the very government created by the Constitution—as an agent of good. They are wrong. We the People have endured for 234 years. We will defeat this pandemic, just as we defeated polio and smallpox and Confederates and Nazis. But not as soon as we should have. Too many people, including my mother, have paid too high a price for partisan division. That’s not what our Founders intended. They provided us with a marvelous framework for self-government. But it’s up to us to us to live up to their ideals, to deserve the blessings they bestowed upon their posterity. To come together and act like one People. 3 1 2

U.S. Const., preamble. Chernow, Washington: A Life, 719-21. U.S. Const., preamble.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. November 2021

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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. ADMINISTER JUSTICE GOSPEL JUSTICE CENTER ESTABLISHED The first Administer Justice Gospel Justice Center is being established in East Tennessee at Cokesbury United Methodist Church in West Knoxville. Administer Justice is a national non-profit that works with local churches to provide legal services for needy individuals. A need for attorneys willing to volunteer 4 hours one Saturday a month is needed. Administer Justice provides malpractice insurance for attorneys volunteering for the Gospel Justice Center. The Gospel Justice Center only accepts individuals with civil issues and do not require a court appearance. Legal issues may range from landlord-tenant to applying for disability benefits. Attorneys will work with the client to establish a plan that the client can execute to resolve their issue. To learn more about volunteering, contact Crystal Schrof at schrofca@gmail.com.

WELCOME NEW MEMBERS

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Jin Choi Lowe Yeager & Brown PLLC Courtney A. Cotter Cotter Law PLLC Michael S. Deel William F. Evans Law Office of William F. Evans Daniel C. Headrick Kay Griffin, PLLC Jason Merritt Merritt Law Firm

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.

James K. Scott Market Street Law, PLLC

NEW LAW STUDENT MEMBERS Taylor A. Boyer Cydney N. Carter Brock W. Christopher Anderson Cofer Ross Dockins Hannah G. Highland Chandler L. Horne William R. Jenkins Bethany L. Jervis Tatum Joerndt Grace Keel Andrew P. Kern Zachary R. Khan Daniel Kilby Bradley Koeven Lauren Kriminger Michael E. Laverdiere William T. Locklear, Jr.

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, receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 524-1873 for inquires. •

•

Shelby D. Mainord Sydney A. McFall Sydney McKay Evan C. Myers Carter Oakley Christopher A. Parker Erin C. Pugh Jackson G. Rouse Allie J. Shankle Adriana A. Snedaker Elizabeth Spica Leah J. Spradlin Bailey P. Stamp Lara G. Toepke Rebeccah A. Voinche Matthew G. Wells Carly E. White Ronald A. Young

Address Changes

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

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) 803-2545. 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 865-4508883 for inquiries.

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Joe Christian BPR #: 024358 Bass, Berry & Sims, PLC 900 S. Gay St, Suite 1700 Knoxville, TN 37902-1859 Ph: (865) 521-6200 joe.christian@bassberry.com

Chelsea C. Moore BPR #: 035259 Ritchie, Davies, Johnson & Stovall, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902-2623 Ph: (865) 637-0661 moore@rdjs.law

Jon C. Fromke BPR #: 037319 Bernstein, Stair & McAdams, LLP 116 Agnes Road Knoxville, TN 37919-6306 Ph: (865) 546-8030 jfromke@bsmlaw.com

Lauren L. Sherwood BPR #: 036932 Bookoff McAndrews, PLLC 2020 K St. NW, Suite 400 Washington, DC 20006-1870 Ph: (202) 808-3550 lsherwood@bomcip.com

Philip J. La Nasa BPR #: 026148 Garza Law Firm, PLLC 550 W. Main Street, Suite 340 Knoxville, TN 37902-2549 Ph: (865) 540-8300 planasa@garzalaw.com

November 2021

LONG WINDED By: Jason H. Long London Amburn

GIVING THANKS When I was a child, my favorite holidays were Christmas and Halloween. I don’t think my preferences were unique among the kids my age. Presents, candy, costumes and long winter breaks from school are the recipes for kid-centric celebrations. While I never lost my fondness for those holidays, as I grew older, my perceptions and preferences changed. As a young man, I gained new appreciation for holidays like St. Patrick’s Day and New Year’s Eve. These were opportunities to go out and celebrate with my friends (yes, perhaps there was some alcohol involved at times). Of course, once I found the love of my life, Valentine’s Day became a more meaningful holiday. While I still believe it is an artifice of the greeting card industry, I do appreciate the reminder every February that I haven’t done enough to let Carol Anne know how much she means to me and how I would be totally lost without her. Still, as I enter my fifties, it is a completely different holiday which has begun to take center stage: Thanksgiving. Thanksgiving used to be the holiday where we would sit around and watch parades and dog shows until mom served up a huge meal (often including items I would never eat . . . yams, ugh) and then everyone would fall asleep while we watched mediocre football games. On its face, Thanksgiving held no real interest for me in my youth. However, as my days of toys, candy and late-night partying have gone by the wayside, I have to say that I have come to truly appreciate the holiday. Food, family and rest are incredibly important priorities in my life now, not necessarily in that order. Thanksgiving is an older person’s game, and I think I am pretty good at playing it. Sadly, that is not true for everyone. While the holiday should be a time of reflection and thanks, unfortunately, some have still found the need for conflict. Of course, with conflict comes lawyers. With that introduction, I give to you some of my favorite Thanksgiving-themed lawsuits over the years. Helen Silva v. F.W. Woolworth Co. In 1938, Ms. Silva sat down to her turkey and dressing feast at a local Woolworths. As she dug in, she soon began to panic as she choked on a small turkey bone. Fortunately, another Woolworth’s patron saved the day, and Ms. Silva’s life, by rendering immediate aid. That did not stop Ms. Silva for filing suit against the company for her $38 in medical bills (she had a sore throat), and the embarrassment she claimed to have suffered. While she won judgment at trial, it was reversed on appeal when the Court ruled that negligence would only exist if a foreign object could be found which caused the injury. Because a bone could not be said to be foreign to turkey, it followed that there was no negligence, and Ms. Silva should have been aware of the risk. Ms. Silva’s attorneys made the argument that she had only consumed the dressing and that a bone would be foreign to that dish, but the Court considered turkey and dressing to be a single dish taken together and therefore the presence of bones would not be an anomaly to either portion of the dish. While I don’t like the result for Ms. Silva, I do appreciate that no one needs to eat turkey without dressing. Let’s be honest, turkey on its own is a virtually inedible meat. November 2021

It requires the dressing to make it a palatable meal. In 2016, more than three hundred people in Rochester, New York suffered food poisoning when they chose to celebrate Thanksgiving by partaking in the buffet at the Golden Pond Restaurant and Party House. The culprit was the gravy, which had been stored at an unacceptable temperature. Many were hospitalized and some cases were life threatening. Four separate lawsuits were filed, involving hundreds of Plaintiffs, and ultimately the restaurant was closed down and subsequently razed. A couple of thoughts here: I love a good buffet as much as the next man, but it just doesn’t have the Thanksgiving feel when you are picking up a new plate for your second helping of gravy and dressing that you have to ladle out under a protective sneeze-guard glass. Also, should you ever eat a meal at a place with the words “Party House” as part of its name? In 1937, a year before Ms. Silva almost choked to death, Mr. H.S. Nolen sued the Texas New Orleans Railroad when one of its freight trains, without sounding any kind of warning, ran over ten of his turkeys that had wandered upon the train tracks. He won and received a judgment of $18. On appeal the Court found that the turkeys were valued, for the purposes of calculating damages, at their Thanksgiving rates, since they were being raised for that market. However, Texas law required that property be valued at the time of loss. Since the accident occurred in August, the Court found that the turkeys could not be valued upon the Thanksgiving market, but rather the jury should have been instructed based upon the then-existing market rate, which would have resulted in a loss of $6 total for the ten turkeys. The case was remanded for further proceedings and we all learned the valuable lesson that a Thanksgiving dinner is three times more valuable that a turkey sandwich. In 2003, Neil Jacobs sued James Kent for a turkey hunting accident gone terribly awry. Mr. Kent, while hunting with some friends, heard what he thought was a gobbling noise and saw movement in some bushes. He saw a flash of red and that was enough to take aim and fire. Unfortunately, the only thing he bagged was Mr. Jacobs, who thankfully recovered from the gunshot wound but ended up suing the over zealous Mr. Kent for his injuries. The Court denied Mr. Kent’s motion for summary judgment based upon assumption of the risk when expert testimony was presented to the Court that it was the duty of turkey hunters not to fire until they could see the entire bird and identify its gender. I am not a hunter, and this case occurred in New York where the rules may be a little different, but I would be interested to know if the expert’s opinion is true. If so, I can’t imagine I would ever take up turkey hunting. There is nothing less appealing to me than sitting out in the woods, fearful that someone else may shoot me because they think I “gobbled” while trying to stare at turkey genitalia all day long . . . but maybe that’s just me. However you choose to spend the holiday, I hope it is relaxing and enjoyable and comes without the threat of litigation. Happy Thanksgiving.

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

PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney for Legal Aid of East Tennessee

CELEBRATE PRO BONO MONTH October was the Tennessee Bar Association’s 13th Celebrate Pro Bono Month. The goal of Pro Bono Month is to bring attention to the need for pro bono services and recognize those in the legal community who volunteer their time and expertise to help meet that need. We kicked off the statewide celebration in late September with a presentation by Legal Aid of East Tennessee’s Director of Litigation and Advocacy Russell Fowler chronicling Legal Advice For Veterans: the history of Access to Justice in Tennessee with a call to action from Chief In person at the Public Defender’s Community Justice Bivins. Attorneys from across our service area answered that call by Law Office at 1101 Liberty Street in Knoxville. volunteering at one of the many events held in the Knoxville area in the Phone advice options available. month of October. October was also Domestic Violence Awareness Month. On October Wed. November 10 (12:00noon – 2:00pm) 16th, Legal Aid partnered with McNabb Center, YWCA of Knoxville & Wed. December 8 (12:00noon – 2:00pm) the Tennessee Valley, and the Knoxville Family Justice Center to put on a To sign up, please use the form on the KBA Website general legal advice clinic for victims of domestic violence. With the help of or email ctorney@laet.org. volunteers from the Knoxville Bar Association and volunteer law students from UT and LMU, we were able to help many Tennesseans with their legal issues! October also saw the resumption of the popular Tennessee Faith & Justice Alliance Advice Clinic. Our October 23rd clinic was held at the Lennon Seney United Methodist Church and featured a business incubator clinic for minority-owned businesses. This clinic is a joint project of Tennessee Legal Alliance and is coordinated in Knoxville by the Knoxville Bar Association’s Access to Justice Committee, Legal Aid of East Tennessee, the University of Tennessee College of Law, and staffed by volunteers from our local bar and law students. We look forward to continuing to partner with local faith organizations to help serve our Knoxville community in the coming year! Finally, we continued to hold our popular monthly Legal Advice Clinic for Veterans. The clinic is the joint project of the Knoxville Barristers, the Young Lawyers Division of the Knoxville Bar Association (KBA), KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, Lincoln Memorial University-Duncan School of Law, and the local VA office. The clinic is held monthly on the second Wednesday at the Knox County Public Defender’s Community Law Office from Noon to 2:00pm. Law student volunteers are always on hand to help with intake, COVID precautions are observed, and phone volunteer options are always available. Our November 10th clinic falls the day before Veteran’s Day- a great way to honor our veterans’ service is by volunteering for this clinic! We are so proud to work with wonderful community partners to serve our local friends and neighbors and ensure all residents of Knox County have access to high quality legal advice! Please continue to check our webpage and the “Upcoming Clinic” section of the Knoxville Bar Association website for more information about future virtual legal clinics and to sign up to participate. I also encourage you to continue to visit the Pro Bono Matters section of the Legal Aid of East Tennessee website. Pro Bono Matters provides attorneys with the ability to survey available cases and sign up to represent a client through our website. A brief description of the client and their legal needs are provided, and new cases are added regularly. Cases can be searched based on county, subject matter, and various other key factors. To check out cases currently available please visit https://www.laet.org/ pro-bono-matters/ .

Upcoming Clinic Opportunities:

FORGING JUSTICE 2021

The annual Pro Bono Project fundraiser, Forging Justice, was scheduled to be held in person on Thursday November 4th. However, after careful deliberation we have decided to postpone the in-person celebration to early 2022 to ensure the safety of our attendees. We will be sending save-the-date announcements with the new event date in the future, and all sponsorships will be honored in full at that time. In the interim, please be sure to read next month’s column where we will announce the winners of our 2021 awards and unveil our new inductees into the Donald F. Paine Memorial Pro Bono Hall of Fame. We will also be recognizing all the volunteers who donated at least 25 hours of Pro Bono time to helping Legal Aid of East Tennessee and our clients this past year. We are so grateful for the sponsorship pledges we have already received from local law firms, businesses, and esteemed individuals. It is not too late to pledge to sponsor for 2021! Please reach out to me at ctorney@laet.org or call #(865) 251-4951 for details.

PRESENTING SPONSOR:

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

IRON:

Luedeka Neely Group

DAMASCUS: TITANIUM: COPPER:

ALUMINUM: Breeding Olinzack Carter Crippen, PC Elizabeth Meadows, Attorney at Law Frantz, McConnell & Seymour, LLP Kenneth Miller and Associates Mutual of America

Friend of Legal Aid of East Tennessee:

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London & Amburn, P.C.

Home Federal Bank Kramer Rayson LLC University of Tennessee College of Law Baker Donelson Drieser Law Group, PLLC Eldridge & Blakney, P.C. LMU Duncan School of Law Merchant and Gould P.C.

Paine, Tarwater, & Bickers, LLP Tarpy, Cox, Fleishman & Leveille, P.L.L.C. Swafford Insurance UT Federal Credit Union Watson, Roach, Batson & Lauderback, P.L.C. Lynn P. Talley, Esq.

November 2021

TELL ME A STORY By: Andre O. Johnson

Knox County Publice Defender’s Community Law Office

MY CALLING TO SERVE AS A JUSTICE ADVOCATE I aspired to become a criminal defense attorney at a very young age. I acted upon these aspirations by pursuing a double major in history and linguistics at the University of the West Indies, Mona in Jamaica, and attaining a Bachelor of Laws at the University of the West Indies, Cave Hill, Barbados. During these academic tenures, I wanted to engage in private practice and eventually open my own firm. These aspirations changed when I began the Master of Laws program at the Maurice A. Deane School of Law at Hofstra University, Long Island, NY. At Hofstra, I became more concerned about the disparities in treatment and outcomes of indigent defendants in the criminal legal system than my ambitions to engage in private practice. While private practice was a scintillating prospect at the time, my passion grew intensely for representing people who were disempowered in the criminal legal system. Indigent defendants are disadvantaged at various stages of criminal legal process. I wanted to play, even if a small role, in providing indigent defendants a fair, transparent, and thorough judicial representation. My passion for assisting indigent defendants comes from my own upbringing. I grew up in what I describe as a dichotomy— a family structure that reflects the classist divide of wealth and power commingling at the crossroad of poverty, family lineage, and educational status. I attribute my success to my struggling single mother who instilled education as a necessity for my future. Without education, I would not be where I am at today. My mother underscored that education was not an option, but a necessity. Like indigent defendants, I was raised in a world that I did not quite understand. I was systemically placed in a socio-economic class that obstructed opportunities to achieve upward mobility. I endured institutional and persistent discrimination. I vowed to my mother that I would make a difference in the lives of people considered less fortunate. I knew that I could most tangibly make this difference in the legal system, not just from being an attorney but a justice advocate. My first opportunity to advocate for indigent and marginalized individuals happened after I was elected as the first National Youth President of the Jamaica Red Cross. As National Youth President, I was able to meet and interact with individuals from different socioeconomic backgrounds. The Red Cross opened my eyes to the plight of individuals who were shunned, stigmatized, and abused by their families and community members because they were HIV positive, physically disabled or had a mental illness. The stories were gut-wrenching. It immediately dawned on me that I needed to use my platform to advocate for these individuals. To commence my activism, my team and I developed and implemented social awareness projects on the Human Immunodeficiency Virus (HIV). We conducted workshops and seminars on de-stigmatization and sensitization awareness of the virus. We also implemented educational programs about safe sex practices. These programs educated community members about the epidemiology of HIV/AIDS. My second experience in advocacy occurred during my 2018 summer internship at Nassau Legal Aid Society (Hempstead, NY), an office that caters to predominantly urban Black and Hispanic populations. During my tenure at NLAS, I advocated for educating marginalized individuals of their rights during and after an arrest, search, and seizure. This type of education was relevant to the population that NLAS served, as majority of people that came through the court system were people of November 2021

color. Most of these individuals did not understand their constitutional guarantees. I saw the disparities in sentences meted out to minoritized individuals accused of similar crimes to their white peers. I also know from studies that Black and Hispanic men comprise the majority of accused in Nassau County District Court. The extant literature shows that Black and Hispanic males in Nassau County are often more likely to be stopped, searched, and arrested than their white peers. The issue of racial injustices and disparities in our criminal justice system should be concerning to all those involved in the criminal legal system. This disparity is neither accidental nor recent, but rather a manifestation of the most entrenched and vile system of oppression. A system that has treated and subjugated people of color to a lower standard of value than their white counterparts. I can recall an experience in spring 2018 while working as a part of The Law Reform Advocacy Clinic at Hofstra University. My client, a 39-year-old woman from South America who suffers from epilepsy, was physically and emotionally abused by members of the New York City Police Department while participating in an Occupy Wall Street Protest. Even though this was a civil matter, I felt very passionate about representing my client because of her indigent status. I watched video evidence that showed people of color being brutalized by police officers. I can also attest to my experiences of discrimination. I recall, distinctly, an occasion in court in Nassau County, when a court officer asked me demandingly if my case (assuming I am the accused) had been called. I explained to her that I was a legal intern, not the accused. The next day, the same court officer physically assaulted me when she shoved me out of the well of the court and declared in a loud demeaning voice that defendants were not allowed in the well of the court. During both interactions, I was dressed formally, in a suit, for court and had my briefcase and case files in my hands. I can only assume that the court officer treated me in that manner because I am an African American male. She had an implicit bias of me as a defendant, and not as a lawyer. She may have been used to seeing black males as defendants in the court, and few being attorneys, which subconsciously caused her to err in her assumption about me twice. This experience is not uncommon for attorneys of color in the legal system. Also, it was not my only experience of being discriminated against. In April 2020, I went to the Roger D. Wilson Detention Facility to visit a client. A Knox County Sheriff Officer asked me if I was there to turn myself in. Attorneys of color must interact and navigate a legal system wrought with prejudices and discrimination. Despite my qualifications as a criminal defense lawyer, my formal attire, and professional demeanor, I was [and am] still treated as an offender. It is important to bring this point across to reinforce the systemic biases that exists for indigent defendants and the attorneys that serve them. My goal as a public defender is to bring real awareness to systemic racial injustice in the legal system and cumulative disadvantages that engender and perpetuates systemic discrimination against the poor, women, and people of color. Marginalized populations should have access to justice and to equal and quality legal representation. Being a public defender grants me the opportunity to fight for the rights of indigent accused and to use my voice to advocate for structural changes in our legal system.

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PAID

KNOXVILLE, TN PERMIT NO. 3 0 9

P.O. Box 2027 Knoxville, TN 37901

Diversity Program & Reception On October 7, the KBA was honored to have Cornell Kennedy from Sherrard Roe Voigt & Harbison as our keynote speaker for “How to Succeed in Prioritizing and Sustaining Diversity in Today’s Legal Practice.” More than 100 local lawyers and law students participated, and over 30 law firms and organizations were represented. Cornell offered proven and practical methods for taking definitive action to work toward actual diversity for a more productive and successful legal practice. The event was co-sponsored by the U.T. College of Law and the LMU Duncan School of Law. Attorneys from the following local law firms and government agencies participated in the event. Baker, Donelson, Bearman, Caldwell & Berkowitz City of Knoxville Law Department Cravens Legal East Tennessee Children’s Hospital Egerton, McAfee, Armistead & Davis, P.C. Elmore, Stone & Caffey, PLLC Federal Defender Services FOG Enterprise, LLC Frantz, McConnell & Seymour, LLP Hodges, Doughty & Carson, PLLC Kennerly, Montgomery & Finley, P.C.

Knable Law Knox County District Attorney’s Office Knox County Public Defender’s Community Law Office Knoxville Family Justice Center Law Office of Joshua S. Reed Law Office of Ursula Bailey Legal Aid of East Tennessee, Inc. London Amburn, P.C. Market Street Law, PLLC Merchant & Gould P.C. Miller Law, Mary D. Miller, PLLC

Paine | Tarwater | Bickers, LLP Pinnacle Financial Partners Quist, Fitzpatrick & Jarrard, PLLC Tennessee Court of Appeals Tennessee Law & Mediation, PLC Tennessee Valley Authority The Stanuszek Law Group, PLLC Watson, Roach, Batson & Lauderback, P.L.C. Wimberly Lawson Wright Daves & Jones, PLLC Woolf, McClane, Bright, Allen & Carpenter, PLLC

DICTA. November 2021

Articles inside

Tell Me A Story

Pro Bono Project

Your Monthly Constitutional

Long Winded

Bill & Phil Gadgets

Barrister Bites

Well Read

Grammar Grinch

Boat Builders

The U.S. Supreme Court’s Shadow Docket: “Un-reasoned, Inconsistent, and Impossible to Defend” or a Necessary Emergency Procedure?

Of Local Lore and Lawyers

Legal Update

Schooled in Ethics

Barrister Bullets

Building for the Future Advice on Succession Planning

Management Counsel

Outside Your Office Window

Practice Tips

President’s Message

What I Learned About Inclusion and Why It Matters

Around the Community

Section Notices/Event Calendar