Practice Tips: It’s the Brief, Stupid . . . Page 7 Schooled in Ethics: A Lawyer’s Obligation to be a Caregiver . . . Page 13
A Monthly Publication of the Knoxville Bar Association | November 2020
THE TENNESSEE COVID-19 RECOVERY ACT PROVIDES BROAD LIABILITY PROTECTIONS FOR BUSINESSES, HEALTHCARE PROVIDERS, SCHOOLS, NURSING HOMES, AND OTHER INDIVIDUALS FOR CLAIMS ARISING FROM COVID-19 RELATED LOSSES AND INJURIES
F D drive Knoxville Barristers Annual Canned
November 9-30, 2020
Join the Knoxville Barristers Hunger & Poverty Relief Committee in a friendly Canned Food Drive Competition among the bar in donating to Second Harvest Food Bank. By donating food or money, you can help keep Knoxville fed and healthy this winter! We need everyone's help to reach our 2020 goal of $16,500!
Official Rules & Instructions: 1. Virtual Food Drive - Second Harvest has created a virtual food drive for the KBA Barristers to donate through their website. - Create your firm team: Firm representative must contact Elisabeth Martin, KBA Programs Administrator, on or before Friday, November 6, 2020 to be added to the virtual food drive. - Once your firm team is added, you will receive a link through which monetary donations can be made—use this instead of the “Donate Today” link on Second Harvest’s homepage. - Feel free to contact Lorena at Second Harvest (865-243-8207) if you have any questions about virtual donations. 2. If you would prefer to donate by check, make check payable to Second Harvest and deliver to Elisabeth Martin at the KBA Office. 3. Donated Food and Cans: You can donate Food and Cans, and they will be weighed to get the total number of pounds. - Delivery and Reporting: Second Harvest recommends that you weigh the food prior to delivery if possible. - Please deliver all food to the KBA Office, located at 505 Main Street, Suite 50. Deliveries will be accepted Monday- Friday before 4 p.m. - KBA will weigh each box. Attach a business card to ensure the donation is credited to the correct firm. To be counted in the weekly standings, food should be delivered before 5 p.m. on Wednesday. 4. Responsibility: YOU are responsible for:
- Providing the total number of full-time employees at the firm (including staff). - Recording the total weight when you deliver the food to the KBA Office. - Tracking the receipts of monetary donations. - Report totals to Elisabeth Martin (emartin@knoxbar.org) at the KBA Office no later than 5:00 p.m. each Wednesday afternoon! Updates as of Wednesday will be included in the KBA's weekly email. - Final standings will cover all donations made between November 9 & November 30. Food and checks must be delivered to the KBA before 5 pm on November 30. You may contribute through your firm's virtual link until midnight on November 30. 5. Competition: The total number of meals your firm provides is divided by the number of employees at the firm. This determines which firm has the most MEALS PER EMPLOYEE and will determine the winner. Meals per Employee keeps the playing field equal for any size firm.
How Meals per Employee is determined: - Monetary Donations. (checks and virtual food drive donations) - Dollars will be converted to the number of meals Second Harvest is able to provide to those in need. ($1 = 3 meals) Food Donations: - The total weight of collected food (lbs.) will be converted to the number of meals Second Harvest is able to provide to those in need (lbs. x 1.2= meals)
REGISTRATION BY NOVEMBER 6 REQUIRED.
To register, contact Elisabeth Martin, Programs Administrator (emartin@knoxbar.org) Questions? Call the KBA Office at 865-522-6522.
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DICTA
November 2020
In This Issue
Officers of the Knoxville Bar Association
November 2020
COVER STORY 16
President Hanson R. Tipton
President Elect Cheryl G. Rice
Treasurer Jason H. Long
Secretary Loretta G. Cravens
KBA Board of Governors Sherri DeCosta Alley Jamie Ballinger Mark A. Castleberry Hon. Kristi Davis
Elizabeth B. Ford Rachel P. Hurt Allison Jackson Elizabeth (Betsy) Meadows Robert E. Pryor, Jr.
Immediate Past President Wynne du Mariau Caffey-Knight
Michael J. Stanuszek Amanda Tonkin Elizabeth M. Towe Mikel Towe
The Knoxville Bar Association Staff
The Tennessee COVID-19 Recovery Act Provides Broad Liability Protections for Businesses, Healthcare Providers, Schools, Nursing Homes, and Other Individuals for Claims Arising From COVID-19 Related Losses And Injuries
CRITICAL FOCUS 5
President’s Message
The Best Laid Plans...
It’s the Brief, Stupid
Merry COVID
A Lawyer’s Obligation to be a Caregiver
Sixth Circuit Reverses District Court’s Certification of Novel “Negotiation Class” in Opioid Multidistrict Litigation
7 11 13 15
Practice Tips
Management Counsel Schooled in Ethics Legal Update
WISDOM 8 Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Elisabeth Martin Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Rebecca Eshbaugh LRIS Assistant
Volume 48, Issue 6
Dicta DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. November 2020
DICTA
Hello My Name Is
Aerial Carter
Eric Lutton
Strength in Perspective
Celebrating Constitution Day
Moira Says: Reviving Arcane Language in Sitcom Humor
The Twenty-Sixth Day of November
Why Did the Lawyer Cross the Road? “No Skin in The Game” Or “Not My Pig, Not My Farm”?
Bird Is the Word
Samsung Galaxy Note 20 Ultra 5G
Better Living Through Poker
So, What Happens If . . .
On COVID’s Edge
An Historic Election
9 10 12 18 19
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23 24 25 26 27 29
Attorney Profile What I Learned About Inclusion and Why It Matters Around the Community Grammar Grinch
The Noblest Profession
Legal Mythbreakers
Barrister Bites
Bill & Phil Gadget of the Month Well Read
Your Monthly Constitutional Outside My Office Window Long Winded
COMMON GROUND 4 20 22 22 28 30 31
Section Notices/Event Calendar Barrister Bullets Change of Addresses Welcome New Members Bench & Bar in the News Pro Bono Project Last Word
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SECTION NOTICES & EVENT CALENDAR
Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE programs “Mediating Estates, Trust and Inheritance Disputes” on November 4 featuring Anne McKinney and Gale Allison and “Mediation Practice & Ethics Update 2020” on December 1 featuring Chad Hatmaker. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held virtually on November 7 and volunteer registration is available at www.knoxbar.org. Join the Bankruptcy Law Section for the CLE program “Bankruptcy Case Law Update” on December 17 featuring Tom Dickenson & Greg Logue. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Join the Criminal Law Section for the CLE program “Criminal Law Rowdy Roundup of 2020” on November 19 featuring Sarah Keith and Josh Hedrick. The section plans regular CLE throughout the year. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law section for the CLE program “TN Family Law Update” on December 8 featuring K.O. Herston. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2018 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Courtney Walker (292-2307) or Chuck Sharrett (637-0203). Senior Section The KBA Senior Section generally meets quarterly for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307) Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs 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
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November 3 4 6 7 7 10 10 10 11 11 11 12 17 18 19
Law Office Tech Committee ADR Webinar CLE Ain’t Behavin Judge’s CLE Habitat Build Pro Bono Debt Relief Clinic Professionalism Committee Tennessee Case Law Update CLE Access to Justice Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee CLE Committee Board of Governors Criminal Law CLE
December 1 1 8 8 8 9 9 9 11 15 17
Law Office Tech Committee ADR Webinar CLE 4 Ethics Bowl CLE Tennessee Family Law Update CLE Judicial Committee Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Holiday Party & Elections Annual Meeting & Elections Evidence CLE Webinar Bankruptcy Law Update CLE
Check the KBA Events Calendar at www.knoxbar.org for scheduling updates.
November 2020
PRESIDENT’S MESSAGE By: Hanson R. Tipton Watson, Roach, Batson & Lauderback, P.L.C.
THE BEST LAID PLANS... I had it all planned out. I had been looking forward to it for years. And then just as it was getting started, the whole thing threatened to go off the rails. While it may sound like I’m talking about being bar president in the Year of COVID, I’m actually referring to this year’s Diversity in the Profession CLE and Reception. I have enjoyed serving on the Diversity in the Profession Committee for several years now and while the Committee (chaired by my friends Akram Faizer and Carlos Yunsan) works on great initiatives year-round, the Committee’s highlight of the calendar every year is the annual CLE and Reception. At a meeting over a year ago (an in-person meeting – remember those?), I suggested that my good friend and law school classmate Van Turner, Jr., might be a good speaker for the 2020 event. I knew that Van’s story of efforts to legally remove confederate monuments from public spaces in Memphis would make a compelling and inspirational story, and the Committee agreed. We set to work planning the 2020 event for October 1. Of course, then 2020 intervened, and as the year went by and in-person KBA events fell like dominoes, we realized that the Diversity CLE and Reception would need to make some adjustments as well. “No worry, though!” we thought. “We have been doing virtual events all year!” The incomparable Marsha Watson and Tammy Sharpe helped the Committee come up with a great format that would work on Zoom, with a presentation by Van remotely from Memphis followed by breaking up into small groups to discuss some of the issues from the presentation. The KBA has offered numerous meetings, webinars, and Town Halls through Zoom all year long, but the format and size of the Diversity CLE would test our Zoom skills. We had not used small group rooms before, so Marsha and Tammy wanted to be sure to test the system repeatedly before we went live. I participated in a couple of these tests, and after some trial and error, we felt like we had it figured out. On the day of the event, I planned my day carefully to make sure I got all of my paying work done by 4pm to give me half an hour or so to prepare for the CLE. I even e-mailed a couple of the small group leaders in the morning to ask if I could call on them during the large group discussion portion when we got all the small groups back together. I patted myself on the back for thinking ahead on that one. Everything going as planned… Right when I finished up with billable work, my cell phone rang, and I saw that it was Marsha. I nonchalantly answered, thinking she might have a final question or two about the program. Instead, she asked me in a voice that seemed to contain a bit of apprehension, “Are you logging in now?” I looked at the clock and it was 3:59 p.m. I replied, “I still have some time, don’t I?” Confused silence from Marsha. “Wait,” I said, “it starts at 4:30, right?” Nope. More importantly, Marsha told me, Van hadn’t logged in either. And we already had 90 people in the virtual waiting room. I told Marsha I would log in immediately, hung up the phone, ran to put on my suit jacket since I would be on camera, and called Van to see what was going on with him. Van answered the phone, and I could tell by the background noise that he was driving. Not an auspicious sign. I hurriedly told him what was happening and figured that he too had thought the program began at 4:30 p.m. He explained that he had the right TIME, but the wrong time ZONE. He thought he still had an hour. I was in full-on panic mode at this point, but Van very calmly said, “Give me 10 minutes.” I opened Zoom on my computer, logged into the meeting and Tammy started letting the attendees into the virtual room. I had already planned to speak for about 5 minutes, including my introduction of Van, so I figured I could probably stretch the intro until he got there. Anybody know any jokes? Shortly after my intro, Van’s window appeared in the Zoom meeting, and he was ready to go. Completely unfazed, he apologized for being late and explained that he had been on the way to the courthouse so he had pulled into a spare office there and would give the presentation from there. My panic receded a bit as he launched into his presentation, telling the saga of Memphis Greenspace (http://memphisgreenspace.org/). It quickly returned, however, when Van referred to some slides that were not showing up on the screen. I texted Tammy, “I think we are supposed to be showing his PowerPoint for him?” I interrupted Van and told him that we could not see the slides he was talking about. He then tried to share his screen in the Zoom but that didn’t work. Cool as a cucumber, he calmly asked if we could just show the slides for him, and he would tell Tammy when to advance slides. Van continued on. I remained frazzled. During my introduction I had mentioned that attendees could send in questions for Van using the chat function on Zoom. We planned to have a 5- to 10-minute Q&A session at the end of Van’s remarks before we broke into the small groups. As Van continued his presentation, I clicked on the chat button, and saw that Tammy November 2020
had copied a question from Cathy Schuck for me to see. I wondered why I hadn’t seen Cathy’s original question, but Tammy had then typed, “Can you see the questions in chat now that I made you a co-host?” I didn’t see any yet but typed out a reply: “I should be able to now” and hit enter. My whole screen went white. When I clicked anywhere on the screen, I got the dreaded warning box that said “Zoom isn’t responding” and gave me the options to either close Zoom or wait for it to respond. Ummm… Now I was full-on panicking. Through the white screen I could still see Van talking, and I could still hear him. But I was terrified that even touching my computer would crash the whole thing. I frantically texted Marsha and Tammy on my phone: “My screen is frozen!” followed by “I’m afraid to do anything that might crash Zoom!” Van was just finishing up his presentation, so when there was an opportunity I told Marsha over the broadcast that I was unable to see anything, including audience questions. Marsha, just as calm as Van, read some of the audience questions to him, and he answered them just like nothing was wrong. When the Q&A was over, it was time to break up into the small groups. I told Marsha and Van (and the entire audience) that I was going to use that opportunity to close and re-boot Zoom. As I did that, Marsha and Tammy separated everyone into our carefully selected small groups. We had arranged for each small group to have a pre-selected group leader to lead the discussion with scripted questions. We had also arranged for every attorney and law student matched up for the Buddy Match program to be in the same small group as well so there would be at least one familiar face. When I logged back into Zoom, it sent me into a small group with a different leader from what I was expecting and my Buddy Match partner was nowhere to be seen. I figured that must have something to do with my technical issues and having to log out, so I just went with it, assuming everything else was going according to plan. My small group was skillfully led by Dave Yoder and contained a couple of other attorneys and a couple of law students. We had a great discussion of diversity and inclusion issues in our own lives. When the small group session time ran out, we were moved back into the large group for closing thoughts. I called on my pre-arranged group leaders (Committee members Akram Faizer, Jamie Ballinger, and Johnelle Simpson), and they gave excellent reports of their group discussions. I apologized profusely for my technical issues and thanked Van and our attendees and closed out the program. As soon as I closed Zoom, I immediately called Marsha to apologize for my many issues, not least of which was my somehow not being ready at 4 p.m.1 Marsha sounded a little frazzled herself and informed me that when Zoom sent everyone to the small groups it did so completely randomly, and not the groups we had chosen. So THAT was why I was in the wrong small group, not because of my technical issues. Marsha said some of the groups didn’t even have discussion leaders. But Marsha and Tammy both said they thought the event went well and the small group discussions were productive. The groups without leaders had simply taken it upon themselves to run the discussion. Crisis averted. Hanging up with Marsha, I then called Van. We laughed about how chaotic the afternoon had been and I thanked him profusely and apologized again. Van of course seemed un-fazed, as always. While on the phone with Marsha and then Van, I began receiving texts and e-mails about what a great program it had been. Akram called me later to say the same. I thought to myself, “I guess we fooled ‘em!” While it seemed to be pure chaos on my side of the Zoom screen, the audience saw a moving program from an inspiring speaker. As my heart finally stopped racing and I started to accept that the program had actually turned out well (despite my repeated inadvertent sabotage), I realized that my harrowing experience with the 2020 Diversity in the Profession CLE and Reception had basically been a microcosm of my year with the KBA. I had a plan and felt like I was prepared, but the plan quickly went out the window. And just like my frenetic day with the Diversity CLE, it has mostly looked like I knew what I was doing in this chaotic year thanks to the quick thinking of Marsha, Tammy, and the rest of the fantastic KBA staff (Tracy, Jonathan, Elisabeth, and Rebecca). 2020 has thrown us some curveballs, but I am proud of how adaptable the KBA has been. That starts with our tremendous staff, but our leaders (Board and Committee/Section Chairs), and members have really stepped up to these challenges as well. I thank you all.
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It was mind-boggling to me that I had somehow had the wrong time on my calendar. After much soul-searching, I am pretty sure I have the answer: the original (in—person) event was scheduled for 4:30 p,m. When we moved the event online the time was changed to 4:00 p.m., and I never made the change on my calendar. Every Committee meeting agenda and every promotional e-mail I received had the new time, and it just never registered with me.
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DICTA
November 2020
PRACTICE TIPS By: Summer H. McMillan Senior Law Clerk, Tennessee Supreme Court
Hon. Gregory S. McMillan
Knox County Circuit Court, Division IV
IT’S THE BRIEF, STUPID You’ve all heard the phrase, “It’s the economy, stupid.” I’m not calling names, but the title did get you to read this far. Justice Ruth Bader Ginsburg once said, “As between briefing and argument, there is a near-universal agreement among federal appellate judges that the brief is more important––certainly it is more enduring. Oral argument is fleeting––here today, it may be forgotten tomorrow, after the court has heard perhaps six or seven subsequent arguments.”1 That makes tremendous sense to me, even though I can only speak from the perspective of a former litigator turned judicial law clerk. You get only minutes to present your oral argument on appeal. Your brief is front and center from start to finish. Justice Thurgood Marshall put it this way: It is the brief that does the final job, if for no other reason than that the opinions are often written several weeks and sometimes months after the argument. The arguments, great as they may have been, are forgotten. In the seclusion of his chambers, the judge has only his briefs and his law books. At that time your brief is your only spokesman.2 Also, of course, at oral argument the court will ask questions, which causes your presentation to depart from the logical, linear, and organized legal argument you probably rehearsed a few times (in the car, in the shower, wherever). The brief is your only real chance to make that complete presentation of your case, uninterrupted. So, the brief must give the best possible impression of your case. It should go without saying that you must proofread, proofread, and proofread again. We all make typos and other mistakes, but it just looks so sloppy when they make it into the final draft of something as important as an appellate brief. And it happens a lot more than you would think. The substance of the brief can be even more problematic if you mischaracterize the evidence or the case law you use to support your arguments. In some cases, the court expresses its displeasure in the opinion itself. For example, in Keylon v. Hill, a 2003 medical malpractice case, the defendant asserted that the trial court should have disqualified the plaintiff ’s expert witness for relying on a national standard of care rather than the standard of care required by the statutory locality rule. The appellate court quoted at length from the expert’s testimony and found that he had based his opinions on the standard of care in the local area where the defendant practiced. The appellate court took the defendant’s attorneys to task: “At the outset we note that the [defendant’s] brief takes undue liberties with the art of advocacy by the mischaracterization of testimony and the non-contextual recital of selected segments. The difficulties attendant upon such practices are self-evident and the practice is never productive.”3 November 2020
In In re Isabella W., a termination of parental rights case, the court found that the father’s brief mischaracterized the record by stating that he had sent the juvenile court clerk’s office a letter informing the court he was firing his attorney and therefore the juvenile court should have granted a 90-day extension for him to hire a new attorney. But there was no such letter in the record, and the hearing transcript did not contain any indication that the father told the court he had fired his attorney. The court deemed the issue of a 90-day extension waived because it was not raised in the trial court, but not before bringing attention to the brief––complete with a block quote of that section of the argument––for mischaracterizing the facts in the record. 4 It is no less egregious to mischaracterize case law. In State v. Walker, the defendant’s brief misstated the holding in a case, claiming that “it is settled case law in . . . Tennessee that general on-the-scene questioning and the performance of field sobriety tests before arrests are made admissible into evidence.”5 The court not only found that the defendant’s reliance on the case was misplaced, but also noted that the defendant’s attorney had “misstated the issues and holding” in that case which did not even address the admissibility or validity of roadside sobriety tests.6 There are plenty of other examples of cases in which appellate opinions have brought attention to attorneys for mischaracterizing evidence or the law, but space does not permit including them here. In the examples above, the courts have made it clear that the appellate brief represents not only your client’s position in the litigation, but also your credibility with the court. Justice Ginsburg also noted that she had “seen few victories snatched at oral argument from a total defeat the judges had anticipated on the basis of the briefs.”7 Don’t let your brief give the court low expectations for your case.
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Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567, 567–68 (1999). Nancy Winkelman, “Just a Brief Writer”?, 29 No. 4 Litigation 50 (quoting Thurgood Marshall, “The Federal Appeal,” in Counsel on Appeal, 139, 146 (Arthur A Charpentier ed. 1968). Keylon v. Hill, No. E2003-010540COA-R3-CV, 2003 WL 22927143, at *7 (Tenn. Ct. App. Dec. 11, 2003). The Keylon court also called attention to the defendant’s answer to the complaint, which “den[ied] all allegations of negligence and ‘demand[ed] strict proof thereof.’” Id. at *2. The court stated that it found “nothing in the Rules of Civil Procedure which, even by inference, provides that an allegation may be denied while concurrently demanding ‘strict proof thereof.’ Presumably this anomaly is a remnant of equity practice no longer viable.” Id. at *2 n.1. In re Isabella W., No. E2019-013346-COA-R3-PT, 2020 WL 2070392, at *7–8 (Tenn. Ct. App. Apr. 29, 2020) State v. Walker, No. 02-C-01-9411-CC-00258, 1995 WL 276005, at *5 (Tenn. Crim. App. May 10, 1995). Id. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567 (1999).
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HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan
AERIAL CARTER This month’s Q-and-A features Aerial Carter, an Assistant Public
What was the most
Office (known to many Knoxville lawyers as the CLO). Aerial is from
you had during law
Defender at the Knox County Public Defender’s Community Law
Knoxville, and she attended Maryville College, where she majored in
Writing and Communications and minored in Psychology and English Literature. She attended law school at the Duncan School of Law at
Lincoln Memorial University and is an active member of the KBA and Phi Alpha Delta. I hope you enjoy getting to know Aerial Carter as much as I did!
school for your legal career?
I believe participating in mock trial during law school really
helped me prepare for
Share with us a significant experience you had before law school that shaped your work today.
Before working at the Knox County Public Defender’s Office, I
the career I have now. I had the opportunity to practice preparing
for a trial, questioning
did a summer externship with my current employer, the CLO. The
experience truly helped me prepare for this line of work by seeing how court operates on a daily basis, as well as by observing how attorneys
prepare their cases for court and negotiate for their clients. Through this experience, I was able to find an area of law that I was passionate about, and I made the decision to become a Criminal Defense attorney.
formative experience
witnesses, and do
opening and closing statements. Having
that experience gave
me the tools to have
some idea of what to expect when it came to trials.
If you could not be a
lawyer and had to choose another career, what would you choose? I think if I weren’t a lawyer, I’d be a journalist. Do you have pets?
Yes, I have three dogs, Tiana, Buttercup, and Gigi. (Author’s note:
Aerial shared an adorable picture of her dogs with me, and it seems only right to include it here – Tiana is on the left, Buttercup in the middle, and Gigi on the right.) What is your favorite book?
Invisible Man by Ralph Ellison What are you currently reading?
I recently joined a book club, which I have found to be a lot of fun. We are currently reading The Bell Jar by Sylvia Plath.
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DICTA
November 2020
AT TO R N E Y P R O F I L E By: Jonathan Harwell Bernstein, Stair & McAdams, LLP
ERIC LUTTON Eric Lutton is the elected District Public Defender for the Sixth Judicial District, covering Knox County. As such, he is counsel of record for the majority of defendants charged with a crime in Knox County. He heads the Knox County Public Defender’s Community Law Office [“CLO”], an office of nearly thirty attorneys. His wife, Kathryn Lutton, is the Head Principal at Holston Middle School. They have two daughters, Evie (age 13 and in show choir) and Lina (age 10 and obsessed with pigs). Background Eric was born in Muncie, Indiana. He graduated from Ball State University, where he met Kathryn. After graduation, they moved to Knoxville, and he attended the University of Tennessee College of Law, graduating in 2007. While in law school, he clerked with the District Attorney’s Office, planning to pursue a career as a prosecutor. After graduating, he hung up a shingle in solo practice, representing criminal defendants while he waited for a position with the DA’s office to open up. As a young attorney growing his case load, he spent extensive time with his incarcerated clients. These hours of conversation began to change his perspective, as he learned about his client’s backgrounds, their traumatic histories, and their life stories. Rather than becoming a prosecutor, he remained a defense attorney in private practice in both state and federal court for just over six years. In 2013, he was approached about joining the CLO. He knew of the office’s reputation as well as its access to training and resources relating to mental health and drug addiction. He closed down his law practice and accepted a position as an assistant public defender. He says this was “the best decision I could have made.” He says he particularly benefited from the use of the team of social workers at the CLO, a key part of its unique client-centered and holistic model for representation which seeks to address both clients’ legal cases and also any underlying issues (such as mental health and addiction). He later became the CLO’s Liaison to the Recovery Court and the Veterans Court. He was promoted to team leader and then to Deputy Public Defender. When his predecessor Mark Stephens (Knox County’s only prior public defender) announced his plans to step down, Eric felt compelled to step up to the task of trying to continue to move the office forward. After interviewing with Governor Bill Lee, Eric was appointed to replace Mr. Stephens on November 1, 2019, until the next election in 2020. Appointment and Election A district public defender is an elected official in Tennessee, and thus Eric had to make an entry into electoral politics. Although he had never envisioned running for elected office, in the months after becoming the appointed public defender, he had to also run a campaign to keep that office. He threw himself into the campaign: over the months leading up to the contested primary election in March and the general election in August, Eric spoke to and visited Republican and civic groups on a neardaily basis. He and his team of volunteers knocked on hundreds of doors and sent out thousands of personalized mailers. As he explains, “A whole family runs for office,” and his wife and two daughters made sacrifices to support his efforts. A very involved father, Eric found himself now coming November 2020
home many nights after his daughters were in bed. Eric had the support of his predecessor, as well as many of the other attorneys in the CLO and of leading local figures, and was successful in winning the Republican nomination and then defeating an independent opponent in the general election. Leading the CLO in the Pandemic Eric had little time to savor his primary victory. Merely a week after his success in the Republican primary, the court system ground to a near-halt with the COVID-19 pandemic. Eric had to confront an unprecedented series of challenges. Perhaps more than any other part of the justice system, the daily operation of the trial-level criminal justice system depends on person-to-person contact (attorneys and clients; defenders and prosecutors; attorneys and judges), often occurring in close conversations in crowded courtrooms -- the precise things made unsafe by the coronavirus. Yet Eric recognized that a lengthy break in proceedings was not an option given the interests of defendants (particularly those in custody) in timely resolution of their cases. Eric was faced with a raft of unusual decisions. He had to determine when to close the public defender’s office to the public and when to open it back up for clients to be able to meet with their attorneys in person. He had to implement a wide range of health measures and procedures within the office for the safety of his seventy employees. He established rotations for support staff to keep the number of individuals physically in the office low to reduce potential spread of the virus. He encouraged attorneys to work remotely when possible, for office meetings to take place virtually when possible, and set up contingencies for continued representation if attorneys had to be quarantined. Further, with the impact of the coronavirus on state and local revenues, he has had to ensure that the CLO’s budget is as lean as possible without sacrificing representation to clients accused of a crime. Eric also advocated for his clients and his employees in his office in weekly meetings with other criminal justice stakeholders, including judges, prosecutors, law enforcement, and clerks. He characterizes these discussions as productive, due in part to the congenial and collegial nature of the Knox County bar. Together, these stakeholders have redesigned the criminal justice system on the fly, introducing video / remote proceedings for some hearings, measures for social distancing in others, and significantly decreasing the incarcerated population in Knox County. Further, Eric has been in charge of the CLO at a time of unusual societal turmoil around issues around racial injustice and police misconduct. He has sought to have the voice of the CLO heard on issues of criminal justice reform. All in all, he says with considerable understatement, this has been a “most challenging time to be a public defender.” Yet he remains just as passionate about the critical work of representing indigent defendants.
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W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Christina Magráns-Tillery City of Knoxville Law Department
STRENGTH IN PERSPECTIVE “What are the values of diversity and inclusion?” I want to share how my own diversity has helped my practice. To do that, I have to start with my dad’s amazing story. My dad was born in Cuba in 1949. He was a mischievous child who named his pet iguana after his sister and played pranks on teachers. The revolution in 1959 brought a swift end to his childhood. Secret police forced him into military training camps where he experienced the horror of guerilla warfare. Fearing for his life, his parents (legally) sent him alone to Miami in 1960 with a bottle of wine and a box of cigars to sell -- the only items the Cuban government would let him keep. Homeless at age twelve and unable to speak English, he sold coconuts to stay alive for two years. The Catholic Church took him in until his reunion with family in 1962. They lost everything, including family members executed by Castro and Guevara. He served in the U.S. military during the Vietnam War and lived with the lasting impact of that trauma. He put himself through school and became a Spanish professor. He expanded his students’ world views while giving back to Hispanic/Latino communities, often by interpreting for courts and hospitals. He cherished the freedoms taken for granted here but so easily lost in Cuba. He treated people fairly and with respect, from the penniless transient to the wealthiest landowner. He raised a resilient and fiery daughter (apologies to my husband). I miss him dearly. At Legal Aid, I focused on housing discrimination such as evictions
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based on crimes abusers committed against women – something even I went through in college. Often, landlords were skeptical of survivors’ narratives because they did not understand other perspectives. Maybe one client did not call police because law enforcement officers in her home country frequently raped women. Maybe another stayed married because of her faith and fear of loss of community support. Maybe another did not seek an Order of Protection because of her physical injuries and debilitating PTSD. My perspective and background make me a better attorney. I saw the value in cases others might view as lost causes. Clients with similar backgrounds or life experiences were relieved that I did not dismiss their perspectives. People I had never met called me because I had taken the time to understand a friend’s culture, faith, or medical condition. When possible, I tried to educate the landlords and work collaboratively to address underlying issues and preserve their relationship with tenants to reach better outcomes. Other times, I enjoyed a hotly contested trial. I love my current work at the City of Knoxville where I review land use decisions from multiple perspectives to ensure legal compliance and strive for equity on a systemic level. So, what are the values of diverse attorneys who are included? We bring in new, diverse client markets. We strive for outcomes which are even more client-centric. We collaborate to strengthen communities. We are not discouraged by tough fact patterns. We do not shake in the face of adversity. Invite us to your table – you are always welcome at mine.
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November 2020
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Cathy Shuck East Tennessee Children’s Hospital
MERRY COVID The holidays are fast approaching, and who among us is not ready gather with friends and colleagues to share a hearty meal and celebrate the fact that this terrible year is almost over? Unfortunately, like the party guest that lingers even after you’ve washed all the dishes and put away the alcohol, COVID-19 shows no signs of taking the hint and leaving. Which means, among other things, that we are about to embark on a season of socially-distanced holiday celebrations. While socially-distanced socializing sounds about as fun as alcohol-free whiskey, we all know that as long as the virus is circulating, we probably should not. Avoiding buffets, potlucks, crowded cocktail hours, and other large indoor group gatherings is the right thing to do. So how to enjoy some holiday cheer while staying safe? Official Guidance The CDC has produced a detailed guide for event planning during the pandemic.1 According to the CDC, it is important to first understand that the risk of COVID-19 spread at events and gatherings increases as follows:
• Lowest risk: Virtual-only activities, events, and gatherings. • More risk: Smaller outdoor gatherings in which individuals from different households remain spaced at least 6 feet apart, wear cloth face coverings, do not share objects, and come from the same local area (e.g., a community, town, city, or county). • Higher risk: Medium-sized in-person gatherings that are organized/laid out to allow individuals to remain spaced at least 6 feet apart, some wear cloth face coverings and come from outside the local area (e.g., a community, town, city, or county). • Highest risk: Large in-person gatherings where it is difficult for individuals to remain spaced at least 6 feet apart, do not wear cloth face coverings and travel from outside the local area.2
The preference here is clearly for low risk gatherings, which means virtual get-togethers or small, outdoor activities. But for those who still wish to gather in person, the CDC’s guide also includes helpful tips and checklists on everything from communication and signage to supplies to have on hand and policies and procedures. For anyone planning any type of event during the pandemic, this is a must-read resource. At the local level, as of this writing the Knox County mask mandate remains in effect, although masks are not required while eating or drinking. Knox County also has an 11pm curfew for businesses selling alcohol and a 25-person limit on social gatherings.3 It is unknown whether those restrictions will still be in effect in November and
December, though it certainly seems they will be warranted. Making the best of it All things considered, for the annual office party, the most prudent course is to stay as low on the CDC’s risk list as possible. If your office is already working remotely, a virtual holiday get-together may be the best way to go. Have a contest for the best holiday background, or invite everyone to pipe in their favorite holiday music. A Zoom Ugly Christmas Sweater contest is another obvious option. Invite everyone to open a beverage and have a snack. You could even deliver individually-wrapped snacks and beverages ahead of time, along with a little gift. Perhaps you could include branded bottles of hand sanitizer and festive holiday face masks. If you just can’t stand the thought of doing One More Thing via Zoom, maybe you’ll decide on an in-person celebration. There is ample evidence that the virus is less likely to spread outdoors,4 so if you can convince your party-goers to bundle up and join together under the glow of a heat lamp or three, an outdoor gathering could be a good option. For indoor gatherings, think carefully about how to avoid large groups congregating close together. Even if everyone is wearing a mask, the CDC still recommends staying six feet apart. This means avoiding bars, buffets, or the like. Space out your guests by assigning seats at small tables placed several feet apart, and hire servers. Since this has the drawback of limiting interaction among your guests, perhaps an M.C. could encourage interaction by inviting guests to come forward (masked, of course, and using a touchless microphone) to share a toast or a story from each table. Of course, another way to mitigate the risk of a holiday gathering is to simply skip it this year. Instead of planning a gathering, consider using the funds that would have been spent to make a donation to one of the many agencies supporting those in need due to COVID5, or to some other cause that is meaningful to you and your coworkers. Whatever you decide to do and however you decide to celebrate, best wishes to you and yours for the holidays!
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2 3
4 5
https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/COVID19events-gatherings-readiness-and-planning-tool.pdf . Id. The best source for consolidated COVID-19 information is the City of Knoxville’s website: https://www.knoxvilletn.gov/cms/One. aspx?portalId=109562&pageId=16540308 . See also https://COVID.knoxcountytn. gov/board-of-health.html . See, e.g., this CDC study of transmission at a family gathering: bit.ly/MMWR10520 . For suggestions on ways to help close to home see, e.g., the United Way’s website: https://www.uwgk.org/ .
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. November 2020
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AROUND THE COMMUNITY By: Zachary R. Walden Eldridge & Blakney, P.C.
CELEBRATING CONSTITUTION DAY September 17, 1787, the founding fathers gathered shoulder to
shoulder in Philadelphia, Pennsylvania, and signed the United States
Constitution. Even the inventive Benjamin Franklin could not imagine how the KBA Barristers celebrated our nation’s most important document 223 years later!
Three years ago, the Barristers began a partnership with Knox
County Schools to teach 2nd and 3rd graders about the Constitution. Each year, teams of Barristers get to go back to class and teach students about
the branches of government, the Bill of Rights, and the Preamble. Then, the students take what they learn and give presentations about these
to view. The students then had a Microsoft Teams session with United States Bankruptcy Judge Suzanne Bauknight and Law Clerk Shanna
subjects to members of the judiciary on Constitution Day.
Veach. This was an interesting experience as the Teams meeting included both a classroom as well as distance-learning students from their homes.
This year, we met the challenge of adapting our program to 2020.
With the help of KBA staff, the Barristers filmed an educational video
that students from South Knox Elementary and Christenberry were able
The students were excited to ask Judge Bauknight questions ranging
from the rules of being a judge to tough questions about slavery. Judge Bauknight also took the opportunity to honor the 100th anniversary of
women’s suffrage and explain Tennessee’s special role in the passage of the 19th Amendment, which gave women the right to vote.
Even though we look forward to returning to our traditional
in-person Constitution Day celebration with Knox County’s second
and third graders, Judge Bauknight still says that meeting students on
Constitution Day—virtually or otherwise—is “the best day of the year!”
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November 2020
SCHOOLED IN ETHICS By: Paula Schaefer U.T. College of Law
A LAWYER’S OBLIGATION TO BE A CAREGIVER Do lawyers have the same obligation as doctors and nurses to be good caregivers? I spent more than a little time thinking about that question during the five weeks I spent in the hospital this summer. (I was there for a blood clot; I’m fine now). With some small exceptions, I received amazing care. I am not exaggerating when I say that I frequently thought, “It takes a special person to do this work.” It is not enough to be a competent professional. Healthcare professionals also have to be good caregivers. I think the legal profession is no different. We are also caregivers. An attorney’s clients—whether they are businesses, the government, non-profits, or individuals—face challenges that call for more than legal knowledge and skill. They need much of the same type of care that I expected and received from nurses and doctors this summer. Some aspects of caregiving are so central to our duties as lawyers that they are embodied in the professional conduct rules. In short, there is an ethical obligation for lawyers to be caregivers. Beyond that, there are some lessons in “good bedside manner” that apply equally to doctors and lawyers. Even if there is not an ethical obligation to have a good bedside manner, it may help patients and clients alike. Responding to the Call I had a call button that I could push to summon a nurse at any time, day or night. I could not get out of bed by myself, so I was incredibly dependent on a nurse responding to my call. If my assigned nurse could not get there immediately, she could respond through a speaker and ask if I could wait a few minutes. Sometimes, though, I received no response at all when I hit the call button. I would grow anxious and upset as I waited ten, fifteen, twenty minutes or more. I felt helpless. This waiting was my single biggest frustration as a patient. It is the only thing I complained about on my patient care survey when I was discharged. Lawyers also need to respond promptly to their clients’ call. Tennessee RPC 1.4 addresses an attorney’s ethical obligation of communication. Among the rule’s requirements, part (a)(4) requires that an attorney promptly respond to a client’s reasonable request for information. Comment 4 to the rule encourage a lawyer to communicate information to the client, to respond when the client asks for information, and if the lawyer cannot provide the information immediately, let the client know when a response can be expected. Like a helpless patient, a client’s frustration grows when a lawyer does not respond to a call for information or help. And just like I did, they complain. The most frequent complaint made against Tennessee lawyers with the Tennessee Board of Professional Responsibility is “neglect or failure to communicate.”1 This failure amounted to 45% of the complaints filed with the TPBR in 2019-2020. In second place, 11% of complaints were for a lawyer’s “improper communication.”2 Protecting Confidential Information My nurses shared a lot with me. I heard stories of bad husbands and boyfriends (and good ones), the challenges of online education for their kids, financial woes, and dreams of other jobs. When I swore I could keep a secret, I even heard about one nurse’s plans to propose to his girlfriend. But even though I was a good audience, I never once had a nurse tell me anything about another patient. They took confidentiality very seriously. It was part of their education, training, and culture. There was a sign on the hallway bulletin board reminding all employees about patient confidentiality. When I asked my nurse if there were any COVID patients on my floor, she refused to tell me, citing patient confidentiality. When another nurse took a snapshot of the wound on my wrist (caused by an IV), I joked, “You must have the least popular Instagram account ever.” She responded with a very serious explanation of how all patient wound photos are private and protected by HIPAA. Tennessee RPC 1.6 requires the same of lawyers. The rule provides that lawyers must keep all information related to the representation of a
client confidential. Some lawyers think it is acceptable to tell stories about their clients as long as the lawyer is not sharing privileged information. But the obligation of confidentiality is broader than that—lawyers are ethically prohibited from revealing information related to the client’s representation. Lawyers have much to learn from the culture of confidentiality in hospitals and among healthcare providers. Providing Information with Respect (and as appropriate) Humor I believe that all of my doctors gave me truthful, complete information about my current health situation while I was in the hospital. This was necessary for me to agree to a course of treatment and for them to earn my trust. Whatever the news, good or bad, they delivered it to me with respect. They always called me by my name and reminded me of theirs. I know they were busy, but few of my doctors seemed to be in a rush. They always took the time to answer my questions and explain things when I asked for more information. As I started to feel better, they spent more time trying to make me laugh, telling me things about themselves, and asking me about my family and work. My interactions with my favorite doctors remind me of research Malcolm Gladwell recounted in his book Blink.3 One study considered hundreds of conversations between two groups of doctors and their patients: one group had never been sued for malpractice and the other group had been sued at least twice. The researcher found that doctors who had never been sued spent slightly more time with their patients, were more likely to make orienting comments, were more likely to engage in active listening, and were far more likely to laugh or be funny. Gladwell also discusses another study in which the researcher found that doctors who “sound dominant” in conversations with patients are more likely to be sued for malpractice. This is consistent with what one medical malpractice attorney told Gladwell, “People just don’t sue doctors they like. In all the years I’ve been in the business, I’ve never had a potential client walk in and say “I really like this doctor, and I feel terrible about doing it, but I want to sue him.’” Like doctors, lawyers have an obligation to be honest with our clients about what they are facing. Tennessee RPC 1.4(b) provides that a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Comment 5 to the rule explains that a client should be given “sufficient information to participate intelligently in decisions [about the representation.]” The rule and comment do not explain how to deliver this information. But it makes sense to follow the lead of my doctors and the good ones that Gladwell discusses in Blink. Lawyers should show respect by the way they listen to and interact with their clients. And like doctors, it is more important for a lawyer to be perceived as funny and likable than smart. Final Thoughts It is easy to dismiss the idea of caregiving as something that doctors and nurses provide, but not lawyers. Or to believe that only certain types of legal clients need care beyond legal knowledge and skill. But there are common needs for care shared by patients and clients alike. When a lawyer provides a high level of caregiving—by responding promptly to client calls, protecting client confidences, providing information necessary for decision-making, and treating clients with respect—that is undoubtedly beneficial to the client and the attorney-client relationship. 1
2 3
Tennessee Board of Professional Responsibility, 39th Annual Discipline Report, July 1, 2019-June 30, 2020, https://docs.tbpr.org/pub/bpr-annual-report-fy%20 19-20.pdf, p. 5. Id. ` Malcolm Gladwell, Blink: The Power of Thinking without Thinking, 39-43 (Little, Brown and Company 2005).
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. November 2020
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November 2020
L E G A L U P DAT E By: Regina Koho Attorney, Tennessee Valley Authority, Office of the General Counsel
SIXTH CIRCUIT REVERSES DISTRICT COURT’S CERTIFICATION OF NOVEL “NEGOTIATION CLASS” IN OPIOID MULTIDISTRICT LITIGATION Background One of the most difficult problems facing the United States is the explosion in opioid use and addiction during the last 20 years, often described as an “epidemic.”1 It is estimated that 350,000 people have died from opioid overdoses since 1999,2 and states, counties, and cities have spent massive amounts of public funds in dealing with the problems stemming from opioid use. In recent years, one way governmental entities have attempted to recoup these costs is by suing opioid manufacturers, distributors, and retailers,3 alleging that they “acted in concert to mislead medical professionals into prescribing, and millions of Americans into taking and often becoming addicted to, opiates.”4 Currently, the U.S. District Court for the Northern District of Ohio is overseeing a high-profile national prescription multidistrict litigation (“MDL”), which “consists of over 1,300 public entity-led lawsuits.”5 Throughout the litigation, “the district court has repeatedly sought to facilitate settlements between the parties.”6 In an effort to effectuate this goal, the district court certified a novel “negotiation class” under Federal Rule of Civil Procedure 23 “of all cities and counties throughout the United States for purposes of negotiating a settlement between class members” and defendants.7 This “negotiation class” differs from the two types of classes that are typically certified under Rule 23—the litigation class and the settlement class—in important ways. “[R]ather than forming a class to aggregate and try common issues”—the purpose of the litigation class—“the negotiation class is designed to attempt to reach a settlement while the individual MDL cases continue along their respective litigation paths.”8 The difference between a negotiation class and a settlement class is that in the case of a negotiation class, “the class certification and opt-out process occur prior to a settlement being reached.”9 The process approved by the district court attempted to protect putative class members’ rights in two ways. First, “a county-level formula allocating any eventual settlement with [d]efendants” was created, which would allow “[p]rospective class members . . . to ascertain what percentage of a settlement the[y] could expect to receive.”10 Second, “a supermajority (i.e., 75%) of six categories of voting class members” was required for a proposed agreement to be accepted; after that, the parties could move for judicial approval,11 which would require the district court “to determine that the proposal [was] ‘fair, reasonable, and adequate.’”12 However, once that occurred, “every member— including those who oppose the settlement—w[ould] be bound by it.”13 Several defendants, as well as “six putative city class members, thirtyseven state Attorneys General, and the Attorneys General of the District of Columbia and Guam,” sought review of the district court’s class certification order, which the Sixth Circuit granted.14 The Court’s Ruling A two-judge majority made up of Judge Eric Clay (a Clinton appointee and the opinion’s author) and Judge David McKeague (a George W. Bush appointee) reversed the district court’s class certification. Engaging in a largely textual analysis, the majority concluded that a “negotiation class” was not supported by Rule 23’s language.15 Although the rule was “replete with references to litigation and settlement classes,” the majority found that it did “not mention certification for purposes of ‘negotiation’ or anything along those lines.”16 Acknowledging that “negotiation may lead to settlement,” the majority did not view “the speculative possibility that this negotiation class will settle a broad swath of the MDL . . . [to] bring it within the narrow textual confines of Rule 23 as a settlement class.”17 Nor did the majority find that “[t]he language of Rule 23 that governs litigation classes” to support the district court’s interpretation.18 Litigation classes sanctioned by the rule were used “primarily for the purposes of November 2020
aggregating and adjudicating common claims for trial, which can avoid conflicting judgments in individualized proceedings and can more efficiently resolve the claims of the class through a single lawsuit.” This would not occur “where . . . independent cases continue in parallel with a negotiation class that will not bring any common claims to trial.”19 “However innovative and effective the addition of negotiation classes would be” in reaching resolutions in mass tort litigation, the majority declined to sanction the district court’s certification, remaining “‘mindful that the Rule as now composed sets the requirements [courts] are bound to enforce.’”20 Judge Karen Nelson Moore’s dissent, which constituted twenty-three of the thirty-two page opinion, viewed the majority’s interpretation of Rule 23 as truncated and posited that the court “should encourage liberal constructions of the Federal Rules of Civil Procedure that abet, rather than constrict,” district courts’ abilities to find creative solutions to “unorthodox” MDLs.21 Morever, “even taken at face value,” Judge Moore did not read the text of Rule 23 to categorically prohibit certification of a negotiation class,” as “negotiation is part and parcel of any class certified for settlement purposes.”22 She would have upheld the district court’s ruling, which she viewed as “embrac[ing] Rule 23’s equitable heritage and the developments of district courts past,” something that the panel “ought not disturb.”23 Conclusion A petition for en banc review was filed on October 8, 2020,24 and given the novelty of the certification at issue and the visibility of this particular MDL, review by the entire Sixth Circuit is certainly possible. And based on the U.S. Supreme Court’s activity in this arena (albeit in slightly different contexts),25 the matter may even make it to the nation’s highest court. Regardless of the ultimate outcome, one thing is clear—resolution of this issue will shape how district courts may seek resolution of sprawling MDLs of this type in the future.
U.S. Dep’t of Health & Human Servs., What is the U.S. Opioid Epidemic?, https://www.hhs. gov/opioids/about-the-epidemic/index.html. 2 In re Nat’l Prescription Opiate Litig., No. 19-4097, 2020 WL 5701916, at *1 (6th Cir. Sept. 24, 2020). 3 Id. 4 In re Nat’l Prescription Opiate Litig., 2018 WL 4895856, at *2-5, *36-37 (N.D. Ohio Oct. 5, 2018), report & recommendation adopted in part & rejected in part, 2018 WL 6628898 (N.D. Ohio Dec. 19, 2018). 5 In re Nat’l Prescription Opiate Litig., 927 F.3d 919, 923 (6th Cir. 2019). 6 In re Nat’l Prescription Opiate Litig., 2020 WL 5701916, at *1. 7 Id. 8 Id. at *2. 9 Id. 10 Id. 11 Id. 12 Id. (quoting Fed. R. Civ. P. 23(e)). 13 Id. 14 See id. at *3. 15 Id. at *5. 16 Id. 17 Id. at *6. 18 Id. at *7. 19 Id. 20 Id. at *8 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)). 21 In re Nat’l Prescription Opiate Litig., 2020 WL 5701916, at *11 (Moore, J., dissenting). 22 Id. at *11-12. 23 d. at *13. 24 Pet. for Reh’g En Banc, ECF No. 97. 25 See, e.g., Mark Joseph Stern, The Decade Class Actions Were Gutted, Slate (Dec. 18, 2019, 5:58 AM), https://slate.com/news-and-politics/2019/12/decade-classaction-was-gutted.html. 1
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THE TENNESSEE COVID-19 RECOVERY ACT
PROVIDES BROAD LIABILITY PROTECTIONS FOR BUSINESSES, HEALTHCARE PROVIDERS, SCHOOLS, NURSING HOMES, AND OTHER INDIVIDUALS FOR CLAIMS ARISING FROM COVID-19 RELATED LOSSES AND INJURIES On August 17, 2020, Governor Bill Lee signed into law the Tennessee COVID-19 Recovery Act (“the Act”), providing broad liability protections over a two-year period for businesses, healthcare providers, schools, nursing homes, and other individuals for claims arising from COVID-19 related losses and injuries.1 Governor Lee described the legislation as “historic,” and that its purpose is to protect businesses and other entities from “frivolous lawsuits.”2 The Act amends and adds language to various sections of Tennessee Code Annotated, including primarily T.C.A. § 29-34-801, et. seq., and is to be cited as the “Tennessee COVID-19 Recovery Act.”3 LIMITATION ON LIABILITY: The Act provides specifically that “there is no claim against any person for loss, damage, injury, or death arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.”4 WHO IS PROTECTED: The Act defines “person” broadly to mean “an individual, healthcare provider,5 sole proprietorship, corporation, limited liability company, partnership, trust, religious organization, association, nonprofit organization described in § 501(c) of the Internal Revenue Code […] or any other legal entity whether formed as a for-profit or not-for-profit entity.”6 PROCEDURAL REQUIREMENTS AND HEIGHTENED BURDEN OF PROOF: The Act requires that a claimant seeking to make any claim alleging loss, damage, injury, or death arising from COVID-19 “must file a verified complaint pleading specific facts with particularity from which a trier [of fact] could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct.”7 Thus, the Act imposes procedural requirements and a higher burden of proof and standard of care, requiring that the complaint be sworn to, and that it plead specific facts with particularity that, if true, establish by clear and convincing evidence that the defendant acted with gross negligence or willful misconduct. The Act also requires that “[i]n any claim alleging loss, damage, injury or death based on exposure to or contraction of COVID-19, the claimant must also file a certificate of good faith stating that the claimant or claimant’s counsel has consulted with a physician duly licensed to practice in the state or a contiguous bordering state, and that physician has provided a signed written statement that the physician is competent to express an opinion on exposure to or contraction of COVID-19 and, upon information and belief, believes that the alleged loss, damage, injury, or death was caused by an alleged act or omission of the defendant or defendants.”8 Thus, the claimant seeking to make a COVID-19 claim must provide not just the standard Certificate of Good Faith required for health care liability actions, but must also certify that the claimant has obtained a statement from a competent and qualified physician that the claimed injury was caused by the defendant(s). Failure to meet the procedural and pleading requirements “shall, upon motion, make the action subject to dismissal with prejudice.”9 WHAT THE ACT DOES NOT DO: The Act explains that it does not: (1) Create a cause of action; (2) Eliminate a required element of any existing cause of action; (3) Affect workers compensation claims under the Workers’ Compensation Law …
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including the exclusive application of such law; or (4) Amend, repeal, alter, or affect any immunity, defense, limitation of liability, or procedure available or required under law or contract.10 “ARISING FROM COVID-19”: The Act defines “Arising from COVID-19” broadly to mean caused by or resulting from the actual, alleged, or possible exposure to or contraction of COVID-19, or caused by or resulting from services, treatment, or other actions in response to COVID-19, including but not limited to: (A) Implementing policies and procedures to prevent or minimize the spread of COVID-19; (B) Testing; (C) Monitoring, collecting, reporting, tracking, tracing, disclosing, or investigating COVID-19 exposure or other COVID-19 related information; (D) Using, designing, manufacturing, providing, donating, or servicing precautionary, diagnostic, collection, or other health equipment or supplies, such as personal protective equipment; (E) Closing or partially closing to prevent or minimize the spread of COVID-19; (F) Delaying or modifying the schedule or performance of any medical procedure; or (G) Providing services or products in response to government appeal or repurposing operations to address an urgent need for personal protective equipment, sanitation products, or other products necessary to protect the public[.]11 “GROSS NEGLIGENCE” OR “WILLFUL MISCONDUCT” The Act does not define the type of conduct that constitutes “gross negligence” or “willful misconduct.” The Tennessee Court of Appeals has stated that “[t]o prevail on a claim of gross negligence, a plaintiff must first establish that the defendant was negligent and then, in addition, must show that the negligent act was ‘done with utter unconcern for the safety of others, or one done with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law.’”12 The Court of Appeals has further stated that “for an employee’s action to constitute ‘willful misconduct,’ it must be performed with ‘[1] an intention to do the act, [2] purposeful violation of orders, and [3] an element of perverseness.’”13 Thus, claimants must establish not just that the defendant was negligent, but that their negligence rises to the level of “gross negligence” or that the defendant’s actions constituted “willful misconduct.” Those of us who practice in this area know that claims alleging (and establishing) “gross negligence” and “willful misconduct” are extremely rare. AMENDMENTS TO THE TENNESSEE GTLA: The Act also makes certain additions to the existing liability protections under the Tennessee Governmental Tort Liability Act, extending the limited liability protections for governmental entities for injuries arising from COVID-19, unless the claimant proves by clear and convincing evidence that the injury was proximately caused by an act or omission of the governmental entity or the entity’s employees’ constituting gross negligence.14 The Tennessee Governmental Tort Liability Act restrictions on claims against governmental employees is also amended to add a new subsection
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November 2020
COVER STORY By: Hannah Lowe Trammell, Adkins & Ward, P.C.
Declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) effective February 4, 2020 providing liability immunity for activities related to medical countermeasures against COVID-19, which applies to claims under both federal and state law.22 This put in place another broad level of protection to healthcare and other frontline workers working in the diagnosis and treatment of COVID-19, as well as for those who will be administering the much-anticipated vaccine(s). POTENTIAL CLAIMS: The procedural requirements and heightened burden of proof and standard of care were designed to prevent frivolous lawsuits, and to protect businesses and individuals already hit hard by the COVID-19 pandemic. At this point, we can only speculate as to the types of claims that may still be brought under the sweeping liability protections provided by the Act. The additional requirements of the verified (sworn) complaint, pleading specificity, higher burden of proof/standard of care, and certificate of good faith for claims arising from exposure to or contraction of COVID-19, supports the conclusion that any such claims will likely be minimal. Time will tell as to what types of claims will meet these requirements. As with so many things in this “new normal,” those of us who practice in this area will have to be prepared to address potential claims arising from COVID-19 as they arise.
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specifically limiting claims arising from COVID-19 to those proven (by clear and convincing evidence) to have been caused by an act or omission of the employee that was “willful, malicious, criminal, or performed for personal financial gain.”15 This amendment also contains the same pleading and burden of proof requirements, the certificate of good faith requirement, and provides that failure to satisfy the requirements will subject the action to dismissal with prejudice.16 The code provisions regarding jurisdiction and waiver of liability for governmental liability claims are also amended to add a new subsection specifically providing that the state does not waive its sovereign immunity for claims arising from COVID-19.17 HIGHER EDUCATION INSTITUTIONS INCLUDED: The Act also amends Tennessee Code Annotated, Title 49, Chapter 7 to impose the same standard of proof (requiring proof by clear and convincing evidence of conduct constituting gross negligence or willful misconduct) for causes of actions against higher education institutions.18 EFFECTIVE DATE AND PERIOD OF EFFECTIVITY: The Act took effect on August 17, 2020, and applies to all claims arising from COVID-19, except those for which suit was already filed (or proper pre-suit notice given) on or before August 3, 2020.19 By its terms, the Act is automatically repealed on July 1, 2022, but continues to apply to any loss, illness, injury, or death occurring before that date to which none of the above-listed exceptions apply.20 As written, the suit therefore applies retroactively to claims arising before the effective date of the Act, unless those claims had already been filed or notice given. OTHER LIABILITY PROTECTIONS: Now that we are over seven months into the global COVID-19 pandemic, we have all become accustomed to adapting to new issues and changes as they arise. It should be noted that on the federal level, Senate Republicans have proposed legislation that would offer liability protections to businesses, schools and educational institutions, churches, etc. for claims arising from COVID-19.21 If enacted, this proposed legislation may preempt some or all of the provisions of the Tennessee COVID-19 Recovery Act, so we will need to be prepared if that happens. Additionally, the Secretary of Health and Human Services issued a November 2020
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See House Bill 8001 and Senate Bill 8002, Bill Summary, available at: http://wapp. capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB8002. The Act is classified as Tort Liability and Reform, and as enacted amends T.C.A. Title 9, Chapter 8, Part 3; Title 29, Chapter 34; Title 29, Chapter 20 and Title 49, Chapter 7, Part 1. Tennessee Governor signs COVID-19 liability measure into law, Associated Press, August 18, 2020, available at: https://apnews.com/article/virus-outbreak-lawsuitslegislation-business-tennessee-5194b4f0cc33ba5789884e2d6cab0bd8 See House Bill 8001 and Senate Bill 8002, Bill Summary, available at: http://wapp. capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB8002. T.C.A. § 29-34-802(b). “Healthcare provider” is defined broadly to include “a healthcare practitioner, person, or facility licensed, authorized, certified, registered, or regulated under title 33, title 63, title 68, federal law or order, or an executive order of the governor, including but not limited to any employees, agents, or contractors of such a practitioner, person, or facility, and residents, interns, students, fellows, or volunteers of an accredited school or of such school’s affiliated teaching or training hospitals or programs in Tennessee.” T.C.A. § 29-34-802(a)(3). T.C.A. § 29-34-802(a)(4). T.C.A. § 29-34-802(c)(1). T.C.A. § 29-34-802(c)(2). T.C.A. § 29-34-802(c)(3). T.C.A. § 29-34-802(d). T.C.A. § 29-34-802(a)(1). Greene v. Titi, 2010 Tenn. App. LEXIS 8, *22 (Tenn. Ct. App. 2010). Id. T.C.A. § 29-20-205(10). T.C.A. § 29-20-310(f)(1). T.C.A. § 29-20-310(f)(2) and (3). T.C.A. § 9-8-307. Tennessee Code Annotated, Title 49, Chapter 7, Part 1, as amended (Section 5). See House Bill 8001 and Senate Bill 8002, Bill Summary, available at: http://wapp. capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB8002 The Act provides that it “applies to all claims arising from COVID-19 except those in which, on or before August 3, 2020: (1) A complaint or civil warrant was filed; (2) Notice of a claim was given pursuant to § 9-8-402; or (3) Notice was satisfied pursuant to § 29-26-121(a)(3).” See House Bill 8001 and Senate Bill 8002, Bill Summary, available at: http://wapp.capitol.tn.gov/apps/BillInfo/Default. aspx?BillNumber=SB8002 Id. See Proposed “Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy Act,” or the “SAFE TO WORK Act,” Senate Bill, S. 4317, available at: https://www.congress.gov/bill/116th-congress/ senate-bill/4317/text Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 18 CFR 15198, available at https:// www.federalregister.gov/documents/2020/03/17/2020-05484/declarationunder-the-public-readiness-and-emergency-preparedness-act-for-medicalcountermeasures
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GRAMMAR GRINCH By: Sarah M. Booher OEB Law, PLLC
MOIRA SAYS: REVIVING ARCANE LANGUAGE IN SITCOM HUMOR If, like me, you are a huge fan of the Canadian series “Schitt’s Creek,” then you were sorry to see it air its final episode in April of this year. It received a glorious send-off, however, when it broke Emmy records last month for the most wins for a comedy in a single season. It swept the categories with nine wins, including actress Catherine O’Hara’s first Emmy for best lead actress in a comedy. O’Hara was always a fan favorite. Viewers loved her over the top portrayal of Moira Rose, a former soap opera star with strange diction, elocution, and syntax, not to mention her even stranger collection of wigs. Watching the show also proved educational. Armed with Foyle’s Philavery: A Treasure of Unusual Words and Mrs Byrne’s Dictionary, creator and writer Daniel Levy allowed O’Hara to elevate the script and her eccentric character with more arcane, difficult, and colorful dialogue. The result was unforgettable. So while we focused on Latin legal words in the August’s column, this month we will behold some of Moira’s most memorable and sagacious moments over the show’s six season span.
Pablum: bland, intellectual sustenance “Oh, I won’t be pitied, John! Or fed your pacifying pablum like some kind of soft-headed infant.” Peccadillo: slight offense “In a room this tiny, you’ve just got to ignore the little irritants of the other, or you’d go insane…peccadilloes, cloying habits.” Pettifogging: arguing over trivial things “Alexis, now is not the time for pettifogging!” Pique: to arouse anger or resentment “I’m sorry, this has worked you up in to some kind of fit of pique.” Prestidigitator: sleight of hand artist or magician “The fact that my own world was ripped out from under me by someone like this…prestidigitator?” Reticence: not revealing one’s thoughts or feeling readily “David, could you just once embrace joy? Perhaps it’s this nay-saying reticence that caused your past relationships to oxidize.”
Bolus: single dose of a drug or other medicinal preparation given all at once “This is what my life has come to, David – killing a man over a complimentary bolus.” Churlish: lacking civility or graciousness “Well, how very churlish of them!” Confabulate: engage in conversation; talk “Oh, Ronnie, Ronnie, might you and I confabulate for a moment in the back room?” Dew-Dropper: a slacker, a lazy person who sleeps all day with no ambition “Aw say, don’t be a dew-dropper. Throw some concealer under those peepers, make like a swell and go put on the ritz.”
Spanandry: an extreme scarcity of males in a population “Darling, I realize the pickings are slim in this rural spanandry…” Squire: escort Peregrination: long and meandering journey “Sadly, I won’t be able to squire you for today’s wedding venue peregrination.”
Disabuse: to free from misconception
Throng: a large, densely packed crowd of people or animals “Alexis, if I had known you didn’t like the attention, I would have chosen to be alone with you and not out in public among the throngs of fans.”
Patrician: aristocratic or noble “I’m a trained actor. A humble backstory would disabuse this man of any notion that we’re too patrician.”
Toggery: clothing “I’m sure he’d agree this toggery is the perfect tribute to the common woman.”
Epistle: formal or elegant letter
Unasinous: stupid
Inamorata: woman with whom one is in love or intimate “Easier said than done, John, when your only husband is longing for his epistle-writing inamorata.”
Bombilating: buzzing “After a glut of unasinous ideas put forth today, the room is suddenly bombilating with anticipation; can you feel that?”
Habilimented: clothed “I promise to keep my husband habilimented from now on.”
Vivacity: quality of being attractively lively and animated “Vivacity aside, our children’s safety is no laughing matter.”
Juvanescence: state of being youthful “The last traces of my juvenescence vanished into thin air.”
Fellow Schitt’s Creek lovers can keep up with the fun on Instagram with @moirarosewordoftheday. O’Hara also did a 35-minute takeover of the show’s social media account in April to discuss her character’s bizarre word choices. It can be viewed at a. Seasons 1 – 6 are currently streaming on Netflix. For a little fun, gentle readers, give Moira a little adulation in the coming days by being a word rapscallion with your most favored compeer. Even if you are inadvertently clangorous in your efforts, do so vociferously!
Mercurial: subject to sudden or unpredictable changes of mood or mind Balatron: jester or buffoon “How mercurial is life…we all imagine being carried from the ashes by the goddess Artemis, and here I get a balatron from Barnum & Bailey.”
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November 2020
THE NOBLEST PROFESSION By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
THE 26TH DAY OF NOVEMBER The first six months of any President’s term must be a whirlwind. But, it must have been a hurricane for George Washington. With no precedent to follow, a Constitution that was only a few months old, a federal government that was only weeks old, and his inauguration delayed while the Senate debated what titles everyone should have, Washington took the oath of office on April 30, 1789.1 By June, James Madison had introduced his version of the Bill of Rights, and after three months of debates and amendments, on October 2, 1789, President Washington sent the twelve amendments that survived both the House and the Senate to the States for further debate and (hopefully) ratification.2 Spending three, hot months with a newlyformed Congress debating amendments to a Constitution that had just been ratified should warrant a vacation, but Washington had one more thing to do. Earlier that year, New Jersey attorney Elias Boudinot had an idea. As a delegate to the Continental Congress and newly elected member of the House of Representatives, Boudinot thought it significant that the United States managed to establish a Constitutional form of government without additional war.3 So, Representative Boudinot introduced a resolution that a joint committee of the House and the Senate would request that the President “recommend to the people of the United States a day of public thanksgiving and prayer to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a Constitution of government for their safety and happiness.”4 The resolution was controversial, but it passed.5 On September 28, 1789, Boudinot and the rest of the joint committee placed the resolution before the President,6 and on October 3, 1789, President Washington wrote a letter to the State governors. In that letter, he recommended setting aside a day in which all would be devoted to “the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be.”7 Washington’s letter included a call for unity in rendering “sincere and humble thanks” and offering “prayers and supplications” for the forgiveness of “national and other transgressions,” for the ability for all of us, “whether in public or private stations, to perform our several and relatives duties properly and punctually,” for the newly-formed national government “to be a blessing to all the People, by constantly being a government of wise, just, and constitutional laws, discreetly and faithfully executed, and obeyed . . . .”8 The states liked Washington’s recommendation. Public celebrations were held across the country, and Washington celebrated by attending services at St. Paul’s Chapel in NYC and donating beer and food to imprisoned debtors in the city.”9
But we do know that five days, later, Lincoln issued a Presidential Proclamation. Actually, with the same humility exhibited by Washington, it was more of an invitation to set aside the last Thursday of November as a day of thanksgiving.15 Lincoln also called for prayers for the end of “the lamentable civil strife in which we are unavoidably engaged,” for healing for “the wounds of a nation,” and for restoration “to the full enjoyment of peace, harmony, tranquility, and Union.”16
That day was Thursday, November 26, 1863.
This year, Thanksgiving falls on November 26th. This national celebration birthed by one lawyer and made a national holiday by another continues for its 231st year. For our family, this day holds even more significance than others. It is my son’s birthday. He will turn twenty-one. It is also the day that same brother was killed Fallujah, Iraq, as he held shut a door, taking the bullets, to protect his fire squad from the insurgent inside. This will be the sixteenth year since we lost him, the seventeenth year since we celebrated Thanksgiving with him.17 But, our family’s loss is no more significant than the losses people felt on November 26, 1789, as our country recovered from the Revolutionary War, or on November 26, 1863, as our nation was in the middle of the Civil War, or on November 26, 2020, as we have lost family and friends to sickness and lost the human connection that comes with shaking a person’s hand. The turmoil our country faces today is no more insurmountable than those early days as our country struggled with the responsibility of self-governance or during the Civil War as our country struggled to remain intact. What Boudinot, Washington, and Lincoln recognized in 1789 and 1863 rings true today: it is hard to remain divided when we humbly and genuinely give thanks, this the 26th day of November.
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That day was Thursday, November 26, 1789. Seventy-four years later, another lawyer had an idea. This time the lawyer did not need a joint resolution to the President; he was the President. On October 3, 1863, exactly 74 years since President Washington sent his letter, the situation facing President Lincoln was much more dire. The United States was anything but united behind the Constitution. That year alone, the country had lost 128,857 husbands, sons, brothers, uncles, cousins, fathers, and grandfathers at Chancellorsville, Vicksburg, Gettysburg, and Chickamauga to name just a few.10 The battle of Chattanooga was ongoing, and the siege of Knoxville was on the horizon.11 It would seem there was little reason for giving thanks. Author Sarah J. Hale did not quite see it that way. On September 28, 1863, the same day Boudinot’s joint committee met with President Washington years before, Hale wrote a letter to President Lincoln.12 She was writing to request that the President make a “day of annual Thanksgiving. . . a national and fixed Union Festival.”13 For fifteen years, Hale promoted this idea through editorials, but she believed that a Presidential Proclamation would be the best way to bring about a permanent, national day of unity around the idea of thanks.14 The impact of Hale’s letter on President Lincoln remains a mystery. November 2020
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United States Senate, The Senate Prepares for the President, https://www.senate. gov/artandhistory/history/minute/The_Senate_Prepares_For_A_President.htm, last visited Oct. 10, 2020. National Archives, Writing the Bill of Rights, https://www.archives.gov/foundingdocs/bill-of-rights/how-did-it-happen#:~:text=On%20October%202%2C%20 1789%2C%20President,the%20%E2%80%9CBill%20of%20Rights.%E2%80%9D, last visited Oct. 10, 2020. United States House of Representatives, Elia Boudinot 1740-1821, https://history. house.gov/People/Detail/9640, last visited Oct. 10, 2020; see also Washington Papers, Thanksgiving Proclamation (June 21, 2013), https://washingtonpapers.org/ documents/thanksgiving-proclamation/, last visited Oct. 10, 2020. Washington Papers, supra n.3. In particular, South Carolina Representative Thomas Tudor Tucker “thought the House had no business to interfere in matters which did not concern them. Why should the President direct the people to do what perhaps, they had no mind to do? They may not be inclined to return thanks for a Constitution until they have experienced that it promotes their safety and happiness.” Id. Id. George Washington Papers, Series 8, Miscellaneous Papers ca. 1775-99, Subseries 8A, Correspondence & Miscellaneous Notes: Correspondence & Miscellaneous Notes , 1773-1799, Thanksgiving Proclamation (Oct. 3, 1789), available at https:// www.loc.gov/resource/mgw8a.124/?q=1789+Thanksgiving&sp=132&st=text. Id. Id. American Battlefield Trust, Civil War Casualties https://www.battlefields.org/learn/ articles/civil-war-casualties, last visited Oct. 10, 2020. Library of Congress, Digital Collections, Time Line of the Civil War 1863, https:// www.loc.gov/collections/civil-war-glass-negatives/articles-and-essays/time-lineof-the-civil-war/1863/, last visited Oct. 10, 2020. Ltr. from S. Hale to A. Lincoln (Sept. 28, 1863), available at https://memory.loc.gov/ mss/mal/mal1/266/2669900/001.jpg. Id. Id. Abraham Lincoln, A Proclamation (Oct. 3, 1863), transcript available at http://www. abrahamlincolnonline.org/lincoln/speeches/thanks.htm. Id. For more information on the sacrifices and bravery of the 1/8 Marines in the Battle of Fallujah, see Gary Livingston, Fallujah, With Honor (Caisson Press 2007).
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barrister bullets BARRISTERS MONTHLY MEETINGS
Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. The next meeting will be held on November 11th at 5 p.m. through Zoom. There are many opportunities to get involved, and you are encouraged to contact Barristers President Allison Jackson (ajackson@emlaw.com) or Vice President Amanda Tonkin (Amanda.Tonkin@ssa.gov) for more information.
HUNGER AND POVERTY RELIEF EVENTS SCHEDULED
Knoxville Barristers Annual Canned Food Drive with Second Harvest will begin November 9, 2020 and continue through midnight on November 30, 2020. The registration deadline is November 6. Watch for information on how to register in KBA promotions. Please contact the committee co-chairs, Meagan Collver (MDavisCollver@ londonamburn.com) or Chuck Sharrett (Csharrett@londonamburn. com), with questions or to learn more about how you can help with future events.
BARRISTERS ELECTIONS
The Barristers are seeking nominations for the following officers to serve in 2021: • • •
Vice President Secretary/Treasurer (2) At-Large Executive Committee Seats
Please notify Elisabeth Martin (emartin@knoxbar.org), KBA Programs Administrator by Monday, November 2, if you would like to nominate someone or are interested in running for a Barristers office. Please note that the person elected Vice-President in December will automatically become the Barristers President for the 2022 bar year. Candidates must be current KBA members. This year’s Knoxville Barristers meeting, elections, and holiday party will be held on December 11. The location and program format are to be determined, as we continue to monitor COVID-19 cases and restrictions.
VOLUNTEER FOR THE VETERANS LEGAL ADVICE CLINIC
The Veterans Legal Advice Clinic is a general advice and referral clinic which will serve between 20 and 30 veterans in the community each month with a wide variety of legal issues. Volunteers are needed between 12:00pm and 2:00pm on the 2nd Wednesday of every month. Sign up to help at www.knoxbar.org/volunteer, and contact Access to Justice Committee Co-Chairs Spencer Fair (sfair@londonamburn. com) or Luke Ihnen ( ihnen@londonamburn.com) with questions.
Is your Fourth Quarter view not this good?
DIVERSITY SMALL GROUP DISCUSSIONS ONGOING
The Diversity Committee have been meeting with law students for small group discussions regarding pertinent topics in today’s everchanging landscape. Please watch for updates from the Diversity Committee via email and on the KBA online Calendar or contact committee co-chairs, Soojin Kim (Skim@emlaw.com) or Jessica Jernigan-Johnson ( JJerniganJohnson@londonamburn.com), to learn how you can become involved in upcoming Diversity meetings and gatherings.
VOLUNTEER BREAKFAST
The Volunteer Breakfast Committee will continue to deliver breakfast to the Volunteer Ministry Center on the fourth Thursday of the month, however, the Center has suspended in-person volunteer opportunities until further notice. The Barristers Volunteer Committee continues to accept sponsors, but regrettably is unable to accept volunteers at this time. We offer our heartfelt thanks to all our sponsors and volunteers. Please contact Matt Knable (knablelaw@gmail.com) or Mitchell Panter (mpanter@lewisthomason.com) for questions or concerns.
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We Can Help. Since July 1, 2019, anel mem ers have earned almost $1.5 million from LRIS-referred cases. Call Tracy Chain, LRIS Administrator, or visit www.knoxbar.org/joinLRIS November 2020
LEGAL MYTH BREAKERS By: Brad Fraser Leitner Williams Dooley Napolitan, PLLC
WHY DID THE LAWYER CROSS THE ROAD? “NO SKIN IN THE GAME” OR “NOT MY PIG, NOT MY FARM”? Pig and Chicken are discussing opening a breakfast restaurant. Pig asks what will be on the menu, Chicken replies, “The usual, ham and eggs, bacon and eggs.” Pig thinks and says, “No, thanks.” Chicken asks, “Why not? I’m involved too.” Pig replies, “Yes, you are involved, but I’m committed.” Some months back, David Long and I were discussing discovery in arbitration (yes, we are nerds). We have had clients inquire about subpoenas issued by an arbitrator when they were not even parties to the pending arbitration. In this segment, we will explore what discovery of non-parties can be conducted in arbitration pursuant to the Tennessee Arbitration Act1 (TAA) and the Federal Arbitration Act 2 (FAA). Discovery permitted by the Tennessee Arbitration Act The provisions of the TAA seem straightforward to me. The TAA authorizes an arbitrator to issue subpoenas for witnesses, depositions and production of documents. The statute further permits issuance, service and enforcement in a manner provided by law for subpoenas in a civil action. The TAA further provides that upon application, an arbitrator may permit a deposition to be taken of a witness who cannot be subpoenaed or is unable to attend the hearing.3 This appears to include those witnesses who are immune from subpoena by statute, outside the jurisdiction or otherwise unable to attend. Based on this, I would expect Rule 45 of the Tennessee Rules of Civil Procedure to provide the necessary guidance. Discovery in Arbitration in Federal Courts The FAA does not specifically mention any specific rights to conduct discovery among themselves, much less third parties. However, Section 7 of the Act provides “the arbitrators may summon in writing any person to attend before them or any of them as a witness in a proper case to bring with him or them any book, record of document, or paper which may be deemed material as evidence in the case.” 4 This clearly states an arbitrator can issue a subpoena to testify and for the arbitration hearing. The majority view limits this to the arbitration hearing itself. The minority view implies from the language that a non-party can be compelled to produce documents in advance of the arbitration proceeding. While the scope of production is different among the federal circuits, few courts in the 6th Circuit have addressed the issue. One court in the Middle District of Tennessee adopted the minority view that while Section 7 on its face only allows an arbitrator to compel nonparties to “attend before them,” the power to compel documents at the hearing implies the power to compel them to be produced in advance of the hearing. 5 A few years later, the 6th Circuit Court of Appeals panel held that a subpoena for production of documents may be served on a non-party for production of documents in an arbitration. The 6th Circuit held the presence of an underlying proceeding under the Labor Relations Management Act (LMRA) conferred federal question jurisdiction for November 2020
the Court to decide the issue. 6 A dissenting opinion by Justice Clay challenged only the subject matter jurisdiction of the federal court to enforce the subpoena. The dissent opined the subpoena could have been enforced in a state court pursuant to the FAA and the Supremacy Clause of the United States Constitution.7 However, even in the 6th Circuit, the procedural posture may be critical. A Magistrate Judge in the Western District of Kentucky has held that American Federation does not actually embrace the minority rule, and further held the FAA did not provide any authority for a subpoena duces tecum or any other subpoena except at the hearing itself. The Magistrate opined that American Federation was limited to the Labor Relations Management Act (LMRA). 8 Among the circuits which have adopted the majority view, the most interesting one I found was penned by current Supreme Court Justice Samuel Alito. In a 2004 opinion from the 3rd Circuit bench, Alito was critical of the “power-by-implication analysis” by the Tennessee Middle District Court in Meadows. 9 Alito compared the language of Section 7 to former Rule 45 of the Federal Rules of Civil Procedure. Alito noted that prior to 1991, Rule 45 (which had similar language to Section 7 of the FAA) had never been interpreted to require a non-party in litigation to simply provide documents, unless the subpoena also required the witness to testify as well. 10 The most recent federal appellate court decision I found addressing the ability to compel a subpoena for pre-hearing document production on a non-party was rendered by the 9th Circuit Court of Appeals in 2017 in CVS health Corporation v. Vividus, LLC. 11 In CVS, the panel specifically declined to follow American Federation and continued to espouse the majority view that a non-party can only be subpoenaed to testify and bring documents to the arbitration hearing itself. 12 The Takeaways Discovery pursuant to the TAA seems simpler. If a party to arbitrations seeks to conduct discovery of someone who has “no skin in the game,” I believe Tenn. Code Ann. § 29-5-308 answers most of the obvious questions. However, if you cross the road to a federal court, the circuit in which the court lies, any federal laws implicated in the underlying suit and a variety of other factors may come into play. 3 4 5 6 7 8 9 1 2
12 10 11
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Tenn. Code Ann. § 29-5-101, et seq. 9 U.S.C.A. §§ 1-307. Tenn. Code Ann. § 29-5-308 9 U.S.C.A. § 7 Meadows Indem. Co. v. Nutmeg Ins. Co., 157 F.R.D. 42, 45, (M.D. Tenn. 1993). American Fed’n of TV &Radio Artists v. WJBK-TV, 164 F.3d 1004 (6th Cir. 1999). U.S. Const., Art. VI, § 2. Westlake Vinyls, Inc. v. Resolute Mgmt., 2018 U.S. Dist. LEXIS 220517 (U.S.D.C., W.D. Kentucky, August 21, 2018), Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404 (3rd Cir. 2004). Id. 878 F.3d 703, (9th Cir. 2017). Id.
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Address Changes WELCOME NEW MEMBERS
Please note the following changes in your KBA Attorneys’ Directory and other office records:
THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Ryan R. Brown Lincoln Memorial University Michelle Holland Andrew J. Lewis Law Office of Gary Wilkinson Willie L. Robinson, Jr. Portfolio Recovery Associates LLC Caitlin A. Torney Legail Aid of East Tennessee, Inc.
Matthew T. McDonald BPR #: 033431 Bernstein, Stair & McAdams LLP 116 Agnes Road Knoxville, TN 37919-6306 Ph: (865) 546-8030 mmcdonald@bsmlaw.com
Richard E. Graves BPR #: 034258 Frantz, McConnell & Seymour, LLP P.O. Box 39 Knoxville, TN 37901-0039 Ph: (865) 546-9321 rgraves@fmsllp.com
Grayson K. Schleppegrell BPR #: 034435 Schleppegrell Law, PLLC P.O. Box 32587 Knoxville, TN 37930-2587 Ph: (865) 313-5903 grayson@gkspllc.com
Elijah C. Lovingfoss BPR #: 037586 Brock Shipe Klenk PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 elovingfoss@bskplc.com
NEW LAW STUDENT MEMBERS Alan Aguirre-Rivera Issam Bahour Samuel E. Bartz Hannah Benjamin Heather H. Bosau Stephen D. Branum, Jr. Kaylee A. Brown Sarah Beth Cain Regan D. Caruthers Hannah M. Clyde Colleen Conboy Elizabeth A. Cox Meaghan Denniston Brady E. Diaz-Barriga Benjamin L. Dooley Peyton E. Faulkner Ritchie Joshua Fields Alexandria F. Foutch K’Sheona J. Frazier Cherie B. Gaines Molly E. Green Brianna Griffin Walter W. Harding, Jr. Sequoya F. Held Erika Holmes Dalton T. Howard Kendall Jones George A. Judzewitsch Camille M. Kennedy Star S. Kimbrow Adam C. King Samuel R. Knell Stefan R. Kostas Ella A. Kostecki Sara N. Lawson Elizabeth Liminoso Yasmine Ly Landie Maness Spencer C. Matheny Grady McGinnity Katherine Q. McGonigal Savannah D. McMillan Georgia A. Miller Natalie R. Miramontes-Tankersley Jonathan W. Montgomery Raven N. Morris Sierra Motiee-Moore Matthew J. Napolitano Holly K. Nehls Gordon L. Pera Daryl H. Petersen, Jr.
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Maha M. Ayesh BPR #: 025244 Lincoln Memorial University - Duncan School of Law 601 W. Summit Hill Drive Knoxville, TN 37902-2003 Ph: (865) 545-5300 maha.ayesh@lmunet.edu
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November 2020
BARRISTER BITES By: Angelia Morie Nystrom The UT Foundation Institute of Agriculture
BIRD IS THE WORD I hate birds. Don’t get me wrong: I think they can be pretty, and I am amazed by their ability to fly with those fragile wings. However, I am extremely scared of anything that can fly toward my head. I have always had this fear, but it intensified many years ago after a series of unfortunate encounters with a mockingbird. After law school, I purchased a little red Chevrolet Cavalier Z-24. It was small, fast and economical. It was perfect for a young, struggling lawyer. I loved that car…. And apparently a mockingbird that had taken up residence near my home did, too. For weeks, every time I tried to get into my car, that stupid bird would dive at my head. I tried everything to keep him away: screaming, file folders, an umbrella, a tennis racquet. I even called TWRA to see if they could dispatch him. After the officer finished laughing at my request, he told me that mockingbirds, as the State bird, are a protected species and that I was on my own. My disdain for birds has continued; however, as long as they are not dive-bombing me, I don’t want to see them dead. My husband, on the other hand, has a different philosophy. Hugh is an avid wingshooter and loves nothing more than to spend his free time bird hunting. When Trace was young and we were still in what I term the “toddler bubble,” Hugh decided to go hunting with some friends. At the end of the trip, he came home with a bag of bloody birds, which he deposited in our garage freezer. As much as I love cooking, I am disgusted by the sight of raw meat if it has liquid with it. This packet of birds was especially loathsome. I let Hugh know that he was responsible for cooking them, as I had no intention whatsoever of dealing with them. Unfortunately, a couple of weeks later, our power went off and stayed off for a couple of days. When I went to the garage refrigerator, it looked like something from a horror movie. The bag had not been sealed well, and blood from the birds was running out of the freezer, down the door and into the floor of our garage. After that incident, Hugh’s wingshooting days came to an end (at least for a number of years). As Trace got older, Hugh was hoping that he had found a hunting buddy. Those hopes were realized when Trace, at 10, shot a robin in our backyard with his Red Ryder BB gun. After that incident, I advised Trace that the rule of our house was, “You kill it—you eat it.” Again, as much as I dislike birds, I don’t want to see them dead. This year, Hugh decided that Trace was old enough to go dove hunting. He has participated in several Boy Scout shooting courses and has even participated in sporting clays tournaments with Hugh.
November 2020
Hugh has often remarked that Trace is a really good shot, and he was excited to see what Trace could do in a dove field. As they left for their trip, I again advised of the house rule (you kill it, you eat it)… and also advised that I did not want to see bloody birds in my freezer. Per Hugh, Trace shot the first three birds of the day (within the first ten minutes). He also saw Hugh shoot one mid-flight and then catch it in his hand before it hit the ground. Needless to say, Trace was hooked. At the end of the day, they arrived home with a bag full of birds that had been cleaned extremely well (ie., not bloody). As much as I love to cook, I have never tried to prepare wild game. Trace was extremely excited to be able to eat the doves that he shot and decided that he would actually find a recipe and cook them. I was fine with that. Hugh and Trace scoured the internet for recipes and settled on smoked jalapeno dove poppers. To make them, Trace used dove breasts, fresh jalapenos, a jar of chopped jalapenos, season salt, cream cheese and bacon. He began by removing the breasts from the bone and dividing each breast into two lobes. He then sprinkled the meat with salt and pepper. Next, he sliced the jalapenos lengthwise and removed the seeds. He then mixed softened cream cheese with chopped jalapenos (from a jar) and season salt. Trace cut the bacon slices in half so that they were the appropriate length to wrap around the poppers. To prepare the poppers for grilling, Trace spooned some of the cream cheese mixture into each jalapeno, laid a piece of dove meat on top, and then wrapped each one with a bacon slice, securing it with a toothpick. He and Hugh decided that they would be good smoked. (Hugh purchased a Traeger smoker at the start of the COVID shutdown and uses every available opportunity to smoke things.) They set the smoker temperature to 180 ° and smoked them for about an hour. Then, they increased the temperature to 375° and grilled them for about 10 minutes, turning once, to ensure that the bacon was crisp. I have never been a huge fan of wild game, but I really enjoyed the dove poppers. They had a complex flavor, and you could taste each of the ingredients with each bite. The dove and the bacon were a nice combination. The jalapenos gave the poppers some heat, and the cream cheese “cooled” them down a bit. Although I am not a huge fan of bird hunting, I am glad that Hugh has found a hunting buddy in Trace. And the house rule has now changed: “You kill it-- we eat it.”
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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
By: Phil Hampton Founder and CEO, LogicForce Consulting
SAMSUNG GALAXY NOTE 20 ULTRA 5G Call us phone snobs if you will, but when the tech journalists declare a new entrant on the luxury smart phone landscape, we cannot wait to get our hands on it. That certainly was the case for Samsung’s new premier smart phone, the “Galaxy Note 20 Ultra 5G”. More than just a mouthful to say the name, this new smart phone is a handful of exquisite features that do not disappoint. We will be the first to admit that the Galaxy Note 20 Ultra 5G (hereafter dubbed “the Note”) is probably not for everybody. With a starting retail price of $1,300, the Note is one of the most expensive phones on the market right now; and there are plenty of smarter economic choices for most users. But, if you are like us, and are consumed with tech envy when you see your colleague in the office using a device with more bells and whistles than you have; well, read on. We have always contended that size does matter when it comes to smart phones. Samsung stretched the new Note to a 6.9” screen, the largest screen size we have ever used on a smart phone. Maybe it’s our aging eyes or just our supersized ego, but we absolutely love the extra screen real estate on our primary collaboration tech device. In addition to the slightly larger size, the Note 20 is capable of a fast 120Hz screen refresh rate when displaying video intensive content. The iPhone 11 in all its variants has a locked screen refresh rate of 60Hz, by comparison. What does the mean? When viewing certain content such as movies, animations, or games on the Note 20, the experience should be much more visually pleasing. Of course, the S-Pen, or stylus, that comes with the Note 20 is a big reason we became fans of the Samsung Note line of phones years ago. With the Note 20, the latency of the S-Pen is the lowest ever at 9 milliseconds, which is equivalent to the latency of the Apple Pen on the iPad Pro. The result is a very realistic experience when using the S-Pen to jot down notes on the Note 20. This is a feature that we use even more now that we have both a larger screen and a faster response stylus. The handwriting to text feature works great, even with our poor handwriting, so that we can convert our handwritten notes to an editable Microsoft Word document or PDF. We also really love to use the S-Pen to mark up and highlight PDFs and to sign documents while we are on the go. iPhone users have been begging for a stylus for the iPhone for years now; but can only use the superb Apple Pencil on an iPad. The S-Pen is a big selling point for the Note smart phone. The Note 20 sports a triple-lens camera system that is pretty common on most new, higher-end smart phones today. We can shoot
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photos with the standard view lens, the super-wide-angle lens, or the telephoto lens. We are not photography experts by any stretch of the imagination; but we are pretty impressed with the photos that we can capture. The wide-angle lens is a favorite, being able to capture much more context in the scene, like an outdoor shot or picture of a roomful of people. You can shoot in robust 8K video on the Note; but to be honest, most videos that we shoot would be fine in 4, 3, 2, or even 1K, if it exists. Samsung has covered the Note 20 in Corning’s new version of Gorilla Glass called Victus. What does this mean? It means an increased resistance to drops, now up to 2 meters, and a screen that is more scratch resistant. We inadvertently tested the drop resistance a couple of days after unboxing when the behemoth phone slipped out of hand and dropped to the floor. Gorilla Glass Victus held up like a champ, and we sustained no scratches or cracks. Like the Note 10 model, the Note 20 has a fingerprint reader on the screen for authentication. While not perfect, the fingerprint reader on the Note 20 does seem to be more precise than the previous model. The Note 20 Ultra also has the “5G” designation, which is the first smart phone that we have bought which is 5G compatible. What this means is that the Note 20 communicates over the 5th generation cellular network standard known as 5G, which is touted to be orders of magnitude faster than current 4G speeds. We have been touting 5G as a coming revolution for a couple of years; and now it is here, sort of. As the cellular carriers rush to build out their 5G networks, the availability and quality of 5G reception varies widely. When 5G is fully implemented throughout the U.S., it reportedly will offer transmission speeds that dwarfs today’s cellular networks. Our experience so far has been underwhelming. We are convinced this lackluster 5G performance is due to the incomplete 5G infrastructure buildout in our area rather than due to some malfunction with the smart phone. Don’t get us wrong, cellular reception is great and fast; just not lightning fast like we have been told 5G will ultimately be. So, as we wait for the realization of the promises from the 5G revolution, we are very pleased with the design and function of our new, pricey, and flashy smart phone. Depending on where you are with your current cellular contract, many carriers are offering incentives to help with the purchase of the Note 20, which is what we took advantage of. Would we have bought the Galaxy Note 20 Ultra even without any pricing incentives from our carrier? Probably. Our tech ego is just too big to let this big, beautiful smart phone sit on the shelf.
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November 2020
WELL READ By: Cathy Shuck East Tennessee Children’s Hospital
BETTER LIVING THROUGH POKER One of the first things we learn in torts is that everything happens for a reason. There are always proximate causes and there is always somewhere to apportion fault. But in real life, knowing the but-for cause doesn’t necessarily help us accept the outcome. A parent is killed by an erratic driver – but why did it have to be my parent? Someone is selected for a lay-off – but why was it me? Even worse are the twists of fate that seem to have no cause at all: repeated miscarriages; a freak accident; a child with a rare disease. How do we make good decisions in a world full of events we can’t control? Author and psychologist Maria Konnikova examines the balance between chance and control in The Biggest Bluff: How I Learned to Pay Attention, Master Myself, and Win.1 After experiencing what felt like a disproportionate amount of bad luck—an illness, job losses, and a death in the family—Konnikova sought out coping strategies. The one she decided to explore in depth was poker. Poker, Konnikova explains, “unlike quite any other game, mirrors life. It isn’t the roulette wheel of pure chance, nor is it the chess of mathematical elegance and perfect information. Like the world we inhabit . . . [p]oker stands at the fulcrum that balances two oppositional forces in our lives—chance and control.” For her project, Konnikova chose No Limit Texas Hold ‘Em, the most popular form of poker. The game combines the knowable with the unknown: each player is dealt two cards that only she can see. The dealer, over multiple betting rounds, deals five additional cards, which everyone can see. Each player makes up her best five-card hand using any combination of her own cards and the common cards. Again, it is a combination of the known, the unknown, and chance. Konnikova’s real goal, however, was not simply to accept the role of chance in her life, as the Serenity Prayer might counsel. Rather, she wanted to “reclai[m her] agency over chance”2 by actually getting good at poker. Her theory was that by acquiring the skills necessary to be a good poker player, including patience, good decision-making, and a meaningful understanding of probabilities, she would also become better at making decisions and living in the world. The thing that makes Konnikova’s story worth telling is that when she decided poker was her path to enlightenment, she had never played it and knew virtually nothing about the game. She nevertheless managed to apprentice herself to Erik Seidel, one of the top players in the world, with a goal of playing in the World Series of Poker within a year (and writing a book about it). Konnikova’s November 2020
story is full of funny and fascinating fish-out-of-water experiences as she graduates from playing online poker in New Jersey cafes to playing tournaments in off-strip casinos in Las Vegas, and then to Monte Carlo and beyond. Konnikova honed her poker skills with help from Seidel and other top-ranked players and through hours and hours and hours of play. The lessons she learned helped her become (spoiler alert) a surprisingly good player herself. Some of the best and most applicable to the rest of us are: -
There is no single best way. Konnikova was initially frustrated by her coach’s refusal to tell her how to play particular hands, instead encouraging her to evaluate each situation independently. She eventually agreed that “[t]here’s never a single right way to play a hand—and there’s certainly no single right way to reach a goal.”3
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Make a plan. Although hope is important to hold in our hearts, one of Konnikova’s teachers emphasizes that “hoping things go well” cannot be part of the plan. You cannot “plan” to get lucky. If you’re going to win, you have to be able to win with all cards, not just the good ones.
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Have a reason for your decisions. When she first started playing, Konnikova’s coach had her keep track of all of her hands, and then review with him why made the choices she did each time. Why did you call instead of raise? Why didn’t you fold? He refused to congratulate her on lucky breaks, or allow her to dwell on an unfortunate turn of the cards. Rather, he trained her to “[f ]ocus on the process, not the luck.”4
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Understand your emotions and manage them. One teacher had Konnikova make a spreadsheet to track situations, triggers, responses, and underlying issues. Even with her background in psychology, Konnikova seemed surprised by how effectively she was able to identify patterns and come up with strategies to manage them. Who knew that Excel could be a tool for self-awareness?
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Pay Attention. Her coach’s cardinal rule was a version of the advice we hear so often: be present, be in the moment, watch and listen to what is going on around you. “Chance is just chance: it is neither good nor bad nor personal.”5 Observing how others react to chance, and using all available information to make good decisions, are keys to success.
The Biggest Bluff is a well-written, entertaining read with helpful insights for these uncertain times. I recommend it to poker players and non-poker players alike.
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Konnikova, Maria. The Biggest Bluff: How I Learned to Pay Attention, Master Myself, and Win (Penguin 2020). Id. at 293. Id. at 239. Id. at 133. Id. at 323.
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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
SO, WHAT HAPPENS IF . . . A former student of mine recently compared our current situation, with COVID-19 upending the presidential election, to one of my exam hypos. No, I said, I couldn’t make this [stuff ] up. But here we are. As of this writing, President Trump and many other government officials have been infected by a virus that has debilitated or killed hundreds of thousands of Americans—in the midst of the most contentious presidential election in recent memory. What would happen if one or both candidates were to die or be disabled? The answer depends upon who, what, and when. To begin with, let’s ignore the election. If any president dies or is debilitated while in office, the Twenty-Fifth Amendment mandates that, one way or the other, the Vice President takes over, for as long as necessary.1 If both men are struck down, there is a statutory line of succession which, jarringly, starts with Trump’s archrival, the Speaker of the House of Representatives.2 President Pelosi, anyone? But we can’t ignore the election. So, what happens if one of the major party candidates dies or is incapacitated? The Constitution sets the general parameters. Article II creates something called the Electoral College. Each state has electoral votes equal to the number of that state’s representatives in the House, plus its two senators, and each state decides how to cast its votes.3 Early in our history, state legislators made the decision, but, since the 19th Century, states have chosen their electors based upon the state’s popular vote. The Twentieth Amendment sets the endpoint: The new president is inaugurated on January 20 of the year following an election.4 The Constitution gives Congress the discretion to set other dates, including the date of a presidential election, as well as the date when the resulting electoral votes will be counted.5 Currently, Congress has set those dates as November 3 for the election, December 14 for when states will transmit their electoral votes to the Senate, and January 6, 2021, for when the President of the Senate (Vice President Pence) will open and count the votes. So, now we have a timeline: before November 3; between November 3 and December 14; between December 14 and January 6; and between January 6 and January 20. With me so far? If one of the presidential candidates dies before November 3, then that candidate’s party can nominate someone else. That’s happened before, notably in 1972, when the Democratic Party replaced its vicepresidential nominee, Thomas Eagleton, because of revelations regarding his mental health. But that was in early August, about a hundred days before the election. Now, however, it’s less than a month before the election, and the states’ deadlines for inclusion on their ballots have long passed. Indeed, millions of ballots have been printed, and, with early voting, many have been cast. So, assuming either the DNC or the RNC could agree upon a new candidate (a big assumption) the best they could do before November 3 would be to announce the new candidate’s name in a last-
minute media blitz. Which would still leave the issue of already-cast ballots: Should they be discarded? Should they be counted toward the new nominee’s totals? There’s only one guarantee in such a situation: lotsa lawsuits. If a candidate dies between November 3 and December 14, how should states choose electors?6 And remember, there is a significant possibility that the popular vote in a battleground state could favor a dead candidate, while the state legislature favors the other. In Michigan, for example, Biden is well ahead in the polls. But the Michigan legislature is controlled by Republicans. Perhaps two competing lists of electors would be sent to the Senate on December 14, or maybe later—how should the Senate count the votes? No controversy there. If a candidate dies after a winner is certified on January 6, the Twentieth Amendment comes to the rescue: “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President.”7 Okay, but what if there is no clear president-elect as of January 20? What if, for example, there is a tie in the Electoral College, and the House of Representatives, which is supposed to resolve such things, deadlocks? That happened in 1800, when Thomas Jefferson and Aaron Burr went thirty-five rounds before Jefferson finally prevailed. (Alexander Hamilton brokered the deal, which is among the reasons Burr killed him four years later—and you thought 2020 was contentious).8 But again, the Twentieth Amendment should save the day: “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”9 Whew. But there’s still at least one more possibility, given the unpredictability of COVID-19. What if an infected candidate remains alive, but is on a ventilator, or otherwise disabled? Herman Cain spent four weeks in the hospital before dying of COVID-19. Presumably, such a candidate could remain on the ballot throughout the electoral process, but what if he can’t take the oath of office on January 20? Again, the Twentieth Amendment should come to the rescue until such time as he could.10 Confused yet? Stay tuned. 3 4 5 6 1 2
9 7 8
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U.S. Const, amend. XXV. 3 U.S.C. § 19. U.S. Const. art. II, § 1. U.S. Const, amend. XX, § 1. U.S. Const. art. II, § 1. This has happened once before, when Horace Greely died shortly after the election of 1872. Most of his electors voted for other candidates, but three electors voted for Greely; those three electoral votes were not counted. U.S. Const, amend. XX, § 3. But at least we got a really cool Broadway musical out of it. U.S. Const, amend. XX, § 3. Id.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
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November 2020
OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber
ON COVID’S EDGE Out on the edge of this pandemic, beyond the nasal swabs and masks, the social distancing and respirators, beyond those who are asymptomatic, those who have been rather sick and those we have lost in its awful wake, you will find a different group of victims. Judy Ackermann was one. She died last week. I’ve written about JuJu. My first column in this publication was about her, and I’ve appreciated attorneys who read this column for asking about her. She was my motherin-law and a beloved mother of four and grandmother of eleven who was diagnosed with Alzheimer’s Disease almost a decade ago. I previously wrote about her love of Key Lime Pie. Beneath the daily and progressive haze of Alzheimer’s, JuJu never was anything but JuJu. Its progress, however nasty, moved slowly, arrested by the love of her family. She thrived on the love of her children and grandchildren. Since her diagnosis almost ten years ago she rarely went one or two days of her life without the presence of at least one of her children. Nancy and her three siblings took turns making sure JuJu was never lonely. “I have JuJu today,” Nancy would say as we both got ready for our day. This meant a walk thru the neighborhood. Later, it was the mall, then the halls of her assisted living and, finally, pushing her in a wheelchair around the bleached halls of a nursing home. I made her a playlist on an old iPod nearly a decade ago. Nancy would put her headphones on her or play it out loud on bluetooth speaker as they visited or walked. JuJu sang Lipstick on Your Collar by Brenda Lee, Great Day to be Alive by Travis Tritt, Stagger Lee by Lloyd Price - a whole playlist of songs and artists she loved. Everyday there was “I love you,” laughter, smiles, and more importantly, touch - A hug, a kiss or holding hands. It is what she lived for, and I don’t care what scientists say, it held Alzheimer’s at bay. Jill, Dori, Nancy and Andy, they all participated. Her lifeline was that rarely mentioned and unheralded part of love that is perhaps the most beautiful - Devotion. You don’t get gold medals or a pat on the back. You just do it. But, when it is done right and seen from a distance, it is as beautiful as anything in the Kingdom. Spouses rarely get “loss of consortium” damages, because you marry for better or worse. A parent takes care of and raises a child. That’s how it works. Sometimes the roles are reversed. In the Alzheimer’s community, they call children like Nancy and her siblings “caretakers.” I’ve always hated that word. I don’t have an alternative, but it is a word that just doesn’t capture the role. Many would say that Alzheimer’s is a fate worse than death. Losing memories - first the short-termed and then the ones that really matter - might rob one of who they have become, but it does not always rob them of who they have always been. The disNovember 2020
ease had not yet robbed JuJu of her essence. She sang the words to the songs; she smiled when she saw any of us, even if she couldn’t remember our name. She spoke in her beautiful and distinctive voice and she enjoyed simple things like Key Lime pie and Sprite. She watched Everybody Loves Raymond (simply referred to as “Raymond”) and Frazier, and never tired of them, each episode a new episode to her. She basked in the touches and the words of affection and always commented on a beautiful day. When she was cold, she told you. When she was hot, she told you. Sometimes she was both within 3 minutes. She was always her delightful self despite the disease, just like she had been her entire life, basking in the love of family. Then COVID. The nursing home ended visitations in March. Like trees in a drought, JuJu began to wither. In an instant the touch and the love were taken, and JuJu made the slow turn towards her reward. There were window visits, but that was like prison, leaving both sides of the glass darker and empty. She stopped eating. Phone calls reporting loss of weight and elevated confusion came. Sure, it sounds like the progression of Alzheimer’s, but it was so much more. Yes, it is the natural order of things for parents to go first, but are we ever ready? COVID is supposed to kill by attacking the lungs, but it has other methods. Many in nursing homes may have outlived important people in their lives or perhaps aren’t accustomed to visitors, but then there are those like JuJu. Her one reason to keep on living was the most important reason to live in the first place - family. Her great legacy was that she never needed much to enjoy the world we live in. She didn’t mean to, because she would never presume to have made a difference in anyone’s life, but she taught those of us in her family that love can sustain us. She worshiped family and brought us all to her altar in the end, teenagers and all. When the call came indicating she was slipping away it came with a long-awaited invitation to visit. For three days her children snuck into her room. Only two were allowed on the list. Nancy and her sister could pass for one another, so they did. In the last days the four of them gathered and held her hands and touched her. On her sweet and glorious last day, my wife got in bed with her. She sang songs and professed her love. She went through the names of all of JuJu’s grandchildren and caught her up on their lives. She told her about the lives of all the people she loved and promised we would be fine, it was okay to let go. She told JuJu that she was a wonderful mother. When I asked if JuJu spoke, Nancy only said “I heard her.” There were smiles and hugs and a celebration of love and devotion and a life well-lived while in the background her playlist played.
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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. JUVENILE COURT AUCTION & CHILI COOK-OFF CANCELLED The Annual Juvenile Court Assistance Board Basket Auction & Chili CookOff scheduled for Friday, November 20 has been cancelled due to COVID-19. The date for next year’s event is Friday, November 19. Contact Patrice Staley at (865) 215-6475 (patrice.staley@knoxcounty.org) to learn how you can assist the children and families served. DEBT RELIEF VIRTUAL LEGAL ADVICE CLINIC The Tennessee Bar Association Young Lawyers Division and the Knoxville Bar Association, in partnership with the Tennessee Alliance for Legal Services, the University of Tennessee College of Law (UT Law), and the Lincoln Memorial University Duncan School of Law (LMU Law), will host a virtual Debt Relief Legal Advice Clinic for pre-screened individuals on Saturday, November 7, from 9:00 – 11:30 a.m. The clinic is open to residents of Anderson, Blount, Campbell, Claiborne, Grainger, Jefferson, Knox, Loudon, Monroe, Morgan, Roane, Scott, Sevier, and Union Counties. Students from UT Law and LMU Law will follow up with potential clinic clients to determine eligibility for the clinic, which is available to individuals whose income and expenses place them at less than 250% of the federal poverty level based on household size. United States Bankruptcy Judge Suzanne H. Bauknight will begin the clinic with an overview about debt issues, the bankruptcy system, and reasons for and against seeking bankruptcy protection. After the overview, clients will be paired with volunteer attorneys in virtual break-out rooms to confidentially discuss debt relief options. Sign up at https://www.knoxbar.org/index.cfm?pg=Upcoming-Legal-Clinics. LMU LAW REVIEW LMU’s Duncan School of Law plans to publish a spring issue of their law review next May, and they are seeking articles on issues particularly important to the surrounding Knoxville and Appalachia regions, as well as the underserved communities within each. Articles would need to be submitted before the end of January in order to be published. Submissions may range from brief essays to lengthier articles. The law review board will receive and review the submissions and vote on whether or not it will be published. Authors should format their citations as footnotes and follow the bluebook rules when doing so. Anyone will-
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ing to submit a paper should use this link: https://lmulawreview.scholasticahq. com. Please note that if the submission is being published in another journal or book, or has previously been published in another journal or book, it cannot be published in the LMU Duncan School of Law’s law review. Anyone interested can reach out to Roel Reyna at rd.reyna@gmail.com. KBA CLASSIFIEDS EXPANDED TO INCLUDE LAW STUDENT INTERNS Reliable help when you need it! Have you ever been short on time and in need of help to reach a deadline? Do you ever wish you could delegate tasks like research and writing so that you could better focus on practicing law? In short, do you need an intern? We want to help! The KBA has updated our Classifieds and added the option to post listings specifically seeking law student interns. We have been working closely with the law schools who have expressed that students are desperate for internships and opportunities to gain experience while in law school. Law students will benefit from this invaluable exposure to the local legal community. Students may post their resumes and signify that they are seeking internships. Attorneys and law firms will have the ability to post intern listings and browse resumes of eager 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 at www.knoxbar.org. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: • Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email jfanduzz@gmail. com for inquiries • Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
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November 2020
LONG WINDED By: Jason H. Long London Amburn
AN HISTORIC ELECTION The pundits are describing 2020 as a watershed election year. Between a once in a lifetime (we hope) pandemic, a Supreme Court confirmation hearing, protests in the streets, the strong likelihood that this election will end up in the courts, and a wildly divided electorate, this year’s presidential election is challenging the limits of our Constitution like no other in our lifetimes. The circus has been interesting (fun, if you are a sadist) to watch, and I think its safe to say that the 2020 election will be historic for a number of reasons. For example, as most likely everyone knows by now, whoever wins the 2020 election will be the oldest president inaugurated in the history of our country. Albeit I was only nine years old at the time, but when Ronald Reagan was sworn in for his first term, he was 69 years old and that seemed ancient to me (as I rapidly approach 50, I am recalculating my perceptions of what I consider to be old). Reagan was 73 when he was sworn in for his second term (because . . . math). If Donald Trump is reelected for a second term, he will be 74 at the time of the inauguration. If Joe Biden wins, he will be a whopping 78 years old. How is it possible that both major parties have nominated candidates for the most stressful, difficult job in the world, who are well past the age when most Americans retire and start yelling at the squirrels to stay off their lawn? The age of the candidates is a bad portent for democrats. The last time a democrat won the presidency where he was older than the republican candidate was Lyndon Johnson in 1964. It helped that Johnson was the incumbent and Barry Goldwater seemed a little crazy (everyone was afraid he was going to blow up the world). The last time a democrat successfully ran against an incumbent republican who was younger than him was . . . well . . . it has never happened. This year’s election is also interesting in the fact that it pits perhaps the most experienced political candidate in the history of national elections against arguably the least experienced. I make no value judgments here. Many people value an experienced politician who knows his or her way around capital hill. Others decry the insider tendency of Washington politics and beg for someone who will bring a fresh approach. Indeed, it is likely that this “drain the swamp” mentality was substantially responsible for the election of Donald Trump in the first place (he was running against another very experienced politician four years ago). I just find it an interesting contrast that Joe Biden has held elective office for the past 42 years (certainly a record for presidential candidates as he was actually elected to the Senate at the age of 29, when he was still too young to hold the office) while Donald Trump never held or ran for elective office prior to his run in 2016. November 2020
Of course, if the democrats win the election, it will be the first time that a female has won national elective office. It is really shocking, and unacceptable, that in the 100 years since women gained the right to vote, no female has successfully run on a national ticket (of course only two others have tried). The demographics of this country are changing and I trust that, with the election of Barack Obama in 2008, the candidacy of Hillary Clinton in 2016, and the potential election of Kamala Harris in 2020, we are finally beginning to see some diversification of the executive branch. That being said, the current presidential candidates are the two oldest, and arguably whitest, men our country has ever nominated. There is a popularly held notion that the taller candidate always wins the presidential election. While that is not entirely true, since the advent of television in 1927, the record of the taller candidate is 19-3-1 (Bill Clinton and George H.W. Bush were the same height) in presidential elections. Kudos to George W. Bush who, at 5’ 11 ½”, fended off two taller adversaries (in fact, he beat a 6’4” John Kerry). Jimmy Carter also pulled off the short man victory when he defeated a taller Gerald Ford. The tendency of taller candidates to win weighs in favor of the incumbent this year who, at 6’3”, is 2 inches taller than Joe Biden. For the record, this is what I do with my spare time. I compare the heights of presidential candidates since the advent of television because . . . well there really is no good reason. I can also list from memory every film Nicholas Cage has appeared in, if you are interested. I do want to mention one record that was broken last election cycle, but still intrigues me. As I think I mentioned four years ago in a column, since 1928, the republicans never had a winning national ticket that did not include someone named either Nixon or Bush. I was pulling hard for Governor Jeb Bush in the 2016 republican primaries in the hopes that streak would stay alive. Sadly, my plans were upended by Donald Trump. If Bush had gotten the nomination or if Clinton had won the election, I thought there was a better than average chance that the streak would last 100 years, which truly would have been remarkable. As many know, I am a democrat and there are few policy issues that I agree on with the Trump Administration. He and his supporters have angered many for a variety of reasons (in total fairness, he has also energized and delighted many). However, for me, his breaking of the Nixon-Bush stranglehold on republican electoral success was an unforgiveable sin. There, I said it. However this election turns out, it will be historic. I hope that we will be able to look back on it 20 years from now and admire the milestones, on both sides of the aisle, that were achieved. Either way, part of me will be really glad it is over.
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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 Legal Aid of East Tennessee
CLINICS IN A COVID AGE Although we can no longer safely meet in person, we have resumed holding clinics by conducting virtual clinics where volunteer attorneys reach out to clients by phone during preset time windows. In September, the Virtual Veteran’s Clinic was a resounding success: fourteen local veterans were matched with eight volunteer attorneys to provide legal assistance on a wide variety of topics. Going forward we will continue to hold Virtual Veteran’s Clinics monthly on the second Wednesday of the month with a contact window between 12:00pm – 2:00pm. Please sign up to volunteer online through the KBA’s clinic website. October was Domestic Violence Awareness Month as well as the American Bar Association 2020 National Celebration of Pro Bono which took place October 25th – 31st. In recognition of these two events, Legal Aid partnered with McNabb Center, YWCA of Knoxville and the Tennessee Valley, and with the help of volunteers from the Knoxville Bar Association and volunteer law students from UT and LMU held a virtual general legal advice clinic for victims of domestic violence on October 27th and 28th. We are so proud to work with such wonderful community partners to help address the many legal issues faced by domestic violence victims. 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.
FORGING JUSTICE: JOCKEYS, JULEPS, & JUSTICE The annual Pro Bono Project fundraiser, Forging Justice, will be held on Thursday November 12th at 6:00pm. Please be sure to read next month’s column where we will announce the winners of our annual awards and unveil our new inductee 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. Tickets to view the Facebook Livestream and receive a saddlebag gift bag are available online at: https://app.etapestry.com/onlineforms/LegalAidOfTennessee/2020ForgingJustice.html 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 our event! Please reach out to me at ctorney@laet.org or call #(865) 251-4951 for details.
PRESENTING SPONSOR: DAMASCUS: TITANIUM: COPPER: Luedeka Neely Group, P.C. Marshall Peterson The Honorable Gary Wade ALUMINUM: East Tennessee Lawyers’ Association for Women Ritchie, Dillard, Davies & Johnson Swafford Insurance Tarpy, Cox, Fleishman & Leveille, P.L.L.C. UT Federal Credit Union Watson, Roach, Batson & Lauderback, P.L.C Friend of Legal Aid of East Tennessee: 30
Egerton, McAfee, Armistead & Davis, P.C. London & Amburn, P.C. University of Tennessee College of Law Eldridge & Blakney, P.C. Furrow Auction Company Law Offices of Tony Farmer & John Dreiser East Tennessee Foundation Frantz, McConnell & Seymour, LLP The IT Company Kizer & Black, Attorneys, PLLC Linda Gay Blanc Lynn P. Talley, Esq. Paine, Tarwater, & Bickers, LLP Bible Harris Smith, PC DICTA
November 2020
THE LAST WORD By: Jack H. (Nick) McCall
Q:
So, Dale, what’s with the kangaroo in your office?
WALLY Junior Associate at Montpelier, Della-Rodolfa & Lope, P.C.
A:
Well first of all, mate, I am not a kangaroo. I am a WALLABY, an Agile Wallaby to be precise. You probably see the correlation with my name! For all practical purposes, wallabies and kangaroos are identical with a few big differences such as how we use our tails. The biggest difference is our size. I will grow to about 40 inches, whereas a male red kangaroo will exceed 9 feet including its tail! Now I know the scurrilous connotations kangaroos have in the legal community, which brings me to our second biggest difference. While we are all born with the law in our genes, the law genes in a wallaby are always fair and balanced, our attitude is one of serenity and compassion, and our work ethic is relentless. Take my great-great-great-great grandpappy for instance. When he first ascended the bench back in the old country, the family story goes that he would never hop down. Once he made his way up there, he was determined to never leave. Well, at least not until he was enticed off with a bit of kiwi fruit. And I try to do the same. To help out when I can, always with a smile and a little pop in my hop. On that note, if I may say this mate, the legal community in Knoxville has been absolutely terrific to me. Lawyers and their assistants come to my office and treat me like a king. And the judges! I went to juvenile court and all of the judges stopped what they were doing to meet me. I never felt so honored. I hope to meet each and every member of the Knoxville Bar Association. Anyone who wants to visit me is more than welcome. The boss makes me work just about every weekday, so come on by and bring me a strawberry!
DALE MONTPELIER Montpelier, Della-Rodolfa & Lope, P.C.
Wally is an aberration that came about through a twist of fate. Some of your readers know that I practiced law in Vietnam years ago. That gave me the opportunity to travel around Southeast Asia. Towards the end, I visited a friend of mine who lives in Australia. I had already fallen in love with their kangaroos, and I mentioned that I wished they made miniature ones. He was the one who opened me to the world of wallabies. After I got back, I studied every book and resource I could find about wallabies before deciding that I had to have one. It took me years of gently coaxing my wife to come around to the idea. It even got to the point where I changed out all of my ties so they have nothing but kangaroo patterns on them, a subtle hint of my dogged determination. Imagine my surprise when one, and only one judge noticed. I explained the whole story to Chancellor Pridemore and he wished me luck with my wife every time I saw him after that day. Then it finally came. “What do you want for Christmas,” she asked last year. “A wallaby,” I said, never expecting her to agree and most certainly not wanting another pair of socks. She said ok, I started my search, and I had Wally in my arms by mid-January. Since then he has come to the office every day with me, save for those rare times when I think my fenced backyard would be better for both of us. Wally has had a real impact on our firm. Besides being a great junior associate – although he does seem to sleep a lot – he has a magnetic personality that draws everyone to him. I can literally count four people who were not impressed with Wally. Every day that I drop my son off at school, the teachers in the car line give him a wave as I yell to my son, “Watch the tail! Watch the tail!” He has been welcomed into every business he has ever visited, rules notwithstanding, often ending up in photo sessions. He has also been to court. I cannot express the feeling Joe and I felt the first time we took him to juvenile court. So many kids in the most miserable of situations came up to him with giant smiles to see the novelty of this rare law-practicing animal. Seeing the happiness he brought to them brought happiness to us, as well. Our clients also love Wally, some even holding him on their laps while they tell their stories of legal despair. Or, perhaps, they just feel more confident knowing they have a kangaroo on their side? As for me, Wally is my constant companion. Sometimes I have a bad habit of working all night writing papers, but now I have someone to bring me back to reality. Whenever I hear the loud thud on my desk when he hops up, I know he is pushing me to go home. Throughout the day he hops into my office, stretching up on his back legs until I pick him up. He is always calm, never demanding, and always ready to share his time. Whenever I get frustrated, he is there to show me his cavalier attitude about life, reminding me to take a step back. Being a practicing lawyer is a hard job for anyone, so it really is a Godsend that this little roo has come into our lives to ground us in the things that are most important.
“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com November 2020
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Prsrt Std US POSTAGE
PAID
P.O. Box 2027 Knoxville, TN 37901
KBA & Knoxville Habitat for Humanity 2020
KNOXVILLE, TN PERMIT NO. 3 0 9
The KBA is celebrating more than 25 years of partnering with Knoxville Habitat for Humanity to build homes for families in our community. Construction for KBA’s ninth house began on Saturday, September 12, and will end in November. Now more than ever, Habitat for Humanity’s work is critical. For many families, those who were already struggling with a need for decent and affordable housing, their daily lives have only become more challenging. The KBA and First Presbyterian Church will be building a home for Teresa Raysin, who is a grandmother that loves spending time and making memories with her family. The KBA’s involvement with Habitat over the years has provided members with a real opportunity to build relationships, not only among lawyers but also among community volunteers who have a shared vision of a world where everyone has a decent place to live.
