DICTA.February 2016 by Knoxville Bar Association

Practice Tips: Mediating A Domestic Case . . . Page 9 Schooled in Ethics: Client Files: The Rest of the Story . . . Page 21

A Monthly Publication of the Knoxville Bar Association

February 2016

USING BYOD POLICIES TO AVOID LEGAL RISKS

DICTA

February 2016

In This Issue

Officers of the Knoxville Bar Association

February, 2016

COVER STORY 16

Using BYOD Policies To Avoid Legal Risks

CRITICAL FOCUS President President Elect Treasurer Wayne R. Kramer Amanda M. Busby Keith H. Burroughs

E. Michael Brezina III S. Dawn Coppock Lisa J. Hall Dana C. Holloway

Secretary Wynne du Mariau Caffey-Knight

KBA Board of Governors Rachel P. Hurt Carrie S. O'Rear M. Samantha Parris Cheryl G. Rice

Immediate Past President Tasha C. Blakney

Keith D. Stewart Hon. Steven W. Sword Taylor A. Williams John E. Winters

The Knoxville Bar Association Staff

President’s Message Few Things Are Simple

Practice Tips Mediating A Domestic Case

Legal Update Supreme Court Issues Important Decision on Section 11 Liability for Certain “Opinions” in Registration Statements

Management Counsel: Law Office 101 Delays to Important Affordable Care Act Requirements

Schooled in Ethics Client Files: The Rest of the Story

Marsha S. Wilson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

* QR Code *

Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org

Lacey Dillon Programs Administrator

Tracy Chain LRIS Administrator

DICTA

publication of the Knoxville Bar Association

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. February 2016

Worth Noting Calculating Economic Losses in Personal Injury and Wrongful Death Cases in Tennessee

CONVENTIONAL WISDOM 7

Outside My Office Window Key Lime Pie

Lawyer Kids The Great Negotiators

Hello My Name Is Melissa McGowan

Tempus Fugit - Time Flies Indomitable Will

DICTA is the official

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Wilson (522-6522).

Volume 43, Issue 2

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

Goats, Guns, & Guts: Tennessee Attorney Sophie Friedman and the Goat Castle Murder

Kayla Swiney LRIS Assistant

Of Local Lore and Lawyers

Bryan Stevenson’s Just Mercy: A Story of Justice and Redemption

J. Nicholas Arning, Jr. Cathy Shuck Chris W. McCarty Lee Nutini Heidi Barcus Melissa B. Carrasco Casey Carrigan Matthew Lyon Jack H. (Nick) McCall Angelia Morie Nystrom Katie Ogle Broderick Young Managing Editor Marsha Wilson KBA Executive Director

DICTA

Long Winded Sigh

Bill & Phil’s Gadget of the Month Consumer Electronics Show Review

Publications Committee Executive Editor Executive Editor Executive Editor Editor

Well Read

Guilty Pleasures Baking Fun and Pinterest Fails

COMMON GROUND 4 10 12 18 18 29 30 31

Section Notices/Event Calendar Ask McLawyer Legally Weird Barrister Bullets Word Play Bench & Bar In the News Pro Bono Project The Last Word

EVENT CALENDAR & SECTION NOTICES

event

Section Notices

calendar

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section The ADR Section has CLE programs planned this spring. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720). Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like further information on the Corporate Counsel Section, please contact Section Chairs Marcia Kilby (362-1391) or David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Corporate Counsel Section, please contact Section Chairs Joshua Headrick (524-8106) or Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Daniel Sanders (215-2327). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Joanie Stewart (215-2515). Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).

DICTA

February Fee Dispute Resolution Committee Law Office Tech Committee ADR Section CLE Professionalism Committee Barristers Monthly Meeting Lunch & Learn Judicial Committtee Board of Governors Meeting Access to Justice Committee Real Estate Law

■6 ■6 ■8 ■9 ■ 10 ■ 11 ■ 11 ■ 17 ■ 25 ■ 26

March Fee Dispute Resolution Committee Law Office Tech Committee ADR Section CLE Family Law Section CLE Professionalism Committee Senior Section Luncheon Barristers Monthly Meeting Lunch & Learn Judicial Committtee Board of Governors Meeting Access to Justice Committee CLE Committee

■2 ■2 ■7 ■8 ■8 ■9 ■9 ■ 10 ■ 10 ■ 12 ■ 24 ■ 29

April ■1 ■2 ■4 ■6 ■6 ■ 12 ■ 13 ■ 14 ■ 14 ■ 20 ■ 21 ■ 22 ■ 28

ADR Section CLE ADR Section CLE ADR Section CLE Fee Dispute Resolution Committee Law Office Tech Committee Professionalism Committee Barristers Monthly Meeting Lunch & Learn Judicial Committtee Board of Governors Meeting Law Practice Today Expo Reception Law Practice Today Expo Access to Justice Committee

MARK YOUR CALENDAR Law Practice Today Expo April 21 & 22 February 2016

PRESIDENTâ&#x20AC;&#x2122;S MESSAGE By:

Wayne R. Kramer Kramer Rayson LLP

FEW THINGS ARE SIMPLE We live in a world where people tend to wish for and otherwise the reality that life is filled with shades of gray. Sometimes that means identify simple answers to very complex questions, but we, as attorneys, we should think before we talk. Wonder before we write. Be silent know better. Whether it is a legal issue, relationships among individuals, before we scream. And respect before we rebuke. institutional challenges, or even developing a winning sports program, We are taught those things from the first day of law school, and we what we know is that complex questions give rise to complex answers. have learned those things from those who have been our legal mentors The world is not black and white. Questions are not black and white, over the years. If that is why people perceive us poorly, then so be it. I and the answers are not black and white. Rather, would suggest that those who criticize our he legal community in most instances, they are shades of gray. profession might want to think about why they understands and embraces A day rarely passes where we are not are doing so. Maybe if they, too, recognized confronted with complex situations which that there is a time to speak and a time to be the reality that life is filled demand thoughtful and careful analysis, not silent, a time to move quickly and a time to with shades of gray. "quick fix sound bites" which tend to be so pause, a time to embrace what is good about our popular. We are a diverse culture which is country and community and a time to recognize becoming more diverse every day. Technology has shrunk the world, and that we are not perfect, they would not be so eager to criticize the events about which we were unaware years ago now come into our living profession to which we dedicate so much. There is a time for black and rooms on a routine basis. Ideologies once foreign to most of us are now white, but there are many, many times when both the questions and the a daily reality. Violence abounds here at home and abroad. Whether the answers are shades of gray. We recognize that as attorneys, and because subject is politics, religion, or sports, the tendency is to look for simple of that, I am proud to be one. solutions. Address crime by merely building more prisons. Deal with complex issues of immigration by building a wall. Become a championship team by simply making a coaching change. That is not to say that simple action is always wrong and, of course, not everything is so complex as to be unresolvable. However, I believe that we as attorneys recognize that almost every story is multi-faceted and requires thoughtful analysis and a wide variety of input. As I reflect on the icons of our profession who have contributed so much to our community, including both its institutions and human fabric, as well as so many of our brothers and sisters at the bar who sacrifice their time and contribute their talents to make a positive difference, even if only "one starfish at a time," I am puzzled as to why our profession struggles with its public perception. Why is it people often think and speak about us in a negative fashion? Too many young people in law school, they say. Too many lawyers in the legislature, they say. Lawyers only slow down or complicate the process, they say. If we did not have so many lawyers, everything would be much better, they say. Why is that? At least one piece of the puzzle is that we, as a profession, have always been unwilling to see things as simple. We know there are almost always at least two sides to every issue and rarely just "one answer." We realize that sometimes, as the late Senator Howard Baker once said, the other side "may be right." We understand that while it can be helpful and important, simply "passing a law" does not necessarily end the problem. We understand that legislation must be thoughtfully considered and drafted carefully, and knee jerk reactions to complex problems are rarely a good idea. But so often in our fast pace, quick solution, simple answer, 21st century America, those (i.e., lawyers) who suggest we should "pause and reflect" are viewed as either standing in the way, slowing things down, or being part of the problem not part of the solution. Rather than listening to our questions and stopping to reflect as we often suggest, in 2016 the non-legal community often prefers to blame our profession for many of society's ills. It would be naĂŻve to suggest that we, as a profession, do not have issues. It would also be inappropriate to claim that we have an inside track on the truth. But one thing is real. The legal community understands and embraces

February 2016

DICTA

February 2016

OUTSIDE MY OFFICE WINDOW By:

Robert E. Pryor, Jr. Pryor, Priest & Harber robertpryorjr.blogspot.com

KEY LIME PIE On the heels of being named the recipient of the Dicta Award for to the ongoing conversations on “How do we stop or slow JuJu’s pie my essay entitled “The Unexpected Visitor,” the powers that be intake,” has been a great privilege. Hilarious. Nancy brought up the idea rightfully, if very belatedly, offered me the honor of writing a regular of researching vitamin supplements so as to allow the continued column for this fine periodical. Realizing my dream, feeling like consumption of Key Lime Pie as the sole basis of nutrition. This is why Christopher Hitchens after getting the Vanity Fair gig, I pondered what I am in love with her. She’s a problem solver. The doctor entered the I might possibly offer my brothers and sisters of the bar via essays or room. She performed her physical exam, recorded her observations and articles for the next year. Tips about the practice? The latest from the her glucose levels that looked more like Peyton Manning’s career appellate courts? No thanks. Given a blank check, I’ve decided to write passing yardage. Then, like a seasoned veteran, the doctor eased into the about matters relating to everyday life and what goes on outside our counseling portion of the meeting. She mentioned that she understood office windows - a lawyer’s perspective of the outside world and the Judy was eating substantial portions of the sugar-laden-cool-sweetexploration of how it may relate to all of us as human beings first, and Summer treat and that perhaps there were some other things she might as attorneys a distant second. Hopefully, there agree to eat in order to promote a healthier diet will be an element of entertainment. I’m and lifestyle. Judy listened intently to each of n this life we share as lawyers, honored. her points. As the doctor wound down her full of client expectations, stress, comments and asked, “So, are we on the same My mother-in-law was diagnosed with Alzheimer’s disease six years ago. We saw the page about the Key Lime Pie?” Judy looked at deadlines, and more stress, early signs. We suspected for some time before shouldn’t we have a bit more her as if bewildered by the suggestion and with she was diagnosed. She was only 67 when our a certainty to her position simply answered by delicious? worst fears were confirmed. posing an indignant question of her own. As many who have loved ones with this “Have you ever had one? They are delicious.” awful disease will tell you, there are moments of That was two years ago. clarity and even levity on the way into the darkness. The reaction of This is the time of year we deprive ourselves of things that make us Judy Ackermann’s children has been inspirational. My wife, Nancy (2nd happy in search of a better life. Resolutions. Healthy is good. But, so is born), her two sisters and brother have for the past four years split up happy. So is delicious. In this life we share as lawyers, full of client their schedules to care for their mother, known to her grandchildren as expectations, stress, deadlines, and more stress, shouldn’t we have a bit “JuJu.” The efforts of her children have allowed her, until recently, to more delicious? Be good to you. This can be a tough gig. continue living on her own. She has been an independent single Mom The Ackermann kids stop by Kroger on their way to Arbor Terrace. since the early 1980’s. Andy, her only son, takes her to church every The woman who raised them, nurtured them and loved them their Sunday. Nancy, Jill, and Dori have taken turns taking her to the mall for whole life has been there for 6 months. She still recognizes them all. walks, making sure her medications are taken, and that she is seen every And while she can’t figure out why so many people live in “her house,” single day. She has rarely been alone and always aware she is loved. Even she still asks about her grandchildren while she eats Key Lime Pie. Nancy’s dad, who has been divorced from Judy for more than 30 years, participates, taking her to the sporting events, plays and graduations of grandchildren and walking with her at the park. They would tell you there is nothing special about what they do or how they do it - it’s just what family does. It is pretty amazing to me. Nothing is more sacred and beautiful than unconditional love. Once she was diagnosed, JuJu developed a taste for Key Lime Pie. Not just any Key Lime Pie, but a brand of little (6 bite) Key Lime Pies sold only at Kroger. It became apparent that as time went on she not only liked the pies, she loved them… a lot. In fact, it became just about the only thing she would eat. “Do we have any Key Lime Pie?” simply became, “I’m out of Pies.” Extras could not be kept at her house. The tins would be found in her bed, in her bathroom and on the couch. Dental appointments became more frequent with visits ending in “no cavities!” celebrated with great surprise. The kids became more and more concerned. My wife, the free spirit of the group, was of the belief to let her run with it - Let her have whatever she wants. However, reason, dental expense, and JuJu’s waist size began to bring them all to the realization that something had to be done lest she go into diabetic shock. So, a doctor’s appointment was scheduled and her fine physician asked to play the role of the “heavy.” The one weakness JuJu’s kids share is the difficulty in saying “no” to a woman who never asked for anything in her life. The doctor was briefed about the family’s overriding concern. There was also a concern about the inordinate amount of Sprite being consumed, but this is a Pie story. Playing the role of third party observer

February 2016

DICTA

LAWYER KIDS By: Lisa J. Hall Hodges, Doughty and Carson, PLLC

THE GREAT NEGOTIATORS I decided at a fairly young age that I wanted to be a lawyer when I grew up. It became clear that I needed to be in a profession where arguing was not only permitted but required, where I would be constantly surrounded by drama, and where clever wit delivered in a theatrical way would guarantee satisfying victory. From then on, I was pretty much a hero-in-training, and it was not until later in life that I realized that lawyers did not just represent innocent wealthy criminal defendants in sensational trials. In actuality, lawyers tried many different kinds of cases, and some lawyers rarely, if ever, went to trial. Even “trial lawyers” were not always in the courtroom, polishing off another brilliant and satisfying cross-examination. Much more commonly, lawyers negotiated to limit their clients’ risks and expenditures of resources, and these negotiations were, more often than not, successful in resolving clients’ concerns. As a child, I am not sure the concept of negotiation could have ever been as big a draw for me as trying cases, but if you see a budding negotiator in your family, perhaps you should start putting away some extra money for law school. Two cases in point: Ben Baisley (Son of Mike Baisley) This past Saturday, I tried to “lawyer” our 6 year old son, Ben, and it didn’t go well (for me). For reasons unknown, Ben has been misbehaving much more than usual during the last 2 or 3 weeks. This past Saturday, we were going to my mother’s house for Christmas dinner. A few hours before we left our house, I sat on the stairs with Ben and we had a serious talk about his recent behavior. I made him promise me that he would have good behavior at “Mimi’s” house. He promised me that he would. I reminded him that he had broken that same promise at least twice earlier in the week. He said that he had just forgotten about his promise. So I asked him to promise me (again) that he would have good behavior at Mimi’s house. He said “yes.” In the car on our way to my mom’s house, I started to give Ben a little “pep talk” and then I had an idea. I pulled out my phone, turned on the video camera and aimed it at Ben in the backseat. “Dad, what are you doing?” he asked. I told him I was recording our conversation just in case he “forgot” what we were about to discuss. Then I asked if he remembered our talk on the stairs earlier that day. “Not really,” he said. So I asked if he remembered promising me that he would have good behavior at Mimi’s house. “I don’t remember,” he answered. At that point, my attention shifted from driving the vehicle safely down Westland Drive to cross-examining the evasive witness in my backseat. I decided to back up and try a different approach. “Ben, do you want to go to Mimi’s house today?” “Yes,” he said. “And do you want to open Christmas presents when we get there?” “Yes,” he said, in a tone that suggested I had asked a moronic question (which it was, in hindsight). “And do you intend to have good behavior at Mimi’s house?” I asked. Ben stared out the window for a few seconds. Then, with a completely innocent tone, he answered my question with a question: “When?” Now he was really being evasive! “TODAY!” I answered in my sternest “dad” voice. A couple more seconds of silence. In an effort to eliminate any ambiguity, I instinctively repeated my question. “TODAY, Benjamin.

At Mimi’s house. Do you intend to have good behavior TODAY at Mimi’s house?” More silence. At that point, I was getting angry. “Benjamin…. ” I said (lowering my tone, for effect), “are you telling me that you can’t promise me you’ll be on good behavior at Mimi’s house today?” “No, but I will try really hard,” he said. My tone immediately went up again. “Is that really the best you can do, Benjamin??? You are going to be getting awesome presents from Mimi, eating an awesome dinner she cooked for you, and the best you can do is TRY to be on your best behavior???” At this point, we were turning into my mother’s neighborhood. I watched in the rear-view mirror as Ben stared out the window for a few seconds. Then he looked straight into my phone. With a furrowed brow and with a surly, indignant tone of voice, he said: “That’s the best I can do if you are going to video me, Dad.” I tried to keep a straight face, but I’m certain I failed. As the kids were getting out of the car, I checked my phone to make sure I had captured the conversation. I was disappointed when I discovered that the recording had stopped about 20 seconds into our “talk.” I must have accidentally hit the button while I was trying to come up with a way to pin down my witness. The good news is that he behaved like a perfect angel at Mimi’s house. Go figure. Trace Nystrom (Son of Angelia Nystrom) The power of persuasion... I have always been a "cat person." And I have never particularly cared for dogs. Dogs are smelly, and they chew up things. You have to be home to let them out, and they lick you if they are happy. Starting at about the age of 6, Trace began asking for a dog. And I always said, "no." Two years ago, when Trace was 8, I took him to the mall to see Santa on December 18. By that time, all the gifts had been purchased, and Santa was bringing Wii games and Legos, which had previously been requested in a letter. When Trace got to Santa, Santa asked what he wanted for Christmas. "Santa, I want a dog for Christmas." Santa was very wise and said that he could not bring a dog unless "mom and dad agreed." I was frantically shaking my head and waving my hands to indicate "no." Santa then asked what toy Trace wanted. Trace said, "I don't want any toys. I have plenty, and you should take them to boys and girls who don't have as many." Santa then asked what else he might be able to bring. "Oh, Santa. I just want a dog for Christmas. And if I get a dog for Christmas, it will be the happiest Christmas ever." I looked at Hugh: "We're getting a dog." Spanky came home the next day. And I absolutely adore him.

DICTA

February 2016

PRACTICE TIPS By:

Sarah C. Easter McKellar & Easter

Laura Metcalf Law Office of Laura E. Metcalf Founders of Tennessee Mediation School, LLC

MEDIATING A DOMESTIC CASE Recently, we began hosting and teaching the required trainings for Tennessee Supreme Court Rule 31 mediators through Tennessee Mediation School, LLC. That has been a wonderful and eye-opening experience. We thought we would take the opportunity to discuss some topics that have arisen both in our private mediation practice and when teaching new mediators.

parenting plan or plan for bill payment, chances are you may be called upon again to resolve the whole case later on. We like to mention that option up front to the litigants. Sometimes it helps them to relax into the process if they know they aren't finalizing every single issue that day. Once they are involved in the process, this can often result in settling the entire case. Taking the pressure off can be an important tactic that allows parties to think strategically and make sound decisions.

1. Discovery. You would think that mediation has one goal – settle the 4. Dealing with Impasse. No matter how talented and committed the case! That is usually correct, but not always. Mediation can actually address a wide range of goals in the domestic setting. First, mediation mediator may be, some cases are not going to settle in one session. can serve as free and informal discovery. Even if you believe the case is Sometimes lawyers are not prepared to settle the case that day. hopeless and won’t settle, you can learn invaluable information Generally, a case doesn't settle for two reasons: not enough information including: facts about your client and the other party not previously or emotional negotiating. Not having enough information is not known; arguments that the opposing side unusual. This doesn’t have to be a barrier may use; positions on issues that had enerally, a case doesn't settle for two to settlement, because sometimes the remained unknown; how your client actual numbers can be filled in later. reasons: not enough information or Often, the parties can make an responds to certain questions and emotional negotiating. positions, which may change your trial agreement to fill in those blanks, then strategy; and you many times come away come back to the table. Getting with a to-do list of questions that still appraisals, agreeing to sell items, or need to be answered (such as, can one or both parties qualify for a making agreements regarding statutory injunctions are very helpful at mortgage or refinance, do we need appraisals of real property, and what this stage. What about the "emotional negotiator"? The litigant who documents do we need to request from the other side). can't see the actual monetary value of items because they are still too angry or hurt. Don't trip over the parties' emotional baggage when mediating their case. The lawyers would definitely appreciate all the 2. Resolution of Temporary or Emergency Issues. As practitioners, we reality-checking you can give their clients that day. (I realize that you generally push for mediation almost immediately to try to resolve the purchased that velvet “Elvis” painting on your honeymoon in Vegas, but temporary, "emergency" issues that can result in hours of wasted phone what would it fetch in a yard sale?) Perhaps there are emotional issues calls and letters, that do not end up fixing the problem. In the domestic that need to be addressed in counseling. Don't hesitate to discuss setting, there are many gray areas with no hard and fast rules. Therefore, counseling at any stage of mediation. A counselor can work wonders to when these issues arise there may be no good answers other than waiting help the "emotional negotiator" come to terms with divorce issues. for a motion date. Some obvious examples are: Who is staying in the Always try to explore a little about the parties' background and marital residence and paying the mortgage? Can I get temporary spousal education level, as well. Sometimes, resistance to settlement can derive support? Should we get a bankruptcy consult? And last but not least, from a fear of "getting it wrong." Literacy issues, a lack of education or when do I see my kids and how much is child support? A quick and ignorance of their own marital estate can cause people to put up short mediation can address these issues, lay out a discovery plan and roadblocks. Make suggestions as a mediator that can help them be more even set the entire case up for future settlement. Getting clients to comfortable with these issues. A referral to a financial counselor or understand that mediation in the beginning of a case can be the best use mortgage lender can be helpful as well. of their "divorce dollars" is critical. Filing motions for sole possession of the marital residence and for temporary parenting/support have Mediation should be used by the lawyers and their clients as an historically been a source of risk especially if done prior to mediation. effective tool for moving toward settlement during all stages of Certainly you don't want your client's first exposure to the divorce litigation, whether that involves small steps or big leaps. An engaged process to have a negative result (whether perceived or real). Remind mediator will explore options and help the parties brainstorm, which sets them they only get one chance for their first impression with the Court. them up for future success. So, don’t be afraid to be creative and use Often in a domestic case, if the parties end up at the courthouse early roadblocks to your advantage. Often, those roadblocks are the key to on, that can set the tone for discord. Mediation, on the other hand, can understanding the heart of the issues that are present. Once you start quickly lay a solid foundation that later settlement can be built on. resolving the small pieces of the puzzle that are keeping the parties at odds, the path is cleared and a structure is created for resolution of the 3. Goals. As a mediator, it is important to talk to your lawyers to entire case. ascertain where the litigants are in the process, prior to starting the mediation. If they really only need a band-aid such as a temporary

February 2016

DICTA

ASK MCLAWYER

The KBA is introducing “Ask McLawyer.” This column is dedicated to answering questions on procedure, evidence and trial tactics in a variety of venues and subject matter. Should you have a question for McLawyer, please address the question to Ask McLawyer, c/o Marsha Wilson, KBA, 505 Main Street, Suite 50, Knoxville, TN 37902 or mwilson@knoxbar.org. Your question will then be submitted to McLawyer for potential response in this column. McLawyer is an anonymous neutral counsel dedicated to answering questions of procedure from members of the Knoxville Bar Association. Specific Issues Presented: Is there a distinction, according to the Tennessee Rules of Civil Procedure, between a “deposition for proof ” and a “discovery deposition?” Short Answer: A deposition by a party of an opposing party’s expert can only be a “discovery deposition” and can only be used at trial for impeachment; however, the party that retained the expert can take a “deposition for proof ” to preserve the testimony and present the testimony at trial. Discussion and Analysis:

deposition may be “for proof ” if the deponent becomes unavailable as defined by Tenn. R. Evid. 804 or otherwise meets the requirements of Tenn. R. Civ. P. 31.01. Faux v. Spears, No. 03A01-9312-CV-00433, 1994 WL 147830, at *1 (Tenn. Ct. App. Apr. 26, 1994). The distinction between a “discovery deposition” and “deposition for proof ” is supported, however, in the context of depositions of experts. Tenn. R. Civ. P. 31.01(3) states that a deposition of a witness may be used by any party for any purpose if the witness is “unavailable.”1 However, the rule of civil procedure further states “depositions of experts taken pursuant to the provisions of Rule 26.02(4) may not be used at trial except to impeach in accordance with the provisions of Rule 32.01(1).” Tenn. R. Civ. P. 32.01(3).2 While this language limiting the use of an expert deposition is somewhat vague, case law and the official rule comments “make clear that this restriction applies only to discovery depositions of an adversary’s expert.” White v. Vanderbilt University, 21 S.W.3d 215, 226 (Tenn. Ct. App. 1999). Thus, a “party who hired the expert may still take a deposition for proof by notice or agreement.” Dial v. Harrington, 138 S.W.3d 895, 898 (Tenn. Ct. App. 2003). Thus, any deposition by a party of an opposing party’s expert is only a “discovery deposition” and can only be used at trial for impeachment, but the party that retained the expert can take a “deposition for proof ” by notice or agreement to preserve the testimony and present the testimony at trial. 1

While depositions are often categorized as a “discovery deposition” or “deposition for proof,” the Tennessee Rules of Civil Procedure do not generally maintain such a distinction. Any non-expert discovery

Practicing physicians are generally considered “unavailable” pursuant to Tenn. R. Evid. 804(a)(5) and Tenn. Code Ann. § 29-9-101(6). 2 This is commonly referred to as the “Bearman Rule.” Dial v. Harrington, 138 S.W.3d 895, 898 (Tenn. Ct. App. 2003)

DICTA

February 2016

L E G A L U P DAT E By:

Jeffrey T. Malotte

SUPREME COURT ISSUES IMPORTANT DECISION ON SECTION 11 LIABILITY FOR CERTAIN “OPINIONS” IN REGISTRATION STATEMENTS On March 24, 2015, the Supreme Court issued an important securities decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund.1 The Court’s two holdings are likely to dictate the drafting of all public company registration statements and all complaints filed in certain securities fraud cases. The case reverses the Sixth Circuit and does so by pounding it against a rock for its securities law misreads.2 It also resolves a split among the Second,3 Sixth,4 Ninth,5 and Tenth Circuits.6 When a company offers and sells stock, it is called an “issuer.” When a publicly traded company offers and sells stock, it does so pursuant to a “registration statement” filed with the Securities and Exchange Commission.7 Investors rely on the registration statement as the primary source of company information on operations, financials, legal status, and the like. The registration statement, therefore, is an important tool in the investor’s decision to purchase stock. Section 11 of the Securities Act of 1933, as amended,8 requires truthfulness in the registration statement. Section 11(a) provides two bases for liability:9 that the registration statement either (1) “contained an untrue statement of a material fact”10 or (2) “omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading[.]”11 Hence, the test for liability rests on what is written and what is omitted. Omnicare’s registration statement included, inter alia, two sentences of opinion: (1) “We believe our contract arrangements with other healthcare providers, our pharmaceutical suppliers[,] and our pharmacy practices are in compliance with applicable federal and state laws”; and (2) “We believe that our contracts with pharmaceutical manufacturers are legally and economically valid arrangements that bring value to the healthcare system and the patients that we serve.”12 The issuer’s opinion sentences conveyed the idea of “we believe we are obeying the law.”13 The respondents are pension funds (“Funds”) that purchased Omnicare stock in a public offering. The respondents brought suit alleging that Omnicare’s two opinion statements gave rise to liability under both clauses of Section 11(a). Citing lawsuits that the federal government pursued post-registration, post-purchase, the Funds’ complaint alleged that Omnicare’s receipt of payments from drug manufacturers violated anti-kickback laws. It followed, the complaint asserted, that the registration statement made materially false representations about compliance with the law (Section 11(a), first clause, falsity). And, the Funds alleged, the registration statement omitted material facts necessary to make the opinions on legal compliance not misleading (Section 11(a), second clause, omissions).14 The Court “granted certiorari… to consider how [Section] 11 pertains to statements of opinion.”15 In resolving the claim on the first clause of Section 11(a) (false material fact), the Court discusses when, if ever, an opinion constitutes an untrue statement of material fact.16 In resolving the claim on the second clause of Section 11(a) (omission), the

Court discusses when, if ever, an opinion may be rendered misleading by the omission of underlying facts.17 An Issuer’s “Opinion” is not a “Fact” Under the First Clause of Section 11(a) The Court notes that the dictionary distinguishes facts from opinions.18 Moreover, “Congress effectively incorporated just that distinction in [the first clause] by exposing issuers to liability not for [an ‘untrue statement’] … but only for ‘[an] untrue statement[]of … fact.’”19 This is true even if the statement turns out to be false, as is the case with post-registration, post-sale, post-anti-kickback litigation. According to the Court, “[t]he first clause of Section 11(a) is] … limited … to factual statements[.]”20 As a result, the Funds were not entitled to relief on the first clause of Section 11(a). Omnicare’s statement that “we believe x is true” is not the same as a statement that “x is true.” An Omission in an Issuer’s Opinion is Actionable under the Second Clause of Section 11(a) For the second clause of Section 11(a), opinion liability depends on the reasonable investor. The Court states, “[a] reasonable investor may … understand an opinion … to convey facts about how the [issuer] has formed the opinion – or, otherwise put, about the [issuer’s] basis for holding that view. And if the real facts are otherwise, but not provided, the opinion statement will mislead its audience.”21 Furthermore, the reasonable investor “expects not just that the issuer believes the opinion (however irrationally), but that it fairly aligns with the information in the issuer’s possession at the time. Thus, if a registration statement omits material facts about the issuer’s inquiry into or knowledge concerning a statement of opinion, and if those facts conflict with what a reasonable investor would take from the statement itself, then [Section] 11’s omissions clause creates liability.”22 The Court held that the investor must identify particular material facts “going to the basis for the issuer’s opinion – facts about the inquiry the issuer did or did not conduct or the knowledge it did or did not have – whose omission makes the opinion statement at issue misleading to a reasonable person reading the statement fairly and in context.”23 At the time of this writing, a 116-page (excluding attachments) third amended complaint in the Omnicare case addresses this second clause holding.24 Conclusion Omnicare holds that (1) the first clause of Section 11(a) applies to facts, not opinions, and (2) the second clause of Section 11(a) provides that omissions of material facts underlying issuer opinions may render the opinions themselves misleading. (Continued on Page 12)

February 2016

DICTA

L E G A L LY W E I R D By: Latisha J. Stubblefield Pilot Travel Centers, LLC

Wal-Mart: Love on Aisle 9 February has long been celebrated as a month of romance. In an ode to the legend of Saint Valentine, I thought it would be fitting to include a romantic story this month. Don’t worry – I haven’t gone soft – this romantical conundrum has an absurd twist, of course. The penultimate moment in any serious relationship is the marriage proposal. Many couples have their own sweet story of how the big question was popped, most proposals specifically planned to be special and sentimental for the couple. The engagement story for William J. Cornelius, Jr. and his unnamed girlfriend is no exception. On this past New Year’s Eve, whilst shopping in the Bay City, Michigan Wal-Mart, Cornelius, under the influence of love and Tramadol (a narcotic-like pain reliever), decided he could wait no longer to ask his girlfriend the big question. Cornelius purchased an engagement ring for $29.62 at the Wal-Mart and requested that his proposal be read over the store’s loudspeaker. She said, “yes,” and the store’s employees and customers erupted with cheer as Cornelius and his lady friend got engaged. After the engagement, as all engagement stories go, the couple proceeded to Spencer’s Gifts store in the mall to purchase …. ergh… love accoutrements. However, this story takes a left turn (as if it hadn’t already) when the two were caught shoplifting and fled the store. Yes, a modern day Bonnie and Clyde. Perhaps a sign of their level of commitment to one another, the two split up during their escape. Cornelius’s fiancé was soon found by the police walking between the Bob Evans and the Taco Bell, wearing stolen jewelry from Wal-Mart. She denied that the jewelry was stolen and refused to help the police find Cornelius. However, it turns out that Cornelius was not too hard to find. Cornelius, clearly having a big day with the engagement and shoplifting, decided that the best place to run to would be the food court, where Cornelius proceeded to fall asleep while tying his shoes. The police woke up Cornelius and searched him, finding a watch, an edible thong, and other assorted toys and candies from Spencer’s Gifts, valued at a total of $80.93. The fiancée insisted that she would not snitch on Cornelius, but after being taken into custody, she quickly changed her tune and told the police that Cornelius was the thief. Despite surveillance footage from Wal-Mart showing Cornelius’s fiancée placing items in her purse, Cornelius told the police that he stole the items, taking the fall for his old lady. What a man. The fiancée posted bond before any charges were filed against her. Cornelius, out on bond, awaits his pretrial conference on one count of third-degree retail fraud. Unfortunately, Cornelius was out on probation for another charge, meaning this love spree will probably cost him some actual jail time. Cornelius’s story is almost as sweet and heartfelt as when Novalee Nation got married to Forney in the Oklahoma Wal-Mart (where Novalee had previously lived for several months), à la “Where the Heart Is.” Almost.

Legal Update

(Continued from page 11)

135 S. Ct. 1318 (2015). Laborers District Council Construction Industry Pension Fund v. Omnicare, Inc., 719 F.3d 498, 505 (6th Cir. 2013) (using an objective falsity standard, under which an opinion is equated as a statement of fact and subjects the issuer to liability if at any time the issuer’s opinion becomes false). 3 Fait v. Regions Financial Corp., 655 F.3d 105 (2d Cir. 2011) (holding that for a statement of opinion to be actionable under Section 11, the statement must be both objectively false and disbelieved by the defendant at the time it was expressed). 4 See n.2. 5 Rubke v. Capitol Bancorp Ltd., 551 F.3d 1156 (9th Cir. 2009) (determining that issuer opinions must be both objectively and subjectively false or misleading). 6 MHC Mutual Conversion Fund, L.P. v. Sandler O’Neill & Partners, L.P., 761 F.3d 1109 (10th Cir. 2014) (opining as to three possible methods of establishing issuer opinion liability, but rejecting a fourth, the Sixth Circuit approach described in n.2 supra). 7 See 15 U.S.C. § 77aa. 8 Section 11 of the Securities Act of 1933 is codified at 15 U.S.C. § 77k. 9 Id. at § 77k(a). 10 The Supreme Court refers to this as the “first clause” or the “first part” of Section 1 2

11(a). 11 This is the “second clause” or “second part” of Section 11(a). 12 Omnicare, 135 S. Ct. at 1323 (internal citations omitted) (emphasis added). 13 Id. at 1327. 14 Id. at 1324. 15 See id. (internal citations omitted). 16 See id. at 1325. 17 See id. 18 See id. at 1325-26. 19 Id. (emphasis in original). 20 Id. at 1327. 21 Id. at 1328. 22 Id. at 1329. 23 Id. at 1332. 24 Third Amended Consolidated Complaint for Violations of § 11 of the Securities Act of 1933, Indiana State District Council of Laborers and Hod Carriers Pension and Welfare Fund v. Omnicare, Inc., No. 2:06-cv-00026-WOB (E.D. Ky. Oct. 6, 2015).

DICTA

February 2016

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Cathy Shuck Of Counsel, Wimberly Lawson Wright Daves & Jones, PLLC

Delays to Important Affordable Care Act Requirements As 2015 drew to a close, both Congress and the IRS gave employers the gift of temporary relief from two of the Patient Protection and Affordable Care Act's (“ACA”) most nettlesome requirements. First, on December 18, 2015, President Obama signed an omnibus spending bill that includes a two-year delay to the so-called Cadillac Tax, an excise tax on high-value health insurance plans.1 Second, on December 28, 2015, the IRS announced a two-month delay to the employer reporting requirements under Section 6056 of the ACA.2 Two-Year Cadillac Tax Delay Over the last year or so, the Cadillac Tax has become a popular target on both sides of the political aisle. The Cadillac Tax imposes a 40% excise tax on the value of employer-sponsored health insurance above a certain threshold.3 At implementation, those thresholds are $10,200 for self-only coverage and $27,500 for family coverage. For example, if an employer offers a self-only plan that costs a total of $12,500 per year, the plan would be subject to a tax of $920.4 The entity providing the insurance is responsible for the tax; it is expected to be passed on to employers. The total cost is used to determine the tax, regardless of how the cost is apportioned between the employer and the employee.5 The Cadillac Tax was set to take effect in 2018, but will now take effect in 2020. Although the tax was initially packaged as a tax only on "high-value" health plans, the passage of time since the law was passed in 2010 combined with the continued increase in health insurance costs meant that the tax would apply to a significant number of plans over its first few years. Thus, the tax is extremely unpopular and kicking it back for two years was a relatively easy sell to Congressional Democrats and to President Obama. The problem is that the tax is one of the largest revenue-generators in the ACA; it was expected to generate $87 billion in revenues between 2018 and 2025.6 Although employers should still consider whether the tax will apply to any of their plans in 2020, depending on the outcome of the 2016 elections the tax could be further modified or even repealed between now and then. Brief Delay to Reporting Requirements On the other hand, the 2016 elections will not come soon enough to rescue employers from the ACA's reporting requirements, which take effect this year. Employers with 50 or more FTEs, as defined by the ACA, must file information returns with the IRS showing offers of insurance coverage pursuant to Section 6056 of the ACA.7 The returns were initially due in February, but on December 28, 2015, the IRS issued Notice 2016-04, bumping the due dates back. First, the IRS moved the deadline for the Form 1095-C, which employers must furnish to employees, from February 1, 2016 to March

31, 2016. Second, the IRS moved the deadline for furnishing the form and the corresponding transmittal to the IRS from February 29, 2016 to May 31, 2016 if not filing electronically and from March 31, 2016 to June 30, 2016 if filing electronically.8 In summary: employers have until March 31, 2016 to get the forms to employees. Employers have until June 30, 2016 to get the forms to the IRS if they file electronically and until May 31, 2016 if they file paper.9 Most individuals will not need their form 1095-C to file their taxes, but Notice 2016-4 provides relief to taxpayers who file their taxes before receiving a form 1095-C, as long as the taxpayer relies on other information provided by the employer and/or the coverage provider.10 The Section 6056 employer reporting requirement is difficult. The forms are long and the codes are confusing. To avoid penalties, however, covered employers must make a good faith effort to comply. The IRS will grant relief to those employers who make a good-faith effort to comply but nevertheless file incorrect or incomplete information.11 But the IRS has been clear that a "good faith effort" must include actually filing the forms on time. Thus, employers must be diligent in working to collect the necessary information and prepare and file the forms.12

See P.L. 114-113 (Dec. 18, 2015). See IRS Notice 2016-4 (Dec. 28, 2015). 3 See 26 U.S.C. § 4980I. 4 $12,500-$10,200 = $2,300 x .4 = $920. 5 For more information on the Cadillac Tax, see the Congressional Research Service, Excise Tax on High-Cost Employer-Sponsored Health Coverage: In Brief (Aug. 14, 2015). 6 See id. 7 See P.L. 111-148 (Mar. 23, 2010) § 6056, codified at 26 U.S.C. § 6056. Recall that under the ACA, “full time” is 30 or more hours per week. Even though employers with 50-99 employees were exempted from the employer mandate for the first year of its implementation, those employers must still file information returns pursuant to section 6056. See 79 Fed. Reg. 13242-43 (Mar. 10, 2014) (noting that even though employers with 50-99 FTEs received relief from the mandate for 2015, those employers “will still report under section 6056 for 2015”). 8 Notice 2016-4 also provided the same delays for the reporting requirements under Section 6055, which applies to insurers and self-insured employers. 9 Employers filing 250 or more forms must file electronically; smaller employers may file electronically. 10 See Notice 2016-4 at 6-7. 11 See id. at 4; see also Notice 2015-87. 12 For more information on the employer reporting requirement, see the IRS web page titled, "Information Reporting by Applicable Large Employers," available at www.irs.gov. 1 2

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. February 2016

DICTA

HELLO MY NAME IS . . . MELISSA MCGOWAN By: Katheryn Murray Haynes Meek & Summers

Ogle

Not many members of the Knoxville Bar can credit their cooking skills to watching pizza chefs in Naples, Italy, but local attorney and KBA member Melissa McGowan cites these professionals as one of her greatest cooking influences. Melissa grew up as a “navy brat,” and was actually born in Honolulu, Hawaii. She doesn’t have many memories of Hawaii, as her family moved to Bremerton, Washington when she was two, and then to the Los Angeles, California area when she was five. It was here that Melissa and her sister attended school with Khloe Kardashian, of the reality show Keeping up with the Kardashians. Though Melissa has few memories of the family, she does have photographic evidence of her former classmate. When Melissa was eight, her family moved to Italy and lived there for the next three years. Melissa says this was one of her favorite places to live because of the delicious food and the opportunities to travel different places. “It was easy to travel to many other countries in Europe, so we were able to experience many things at a young age, and were exposed to many different cultures,” recalls Melissa. “I was almost fluent in Italian by the time we left, as half of our subjects at the D.O.D. school were taught in the language.” After living abroad for a few years, Melissa’s family returned stateside and settled in Jacksonville, Florida, where Melissa and her sister graduated from high school. Melissa then earned a scholarship to the University of Florida, where she graduated cum laude with a degree in political science, and a minor in education. Although she lives in Knoxville, and is married to Tennessee alumni and Knoxville attorney Will McGowan, she will forever remain loyal to her Gainesville alma mater. “I’ll cheer for Tennessee out of love for my husband, but I’ll always bleed orange and blue,” quips the avid Gator fan.

Melissa primarily practices in the areas of juvenile and domestic law, and incorporates some criminal defense, but also manages to find time to enrich her creative side. Melissa’s family affectionately refers to her as “Martha Stewart,” because she can seemingly make a work of art from a pile of sticks. “I’ve always been creative and loved art classes when I was younger. I began sewing when I was young, but haven’t had formal training in any art discipline.” During our interview, Melissa even recalled that in undergrad, she made herself a dress for a big SEC gameday. “Everyone wanted to know where I got my dress, so I started sewing dresses and skirts for friends and later opened an ETSY shop that helped finance some of my education costs and provided income while I was waiting for results from the bar exam in both Florida and Tennessee.” Since she started practicing law, Melissa has closed her ETSY business, but she still enjoys relieving stress by creating custom pieces as gifts for friends. Recently, she has begun “repurposing” old furniture through refinishing or repainting, especially using chalk paint to allow for additional customization of a piece. So if you need advice on child custody law, require an authentic recipe for brick oven pizza, or just want to know how to give new life to an old bookshelf for your office, Melissa McGowan would be happy to help you with all three… just don’t tell her your thoughts on that OTHER team in the SEC.

DICTA

February 2016

Address Changes Please note the following changes in your KBA Attorneysâ&#x20AC;&#x2122; Directory and other office records: William M. Bennett BPR# 030743 Robertson, Anschutz & Schneid, P.L. 340 SE 3rd Court Pompano Beach, FL 33060 Ph: (865) 241-6901 FAX: (865) 241-9181 wbennett@rasflaw.com

Marianna Jablonski BPR#: 030202 Wimberly, Lawson, Wright, Daves, & Jones, PLLC P.O. Box 2231 Knoxville, TN 37901 Ph: (865) 546-1000 FAX: (865) 546-1001 mjablonski@wimberlylawson.com

Randall E. Reagan BPR# 005995 The Law Office of Randall E. Reagan P.O. Box 9066 Knoxville, TN 37940 Ph: (865) 637-8505 FAX: (865) 761-5005 justice@randallreagan.com

John L. Billings BPR# 025268 Appalachian Underwriters, Inc. 800 Oak Ridge Turnpike Ste. A-701 Oak Ridge, TN 37830 Ph: (865) 481-7989 FAX: (865) 220-2814 john.billings@sandwlegal.com

Amy B. Johnson BPR# 031349 Benner Law Firm, LLC 800 South Gay St., Ste. 700 Knoxville, TN 37929 Ph: (865) 633-0290 FAX: (865) 333-5322 amy@bikelaw.com

Brandon D. Sizemore BPR# 027808 Wilson & Associates, PLLC 320 North Cedar Bluff Rd. Ste. 240 Knoxville, TN 37923 Ph: (865) 558-5688 FAX: (865) 558-9078 bsizemore@wilson-assoc.com

J. Eric Butler BPR#: 023540 Lewis, Thomason, King, Krieg & Waldrop, P.C. P.O. Box 2425 Knoxville, TN 37901 Ph: (865) 546-4646 FAX: (865) 523-6529 ebutler@lewisthomason.com John R. Capps BPR#: 034018 The Law Offices of John R. Capps, PLLC First Tennessee Plaza 800 S. Gay Street, Ste. 700 Knoxville, TN 37929 Ph: (865) 803-730 john.capps@johncappslaw.com Federico A. Flores BPR#: 029806 2110 Keller Bend Road Knoxville, TN 37922 Ph: (865) 282-5309 fflores_esq@yahoo.com Taylor D. Forrester BPR#: 027228 Long, Ragsdale & Waters, P.C. 1111 N. Northshore Dr. Ste. S-700 Knoxville, TN 37919 Ph: (865) 584-4040 FAX: (865) 584-6084 tforrester@lrwlaw.com J. Patrick Henry BPR#: 033761 Law Office of J. Patrick Henry 141 N. Martinwood Rd., Ste. 103-4 Knoxville, TN 37923 Ph: (865) 224-6074 FAX: (865) 357-1238 jphenry.law@gmail.com

Ryan C. Kemp BPR# 033382 UBS Financial Services 800 S. Gay Street, Ste. 2600 Knoxville, TN 37929 Ph: (865) 522-5183 FAX: (865) 522-7093 kemp.ryan.c@gmail.com Lyndsey L. Lee BPR# 034319 Hodges, Doughty & Carson, PLLC P.O. Box 869 Knoxville, TN 37901 Ph: 292-2307 FAX: 292-2321 llee@hdclaw.com Jedidiah C. McKeehan BPR# 026473 Tarpy, Cox, Fleishman & Leveille, PLLC Landmark Center North Tower 1111 N. Northshore Drive Ste. N-290 Knoxville, TN 37919 Ph: (865) 588-1096 FAX: 588-1171 jmckeehan@tcflattorneys.com Angelia M. Nystrom BPR# 016222 U.T. Institute of Agriculture 114 Morgan Hall Knoxville, TN 37996 Ph: (865) 974-7423 anystrom@tennessee.edu Jesse P. Oakes BPR# 034375 10844 Chapman Hwy., Ste A Seymour, TN 37865 Ph: (865) 291-0001 FAX: (865) 291-1670 jesse@theaffordablelawoffice.net

Sabrina C. Soltau BPR# 029910 University of Tennessee 5723 Middlebrook Pike Knoxville, TN 37921 Ph: (865) 974-2117 scarlson@utk.edu Charity Miles Williams BPR# 028390 Tennessee Fair Housing Counsel 107 Music City Circle Ste. 318 Nashville, TN 37214 Ph: (615) 212-3120 FAX: (615) 874-1636 charity@tennfairhousing.org

Firm Name Changes: Herbert, Meadows & Wall, Attorneys at Law An Association of Independent Attorneys (Previously Meadows & Wall, PLLC) 706 Walnut Street, Ste. 500 Knoxville, TN 37902 Ph: (865) 540-8777 FAX: (865) 544-7638 www.jmwlaw.net Peterson White, LLP (Previously Peterson Stinson & White, LLP) 6330 Baum Drive Knoxville, TN 37919 Ph: (865) 909-7320 FAX: (865) 978-6602 www.petersonwhite.com Quist, Cone & Fitzpatrick, PLLC (Previously Quist, Cone & Fisher, PLLC) 800 S. Gay Street, Ste. 2121 Knoxville, TN 37929 Ph: (865) 524-1873 FAX: (865) 525-2440 www.qcflaw.com Smith, Higgins & Lehberger, PLLC (Previously Albiston, Smith & Lehberger, PLLC) 800 S. Gay Street, Ste. 2121 Knoxville, TN 37922 Ph: (865) 539-3515 FAX: (865) 539-0705 www.albistonandsmith.com Firm Address Change: Wilson & Associates, PLLC 320 North Cedar Bluff Road, Ste. 240 Knoxville, TN 37923 Ph: (865) 558-5688 FAX: (865) 558-9078 www.wilson-assoc.com

Questions for Candidates Focusing on the importance of local government, the League of Women Voters (LWV) is preparing for the upcoming Knox County Primary Election on March 1 by asking citizens to respond to this question: What questions would you ask local candidates that would help you decide how to vote? Questions will be collected and posed to candidates in a LWV Voter Guide and at a series of forums. Please help specifically with questions for the law director candidates. If you would like to submit your question anonymously to the LWV, feel free to email Marsha Wilson and your questions will be passed on to the LWV. Or feel free to submit a question directly to the LWV through Twitter @LWVKnox, www.facebook.com/lwvknoxville or email league@lwvknoxville.org.

February 2016

DICTA

USING BYOD POLICIES TO AVOID LEGAL RISKS

In our 24/7 society it seems everyone carries a smartphone. We feel the need to be able to access email, surf the internet, text message and make and receive calls anytime, anywhere. And many employers want their employees to be reachable anytime, anywhere. As a result, many employers are going “BYOD” and allowing employees to Bring Your Own Device to work. But going BYOD creates certain legal risks. Employers need to know those risks and how to minimize their exposure to them. The primary legal risks associated with going BYOD include: •

•

• •

•

Loss of confidential information due to the loss or unauthorized access of the employee’s device. Wage and hour issues, such as a non-exempt employee using the device to work overtime or a minimum wage violation because the fees and expenses for the device reduce the employee below minimum wage for each hour worked. Discrimination and harassment. Employee negligence – the employee has an accident while using the device which results in a worker’s compensation claim, a claim by an injured third party, or both. An overbroad BYOD policy which inhibits “concerted activity” in violation of the National Labor Relations Act (“NLRA”).

To minimize these risks, employers should adopt a BYOD policy. An effective BYOD policy should: •

State that mobile device management

• •

• • •

•

• • • •

• •

software will be installed on the employee’s device which allows the employer to remotely “wipe” the device if necessary. State that the employer is not responsible for personal data loss. State that the employee has no expectation of privacy in the information stored on the device. State that the employer can monitor and preserve all data on the device. Require employees to sign the policy consenting to the terms. Prohibit the use of the device outside of the employee’s normal work hours unless expressly authorized to do so. Prohibit the use of the device for work while on unpaid leave unless expressly authorized to do so. Ensure that the fees and expenses for the device do not reduce the employee below minimum wage. State that time worked using the device will be counted as compensable time. Prohibit the use of the device for discrimination or harassment. Prohibit the use of the device when driving or operating equipment. Prohibit the storing of information from prior employers. State the protocols that will be followed in the case of an employee’s resignation or termination. Specify any other prohibited uses. State that the employee must notify management immediately in the event their device is lost, damaged or stolen. Contain an NLRA disclaimer. State that the BYOD Policy may be revoked at any time.

DICTA

Some employers may also allow employees to establish social media accounts identifying them as representatives of the employers. Depending on the employee’s job, creation of these social media accounts may be encouraged. But who owns these accounts after the employment relationship ends? The cases that have been decided thus far make it clear that if the employer wants to establish ownership of the accounts it is best to have a policy in place that addresses the issue. In Eagle v. Morgan1 Dr. Linda Eagle was fired from her position at Edcomm, and thereafter Edcomm attempted to take control of her LinkedIn account.2 Edcomm believed it had the right to her LinkedIn account because it was created with a company email account, on a company computer, on company time and at the company’s direction.3 Edcomm had no policy governing ownership of social media accounts created by its employees.4 However, per the LinkedIn “User Agreement,” accounts belong to the individuals who create them, who are then individually bound by LinkedIn’s User Agreement.5 Once EdComm took control of her LinkedIn account, Dr. Eagle sued, setting forth eleven causes of action.6 The defendants counterclaimed that Dr. Eagle misappropriated the account when she reacquired access to it by contacting LinkedIn.7 Ultimately, the court found that the defendants, by taking possession of Dr. Eagle’s LinkedIn account and locking her out of it, had committed several torts, including misappropriation of identity and of publicity, as well as the unauthorized use of Dr. Eagle’s name.8 In ruling for Dr. Eagle and rejecting the counterclaims the court noted that Edcomm had no policies regarding employee use of LinkedIn, that Edcomm did not pay for employee LinkedIn accounts, and that

February 2016

COVER STORY

By: J. Chadwick Hatmaker Woolf, McClane, Bright, Allen & Carpenter, PLLC

LinkedIn’s User Agreement states that the account is between LinkedIn and the individual user.9 Furthermore, Edcomm put forth no evidence that Dr. Eagle’s contacts were developed through use of Edcomm’s time and money and not her own.10 Thus, the Court held that Edcomm had no ownership rights in the account even though the account was created using the employer’s email system and computers and was created to represent Dr. Eagle as an employee of Edcomm.11 In reaching its holding, the court continually stressed Edcomm’s lack of a social media policy outlining the ownership of employee social media accounts and content.12 In Ardis Health, LLC v. Nankivell,13 the court reached a different conclusion. In Ardis Health, Nankivell was terminated by her employer, CYC, and refused to turn over company “Access Information,” which included passwords and other login information for social media accounts and websites, and content on those accounts and websites.14 When she began working at CYC, the company had her sign a “Work Product Agreement” which provided that all work created or developed by Nankivell “shall be the sole and exclusive property of CYC . . . .”15 CYC argued that the Work Product Agreement covered the aforementioned “Access Information.”16 The court concluded that CYC owned this Access Information and forced Nankivell to return the Access Information to CYC.17 In Ardis Health the social media accounts at issue were created by Nankivell, but they were created “in connection with the online marketing of plaintiffs’ products.”18 This fact, combined with the Work Product Agreement, tipped the scales in favor of CYC.19 In BTS, USA, Inc. v. Executive Perspectives, LLC,20 the defendant, Bergmann, posted about his new position with Executive Perspectives (“EP”), a direct competitor to his old company, BTS, USA, Inc. (“BTS”), on his LinkedIn page.21 Those “linked” with Bergmann could see his posting about his new job.22 Amongst those “linked” with him included several clients and contacts he developed while at BTS.23 BTS sued claiming Bergmann’s LinkedIn postings violated the non-compete agreement he entered into with BTS. Despite Bergmann posting about his new job on the LinkedIn page he used while at BTS, the court held that this was not a breach of his non-compete agreement with BTS.24 February 2016

The court noted that “BTS had no policies or procedures regarding employee use of social media, did not request or require ex-employees to delete BTS clients or customers from LinkedIn accounts; did not discuss with Bergmann his LinkedIn account in any fashion,” and allowed employees to maintain LinkedIn accounts without monitoring or restriction.25 As with Eagle, the court found it informative that BTS had no social media policy governing how employees could use social media and who owned the account.26 Further, the court held that “absent an explicit provision in an employment contract which governs, restricts or addresses an ex-employee’s use of such media,” the court could not restrict a former employee’s use of a social media account.27 Though the BTS case was decided in light of a non-compete agreement, and not actual ownership of a social media account, it treats the issue in a similar way as Eagle. As in Eagle, the court suggests that the employer could exercise control, or perhaps even ownership of an employee’s social media account, with the proper provisions in an employment contract or policy. Based on these cases, employers who want to establish ownership of a social media account created by an employee should adopt a policy which expressly states that the employer owns the account. Employers who adopt BYOD or other policies which contain appropriate language to address the legal risks addressed in this article can reduce their exposure to those risks. Remember, an ounce of prevention is worth a pound of cure.28

DICTA

Eagle v. Morgan, No. CIV.A. 11-4303, 2013 WL 943350, at *1 (E.D. Pa. Mar. 12, 2013). 2 Id. at *2-3. 3 Id. at *2. 4 Id. 5 Id. at *1. 6 Id. at *6. 7 Id. at *16. 8 Id. at *6-9. 9 Id. at *16. 10 Id. 11 Id. 12 Id. 13 Ardis Health, LLC v. Nankivell, No. 11 CIV. 5013 NRB, 2011 WL 4965172 (S.D.N.Y. Oct. 19, 2011). 14 Id. at *2. 15 Id. at *1. 16 Id. at *3. 17 Id. at *2. 18 Id. at *1. 19 Id. at *3. 20 BTS, USA, Inc. v. Executive Perspectives, LLC, No. X10CV116010685, 2014 WL 6804545 (Conn. Super. Ct. Oct. 16, 2014). 21 Id. at *3. 22 Id. 23 Id. 24 Id. at *12. 25 Id. 26 Id. 27 Id. 28 I would like to thank Joshua R. Nunnally, a third-year law student at the University of Tennessee, for his contributions to this article. 1

WORD PLAY

barrister bullets

By: Peter D. Van de Vate Law Office of Peter D. Van de Vate •

Plan now to attend the Barristers monthly meeting on Wednesday, February 10, at 5:00 p.m. at the Bistro at the Bijou. Everyone is welcome. During the meeting, Matthew Hayes with Capital Financial Group will offer some financial tips for young attorneys that will set us up for success in retirement. Get a brief update on activities and find how you can get involved. This is a great opportunity to get to know your fellow young lawyers. Get updates on the Barristers on Facebook at www.facebook.com/ knoxvillebarristers.

•

The Mock Trial Committee is looking for volunteers to help as presiding judges, scoring judges, and bailiffs for this year’s KBA High School Mock Trial Competition. We will need volunteers for Saturday, February 20 and Saturday, February 27. If you are interested in volunteering for one or both of those dates, please contact Kathryn Ellis at kellis@laet.org as soon as possible. Volunteers will need to be available from 8:00 a.m. until roughly 2:00 p.m. (although you might get done earlier). Volunteers will be provided with breakfast and lunch each Saturday.

•

Be sure to send a “Teddygram” e-card during the weeks of February 8 - 22! Every $5 donation will go to purchase teddy bears to donate to the Knoxville Police Department, whose officers provide the bears to children in crisis. Keep an eye on communications from the KBA for specifics on how to participate!

•

Law School Mentor is looking for volunteers to conduct Mock Interviews February 1-5 at UT Law. A more detailed schedule will follow. Volunteers are also needed for a Solo/Small Firm Panel at UT Law in March. Contact Caitlyn Elam at celam@lewisthomason.com if interested in participating.

•

Volunteers and sponsors are needed to serve breakfast at the Volunteer Ministry Center on the fourth Thursday of every month. Volunteer Breakfast is a great way to “get your feet wet” in the Barristers because you are only committing a couple hours of your time! If you would like to get involved, please contact Kati Goodner at ksg@painebickers.com or Paul Wehmeier at pwehmeier@adhknox.com.

•

“Umbrage” An umbrage is literally a shadow; the word is borrowed from the Middle French ombrage, a shade or shadow. The word originated from the Latin umbaticum, the neuter of umbraticus, of or pertaining to shade. The sense of the word meaning a shadowy appearance or semblance is first recorded in Shakespeare’s Hamlet (1604). The use of the word to express that one feels slighted or offended appears in 1620. The phrase to take umbrage at appears in 1680.

Thanks to Arnett, Draper & Hagood, LLP and Barristers Rachel Hurt and Paul Wehmeier for preparing the December Volunteer Breakfast.

Mobile Meals needs volunteers for the first Tuesday of each month, starting in March. The commitment would be 4-5 days a year (schedule below). even-numbered months (Apr 5, June 7, Aug 2, Oct 4 and Dec 6); odd-numbered months (May 3, July 5, Sept 6, Nov 1); or all of the above (if one firm wants to go monthly). If you are interested, please contact Nic Arning at narning@wmbac.com.

DICTA

February 2016

TEMPUS FUGIT – TIME FLIES By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

INDOMITABLE WILL In 1907, the State of Tennessee passed a law. By all accounts, 1907 was a very important year for Tennessee. The Vols had the first seven-win season in team history, beating Georgia 15-0, Arkansas 14-2 and Clemson, 4-0.1 President Theodore Roosevelt visited Nashville, delivering a speech at the Ryman Auditorium and riding in an automobile (gasp!) out to the Hermitage.2 Forty-one years earlier, in 1866, Tennessee became the first Confederate state to be readmitted into the Union.3 To achieve readmission, Tennessee was the first Confederate state to ratify both the Thirteenth and the Fourteenth Amendments to the Constitution, thereby abolishing slavery and making equal protection and due process the law of the land, and the State of Tennessee.4 Seven years earlier, in 1900, a young woman applied to practice before the Tennessee Supreme Court.5 The Court flatly denied her application.6 At the time, the requirements for admission were fairly simple. (1) You had to be at least twenty-one years old.7 (2) You had to have a certificate of good moral character from the county court where you resided.8 (3) You had to pass an examination “touching his legal abilities and acquirements in the principles of law” before two or more judges and “be found to possess a competent share of law knowledge.”9 If the judges found you qualified, they “shall grant him a license . . . to practice law in the different courts of this state.”10 With one exception, this young, female applicant met all of the preceding qualifications, including obtaining a license to practice law signed by Chancellor Dehaven of the Shelby County Chancery Court and Circuit Court Judge Estes. The exception was that male pronoun. So the Tennessee Supreme Court denied her application to practice before the Court.11 She tried again a year later, and the Court denied her application again with a bare, eighty-five word paragraph.12 But, this time, two Justices wrote a strong dissent, dissecting the popular arguments against admission and ending with the following: We can see no valid objection to a woman’s practicing law upon any of the grounds stated. Whether it is best policy for her to do so from a social and pecuniary point of view is a question which addresses itself to her discretion. . . . No one would deny her, when necessity or the desire for honest independence prompts such action, the right to enter into any field suited to her physical ability and her standing as a true, pure woman; and, while men and women may differ as to the boundaries of her proper sphere, she has by force of her indomitable will and purpose opened up her way into all the avenues of business and trade. *** Certainly the legal arena is not more foreign to her tastes, capacity, and disposition than many places which she now fills with credit and profit. She should be given every chance to make an honest and independent living; and, whether she makes it from necessity or choice, she should not be debarred from it except for good legal reasons. We are not able to see such reasons. With the doors of the courthouse firmly closed, this young woman turned to the legislature, working for six years until, on February 13, 1907, the General Assembly enacted the “Woman Practicing Law in Tennessee Act.”14 The law read as follows: Be it enacted by the General Assembly . . . that any woman of the age of 21 years and otherwise possessing the necessary February 2016

qualifications, who shall apply for the same, may be granted a license to practice law in the courts of this State.15 The law was ratified by Governor Patterson two days later, and on July 1, 1907, Marion Scudder Griffin became the first woman to be licensed by the Tennessee Supreme Court to practice law.16 Ms. Griffin later became the first woman elected to the Tennessee General Assembly where she chaired the House Social Welfare Committee.17 Why was such a law necessary when the Fourteenth Amendment promised equal protection forty-one years earlier is a question worth asking. One of the many possible answers illustrates the first aspect of change. Having a promise is the first step toward change, but sometimes it takes a lot of hard work, persistence, and the sheer “force of indomitable will” to change a promise into something tangible like a law license.

1 Saturday Down South, http://www.saturdaydownsouth.com/schedules/tennesseegames/1907-volunteers-season, last visited Jan. 10, 2016. 2 C. Michael Norton, Theodore Roosevelt’s 1907 Nashville Visit, CivicScope, available at http://www.civicscope.org/nashville-tn/TheodoreRoosevelt1907, last visited Jan. 10, 2016. 3 Paul H. Bergeron, Andrew Johnson, Tenn. Encyclopedia of History & Culture, Dec. 25, 2009, available at http://tennesseeencyclopedia.net/entry.php?rec=706; Andrew Glass, Tenn. is Readmitted to the Union, Jul. 24, 2008, available at http://www.politico.com/ story/2008/07/tenn-is-readmitted-to-the-union-july-24-1866-011990. 4 Robert Tracy McKenzie, Reconstruction, Tenn. Encyclopedia of History & Culture, Dec. 25, 2009, available at http://tennesseeencyclopedia.net/entry.php?rec=1112; U.S. Const. Amend. XIV. The Fourteenth Amendment was fully ratified in 1868, two years after Tennessee’s ratification. Library of Congress, 14th Amendment to the U.S. Constitution, http://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html, last visited Jan. 10, 2016. 5 Ex parte Griffin, 71 S.W.746,746 (Tenn. 1901). 6 Id. 7 Tenn. Pub. Acts.1967-68, ch. 24, cited in Ex parte Griffin, 71 S.W. at 747. 8 Tenn. Pub. Acts 1809, ch. 6, § 2, cited in Ex parte Griffin, 71 S.W. at 747. 9 Tenn. Pub. Acts. 1798, ch.2; Tenn. Pub.Act.1809, ch. 6, § 1, quoted in Ex parte Griffin, 71 S.W. at 746. 10 Id. 11 Ex parte Griffin, 71 S.W. at 747; see also Matthew Hicks, Marion Scudder Griffin Collection, Biographical Note p. 3 (2014), available at http://memphislibrary.contentdm. oclc.org/cdm/ref/collection/p13039coll1/id/329. 12 Id. at 746. 13 Id. at 749. 14 Candace Corrigan, Through a Woman’s Voice, Marion Griffin 1879-1957, http://www.candacecorrigan.com/wvoice/griffin.html, last visited Jan. 10, 2016. 15 Tenn. Pub. Acts 1907, ch. 69, 1 (1907). In 1972, the law was amended to change the age to eighteen. Tenn. Pub. Acts. 1972, ch. 612, § 2 (1972), Tenn. Code Ann. § 29-104 (1972). Today, this statute can be found codified at Tenn. Code Ann. 23-1-107 (2015). 16 Hicks at p. 3. 17 Id.

DICTA

MEMBER SERVICE SPOTLIGHT By: Marsha S. Wilson KBA Executive Director

LEGAL MARKETPLACE Over the past 20 years, the KBA staff has compiled an extensive list of attorney service providers as a resource for members. These companies have supported the KBA by advertising their services in DICTA and in the Attorneys’ Directory, and by participating in our Law Practice Today Expo. Their financial support has allowed the KBA to fund countless membership service programs over the years and we’ve developed some great relationships as a result. The KBA’s website boasts a new hosting platform and easier-to-use interface with the recent software upgrade. One of the new features of the website is our business directory, which is called the Legal Marketplace. We want members to use the Legal Marketplace as a one-stop shop when looking for a business partner to help you manage your practice. Hundreds of companies now have free basic online and print listings in the Attorneys’ Directory in categories relevant to the legal community’s needs. Review the list of companies and if you don’t see one of the businesses that your firm uses, please let us know. Better yet, encourage them to purchase a premium listing so that other lawyers will learn about their product or service. The Legal Marketplace will also help broaden your understanding of products and services available to your firm as well as what is going on in the industry. My favorite part of the new online Legal Marketplace is a feature that allows KBA members to write a review about one of the companies who have purchased a premium or plus listing. Members need to log into the website to write the review but once approved, the review is visible to everyone. Since this is a new feature, I’m the only one who has written reviews (check out Regions Mortgage or Powell Auction). In order for this to be valuable to your colleagues in the bar, I’m asking you to take a few minutes to write a review or testimonial about one or more of the companies who are listed on the site. Personally, I’d feel better about getting a loan or purchasing an expensive piece of office equipment, if I knew someone within the bar valued their relationship with that company. Take the time to learn about the products and services available to your firm and then please thank these business partners for their support.

DICTA

February 2016

SCHOOLED IN ETHICS By: Judy M. Cornett Professor, U.T. College of Law

CLIENT FILES: THE REST OF THE STORY In my last two columns I discussed the ethical duties of attorneys with respect to client files when the client has fully paid for the lawyer’s services (August 2015) and when the client still owes fees to the lawyer, giving rise to an attorney’s lien (November 2015). Unbeknownst to me, the Board of Professional Responsibility had under consideration a formal ethics opinion dealing with this issue, among others. On December 11, 2015, the Board issued Formal Ethics Opinion 2015-F-160. The opinion addresses three issues: (1) how long a lawyer must retain client files; (2) who owns the client’s file; and (3) the attorney’s ethical duties with respect to client files when the lawyer retires. With respect to how long a lawyer must retain client files, the opinion warns that “[t]here is no one safe answer to the central question of how long must the closed files be kept before they are destroyed.” However, the opinion gives a few bright-line rules. First, “[l]awyers do not have a general duty to preserve permanently all files for their former clients.” Second, no client file should be destroyed prior to the expiration of the statute of limitations for legal malpractice. Third, client property and financial records must be preserved for at least five years because of the interaction between Tenn. R. Prof. Conduct 1.15 and Tenn. Sup. Ct. R. 9, sec. 35(a)(2). However, ”original wills, trust documents, deeds, and other non-replaceable documents” must not be destroyed but rather should be returned to the client, usually upon the termination of representation. Fourth, when client files are destroyed, the method of destruction “must protect the confidentiality of the materials.” The opinion urges lawyers to agree with their clients about how long the client’s file must be retained, either in the retention agreement or the agreement terminating representation. The opinion also gives some guidelines for retention depending on the type of case involved. Files involving minors should be retained until their majority and the expiration of the statute of limitations. Certain tax files should be retained until the client is no longer exposed to liability. The opinion also includes a handy chart for file retention in bankruptcy claims and filings (“discharge of debtor or discharge of trustee or receiver”); contract actions (“satisfaction of judgment or dismissal of action”); criminal cases (“date of acquittal or length of the period of governmental control over defendant”); dissolution of marriage cases (“final judgment or dismissal of action; except when child custody is involved, in which event the date of the last minor child’s reaching majority”); leases (“termination of lease”); probate claims and filings (“entry of the order closing the estate”); real estate transactions (“settlement date of the transaction, judgment, foreclosure, or other completion of matter”); and tort claims (“final judgment or dismissal of action; except when a minor is involved, in which event the date of the minor’s reaching majority and expiration of the statute of limitations”). With respect to the second question, “Who owns the client’s file?” the opinion unfortunately phrases the question as one of “ownership,” rather than one of an attorney’s ethical duties toward the client with respect to the file. Property ownership concepts are of limited usefulness in discussing client files since an attorney’s ethical duties do not depend on “who owns the file.” Under Tenn. R. Prof. Conduct 1.16(d), the lawyer’s duty to surrender the file depends on the answers to three questions: (1) Is the material at issue the attorney’s “work product” or is it other “papers and property to which the client is entitled”? (2) With respect to the work product, has the lawyer been compensated for it or not? and (3) With respect to uncompensated work product, will retention of it by the lawyer have a “materially adverse effect” on the client? In the initial summary, the opinion correctly addresses the second and third questions:

The entire client file, for which the lawyer has been compensated, belongs to the client. If the lawyer wants a copy, the lawyer should bear that expense. If the lawyer has not been compensated, the lawyer may retain work product, but only if retention of the work product will not have a materially adverse effect on the client with respect to the subject matter of the representation. However, in the Discussion section, the opinion misleadingly asserts that the client owns the “entire file,” without distinguishing between work product and non-work product and without further distinguishing between compensated and uncompensated work product. It appears that this assertion is merely the Board’s answer to a question not resolved by Rule 1.16 itself: to what “papers and property” is the client “entitled”? The opinion states that the Tennessee Supreme Court has determined that the client is “entitled” to the “entire file,” following the approach adopted by New York and the ALI’s Restatement of the Law Governing Lawyers. To support its conclusion, the Board cites Comment [9] to Rule 1.16, which provides, “The lawyer may, at the lawyer’s own expense, make a copy of the client file materials for retention by the lawyer prior to surrender.” The opinion also notes that in Saroff v. Cohen, No. E200800612COAR3CV, 2009 WL 482498 (Tenn. Ct. App. Feb. 25, 2009), “the only file contents that the court found not to constitute part of the client file were the law firm invoices that were held to be accounts receivable records of the law firm.” Thus, the opinion’s adoption of the “entire file” approach should be read only as clarifying that the definition of “papers and property to which the client is entitled” encompasses everything other than the attorney’s work product. The duty to surrender work product still depends upon whether the lawyer has been paid for it and whether withholding uncompensated work product will have a material adverse effect upon the client. Unfortunately, the opinion’s citation of New York’s “entire file” rule and the Restatement section 46(2) mistakenly suggests that there is no distinction in Rule 1.16(d) between work product and non-work product: N. Y. State Bar Op. 766 (2003) states that “a former client is entitled to any document related to the representation unless substantial grounds exist to refuse access.” The ALI Restatement of the Law Governing Lawyers Subpart 2 of section 46 states: “(2) On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.” The opinion’s citation of these authorities might lead the reader to conclude that clients have an absolute right to everything in the file, including uncompensated work product, a conclusion clearly not supported by Rule 1.16(d). Although the Board notes that Tennessee law provides for an attorney’s lien for unpaid legal fees, the opinion cautions that “when a client cannot afford to pay the legal bill and surrender of the materials is necessary to avoid materially adverse effect to the client, the lawyer cannot retain the file as security.” (emphasis added). What is most interesting about this statement is the suggestion that when a client can afford to pay the attorney’s fees, the uncompensated portions of the file need not be surrendered even if retention of the materials would have a materially adverse effect on the client. Perhaps the Board is suggesting that when the client can afford to pay the attorney’s fee but refuses to do so, any material adverse effect results not from the attorney’s retention of the file, but from the client’s own refusal to pay the bill. (Continued on Page 22)

February 2016

DICTA

WELL READ By: Beth Ford Community Defender, Federal Defender Services

BRYAN STEVENSON’S JUST MERCY: A STORY OF JUSTICE AND REDEMPTION Just Mercy is really three books. It is Bryan Stevenson’s autobiography; it is an overview of some of the major failings of the criminal justice system in the United States; and it is the story of the many remaining racial inequities more than 50 years after the Civil Rights Act of 1965 and Supreme Court decisions such as Brown v. Board of Education, 347 U.S. 483 (1954). Bryan Stevenson is a 58 year old Harvard educated African American attorney who is a masterful storyteller. One has only to have had the opportunity to hear him speak in May at the Sixth Circuit Conference or the Community Law Office’s 25th Anniversary celebration or to have listened to his 2012 TED talk to fall under the spell that he is able to weave. It is not surprising that he received a standing ovation at all of those events. Through the book, as in his speeches, one learns that Stevenson is a driven, brilliant lawyer who is the great grandson of enslaved ancestors, who attended segregated schools until he was in the second grade and who despite his education and international honors continues to deal with prejudice and mistreatment as a result of his race. Judges, lawyers, and others continue to assume that Bryan is a defendant when he appears in court today. He talks about the effect on his family when his grandfather was murdered by two men who wanted his black and white television. He talks about the influence of his maternal grandmother on him and his work. He honestly describes his anger at the system where 1 in 9 people on death row are there wrongly, his own physical exhaustion because there is so much to be done, and his hope that change will happen. The book alternates between the story of Walter McMillian, one of Bryan’s death row clients, and the stories of other clients and causes that are Bryan’s passions. The book follows the story of Bryan’s representation of McMillian who was one of his first clients at the Southern Prisoners Defense Committee from his first visit with McMillian on “the row” through the multiple hearings, investigative work, politics, and finally the release of McMillian from prison. At that point, Walter’s family had claimed Bryan as one of their own. However,

Schooled in Ethics

(Continued from page 21)

Finally, the opinion addresses the attorney’s ethical duties with respect to client files upon the attorney’s retirement. Clearly, “[d]issolution [of a firm] or retirement from practice clearly does not relieve the lawyer of a professional obligation to maintain closed files.” When the retiring lawyer practices with a firm, the other members of the firm share responsibility for maintaining the files. The Board elaborated on the retiring lawyer’s duties: A lawyer retiring from a firm may satisfy the safekeeping requirement by the firm’s keeping the files. Assuming a retiring solo practitioner has not changed his or her residence and can reasonably be contacted by former clients, such retiring solo practitioner may satisfy the safekeeping requirement by simply keeping the files in a location readily accessible to the retiring lawyer and/or client. This further assumes that confidentiality of the files can be maintained. Although lawyers do not have a duty to notify former clients of their

the story of Walter McMillian does not end when he is released, and it does not end as happily as one would hope. Walter McMillian suffered mightily even as an innocent man. The chapters between the McMillian chapters cover a multitude of topics, issues and clients. Stevenson introduces the reader to several of his clients on death row. He identifies the inequities in their cases, and he successfully secures relief for some of his death row clients but not for all of them. (If there is any criticism at all of the book, it might be found in the author’s tendency to minimize the seriousness of some of the offenses committed by his clients.) Several of the chapters are dedicated to the fight of his non-profit, the Equal Justice Initiative, to outlaw mandatory life sentences for children under the age of 17. As with the death row clients, the reader feels the pain and hopelessness of the children because of the strong descriptive writing of the author. The story for most of the juvenile clients ends with a success before the United States Supreme Court in the case of Miller v. Alabama, where the Supreme Court found sentences of mandatory life without parole for children under the age of 17 to be unconstitutional. 132 S.Ct. 2455 (2012). As an indicator of what a gifted lawyer Bryan Stevenson is in addition to his writing and speaking skills, the Miller case was the fifth one that he had argued before the Supreme Court. In closing, Stevenson identifies four institutions that have shaped our flawed approach to race and poverty. They are slavery, the reign of terror after Reconstruction, Jim Crow, and mass incarceration. (Pages 299-301.) These are the issues that the Equal Justice Initiative can be expected to continue to address and fight in the future. Just Mercy is a book for everyone. It is written for those with no or little exposure to the world of criminal defense or habeas corpus or death penalty work. It is written to educate all of us and to inspire us to action. “We are all implicated when we allow others to be mistreated…we all need justice and perhaps we all need some measure of unmerited mercy.” (Page 18.)

retirement or of their arrangements for maintaining client files, a retiring lawyer may contact former clients and reach an agreement for how to maintain their files, including “placing the files with a named attorney who will assist the retiring lawyer in closing out his or her law practice, or assist the client in transferring the files to an attorney chosen by the client, or return the files to the client.” In short, Formal Ethics Opinion 2015-F-160 provides some helpful rules and guidelines with respect to client files, although the analysis of what file materials must be surrendered to the client is muddled. The opinion can be found at https://s3.amazonaws.com/bpr_website/pdf_downloads/pdfs/000/000/10 9/original/Formal_Ethics_Opinion_2015-F-160.pdf?1450130461. However, one commentator has called the Board's conclusion that client files must be retained for at least five years "seriously flawed," and has suggested that the Board might issue an amended opinion reconsidering that requirement. See Brian S. Faughnan, Tennessee Ethics Opinion Got it Wrong: Rule 1.15 Doesn't Determine Client File Retention Requirements, 32 Law. Man. Prof. Conduct 32 ( Jan. 13, 2016).

DICTA

February 2016

LONG WINDED By: Jason H. Long Lowe, Yeager & Brown

SIGH O.K., let’s start with two basic propositions and see if we can all agree: 1) “It is emphatically the province and duty of the judicial department to say what the law is.” (I won’t give the Bluebook cite, but I’m pretty sure we can all recall, from middle school civics class, that this quote is from Chief Justice John Marshall in Marbury v. Madison and forms the cornerstone of his reputation as perhaps the most important jurist in the history of democratic society. Until he said it, no one ever had, and to my knowledge, no one of sane mind really disputes it at this point); and 2) the laws, whether state or federal, enacted and imposed upon our citizenry must pass muster under the Constitution (I’m pretty sure we fought a civil war over this one). I would never profess to be a legal scholar, but I think I have a decent handle on these two points. If you disagree with what I have written thus far, stop reading right now. This article is not for you. I am sure there is an episode of Cheaters on right now that would be far more interesting. For the rest of you, I am glad we can all agree that, in our democracy, we are bound to follow the Constitution and the United States Supreme Court gets to tell us what that Constitution means. Why is it that so many of our elected officials, men and women, who make their living in government, have such a difficult time grasping these simple concepts? In yesterday’s News Sentinel there was an article predicting that Governor Haslam’s “honeymoon” with the legislature may finally be over. Among the many potential fights the Governor may face this term is a battle with a representative who says the Governor should be impeached for not standing against the Supreme Court ruling in Obergefell. That’s right. “Impeached.” Not only is the representative saying the Constitution should not be followed, he is claiming that our Governor should be removed from office for following the law. I have great respect for Attorney General Slatery and know him by reputation to be a first rate legal mind. I think we can put his talents to better use than asking him questions like “should the Governor follow the law?” I picture him rubbing his temples, pausing for a moment, and letting out a long sigh, before saying “umm, yeah, he should,” and cashing his civil service check. Then, we have the Chief Justice of a neighboring state, which will go unnamed (let’s just say he comes from a state that is really good in football), who has instructed his probate clerks that, despite the high court decision in Obergefell, those clerks are still bound to follow state law prohibiting the issuance of marriage licenses to same sex couples until that law is formally repealed or overruled by the state. The administrative order he issued appears to cite precedent from both the 8th Circuit and Kansas that the decision of the Supreme Court only affects those states’ laws that were directly before the Court (i.e. marriage bans in Tennessee, Kentucky, Michigan, and Ohio). If you are a probate clerk in that state, wearing your houndstooth hat, good luck defending yourself against the civil rights action brought by those simply wanting you to follow the directive of the Supreme Court. The last time I checked, and I’ll admit that I haven’t checked in some time because I thought the point was fairly settled, the jurisdiction of the Supreme Court extends across the entire country. Perhaps things have changed. Sadly, it is not simply a lawyer taking this position (which would be bad enough), but a judge . . . and not just a judge, but the highest sitting judge in the entire state. Of course, this is the same judge who was removed from office for refusing to remove a monument to the Ten Commandments in front of the courthouse, despite a federal court order for him to do so. Apparently, that state of red elephants, or at least its Chief Justice, didn’t get the memo on federalism. The electorate of that unnamed state nonetheless voted that judge back into office (a pretty good argument against the direct election of judges) and he apparently

February 2016

has decided to up the ante and direct others to join him in violation of the Constitution. At least one candidate for President has said that “Judicial Supremacy is not in the Constitution.” Article III makes it pretty clear that there is judicial supremacy and, if you are confused on that point, Justice Marshall clarified the issue over two hundred years ago. Fortunately, no one seems to be taking that candidate very seriously anymore. I’ll be the first to admit that I’ve taken some pot shots at Donald Trump and his candidacy. But in fairness, he got this one right. When asked about the Kim Davis case (the Kentucky clerk who refused to issue same sex marriage licenses in the wake of Obergefell), Trump, in his patented matter-of-fact way, said that the Supreme Court had spoken and it was the law of the land. It’s nice to know that whatever else Trump wants to blow up in our system, at least he views the rule of law as sacrosanct on this point (can’t believe I just agreed with The Donald). Look, I voted for Al Gore and I would have really liked to have seen what he would do as President. I was disturbed by the election results as much as anyone else and believe that mistakes were made (probably on both sides). I don’t think we will ever know who truly won the election of 2000. Nonetheless, the Supreme Court made a ruling to stop the recount and that was that. In a sense, we did learn the results of the election because our highest Court made a determination we were all bound to stand by. They don’t call it the court of last resort for nothing. I realize I’m starting to rant on my soapbox here and there is very little funny about this article, other than the absurdity of the state of our fidelity to basic principles of civics. However, my son is 10 years old, and he is starting to understand, at a deeper level, how our government works. It is becoming increasingly difficult to explain to him the process of government in a logical fashion the more he sees current events unfolding. I firmly believe that lawyers hold a special place in our society when it comes to educating others about civics and the rule of law. I hope we can do more than shake our heads at the absurdity of world events and actively educate others and protect the system where possible. I certainly applaud Attorney General Slatery for doing so.

DICTA

OF LOCAL LORE AND LAWYERS By: Joe Jarret University of Tennessee, Department of Political Science

GOATS, GUNS, & GUTS: TENNESSEE ATTORNEY SOPHIE FRIEDMAN AND THE GOAT CASTLE MURDER A Woman of Mystery Situated on the periphery of Knoxville’s Market Square is the Tennessee Woman’s Suffrage Memorial. The purpose of this grand sculpture is to “Create a lasting memorial to the suffragists of Tennessee.”1 One of the three women featured in the sculpture is Memphis native Elizabeth Avery Meriwether. However, this piece is about another Tennssee woman of note: Sophie Goldberg Friedman. Sophie Goldberg Friedman was born in Austria-Hungary in 1878 and soon thereafter immigrated with her parents to America, eventually settling in Memphis. An ardent suffragette, she was a state officer of the Women's Congress at Memphis, and a member of the League of Nations Association for Tennessee and the League of Women Voters. She soon earned the reputation of a woman who sought reform of laws regarding uniform marriage, divorce, child welfare, adult education, and social hygiene.2 There exists to this day, in Memphis’ Historic Overton Park, a small, undated monument, placed by the Memphis Chapter of American War Mothers3 commemorating her achievements which reads: “A Tribute to Sophie G. Friedman For Her Activities of Having Had Enacted First Marriage Law in Tennessee General Assembly Abolishing Child Marriage.” Said one admiring war mother, “Our Sophie was one gutsy woman!”4 Sophie gained admission to the Tennessee and Mississippi Bars in 1922, and ultimately became the first woman lawyer to practice law in nearby Natchez, Mississippi. While in Natchez, she appears to have become involved, although to what extent is unclear, in the now infamous "Goat Castle Murder Case," thus bringing us to the rest of the story. The Goat Castle Murder “Bullet riddled body of woman found in thicket,” read the headline of the Natchez Democrat newspaper5 on August 4, 1932. It seems police discovered the body of Jennie Merrill, 68, outside of her Natchez mansion. She had been shot multiple times with a .32 caliber handgun.6 On August 4, 1932, Jane Surget Merrill, better known as “Miss Jennie” was shot dead around 6:30 P.M. in her home. Miss Jennie was a sixty-eight year old, eccentric, aristocratic, wealthy spinster from one of the oldest families in Natchez. Eventually, her two next door neighbors, Dick and Octavia Dockery, would be wrongly charged with her murder. The Dockerys, both likewise eccentric, had been aristocrats in their own right until bad times and misfortunes bedeviled them. By the time Miss Jennie’s body was found, the Dockerys had begun displaying bizarre behavior, and their stately home had fallen into serious disrepair. Adding to the house’s demise was the Dockery’s habit of perpetually leaving doors and windows open, regardless of the weather, and allowing the goats they raised, along with an assortment of stray cats, and dogs, free reign of the house. Once this fact became public knowledge, the Dockerys estate would henceforth be known as “Goat Castle.”7 It appears the reason local police suspected that the Dockerys were responsible for Miss Jennie’s death was due to an incident that occurred two years before the shooting. One summer, Miss Jennie shot and killed

one of Dick Dockery’s goats. The animal had been making regular forays into Miss Jennie’s yard and eating her rose bushes. Dick pressed charges against her and the case eventually went to trial. The charges against Miss Jennie were ultimately dropped, much to Dick’s dismay. How Sophie Goldberg actually became involved in the defense of the Dockerys is yet another mystery. What is known is that Jeannie Merrill was not murdered by the Dockerys, but rather, by a man named George Pearls and his accomplice, Emily Burns, owner of a Natchez rooming house. Police records reveal that Burns dispatched Pearls to "borrow" some money from Jennie Merrill. Emily Burns confessed that, when Jennie refused to give George Pearls any money, Pearls fatally shot her with a .32 caliber pistol. George Pearls was himself shot and killed by a Pine Bluff, Arkansas sheriff 's deputy three days later.8 Emily Burns was convicted of being an accomplice to murder and served eight years in prison. And what became of the Dockerys? Well, Dick continued to exist in destitute squalor (with Octavia), becoming saddled with the moniker “Wild Man of Goat Castle" until his death in 1948 at age 77, from pneumonia. Octavia lived alone at Goat Castle for another six months dying at age 84, in April 1949. As for Sophie? Well, it appears, like her role in the Goat Castle Murder, Sophie went on to live a life shrouded in mystery until her death in 1954. 1 The Suffrage Coalition erected the life-size, bronze statue featuring three Tennessee suffragists: Lizzie Crozier French of Knoxville, Anne Dallas Dudley of Nashville, and Elizabeth Avery Meriwether of Memphis as a lasting memorial to the suffragists of Tennessee. http://tnwomansmemorial.org/. 2 Sophie Friedman Papers. http://asteria.fivecolleges.edu/findaids/sophiasmith/ mnsss246.html. 3 The American War Mothers, founded in 1917, is a perpetual patriotic, non-sectarian, non-partisan organization whose members are mothers of children who have served or are serving in the Armed Services during a time of conflict. http://www.va.gov. 4 Women, Law, & Legislation, https://www.smith.edu/library/libs/ssc/subjlaw. 5 The Natchez Democrat was established in 1865 by Capt. James W. Lambert and Paul A. Botto and is still in publication today. http://www.boonenewspapers.com/community/natchez.shtml. 6 Callon, Sim C., and Carolyn Vance Smith. "The Goat Castle Murder." (1985). 7 Id. at 22. 8 Id. at 47.

DICTA

February 2016

WORTH NOTING By: Charles L. Baum II, Ph.D. a professor of economics at Middle Tennessee State University

CALCULATING ECONOMIC LOSSES IN PERSONAL INJURY AND WRONGFUL DEATH CASES IN TENNESSEE In 2011, Tennessee passed tort reform limiting non-economic damages in personal injury (PI) and wrongful death (WD) cases at $750,000 (or at $1 million when the injury is deemed catastrophic) as part of the Tennessee Civil Justice Act. Subsequently, in March 2015, Hamilton County Circuit Court Judge W. Neil Thomas ruled that these limits, passed by the state’s legislature, are unconstitutional.1 The Tennessee Supreme Court vacated this ruling in October 2015, indicating the lower court’s ruling on the constitutionality of the legislature’s non-economic damages limits was “premature” because the jury in the case had not yet awarded an amount above the limits. In this remand, the Tennessee Supreme Court’s guidance is for court judges to refrain from notifying jurors of the limits and to evaluate whether the limits are binding after the jury has made an award. Essentially, the constitutionality of the limits will be addressed once a jury provides an award in excess of them. Regardless of the constitutionality of these limits, economic damages—such as lost earnings from lost front and back pay—are not capped, making economic damages relatively more important in PI and WD cases. “Lost earnings” is generally considered to be the difference in the amounts an individual actually earned and would have earned absent the tort. Lawyers will frequently hire an economist to calculate the present value of this amount. In this article, I summarize the guidance Tennessee statutes provide when calculating lost earnings for 10 key factors. I.

Earnings Capacity

Tennessee statutes allow the pecuniary value of lost earnings to be recovered, to make the injured party whole.2 Tennessee courts seem to agree that this should be made for lost earnings capacity rather than for any changes in actual earnings: “It is not loss of time or earnings, but loss of the power to earn, that constitutes this element of damages.”3 This allows those not in the labor force at the time of the injury and minors to collect damages from lost earnings.4 Plaintiffs can recover past and future lost earnings, and recovery can be for permanent or temporary injuries in PI cases.5 The courts provide factors to consider, which include the injured party’s “expectancy of life, the age, condition of health and strength, capacity for labor and for earning money through skill, any art, trade, profession, occupation or business, and personal habits as to sobriety and industry.”6 II.

IV.

Growth Rates

Economists predict that earnings will grow over time with price inflation and productivity increases. Tennessee statutes allow awards of front pay (and the value of lost household services) to grow with anticipated raises over time, but acceptable rates have not been addressed.10 V.

Personal Consumption Expenditures

Affirmed by the Tennessee Supreme Court in Wallace v. Couch, Tennessee Pattern Instructions explicitly state personal maintenance expenses should be deducted in WD cases, defining this amount as “those that under the deceased’s standard of living would have been reasonably necessary to keep the deceased in such a condition of health and well-being as to maintain the capacity to earn money.”11 This is typically an amount that is less than actual consumption expenditures.12 VI. Worklife and Life Expectancies Tennessee courts recognize the appropriateness of examining losses over one’s worklife,13 but they provide no preference for which methodology to use when approximating the number of remaining years of employment absent the tort.14 In general, life expectancy—the expectancy of being alive—is to be considered when evaluating lost earnings.15 It seems reasonable that life expectancy should also be used when calculating lost household services (in PI and WD cases) and when calculating personal maintenance expenses (in WD cases). VII. Mitigation Those harmed are typically responsible for taking reasonable actions to limit damage (e.g., the Doctrine of Avoidability). In turn, Tennessee generally requires mitigating factors to be subtracted from economic losses. Tennessee courts also address whether collateral benefits should—or should not—be deducted from damages, and rules vary, depending on the source of the collateral benefit and type of case (e.g., medical malpractice cases16—to limit damages and to avoid “double recovery”–versus other cases17). VIII. Discounting

Employment Benefits

In Tennessee, employment benefits are recoverable,7 and they are often treated as part of earnings.8 Common benefits include employer contributions toward health insurance, pensions, and Social Security benefits. III. Lost Household Services For the same reasons lost earnings are recoverable, lost household services are recoverable in PI and WD cases.9 Lost household services are those household chores that would otherwise have been provided, such as cleaning; cooking; lawn and garden work; shopping and consumer goods purchasing; household management; and caring and helping other household or family members.

Tennessee courts direct future losses to be discounted to their present value. In the Tennessee Pattern Instructions for PI cases, present value is “the sum of money needed now which, when added to what that sum may reasonably be expected to earn in the future when invested, would equal the amount of damages, expenses, or earnings at the time in the future when the damages from the injury will be suffered, or the expenses must be paid, or the earnings would have been received.”18 However, the rate to use when discounting is not stipulated or defined. IX. Interest Interest on past (pre-judgment) losses may be allowed at the judge’s discretion in some instances, such as when damages are certain and are not disputed.19 One Tennessee statute limits interest to no more than 10 (Continued on Page 26)

February 2016

DICTA

Showcase your practice with an Online Firm Listing! Use www.knoxbar.org to provide potential clients with information about your practice 24/7! An online listing is a great way to promote your firm’s services to potential clients and other attorneys! Maximize your visibility with a Premium Listing which includes: listing of your firm’s areas of practice concentration; photos and practice information on each of the attorneys within your firm along with links to KBA member profiles; plus a link to your location through Google Maps. Search by attorney’s last name is available only to those lawyers who appear in a premium firm listing. Rates are pro-rated through July 1st. Contact the KBA Office at 522-6522 for an Online Firm Listing Contract.

WORTH NOTING

(continued from pag 25)

percent.20 However, Tennessee courts have typically declined to provide interest in PI and WD cases.21 X.

Taxes

Tennessee courts have a long history of not deducting income taxes from compensatory damages such as lost earnings,22 although the earnings otherwise would have been taxed but any damages award will not be. This is partly because Tennessee courts believe doing so would unnecessarily complicate the task of calculating damages and would nullify an intended tax benefit. Economic losses have become relatively more important in PI and WD cases because they are not capped. However, the economist, when calculating damages, must follow the guidance provided by Tennessee statutes and case law. Lawyers should understand relevant Tennessee court proceedings to know which methods an economist might use are acceptable.

1 See Clark v. Cain et al., No. 12C1147, Circuit Court of Hamilton County, Tennessee, Division IV, and No. E2015-00949-SC-R11-CV. In this case, the plaintiffs had sought $22.5 million in damages. The defendants had asked for partial summary judgement, since the damages amount was above the limits established in 2011. 2 Tennessee Code Annotated §20-5-113; Baum, Charles L. (2015). “Calculating Economic Losses in Employment Termination Cases in Tennessee.” Tennessee Bar Journal, 6; Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 419 (Tenn. 2013); Overstreet v. Shoney’s Inc., 4 S.W. 3d 694 (Tenn. Ct. App. 1999); Thrailkill v. Patterson, 879 S.W.2d 836 (Tenn.1994). See also Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593, 600 (Tenn.1999). 3 Overstreet v. Shoney’s Inc., 4 S.W. 3d 694, 703 (Tenn. Ct. App. 1999); Southern Coach Lines, Inc. v. Wilson, 31 Tenn. App. 240, 243, 214 S.W.2d 55, 56 (Tenn. Ct. App. 1948). 4 Lawrence v. Town of Brighton, 1998 WL 749418 (Tenn. Ct. App. 1998); Strother v. Lane, 554 S.W.2d 631, 636 (Tenn. Ct. App.1976); Crowe v. Provost, 52 Tenn. App. 397, 417, 374 S.W.2d 645, 654 (Tenn. Ct. App.1963); Southern Coach Lines, Inc. v. Wilson, 31 Tenn. App. 240, 214 S.W.2d 55 (Tenn. Ct. App. 1948). 5 Tennessee Pattern Instructions, Civil (1997): 14.10, 14.13, and 14.30; Southern Coach Lines, Inc. v. Wilson, 31 Tenn. App. 240, 243, 214 S.W.2d 55, 56 (Tenn. Ct. App. 1948). 6 Hall v. Stewart, 2007 WL 258406, *3 (Tenn. Ct. App. 2007); Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 943 (Tenn.1994).

For examples, see Borne v. Celadon Trucking Services, Inc., 2014 WL 3778743, *24 (Tenn.Ct.App.2014); Carter v. U.S., 2014 WL 1630824 (M.D.Tenn.2014); Thurmon v. Sellers, 62 S.W.3d 145, 162 (Tenn. Ct. App. 2001). 8 Patterson ex rel. Patterson v. Dunn, 1999 WL 398083 (Tenn. Ct. App. 1999); Reed v. PST Vans, Inc., 156 F.3d 1231, 1998 WL 466573, *1 (6th Cir.1998). 9 Carter v. U.S., 2014 WL 1630824, *6 (M.D.Tenn.2014); Marshall v. Cintas Corp., Inc., 255 S.W.3d. 60, 69 (Tenn. Ct. App. 2007); Thrailkill v. Patterson, 879 S.W.2d 836, 841 (Tenn.1994). 10 Carter v. U.S., 2014 WaL 1630824, *6-7 (M.D.Tenn.2014). 11 Tennessee Pattern Instructions—Civil 14.30; Wallace v. Couch, 642 S.W.2d 141, 143 (Tenn.1982). 12 For examples, see Patterson ex rel. Patterson v. Dunn, 1999 WL 398083 (Tenn. Ct. App. 1999) and Reed v. PST Vans, Inc., 156 F.3d 1231, 1998 WL 466573, *5 (6th Cir.1998). For information on defendant responsibilities to prove personal maintenance expenditures, see Hutton v. City of Savannah, 968 S.W.2d 808, 813 (Tenn. Ct. App. 1997). 13 Borne v. Celadon Trucking Services, Inc., 2014 WL 3778743, *24 (Tenn. Ct. App. 2014); Rich v. Peninsula Psychiatric Hosp., Inc., 1990 WL 38552, *9 (Tenn. Ct. App. 1990); Overstreet v. Shoney’s Inc., 4 S.W. 3d 694, 704 (Tenn. Ct. App. 1999). 14 For an example, see Patterson ex rel. Patterson v. Dunn, 1999 WL 398083, *6 (Tenn. Ct. App. 1999). 15 Tennessee Code Annotated §20-5-113; Thrailkill v. Patterson, 879 S.W.2d 836 (Tenn.1994); Tennessee Pattern Instructions—Civil 14.30. 16 Tennessee Code Annotated § 29-26-119; Richardson v. Miller, 44 S.W.3d 1 (Tenn. Ct. App. 2000); Nance by Nance v. Westside Hosp., 750 S.W.2d 740 (Tenn.1988). 17 Carter v. U.S., 2014 WL 1630824 (M.D.Tenn.2014); Fye v. Kennedy, 991 S.W.2d 754 (Tenn. Ct. App. 1998); Benson v. Tennessee Valley Electric Co-op., 868 S.W.2d 630, 640 (Tenn. Ct. App. 1993); Cherry v. McCullough, 1992 WL 379074 (Tenn. Ct. App. 1992). 18 Tennessee Pattern Instructions—Civil 14.54. For WD cases, see Tennessee Pattern Instructions—Civil 14.31. For examples, see Patterson ex rel. Patterson v. Dunn, 1999 WL 398083, *6 (Tenn. Ct. App. 1999) and Southern Ry. Co. v. Sloan, 56 Tenn.App 380, 391, 407 S.W.2d 205, 211 (1965). 19 Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998); Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 944 (Tenn.1994). 20 Tennessee Code Annotated §47-14-123. 21 Francois v. Willis, 205 S.W.3d 915, 916 (Tenn. Ct. App. 2006); Palanki ex rel. Palanki v. Vanderbilt University, 215 S.W.3d 380, 389-390 (Tenn. Ct. App. 2006); Hollis v. Doerflinger, 137 S.W.3d 625, 630 (Tenn. Ct. App. 2003); Hunter v. Ura, 163 S.W.3d 686, 706 (Tenn.2005). 22 Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938, 942 (Tenn.1994); Dixie Feed and Seed Company v. Byrd, 52 Tenn.App 619, 376 S.W.2d 745, 749 (1963). 7

DICTA

February 2016

B I L L & P H I L’ S G A D G E T O F T H E M O N T H By:

Bill Ramsey Neal & Harwell

Phil Hampton Founder and CEO, LogicForce Consulting

CONSUMER ELECTRONICS SHOW REVIEW Once again we have just returned from the annual Vegas geek fest known as CES (Consumer Electronics Show). The Las Vegas Convention Center and surrounding hotels were packed to the gills with 170,000+ tech enthusiasts from all over the world. It’s at CES where you see the technology that you can’t exactly purchase…yet. Indeed, some of the tech gadgets, software and hardware that we see on display at the glitzy show never make it to retail shelves. But many of the concepts on display are snapped up by buyers and become hits in the tech world and in our homes and offices. Although we haven’t perfected a system for guessing what the winners and losers will be, we can discern tell-tale trends in the tech industry at large by surveying the vast CES exhibit floor. So, again this year, we donned our comfortable shoes, downloaded the CES exhibit map on our smart phones, and proceeded to log record step counts on our new Fitbit devices as we traversed much of the 2 million+ square feet of exhibit space at CES 2016. From our observations, here are the current tech trends that are most apparent to us: • Wearables proliferate: It’s been a few years since we debuted first generation smartwatches on the Bill & Phil Show. We observed eye rolls and smirks from our audiences as many thought these computers on your wrist were just too geeky and futuristic to be practical. Well, we were right about the trend. Everywhere you turned at CES, there were wearables (roughly defined as smart devices that you wear somewhere on your person). We liked the FitBit Blaze, which is blurring the line between activity tracker and smart watch (and some say, could be a great cheaper alternative to the Apple Watch). Over at the Samsung booth we watched the spokesman model a new smart suit, a line of clothing being introduced by Samsung that has certain smart sensors embedded that can communicate with other devices. For example, you can give someone a virtual business card on their smart phone by simply touching the smart phone to a button on the suit. There were also smart socks, smart shirts, smart pants, smart shoes…you get the idea. If your clothes are not connected to the internet, well that is just not smart. • Virtual Reality is here: You get the feeling that VR is on the cusp of becoming mainstream (being led by the gaming industry). The virtual reality section of CES was very gaming-centric as this seems to be the first and easiest application for VR. Oculus Rift is a leader in the industry and judging by the line wrapped around their giant booth to try out their VR headset (we passed on the opportunity), Oculus will have no problem selling their new and improved headset that comes out later this year. Besides the gaming applications, we did see some other interesting VR and augmented reality use cases that look promising. For example, we tried on some augmented reality glasses that could be worn in a manufacturing environment that provide contextual overlays displaying pertinent data as you look around the plant.

you can control lights, HVAC systems, appliances, garage doors, media devices, etc. via an app on your mobile device. There is also a move to consolidate control of these various and disparate home systems within a single application. It is not clear to us if a dominant app is going to emerge as the standard interface for controlling connected home devices, but we were very excited to see many connected systems introducing integration with Amazon Echo’s Alexa at CES this year. • Automotive tech is advancing quickly: You would have thought we were attending the Detroit car show when we walked into the CES North Hall. Car tech was big this year at CES…no, it was huge. Mammoth exhibits from Ford, Chevrolet, Mercedes, Audi, Toyota, and Hyundai showcased tech that is already here in the way of digital instrumentation panels, side-view and rear-view cameras replacing mirrors, collision avoidance systems, and internet-connected entertainment systems. Also on display were the latest concepts for autonomous driving vehicles which appear to be much closer to reality on the street that we realized. Could we see fleets of self-driving cars hitting our city streets within the next 5 years? We think so. Exciting stuff. • Drones are pervasive: Drones are not new, but the proliferation and evolution of these unmanned aircraft is amazing to see. Drones have become so ubiquitous in the skies that the FAA has begun requiring registration of drone aircraft. There are drones that will follow you everywhere you go; there are drones that will follow others everywhere they go. There are drones that will automatically come home when their batteries are low. There are drones that will avoid collisions. Amazing! Amazon is said to be experimenting with drone deliveries within cities. There is even talk of drones being able to transport a passenger. Since we were kids we have dreamed of ‘flying cars.’ Could the next generation of drones bring this dream to reality? The sky is the limit, literally. The week at CES was exhilarating and exhausting at the same time. We could not wait to get home to start testing some of the new gadgets that we saw (as soon as they are available). Look for further updates on some of the cool new tech. 2016 is going to be a great year!

• Connected Home portends the rise of IoT: We have been talking about the Internet of Things for a few years now. Now we are seeing very practical applications of IoT in the connected home concept. We passed by booth after booth hawking home connectivity devices and apps. In the connected home of the future (actually happening now),

February 2016

DICTA

GUILTY PLEASURES By: Angelia Nystrom UT Institute of Agriculture

BAKING FUN AND PINTEREST FAILS Since I was a kid, one of my guilty pleasures has been baking. In 5th grade, I was the Dandridge Elementary School 4-H biscuit baking champion (although Hugh says he has been waiting nearly two decades for me to make real biscuits for him). By middle school, I graduated to cakes. I took the Wilton cake decorating classes that were offered through our local extension office and learned how to decorate pretty much any character cake that could be made. (If the legal career did not work out, I had always said that I would decorate cakes in the bakery at Food City.) My love of baking continued into high school, and I always made chocolate yule log cakes for our French classes (and even took orders for them from my friends and their parents). Baking has always been fun. It’s not an art… it truly is a science. I put my skills (and ability to follow a recipe) to good use in college, as I majored in chemistry for a very long time. I didn’t love the lectures or the theories. I loved the experiments…the measuring, the combining, the heating everything to just the right temperature. It was really just like baking, and I was good at it (at least that portion). Although my time for baking has decreased, my enjoyment has not. I delight in making cakes and pies, and breakfast at my house is often a “straight-from-the oven” mixed berry pie. I read cooking magazines and collect cookbooks, always looking for new cakes and pies to bake. My favorite things, though, are the features on the internet called “Pinterest Fails.” I’m not a Pinterest fan. It’s a little confusing and a bit overwhelming, but Yahoo (which I can navigate) often has Pinterest Fails. Pinterest Fails are photographs that have been submitted after a reader has tried to bake something that was posted on a Pinterest board. The original is always some grand and glorious creation, and the reader’s interpretation is always something absolutely abysmal. The photograph usually says “Nailed It,” but it should more aptly be titled “Failed It.” I am so meticulous when it comes to baking, I never have a Pinterest Fail. But then I did….. My office was recently planning our Christmas party, and I volunteered to make my famous Red Velvet Peppermint cake. I’ve made this cake so many times that I can almost make it in my sleep. Since I now work for the Institute of Agriculture, I decided that the cake that I was making would be made with all locally-sourced and organic products. I visited several local markets, where I purchased organic cake flour, organic sugar, Cruze Dairy Farm buttermilk, and a host of other ingredients. In fact, the only thing “unnatural” that I purchased was the

red food coloring, which was a rare and precious commodity on a Saturday afternoon in the middle of December. I whipped up my cakes (I usually do 3-4 layers per cake) on Sunday afternoon before we had to go to a church function. My plan was to come home from church and frost them with the peppermint cream cheese icing. I was so far ahead of schedule that I did not think twice about going out to dinner before we came home after the church function. Big mistake. I should have known that I was in trouble when I tried to place the first layer on my red Le Creuset cake stand. When I turned the first layer onto the stand, the layer fell apart, and the top of the stand separated from its pedestal base. I thought I was going to cry. I actually think I did cry when the succeeding layers, too, crumbled when I removed them from the pans. Hugh suggested that I use the frosting to cement them. “Nobody will notice,” he said. And he was wrong. (See photo.) Hugh asked what I was going to do in the face of such a disaster. It was, after all, 8:00 pm on a Sunday night. He suggested that I go to Ham and Goody’s the next morning, purchase a cake, and then put it on my newly-repaired cake stand. He said I could just smile when people said it was good. I was not going to be defeated, though. I headed out to the grocery and purchased all new ingredients for the cake (albeit the regular flour, regular sugar, etc.) I ran into a little hiccup, though, in trying to find red food coloring. It is pretty much impossible to find red food coloring on a Sunday night two weeks before Christmas. But you can’t have red velvet cake without it. After visiting five different stores, I finally found some… and proceeded to buy every single bottle they had. Driving home, I also saw lights on in the Bed, Bath & Beyond. I knew that I needed an extra cooling rack. While I was there, I spotted some “professional” cake pans, which apparently have a rough surface to keep cakes from sticking. I bought 3 of those, told the cashier my disaster story, to which he replied, “Ma’am, that will be the most expensive red velvet cake ever made.” I started Peppermint Red Velvet Cake Part 2 at about midnight. Thankfully, they turned out beautifully the second time around. In the end, the cake stood as tall as a wine bottle (when on the stand) and weighed about 15 lbs. (See photo.) The icing had about 4 lbs of sugar, and I lost count as to the number of sticks of butter that I used. People at my office said it tasted great (I wouldn’t know because I was so disgusted with it that I really did not want to eat it). And I had a great story.

DICTA

February 2016

BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations.

CLE SPEAKERS Do you know someone who would make a great speaker for one of KBA's seminars? Let us know about it, or submit a proposal of your own. Contact Tammy Sharpe at tsharpe@knoxbar.org or 865-522-6522. NEED GUIDANCE IN A SPECIFIC PRACTICE AREA? One of the best kept secrets of the Knoxville Bar Association is our Mentor for the Moment program. We want to let the secret out and make sure that our members use this wonderful resource. It's really simple to ask a question of our helpful volunteer mentors. Log in to the members' only section of www.knoxbar.org or check out the list in the KBA Attorneys’ Directory and begin your search! Our easy-to-use website allows you to search by last name or by subject area experience.

OFFICE SPACE AVAILABLE: • A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants. Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049.

•

Beautifully Decorated and Furnished office space located at Franklin Square off Kingston Pike. Only $450.00 a month (includes utilities). For more details, call Patricia at 755-1005.

•

Office Space for Lease: Fountain City: 5344 N. Broadway. Approximately 2,000 sq ft. *Will divide space * One level. Across from Fountain City Park. Space on either side occupied by long-term law firms. Two (2) Year minimum lease required. Great for satellite office. Qualified prospects call: 805-1911.

AFFILIATED ORGANIZATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, February 11, 2016, at 12:00 p.m. in the U.S. Attorney's Office, Knoxville, Tennessee. Andy Long, Esq. of Costner & Greene Attorneys will be presenting the one hour program on the topic of Criminal Law. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 985-0706 for additional information and/or lunch reservations. FOLLOW THE D.A.’S OFFICE District Attorney General Charme Allen invites all members of the Knoxville Bar Association to go online to keep up with the activities of the District Attorney General’s Office. You can visit the DA’s Office website www.knoxcounty.org/dag to view our calendar of events and to receive information about our Office and the criminal justice system, and you can also “Like” our Office’s page on Facebook and “Follow” our Office on Twitter. SHOP AMAZON… BENEFIT LEGAL AID! When you shop online at Amazon, a portion of your purchases can benefit Legal Aid of East Tennessee. Simply use the AmazonSmile portal to enter Amazon’s website and 0.5% of the price of your eligible purchases will be donated to LAET. Use this link: http://smile.amazon.com/ch/58-9132803, or visit www.laet.org and click on the “Support Us” graphic on the home page. Amazon does the rest and LAET gets the donation!

February 2016

DICTA

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

PRO BONO PROJECT

By: Terry Woods Project Director

A SNAPSHOT OF THE PRO BONO PROJECT IN 2015 Thank you to everyone who participated in the Pro Bono Project in 2015! Here’s what you accomplished:3

Attorney Participation

2015 KBA Pro Bono Award Winners 2015

The KBA awards free CLE to lawyers who contribute an exceptional amount of time to pro bono service through the Pro Bono Project. The winners for 2015 are At Least 25 Hours of Service (free Lunch & Learn)

Blount Knox Loudon Sevier TOTAL

Lindsey Hobbs Wade V. Davies David Gall Jon G. Roach Joshua D. Hedrick At Least 50 Hours of Service (free extended CLE) Allyson C. Torres Beckman Song C. Betzler T. Michael Craig-Grubbs Nina M. Eiler Donald J. Farinato Ronald T. Hill

2014

Kenneth A. Miller Stacie D. Miller J. Myers Morton T. Lynn Tarpy Emma D. Webb

Blount Knox Loudon Sevier TOTAL

Attys in Pvt. Practice 104 1,321 18 89 1,532

Pro Bono Project Participants 18 172 3 27 220

Participation Rate 17.3% 13.0% 16.6% 30.3% 14.4%

Attys in Pvt. Practice 105 1,332 20 85 1,542

Pro Bono Project Participants 31 209 4 28 272

Participation Rate 29.5% 15.7% 50.0% 32.9% 17.6%

Files Closed Legal Issues Consumer Education Employment Family Health Housing Income Maintenance Individual Rights Juvenile Miscellaneous • Advance Directives • Driver’s License • Tort/Tort Defense • Non-Profit Corporation • Wills/Estates • Other (Primarily Expunction) TOTAL

A 64

B 3

18 17

43 6 2 2

3 10 1 27 21

1 1

6 1

C 2

D 6

F 7

TOTAL 102 1 34 64 1 62 29 2 3

1 2 1

7 9 12

1 1

18 5

69 33

429

18 5 1

1 10

1 2

1 1 11

21 2

214 39

E 1

3 14

J 19 1 13 24 1 5 9

A = Advice B = Brief Service C = Settled without Litigation D = Settled with Litigation E = Administrative Agency Decision F = Court Decision - Uncontested G = Court Decision - Contested H = Court Decision - Appeal I = Extensive Service without Litigation J = Non-Compliant: This means that the file cannot be reported to Legal Services Corporation because • the client did not sign required forms, • no service was provided to the client (e.g., the client did not contact the volunteer attorney), or • we cannot document the nature of service that was provided to the client (because the volunteer attorney did not complete the status report form or did not provide adequate information).

Thank you tto all of the lawyers who offered your time in the service of others, particularly those who accepted or consulted on new cases or participated in Saturday Bar, the OP Clinic, Detainer Court, mediation, or in any other way since publication of the last list in DICTA:

G. Keith Alley Adrienne L. Anderson Edwin A. Anderson Heather G. Anderson Nicholas H. Armes Tracey M. Axtell Ann Barker John E. Baugh Allyson C. Beckman James A.H. Bell Song C. Betzler Gregory E. Bennett Tasha C. Blakney James E. Bondurant, Jr. Dawn E. Bowie William B. Brewer II E. Michael Brezina Hugh B. Bright, Jr. Ralph Brown J. Elaine Burke David A. Burkhalter II Wynne du M. Caffey Robert R. Carl

James G. Carter Felicia F. Coalson Arnold G. Cohen Robert Cole Michael B. Coleman J. William Coley Peggy Gross Comstock Ryan M. Connor Virginia L. Couch Heather K. Craig Stewart M. Crane Loretta G. Cravens Stephen C. Daves Kevin A. Dean Bryan E. Delius John B. Dupree William D. Edwards Daniel L. Ellis Carl W. Eshbaugh Donald J. Farinato Jackson M. Fenner Andrea K. Ferencei Garry W. Ferraris

Rodney A. Fields Paul A. Forsyth Matthew B. Frere Holly L. Fuller David Gall Carolyn L. Gilliam H. Stephen Gillman Robert N. Goddard Ross B. Gray Maurice K. Guinn Gerald L. Gulley Scott B. Hahn Thomas M. Hale Albert J. Harb G. Kevin Hardin Susan Harmon Katherine L. Harp James R. Hickman, Jr. Diane M. Hicks Bruce T. Hill Bennett Hirschhorn Lindsey Hobbs Dan W. Holbrook

Shannon M. Holland Shannon J. Holt Lewis S. Howard, Jr. Pamela Huddleston Rachel P. Hurt Jeremy S. Jennings Wm. Barton Kaserman Ben W. Koyl Robin S. Kuykendall Glen A. Kyle Raymond E. Lacy Neal J. Lawson Farrell A. Levy C. J. Lewis S. David Lipsey, Jr. Lawrence E. Little James S. MacDonald Sarah E.C. Malia Carl W. Manning Richard S. Matlock John T. McArthur Ian McCabe Samantha A. McCammon

April P. McCroskey Kenneth A. Miller Jeremy D. Miller Stacie D. Miller James P. Moneyhun Meghan H. Morgan Nathan E. Morgan Jennifer B. Morton Charmaine M. Nichols M. Edward Owens, Jr. Daniel V. Parish Wendy G. Patrick Anna C. Penland Sharon Potter Ronald A. Rayson J. Kevin Renfro Richard J. Rice Laura J. Rudder Vanessa Samano Virginia A. Schwamm C. Dan Scott Charles S. Sexton Michael C. Shults

Brittany B. Smith Eddy R. Smith P. Andrew Sneed Franz F. Springmann, Sr. J. Patrick Stapleton Jeffrey L. Stern Keith D. Stewart Brent T. Strunk T. Lynn Tarpy Kelli L. Thompson Douglas J. Toppenberg Cynthia L. Wagner Charles D. Waller Sarah J. Watson Emma D. Webb Robert W. Weismueller, Jr. Troy S. Weston Brandon White Bart C. Williams Shelly L. Wilson Alexander J. Winston Katie E. Wise Carlos A. Yunsan

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 502 S. Gay Street, Suite 404 • Knoxville, TN 37902 phone (865) 525-3425 e-mail: TWOODS@LAET.ORG fax (865) 525-1162

DICTA

February 2016

THE LAST WORD

By:

Jack H. (Nick) McCall

Bill, if you will, please tell DICTA’s readers about the chapter of your career as United States Attorney.

FORMER U.S. ATTORNEY BILL KILLIAN Shareholder, Polsinelli PC, Chattanooga, Tennessee

In the fall of 2008, I realized that Barack Obama might win the election. I also thought that I would have a resumé that could be good enough to get the appointment. My next thought was, “somebody would have to be appointed United States Attorney in the Eastern District of Tennessee.” Luckily, I was able to muster the necessary support from many friends and supporters to get the appointment. It was a relentless campaign, with a very restricted electorate. That process is interesting in and of itself, but this article is about my actual service as United States Attorney. I had clearly underestimated the breadth and depth of responsibilities of the United States Attorney. Thus my first few weeks have been described as me “drinking water from a fire hose.” Even though I was inexperienced in office bureaucracies, I had tried many civil and criminal cases in federal and state court. The Eastern District has 46 Assistant United States Attorneys. There is an additional staff of approximately 62 other personnel. We process approximately 800 to 900 criminal cases per year and maintained approximately 2500 civil cases at any one time. I learned during my tenure that the phrase I did not want to hear was, “we need to talk with you about something.” I knew that would have to be, whatever it was, a decision that I would have to make. I have a very competent staff and on a normal basis, I normally would not have to be asked to decide anything, as they proceeded to represent the United States civilly or prosecute someone criminally. Sometimes these matters were of a national security nature, or possibly higher level criminal matters. Other times, they could be ethical matters or just sensitive matters, which would require my personal involvement. If I had to describe a slogan that would reflect the nature of the job, I would say: “Boredom is not a problem.” Sometimes some of the more interesting matters never become cases, or never attain a status where the general public can ever know. Some of these matters weigh heavily on you, due to their importance and the concern I had for making the right decisions. I did always have the comfort of knowing that I could call my fellow United States Attorneys and get their advice. Overall, the United States Attorneys are a very impressive group, and you can readily see how they obtained their status. I was fortunate during my term to have Nancy Harr serve as my First Assistant United States Attorney. After my departure, she became the Acting United States Attorney, the first female United States Attorney in the history of the district. In my view, being able to stand up in court and say, “Bill Killian, representing the United States of America,” is a proud moment of patriotism that is unequaled in my courtroom experience. The burden of representing our beloved country is heavy, because you always want to do the right thing, and not impose an injustice on anyone. We, like Sgt. Joe Friday in Dragnet, relied upon, “Just the facts.” Our opinions were driven by the facts, not vice versa. I suppose that all United States Attorneys, at one time or another, are accused of giving someone hell, as was I. However, we were like former President Harry Truman; when told that they were referring to him as “Give Them Hell, Harry,” President Truman said, “I didn't give anybody hell, I just told the truth, and they thought it was hell.” The Eastern District of Tennessee broke records in total amount of civil healthcare fraud settlement, criminal asset forfeiture, criminal fine or penalty, and average amount collected over a period of five years, all during my tenure. We were in the top five districts in the country in prosecuting and convicting people for violations of gun crimes, all individuals who were prohibited by federal law from possessing or using guns. We convicted many violent and dangerous criminals, and processed many matters of national security. We forged, developed and improved relationships with federal state and local agencies in a cooperative effort to achieve the mission of the Department of Justice. We pursued outreach objectives and initiatives in several areas. Sometimes, some of these initiatives were not popular, but throughout the history of the country, enforcing the constitutional principles of our democracy has not always been the most popular position. Former Attorney General Eric Holder told me, when I interviewed with him for the position, that I was about to enter into the best job ever. I said, “Including the one you have”? He said, “Including the one I have.” He was right. Words cannot express the level of pride and honor that I have for having been able to serve as the United States Attorney in the Eastern District of Tennessee. As a lifelong resident of the district, the experience was beyond any dream that I could've had. I tried to apply the laws equally regardless of status, race, gender, age or any other factor. I do not think that was anything great, but merely what is required by our Constitution. After all, the inscription on the seal of the Department of Justice states, “Qui Pro Domina Justitia Sequitur,” “Justice for One is Justice for All.” No one will ever be able to deprive me of this experience. As a lawyer, it simply cannot get any better than this.

“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. February 2016

DICTA

Prsrt Std U.S. POSTAGE

PAID P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 652