DICTA May 2024

THE

GAME CHANGER?

A BREAKDOWN OF THE RECENT OPINION AND ORDER IN THE TENNESSEE, VIRGINIA NIL ACTION AGAINST THE NCAA—AND ITS IMPACT ON THE FUTURE OF COLLEGIATE ATHLETICS

HOA Law in Tennessee: It’s not how they do things in Michigan, or Ohio or Florida or wherever the Board President Used to Live

Thursday, May 9, 12-1 p.m. | Webinar via Zoom

Melanie E. Davis, Kizer & Black, Attorneys, PLLC

Approved for 1 hr. General CLE

Call, Text, or Tag? How to Communicate with Your Clients in a Digital World

Tuesday, May 14, 12-1 p.m. | Webinar via Zoom

Brett Burney, Burney Consultants

Sponsored by Image Matters Inc. | imagemattersinc.com

Approved for 1 hr. Dual CLE

Employment Law 101: An Introduction and Overview

Tuesday, May 21, 12-1 p.m. | Webinar via Zoom

Garry Ferraris, Law Office of Garry Ferraris

Presented by the KBA Solo Practitioner & Smal Firm Section

Approved for 1 hr. General CLE

Is There a Human in the House?!”: The Ethical and Legal Implications of AI Technology in Mediation

Tuesday, June 4, 12-1 p.m. | Webinar via Zoom

Joseph G. Jarret, J.D., Ph.D., Attorney At Law, Federal & State Mediator

Presented by the KBA ADR Section

Approved for 1 hr. Dual CLE & 1 hr. Ethics CME Credits

Advanced Legal Research

Tuesday, June 11, 12-1 p.m. | Webinar via Zoom

David Francisco, Esq., Decisis

Sponsored by Decisis | https://www.knoxbar.org/?pg=Decisis

Approved for 1 hr. Dual CLE

Creditor Rights and Wrongs in Estate Administration

Thursday, June 13, 12-1 p.m. | Webinar via Zoom

O. E. “Sonny” Schow, IV, Woolf, McClane, Bright, Allen & Carpenter, PLLC

Presented by the KBA Bankruptcy Section

Approved for 1 hr. General CLE

KBA members can watch 125+ CLE programs in the On Demand Catalog at a discounted rate! Visit knoxbar.org/ondemand

President Carlos A. Yunsan President Elect Jonathan Cooper Treasurer Rachel Park Hurt Secretary Ursula Bailey Immediate

Tammy Sharpe Director

Jonathan Guess

Bridgette Fly Programs &

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522 or send an email to membership@knoxbar.org..

Alternative Dispute Resolution Section

The ADR Section plans regular CLE throughout the year. Join the ADR Section for the “Is There a Human in the House?!:” The Ethical and Legal Implications of AI Technology in Mediation” CLE program scheduled for June 4.If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarret (566-5393) or Betsy Meadows (540-8777).

Bankruptcy Law Section

The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on May 4, and volunteer registration is available at www.knoxbar.org. Join the Bankruptcy Section for the “Creditor Rights and Wrongs in Estate Administration” CLE program scheduled for June 13. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Greg Logue (215-1000), Kevin Newton (588-5111) or Shanna Fuller Veach (545-4284).

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. Save the date for the “Annual Corporate Counsel Update” extended CLE on August 20. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).

Criminal Justice

The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (457-5640).

Employment Law

The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. Save the date for the “News You Can Use-Workers’ Compensation Case Law, Statute, and Attorney’s Fee Update” CLE webinar program scheduled for September 17. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (691-2777).

Environmental Law

The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (804-3741), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section

The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the “Understanding True Income for Support from Tax Documents Including Paystubs, W-2s, K-1s, etc.” CLE program scheduled for June 14. Following the CLE on June 14, plan to attend the KBA Family Law Section Social. The social will be held 5-7 p.m. at the law office of Sharpe & Attanasio. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Blair Kennedy (539-3515) or Laura Wyrick (297-5511).

Government & Public Service Lawyers Section

The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Ron Mills (215-2050) or Mitchell Panter (545-4167).

Juvenile Court & Child Justice Section

The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).

New Lawyers Section

The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2022 will automatically be opted-in to the section. If you like to get involved in planning section activities, please contact Section Chairs Dalton Howard (546-0500) or Mari Jasa (546-7770).

Senior Section

The Senior Section schedules a luncheon with a guest speaker every quarter. If you have suggestions for luncheon speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833).

Solo Practitioner & Small Firm Section

The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioner & Small Firm Section for the “Employment Law 101:

By: Carlos A. Yunsan University of Tennessee College of Law

LEGAL TORCHBEARERS: BEYOND WHAT IS REQUIRED

ALPHA . . . BRAVO . . . By mid-1989, we had become accustomed to check the chyrons at the bottom of SCN’s1 nightly broadcast to stay on top of the threat level assessed by the U.S. military forces stationed at bases within Panama’s Canal Zone. CHARLIE . . . DELTA . . . Now in December, threat level assessments were at the highest they had ever been. A couple of dangerous and unsettling incidents involving Noriega’s defense forces did not help.2 First Lieutenant Robert Paz of the U.S. Marine Corps was shot and killed in one of them. The air was tense, substantially dampening the hustle and bustle typical of the weeks preceding Christmas.

The night of December 19 rolled in like any other, except it was better because school was already out for the year.3 It was muggy, and I had allergies, which made it hard to fall asleep—and midnight was quickly approaching. Let’s check that SCN chyron one last time. ECHO . . . A moment of surprise quickly turned into a chilling realization. ECHO!!! Within moments—literally—the silence typical of the late hour gave way to the whistling sound of bombs being dropped (think classic WWII movie).4 The walls began to shake as if we were experiencing an earthquake of mid-level intensity. My cousin and I climbed to the rooftop of our fourstory building and looked toward the Old Quarter. The sky over it was lit bright yellow and orange: Noriega’s Central Headquarters was on fire. Operation Just Cause had begun. It resulted in the installation of the president duly-elected by the people earlier in May of that year, and it ended with Noriega’s surrender to federal agents for trial, conviction, and sentencing in Miami, Florida.

This year marks the 35th anniversary of that fateful event. I will celebrate. Perhaps because the memory of tear gas and rubber bullets coming our way after alerting protestors (who were peacefully banging pots and pans and waving white handkerchief on the sidewalk) that the repression police were nearing has not faded. Because even a then12-year-old boy, like yours truly, was keenly aware that the physical disappearance of a dissident physician, later found decapitated, was not a hallmark of a democratic nation. In the words of Panamanian musician, actor, activist, and former Minister of Tourism Rubén Blades, “The homeland is not defined by those who suppress its people.” Yes, I will celebrate—with immense and enduring gratitude—that my country (by choice), the United States, got involved in the affairs of my country (by birth), Panama, and, in so doing, paved the way for a far-from-perfect and often frustrating democratic system, but one that remains free from autocracy.

Coincidentally, as Panama prepares to hold its seventh democratic presidential election following the end of military rule next month, the United States readies to hold its 60th presidential election.

I highlight these events because they remind me why I love our country, the Rule of Law, and being a lawyer. And I hope that they inspire you to appreciate and to do whatever is within your power to

support and protect the system of government we enjoy. I don’t state this lightly. Over the last decade, the United States has experienced a steady decline in the World Justice Project’s Rule of Law Index, particularly in rankings related to both our civil and criminal justice systems.5 In other words, we—as lawyers—have got our work cut out for us! I challenge you to think of ways, big and small, to strengthen our system of government and invite others to do the same; to participate in conversations about the Rule of Law and to offer your expertise and perspective on how to improve our system; to share with your clients, co-workers, and students how the system works and what guardrails are in place to promote fairness; to educate yourself and others on the positions espoused by political candidates; and then, to exercise your right and civic duty to vote. The KBA itself continues its work on this arena through the Judicial Candidate Member Survey, in which many of our members participated.

I hope many of you attend this year’s Law Day CLE & Luncheon, featuring former Tennessee Governor Phil Bredesen as guest speaker. We are incredibly honored that he chose to spend Law Day with the KBA. Governor Bredesen has devoted significant energy to address issues of civility and democracy in partnership with another former Tennessee Governor, Bill Haslam, through their “You Might Be Right” podcast. Together they tackle important issues ranging from gun violence to global trade, from charter schools to climate change.

I also hope we take a cue from their efforts, pick up the torch, and increasingly choose to use our energy and expertise as attorneys to be voices in support of our democratic system and the Rule of Law. It’s an endeavor for which we, as lawyers and judges, are uniquely equipped. To quote retired U.S. Court of Appeals Judge J. Michael Luttig, so doing is “the most important effort ever undertaken by the legal profession.” Let’s resolve individually to go beyond what is required and do our part.

1 “SCN” stands for Southern Command Network, the former television station for the U.S. Southern Command (“SOUTHCOM”), a command of the Department of Defense with responsibility over the land mass of Latin America south of Mexico, the waters adjacent to Central and South America, the Caribbean (except U.S. commonwealths, territories, and possessions). U.S. Southern Command, https://www.southcom.mil/ About/ (last visited Apr. 10, 2024). SOUTHCOM is also responsible for ensuring the defense of the Panama Canal. Id.

2 General Manuel A. Noriega was Panama’s military de facto ruler beginning in the early 1980s until he was deposed in December 1989 by U.S. military intervention. See Jon Lee Anderson, Manuel Noriega, A Thug of a Different Era, The New Yorker (June 2, 2017), https://www.newyorker.com/news/daily-comment/manuel-noriegaa-thug-of-a-different-era.

3 In Panama, the academic year typically runs from March to December. I cite to my personal experience growing up in Panama through age 16!

4 I later learned that this was the first time the U.S. Air Force used the thensecret F-117 “stealth” bomber in combat. See George C. Wilson, ‘Stealth’ Plane Used in Panama, The Washington Post (Dec. 24, 1989, 12:00 AM). https:// www.washingtonpost.com/archive/politics/1989/12/24/stealth-plane-used-inpanama/6e4157ad-df55-46b1-8ff5-beffb0340f9a/.

5 See World Justice Project, https://worldjusticeproject.org/rule-of-law-index/ global/2023/Criminal%20Justice/historical (last visited Apr. 10, 2024).

JUDICIAL PROFILE

By: Loretta G. Cravens Eldridge & Cravens, P.C.

JUSTICE MARY L. WAGNER

It is my privilege to introduce you to Tennessee Supreme Court Justice-designate Judge Mary L. Wagner. Judge Wagner rose to the bench, initially at the trial court level, when she was appointed by Governor Bill Haslam to serve as Circuit Court Judge, Division VII, for the 30th Judicial District in 2016. Judge Wagner was subsequently elected to that position in August 2018 and re-elected in 2022. As Judge Wagner was nominated to fill the vacancy on the Tennessee Supreme Court that will occur upon the retirement of Justice Roger Page, Judge Wagner will elevate to the position of Justice on September 1, 2024. Not insignificantly, shortly thereafter the KBA will host our annual judicial reception with the Tennessee Supreme Court as our honored guests. Is it coincidence that a former Knoxville mayor first appointed her to the bench and that one of her first official events after her elevation to our State’s highest Court will be in Knoxville? I think not. Her roots may be in West Tennessee, but Knoxville and our bar are eager to welcome her to East Tennessee. Knoxville lawyers recognize a good jurist with a servant’s heart when we meet one, and Judge Wagner is certainly that.

It was perhaps preordained that Judge Wagner pursued a career in law and ascended to the bench. According to her, she grew up in a law firm. From about the age of ten, school breaks and summers were spent in her parent’s and grandfather’s law firms until she graduated high school. Thereafter, she obtained her bachelor’s degree in political science from the University of Colorado and her law degree from the Cecil C. Humphreys School of Law at the University of Memphis. She clerked for Tennessee Court of Appeals Judge Steven Stafford and Shelby County Circuit Court Judge Robert L. Childers. She was an extern with the U.S. Attorney’s Office, worked at a regional insurance defense firm, and finally at Rice, Amundsen & Caperton PLLC in Memphis, where she had a general civil practice before ascending to the bench.

She is dedicated to shaping future leaders and to serving her community. She is a frequent speaker at community events including Leadership Germantown;

various Shelby County school and youth programs; state and local bar association functions; and is the Secretary of the Tennessee Judicial Conference. She is also a proud mother of two sons with her husband, Tom.

I first met Judge Wagner shortly before she pursued her judicial career when she was a member of the TBA’s Leadership Law class. Because we met through bar service and because this profile is authored as bar service, I asked Judge Wagner to share her thoughts about the contributions of bar service and mentorship to her career. She shared, Everyone needs to find those mentors they can rely on professionally and personally-- people who will challenge and teach you. Those who will be there for a listening ear when you need advice or even just to vent, and those who will be your biggest cheerleaders when you take those big leaps. The same with bar membership and activities. I have gotten to know so many wonderful people across the state and in practice areas that I would not have known except for my bar activities. I have learned so much and developed great friends and mentors. We owe a duty to the legal system to be involved, but also a duty to ourselves and others both professionally and personally.

Judge Wagner still credits those early days of her legal experience, circa age 10, with instilling in her core beliefs about our profession. “I learned that working within the legal system is an act of service to others and our community. That is how I thought of practicing law and how I think about serving on the bench.” Go forth and keep that wisdom in mind. I am proud that the Knoxville Bar Association strives to reflect exactly that service mentality. We congratulate Justice-designate Wagner and look forward to welcoming her to Knoxville in September.

PRACTICE TIPS

By: Alan Rawls Lowe Yeager & Brown, PLLC

FILING A MOTION TO RECONSIDER? THINK AGAIN…

Suppose a court just made a ruling adverse to your client. You believe the ruling was made in error and should be corrected sooner rather than later. What do you do?

The answer for some is to file a “motion to reconsider.” Unfortunately for them, there’s no such thing. Like a fashion trend that lingers well after going out of style, the “motion to reconsider” occasionally appears on dockets throughout the state despite appellate courts repeatedly saying the Rules do not authorize them.1

And filing one is by no means an innocuous thing. It could negatively impact your case and, by extension, your client by confusing the parties and the court, skewing the analysis relevant to your motion, and possibly impeding you from making an otherwise valid argument for reversing the court’s ruling. Conversely, knowing the rules of procedure and tailoring your motion accordingly will give you and your client a greater chance of success.

What attorneys usually mean when they say “motion to reconsider” are: (1) motions to alter or amend; and (2) motions to revise, which are also usually confused with one another. Both have a specific procedural context, purpose, and analysis that require careful consideration.

The Motion to Alter or Amend

Motions to alter or amend are governed by Rule 59.04 of the Tennessee Rules of Civil Procedure. The motion must be filed and served within 30 days after entry of a final judgment.2 Its purpose is to prevent unnecessary appeals by providing trial courts with an opportunity to correct errors before a judgment becomes final. It is not, however, a vehicle for raising new theories or arguments, nor is it an opportunity to re-litigate issues already decided by the court.

A motion to alter or amend may be granted in a trial judge’s discretion when the controlling law changes, previously unavailable evidence becomes available, or the trial judge wishes to correct a clear error of law or prevent an injustice.3

Be warned that if you pursue a vague “motion to reconsider,” you risk not only failing to persuade the court that the judgment requires correction, but you may also cause significant confusion. The Tennessee Supreme Court said as much 26 years ago in Tennessee Farmers Mut. Ins. Co. v. Farmer.4 There, a party relied on a “motion to reconsider” to toll the deadline for filing her notice of appeal. The Court of Appeals determined it lacked jurisdiction over her appeal because hers was not one of the motions identified in the rules as tolling the 30-day deadline.5 Thankfully, the Supreme Court reversed, reasoning that courts must follow substance, not form, and that the “motion to reconsider” was really a Rule 59.04 motion. The Supreme Court clarified that “[t]o avoid confusion, however, attorneys filing post-trial motions should utilize the titles referenced in [the Rules].” Failure to correctly title your motion and pursue relief under

Rule 59.04, then, could jeopardize your client’s ability to appeal.

The Motion to Revise

The motion to revise is the lesser-known cousin of the motion to alter or amend. It is filed in response to a partial judgment or interlocutory order.

Rule 54.02(1) of the Tennessee Rules of Civil Procedure provides that any order adjudicating fewer than all of the claims or the rights and liabilities of fewer than all the parties “is subject to revision at any time” before final judgment. This means that when it comes to interlocutory orders, the trial court has “the privilege of reversing itself up to and including the date of entry of a final judgment.”6 Consequently, if the order at issue is a grant of partial summary judgment, dismisses only some of the claims against a party, or concerns an interlocutory ruling on discovery matters, then you should consider filing a motion to revise.7

The standard for a Rule 54.02 motion to revise is similar to that of a motion to alter or amend under Rule 59.04. As the Tennessee Supreme Court said, both rules “afford litigants a limited opportunity to readdress previously determined issues and afford trial courts an opportunity to revisit and reverse their own decisions.”8 Thus, a motion to revise may be granted where there’s been a change in controlling law, new evidence becomes available, or there is a clear error of law. A notable difference between the rules, however, is that a motion to revise is not required to be filed within 30 days of the challenged order.

Conclusion

There is certainly more to be said about post-judgment motions that are actually contemplated by the Rules of Civil Procedure.9 The intent of this article, however, is simply to raise awareness that the “motion to reconsider” is a misnomer for the kinds of motions that practitioners should be making. Hopefully, we are all now one step closer to sounding the death knell of the “motion to reconsider” in Tennessee.

1 See, e.g., Harris v. Chern, 33 S.W.3d 741, 743 (Tenn. 2000) (“As a preliminary matter, the Tennessee Rules of Civil Procedure do not authorize motions “to reconsider”…).

2 Whalum v. Marshall, 224 S.W.3d 169, 175 (Tenn. Ct. App. 2006).

3 In re March 9, 2012 Order, 637 S.W.3d 708, 712 (Tenn. Ct. App. 2020).

4 970 S.W.2d 453 (Tenn. 1998).

5 See Tenn. R. App. P. 4(b).

6 Harris, 33 S.W.3d at 744.

7 Bear in mind, however, that the trial court may make an otherwise interlocutory order a final judgment by making “an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Tenn. R. Civ. P. 54.02(1). The order is then a final judgment subject to either a Rule 59.04 motion to alter or amend, or a notice of appeal.

8 Harris, 33 S.W.3d at 744.

9 Motions for relief from judgments (Tenn. R. Civ. P. 60.02), motions for a new trial (Tenn. R. Civ. P. 59.07), and motions to amend findings of fact (Tenn. R. Civ. P. 52.02), to name a few.

By: Robin E. McMillan Ritchie, Davies, Johnson & Stovall, P.C.

TRUMP ON THE BALLOT: TRUMP V. ANDERSON

A group of Colorado voters sought to keep former President Trump’s name off the primary ballot, asserting that Section 3 of the 14th Amendment prohibited him from becoming President again.1 The Colorado Supreme Court agreed and ordered his name excluded from the Republican primary ballot.2 The United States Supreme Court reversed by way of a unanimous judgment that spurred two separate concurrences expressing that the majority had gone too far.3 Justice Barrett, concurring in part, stated the following: The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.4

Justices Sotomayor, Kagan, and Jackson, who concurred in the judgment only, also expressed concern stating that the majority opinion “reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.”5

So, what did the nine justices agree upon? They agreed that “States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”6 That power rests with Congress.7

Section 3 of the 14th Amendment was “designed to help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War.” Perhaps a member of the House of Representatives best expressed the concerns at the time, warning that absent constitutional reform, “‘yelling secessionists and hissing copperheads’8 would take seats in the House.”9 Section 3 provides:

No person shall be a Senator or Representative in Congress, or elector of President and VicePresident, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.10

Since the 14th Amendment was ratified by the States in 1868, Section 3 has been used by states to disqualify state officers. In January of 1869, the North Carolina Supreme Court held that pursuant to Section 3, “a sheriff before and during the rebellion” should be excluded from taking the oath again “until relieved by Congress.”11 Later that same month, in a five-sentence opinion, the same court held that a

county attorney prior to the war who served in the Confederate army was disqualified from holding the office of solicitor for the state.12 In September of 1869, the Louisiana Supreme Court held that an elected judge was “incapacitated by law for holding the office” pursuant to Section 3 when he had held the office of district attorney prior to the Civil War and had “engaged in the late rebellion against the United States. . ..”13

Historically, however, Section 3 was not used by the states against federal officers or candidates.14 The Trump majority stated there was no dispute that a state is not authorized to remove “sitting federal officeholders who may be violating Section 3.”15 Rather, the dispute was whether a state “may enforce Section 3 against candidates for federal office,”16 particularly when Section 5 of the 14th Amendment provides that: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”17

The majority analyzed the Amendment’s limitations on state authority and hypothesized what might happen if states did have the power to enforce Section 3 against a presidential candidate forecasting a “patchwork” of outcomes resulting from variations in state law that would impact the votes cast in each state with the potential to “nullify the votes of millions and change the election result,” and “‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole.”18

The majority also posited what Congress would be required to do to enforce Section 3.19 Justices Sotomayor, Kagan, and Jackson’s concurrence protested the majority’s “effort to use this case to define the limits of federal enforcement of that provision,” and asserted that the majority failed to exercise judicial restraint and decided issues unnecessarily.20 They stated: “To allow Colorado to take a presidential candidate off the ballot under Section 3 would imperil the Framers’ vision of ‘a Federal Government directly responsible to the people.’  The Court should have started and ended its opinion with this conclusion.”21

1 Trump v. Anderson, 144 S. Ct. 662, 218 L. Ed. 2d 1 (U.S. 2024) (per curiam).

2 Id. at 664, 4.

3 Id. at 665, 4.

4 Id. at 671-72, 12 (Barrett, J., concurring, in part).

5 Id. at 674, 15 (Sotomayor, J.; Kagan, J.; and Jackson, J., concurring, in the judgment).

6 Id. at 667, 7 (per curiam) (emphasis in original).

7 Id. at 671, 11.

8 The term ‘copperhead’ was used to describe members of a faction of the Democratic party from the North that opposed President Lincoln’s war policy. The snakes after which they were named strike without noise and are not known for hissing.

9 Id. at 666, 6.

10 U.S. Const. amend. XIV, § 3.

11 Worthy v. Barrett, 63 N.C. 199, 201-05 (N.C. 1869).

12 In re Tate, 63 N.C. 308, 309 (N.C. 1869).

13 State ex rel. Sandlin v. Watkins, 21 La. Ann. 631, 632-34 (La. 1869).

14 Trump, 144 S. Ct. 669, 9 n.3 (per curiam) (noting “just one example of state enforcement against a would-be federal officer”).

15 Id. at 668, 8 (emphasis in original).

16 Id. (emphasis in original).

17 U.S. Const. amend. XIV, § 5.

18 Id. at 671, 11.

19 Id. at 669-70, 9-10.

20 Id. at 674, 15.

21 Id. at 673, 13-14 (citation omitted).

IN LIMINE: PROFILING FUTURE JDS

By: Carol Anne Long UT Law Director of Career Services and Alumni Relations

JORDYN N. DICKEY UNIVERSITY OF TENNESSEE COLLEGE OF LAW, CLASS OF 2026

Please tell me about yourself!

I was born and raised in Woodstock, Georgia. I obtained my bachelor’s degree in criminal justice from Kennesaw State University in Kennesaw, Georgia, and I also minored in Legal Studies.

So how did you make the decision to go to law school, and why did you pick UT Law?

I took a criminal justice elective pathway for three years during high school, and during this time, we would sometimes read cases in class. It fascinated me. However, it was not until my freshman year of college that I really understood my passion for the law and made the decision to pursue law school.

I fell in love with UT and Knoxville when I toured last year. It was really important to me to attend a law school that had smaller and more intimate classes because I did not want to be just a number at a school. I really wanted a personal experience. I wanted to know all of my professors, and I wanted my professors to know me. Additionally, I loved the UT Law community. Everyone really wants everyone to succeed, and I witnessed this on my tour. After I toured UT Law, I looked at my mom and I told her I was going.

Tell me about your law school experience so far; what activities and classes have you participated in and enjoyed?

I want to practice data privacy in the Atlanta, Georgia area, but I am very open to working in the Knoxville area this summer.

So outside of law school, what do you enjoy doing?

I am a huge sports person. I love watching football, soccer, basketball, and baseball. Since coming to UT, I have been able to cheer on the Vols in so many ways, and I am excited for football to return in the fall!!

So far, I have really enjoyed my experience at UT. I am actively involved in many student organizations. I served my class as one of the Student Bar Association 1L Representatives, and I will be serving as one of the Student Bar Association graduate school senate representatives next year as a 2L. But, I think my favorite memory so far has been creating a newly recognized student organization at UT. I am very passionate about data privacy and technology law, and, when I started school last fall, I noticed that there was not a student organization that recognized privacy, IP, or technology law. So instead of waiting for someone to begin an organization that recognized these areas, I decided to be proactive and start one myself. It was not an easy task, but it has been very rewarding so far. As a newly recognized student organization, my executive board and I have already organized one event this year, and we are planning many more for next year!

What type of law do you want to practice and where would you like to end up?

What is your dream job, and why?

My dream job would be as a data privacy attorney. I also want to advocate for more data privacy legislation, and I want to teach companies and consumers how best to protect their online data. I believe the general public does not know or understand enough about how to protect their online data, and I want to help be a part of the change. It is so important to protect your online data, and I want to help companies and consumers be proactive rather than responsive.

Answer this question for me: “When I apply for a job, I wish I could tell you . . .”

To take a chance on me. I learn very fast in a practical setting, and I am very passionate about my interests, which causes me to work even harder. Theory is something I have always struggled with, but when I take the theory to actual practice, that is how I learn and succeed.

Finally, what is your ultimate “why” with respect to being an attorney?

I have always wanted to help people, and I believe that I can do that with respect to my interest in data privacy. I cannot stress enough how important and valuable online data is, and I want to help people better understand how to keep their information safe.

*Hiring Footnote

By the time this issue is released, law students will be in the middle of exams or preparing to graduate, so you, as an employer, might think you’ve missed out on the traditional hiring timeline for summer positions or new attorney hires. Jordan and I can assure you that this is not the case. Both of our schools still have outstanding, hard-working students who are available to work this summer or are looking for that first associate attorney position. If you have a hiring need, please reach out to us.

Over 300 Mediations, a 92.56% settlement rate, and the ability to meet in-person or via Zoom.*

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OF LOCAL LORE & LAWYERS

By: Joe Jarret, J.D. Ph.D. Attorney, University of Tennessee

THE WOMEN IN THE BOAT

Having rowed myself since the tender age of twelve and having been around rowing ever since, I believe I can speak authoritatively on what we may call the unseen values of rowing—the social, moral, and spiritual values of this oldest of chronicled sports In the world.

–George Yeoman Pocock, 1936

Introduction:

It was a cold, gray morning as I stood along the shore of Oak Ridge’s Melton Hill Lake, that was, on that particular day, flat, somber, and foreboding. I was cooling down from a jog, and the lake was unusually quiet, except for the occasional trill of one of the aquatic birds in residence. Then I heard it: the subtle, unmistakable rhythmic slapping of oars to water, breaking me from my trance. What appeared out of the morning gloom was a crew boat, or shell in rowing parlance, being rowed by eight women warriors from UT’s Lady Vols rowing team. They paid me no heed, fixated on two things: their coxswain (the person in charge of a boat, particularly its navigation and steering) who was barking orders and words of encouragement, and on one another. This was a team sport in its purest form, demanding the complete focus and effort of every crew member. Although the team was training rather than competing that day, you’d never know it if you witnessed the synchronized ferocity with which those women warriors handled their oars, gliding across the cold water as effortlessly as the Canada geese that bobbed nearby.

The Law of Rowing:

Competitive Rowing: A Brief History

When I decided to do a bit of research on competitive rowing, I soon discovered that there existed “rowing historians” who have published widely on the sport. In a nutshell, modern rowing as a competitive sport can be traced to the early 17th century when professional watermen held races (regattas) on the River Thames in London, England. Often prizes were offered by various organizations, with amateur competition coming into its own towards the end of the 18th century with the arrival of “boat clubs” at British public schools. Similarly, clubs were formed at colleges within Oxford and Cambridge, and the sport’s popularity captivated American colleges where similar boat clubs were born.

Why Crew:

Several years ago, one of my students (who wishes to remain anonymous) was a Lady VOLS rower. When I asked her why she so clearly loved the sport, she enthusiastically responded, “There are so many benefits of crew.” She went on.

According to Tenn. Code Ann. §11-11-203,1 “rowing” is defined as “the propelling of a boat by means of oars.” As I’m fond of telling my students, “There are times when a sterile definition fails the object being described.” According to the United States Rowing Association,2 “rowing” is defined as “the propulsion of a displacement boat through water by the muscular force of one or more Rowers, with or without a Coxswain, in which oars are levers of the second order, and in which the Rowers are sitting with their backs to the direction of forward movement of the boat.”3 Rowing is a highly regulated sport that provides competition judges, referees, and juries who hear and decide all protests arising out of competition. When it comes to penalties for violating the rules of rowing, a crew and its members are each responsible for the individual acts of its members, and any penalty imposed on a crew shall be deemed imposed on each member of the crew.4

“Crew is all about teamwork. The moment I stepped into the shell, I learned what hard work was, as well as how important it was to learn how to work well with others. After a short while, I knew that I was making friends for life, and that these women had grit, determination, and were willing to test their limits. Being a member of a crew builds confidence, and we had only one thing to worry about: each other. You don’t bring your cellphone out on the water, and rowing gave me the confidence to apply to law school.” After speaking to my student and observing the Lady Vols compete in various regatta, it was obvious that it takes special people to be part of a crew: people who possesses strength, endurance, commitment, discipline, passion, leadership, self-confidence, and focus; people like the Lady Vols who possess all of the aforementioned attributes and more. Said my student, “Never underestimate the women in the boat!”

1 Tenn. Code Ann. § 11-11-203 is the definitional section of Title 11, “Natural Areas & Recreation.”

2 The United States Rowing Association, commonly known as USRowing, is a nonprofit membership organization recognized by the United States Olympic & Paralympic Committee as the national governing body for the sport of rowing in the United States.

3 World Rowing Rules of Racing, Pt. 1 (2021 Ed.), available at https:// d2cx26qpfwuhvu.cloudfront.net/worldrowing/wp-content/ uploads/2021/02/04162055/2021-World-Rowing-Rules-of-Racing-Final-240221. pdf.

4 Rule of USRowing 2-602.

WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS

By: Hoai R. Robinette Lomonaco & Robinette, PLLC

ANOTHER PERSPECTIVE OF A NOT GUILTY VERDICT

When I first started practicing law, I truly believed that the law would carry out justice and fairness. I have been practicing criminal defense since 2017, and my perspective has changed over the years. I have tried many cases and represented hundreds of clients. I have watched numerous trials conducted by my colleagues. At the end of each trial, the two words we on the defense side want to hear from the jury are “Not Guilty.” Once a client has been found not guilty, the client is free to go, and we say justice has been served. However, from my perspective, it seems that may not be the case because, in the process of reaching that not guilty verdict , most clients have suffered tremendous economic, financial, and reputational losses. If a person does not qualify for a court-appointed attorney and wishes to have the benefit of legal representation, he or she must spend thousands of dollars in attorneys’ fees. If the media is involved, the person’s image and reputation may have been questioned or at least been the subject of unwanted publicity. Some individuals lose employment after being charged or have a difficult time finding employment during the period before trial, which could be years.

Pending criminal charges and the uncertainty of the future often strain family and other relationships, leaving individuals without a support system.

Although a “not guilty” verdict is a relief, it does not restore the person to his or her former life. Perhaps a different perspective should be considered – one that upholds the principle that a person is innocent until proven guilty—one that seeks inclusion of individuals who are accused. Perhaps we should thoughtfully consider opportunities to provide support and restitution to individuals who have been wrongfully accused or charged with a crime at all stages of the criminal justice process. Certainly, that would require the allocation of resources and a commitment to restoration. This could involve initiatives such as wrongful conviction compensation funds, support services for exonerees, and reforms to mitigate the collateral consequences of criminal charges. After all, isn’t that what inclusion is – a commitment to justice for all?

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THE OATH

By: Melissa B. Carrasco Carrasco Trump, PLLC

I SET THE EXAMPLE

I, , do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

10 U.S.C. § 502 (2024). Congress enacted the original version of this oath in 1789; its final version was embedded in the U.S. Code in 1962.1 Ever since, this has been the oath taken by every member of the United States armed forces upon enlistment. They have lived up to it.

But for 131 years, one group of enlisted men and women have undertaken an extra oath. In February 1893, President Benjamin Harrison signed Naval General Order 409, establishing the rank of chief petty officer.2 A couple of weeks later, the U.S. Navy issued Circular No. 1 establishing a new classification of enlisted personnel: the chief petty officer, with 8 different ratings based on their duties and areas of responsibility, earning between $50 and $70 per month.3

The Chief Petty Officer holds a unique role in the U.S. Navy. As the senior enlisted person, the Chief is responsible for implementing the officers’ orders, translating them into tasks, and ensuring that the enlisted personnel under his or her command accomplish them efficiently and exactly. The Chief is the technical expert and problem-solver. The Chief is also responsible for maintaining discipline, standing as an exacting and unwavering authority to those under his or her supervision while serving as an advocate and liaison between the enlisted servicemembers and their officers.4 The Chief is the keeper of the Navy’s history and its core values, and the Chief is the one most responsible for passing on that history and instilling those values in others.5

This unique role is the reason why 50 Chief Petty Officers have been awarded the Medal of Honor.6 It may be the reason why Chief Machinist’s Mate Francis Edward Ormsbee, Jr., stationed at N.A.S. Pensacola, dove overboard into the wreckage of a plane that crashed off the coast of Pensacola, partially extracted the gunner, held his head above the water until the rescue boat arrived, and then dove again and again into the wreckage, shredding his body on the fuselage, trying to rescue the pilot.7

It may be the reason why the first female Chief Petty Officer, Chief Yeoman Loretta Perfectus Walsh, worked tirelessly at the Philadelphia Naval Hospital8 during the deadly influenza epidemic of 1918, until she was discharged because of a service-connected disability. She died of complications from tuberculosis 6 years later.9

It is most definitely the reason why my father, retired Senior Chief Petty Officer Robert C. Houck, worried every day about Naval personnel deployed in the Persian Gulf from 1990 to 1991. At the time, he was responsible for training his group of naval reservists who were called to active duty to support Operation Desert Shield/Desert Storm. Those were his people leaving their families and heading far away. If something happened to one of them, it was his responsibility to tell their families. That is how he knew exactly what news he was about to receive when two Marine officers appeared in his driveway on November 27, 2004, to deliver the same news about my brother. Why?

They took the Chief Petty Officer’s Pledge:

I am a Chief Petty Officer in the United States Navy…

I serve my country and her people with pride and honor. I seek no special favors.

I make things happen, and do the best I can do.

I am charged with a leadership role like no other in the world.

I develop junior officers and mold my Sailors.

I acknowledge full responsibility for the actions of my Sailors… because these Sailors are the seeds of future chief petty officers. I live by the Navy’s core values of honor, courage, and commitment. I set the example.

I establish the standards of performance.

My Sailors are students and I am their teacher.

I guide and influence the lives of these young men and women. In the final analysis, I will determine the quality of these Sailors. They look up to me because I treat them with dignity and respect. Because they need a leader, I am there for them.

After all...

I am a Chief Petty Officer in the United States Navy.

That is the power of an Oath.

1 Id. See also U.S. Army Center of Military History, Oaths of Enlistment and Oaths of Office, https://history.army.mil/faq/oaths.html, last visited Apr. 7, 2024. There was one prior version of this oath, enacted in 1956, but it was quite similar. “I, ___, do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever, and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.” 10 U.S.C. § 205 (1956).

2 Navy General Order No. 409 (Feb. 25, 1893), available at https://www.goatlocker. org/resources/409.pdf.

3 U.S. Navy Regulation Circular No 1 (Mar. 13, 1893), available at https://www. goatlocker.org/resources/409.pdf.

4 Chief Personnelman Don A. Kelso, U.S. Navy, The Role of the Chief Petty Officer in the U.S. Navy, U.S. Naval Institute (Apr. 1957), https://www.usni.org/magazines/ proceedings/1957/april/role-chief-petty-officer-modern-navy, last visited Apr. 7, 2024.

5 Seaman Amber Speer, What it Means to be a Navy Chief (Dec. 31, 2021), https:// www.dvidshub.net/news/412288/means-navy-chief, last visited Apr. 7, 2024.

6 Naval History & Heritage Command, Chief Petty Officer Recipients of the Medal of Honor, https://www.history.navy.mil/browse-by-topic/communities/chief-pettyofficers/chief-petty-officer-recipients-of-the-medal-of-honor.html, last visited Apr. 7, 2024. First recognized by President Abraham Lincoln, the Navy and Marine Corps’ Medal of Honor is the oldest and continuously awarded military recognition in the United States. NAVMC 2897 Armed Forces Decorations and Awards, available at https://www.marines.mil/Portals/1/Publications/NAVMC%202897.pdf.

7 Congressional Medal of Honor Society, Francis Edward Ormsbee, Jr., https://www. cmohs.org/recipients/francis-e-ormsbee-jr.

8 Anecdotally, when my dad was stationed at the Philadelphia Naval Air Station, my brothers and I made many trips to the Philadelphia Naval Hospital, primarily for a variety of stitches, antibiotics, and one unfortunate incident with a ferret.

9 James L. Leuci, MCPO, USN (Ret.) Chief Yeoman (F) Loretta P. Walsh, https:// www.history.navy.mil/content/dam/museums/nmusn/Pamphlets/walsh-loretta-p/ NMUSN_Chief%20Yeoman%20Loretta%20Walsh.pdf.

HELLO MY NAME IS

By: Bridget J. Pyman Arnett | Baker

MARI JASA

May’s “Hello My Name Is…” Q&A features Mari Jasa, an associate attorney at Sobieski, Messer & Elledge. Mari received her undergraduate degree from University of Tennessee, then attended and graduated from Lincoln Memorial University’s Duncan School of Law in 2022. She now practices family law. Mari is actively involved in both the KBA and TBA: She serves as the co-chair for the KBA’s New Lawyer’s Section, and she serves on the TBA’s Young Lawyer Division Board as the District 3 Representative for Knoxville. Mari, through her responses, offers insights into navigating the challenges of professional stress and embracing a holistic approach to well-being.

How do you handle stress as a practicing lawyer?

I like to remind myself, “Not my circus, not my monkeys.” It helps. A LOT.

If you could go back in time and tell yourself one piece of advice, what would it be?

If I could go back in time and share one piece of advice with my younger self, it would be this: Stop stressing so much about the future. Growing up as an immigrant and a first-generation college and law student, the burden of shaping my future rested solely on me. Like many in similar circumstances, I lacked a safety net or financial support, which amplified the pressures I felt as I transitioned from high school to college. In hindsight, I realize I carried far more stress than necessary. Reflecting on my journey today, everything unfolded as it was meant to. However, I can’t help but wish I had placed more trust and confidence in own my capabilities as a young professional.

What are your fitness goals?

My fitness journey recently took a turn toward a new goal: competing in a body-building competition. Throughout my time in law school, my nutrition and health took a backseat, but I’ve finally reclaimed the time and energy to train again. Having challenged my mind through

the rigors of law school and passing the bar exam, I would like to push my body through similar high-intensity challenges. Rekindling my passion for fitness has been invigorating and I am very excited for my future fitness journey. Like finishing law school, it’s a slow and gradual process that takes time, patience, and determination.

What are your hobbies?

Traveling - as often as possible, but not the type where you’re relaxing on the beach, soaking up the sunshine while reading a book. I mean the kind where you’re up at 6 a.m., trying to catch an overcrowded tram and logging more than 20,000 steps a day.

What is your favorite type of food to cook?

PRIVILEGED TO BE A LAWYER

By: Vanessa Samano Samano Family Law

INSPIRATION CAN COME FROM MANY PLACES

For as long as I could remember, I wanted to be an attorney. I did not grow up surrounded by attorneys. In fact, before law school, I had not known a single attorney. Despite not knowing any attorneys personally, I imagined how much dedication and hard work this profession required. As a child, my role model for hard work was my father. He is one of the most diligent workers I know. Despite his many responsibilities, he was never too busy to help anyone, be it a coworker, family member, friend, and even a stranger. My inspiration to be an attorney undoubtedly came from him and his work ethic.

I have been practicing family law exclusively for 16 years. As we all know, it can challenge our spirit at times. Despite the difficulties we all face, I have always been grateful to be a part of this profession. This is not just a job or a business. It is a calling that places on us the responsibility to protect our clients’ rights and guide them through our judicial system. As I approach the tenth anniversary of having my own practice, I look back with fondness on the clients who have trusted me to represent them in court. I distinctly remember helping a father fight against termination of his parental rights to the child he spent years trying to locate, or the mother too afraid to ask for child support because that is not what is done in her home country. Seeing clients overcome their past substance abuse issues to be able to rejoin their families has been a particular joy for me.

Our colleagues provide inspiration, too. Most recently, I have been inspired by Ben Houston’s extraordinary appeal to the Supreme Court on an issue involving interpreting Tennessee’s artificial insemination statute1;

Stephen Ross Johnson, Thomas Dillard, David Eldridge, and Lorretta Cravens challenging the issuance of subpoenas to cell phone communication providers2; Sherry Mahar fighting for children who are overlooked and abused; and all our local judges who review files late into the night and weekend to be prepared to hear their cases. Every time I walk into a courthouse I am privileged to be walking among my colleagues and to be representing my client. Our clients choose us. With so many lawyers in our area, it is absolutely a privilege to be chosen as counsel.

Every day we have to make decisions for our clients that can impact the rest of their lives. We must come up with the strategies that are best for them. This great responsibility and privilege comes with great sacrifice from us. It is staying late at night at the office, working long hours to prepare for trial, reviewing records on the weekend, or missing out on the things that are most important to us. This can cause us to grow weary. Fortunately, the Knoxville Bar Association provides our legal community with great resources to make sure we stay vibrant and healthy for our families, friends, and of course, our clients. Our community depends on us.

When I was asked to write this article, I was thrilled to have an opportunity to share with everyone what a privilege it is to practice law. Thank you for everything you do for our profession, our legal system, and one another. It is a privilege to work among you all.

1 Davis v. Reilly (Tennessee Supreme Court, January 24, 2024).

2 State of Tennessee vs. Alexander Johnson and Michael F. Williams, Court of Criminal Appeals, No. E2015-02486-CCA-R9-CD.

THE GAME CHANGER?

A BREAKDOWN OF THE RECENT OPINION AND ORDER IN THE TENNESSEE, VIRGINIA NIL ACTION AGAINST THE NCAA—AND ITS IMPACT ON THE FUTURE OF COLLEGIATE ATHLETICS

Although you may not have felt it, on February 23, 2024, the collegiate athletics landscape shook to its foundation.

In January 2024, Attorneys General from Tennessee and Virginia (as plaintiffs) filed an anti-trust lawsuit against the NCAA in the U.S. District Court for the Eastern District of Tennessee, seeking a preliminary injunction to stop the NCAA from enforcing its ban on the use of Name, Image & Likeness compensation in the recruitment of collegiate athletes (the “NIL-Recruiting Ban”). On February 23, 2024, the Court granted the States’ application for preliminary injunction enjoining enforcement of the NIL-Recruiting Ban.

The following is a breakdown of the Opinion:

Key Concepts and Definitions:

NIL: the ability of a Student-Athlete to earn compensation from his or her name, image, or likeness.

NIL Collectives: “…organizations created by alumni, boosters, or businesses with the purpose of providing NIL opportunities to their school’s athletes.”

NIL-Recruiting Ban: the NCAA’s guidance and rules preventing or banning Student-Athletes “…from discussing NIL deals until they commit to a particular school” by prohibiting NIL Collectives or “boosters” from recruiting athletes to play a sport or enroll in a particular school.1

The Interim NIL Rule or “The Interim Rule”: an NCAAapproved rule (effective July 2021) specifically allowing “…student-athletes to engage in NIL activity and to be compensated accordingly.”

Plaintiffs’ Arguments:

1. The NIL-Recruiting Ban harms Student-Athletes and violates federal anti-trust law (specifically, Section 1 of the Sherman Act of 1890 (“the Sherman Act”));

2. The Court should enjoin the NCAA from enforcing the NIL-Recruiting Ban because it causes irreparable harm to Student-Athletes and the States themselves.

3. Prospective Student-Athletes and these States will suffer irreparable harm if the Court allows the NCAA to limit the free-market NIL space.

NCAA’s Arguments:

1. The NIL-Recruiting Ban:

a. Promotes a balance between athletics and academics – and maintains the distinction between amateur and professional athletics;

b. Fosters a competitive balance among the member schools by promoting a fair distribution of talent across the collegiate landscape; and

c. Acts as a safeguard to protect vulnerable prospective Student-Athletes at risk of entering into unfair and abusive NIL deals.

2. Allowing NIL Collectives to offer NIL deals to prospective Student-Athletes as recruiting inducements will eviscerate the distinction between collegiate and professional sports and undermine the balance between them.

The Court’s Opinion:

While acknowledging the evolution of compensation for StudentAthletes over the past 118 years, the Court noted the NCAA’s decision to pass the Interim Rule “…drastically changed the landscape of college athletics by allowing student-athletes to earn compensation for their… NIL.” The Interim Rule effectively “opened the floodgates,” leading to the overnight formation of a robust collegiate NIL market. After businesses recognized opportunities in the market, NIL Collectives were being formed across the country.

The Court noted that problems began to arise when the NCAA realized these third-party NIL Collectives could offer NIL deals to induce student-athletes to commit to a particular school and play a sport. In response, the NCAA issued the NIL-Recruiting Ban, which the Court described as, in effect, “an agreement among competitors to refuse to discuss prices with [recruits] until after negotiations have resulted in the initial selection of [a school].”2

Importantly, the lens through which the Court analyzed these issues focused on whether Plaintiffs successfully established the elements for a preliminary injunction against the NCAA. In granting the preliminary injunction, the Court followed this analysis:

(1) Plaintiffs have a Strong Likelihood of Success on the Merits. The Court followed the “3-step burden-shifting framework” of the Rule of Reason in its analysis outlined below:

a. Substantial Anticompetitive Effect: Plaintiffs demonstrated that the challenged restraint has a substantial anticompetitive effect that harms consumers in the relevant Division I athlete labor market; The NIL-Recruiting Ban harms competition because it constitutes an agreement among competitors to refuse to discuss prices with prospective Student-Athletes until after negotiations have resulted in the StudentAthlete’s initial selection of a specific school). “Such an agreement suppresses price competition by limiting negotiating leverage and, as a result, knowledge of value…” “The Supreme Court found a similar agreement to be anticompetitive ‘[o]n its face[.]”3

b. Procompetitive Rationale: The NCAA failed to satisfy its burden to demonstrate a persuasive procompetitive rationale for the restraint; and The Court rejected the NCAA’s argument that the NIL-Recruiting Ban preserves collegiate athletics by

promoting a balance between athletics and academics and maintaining the distinction between amateur and professional athletics, noting: “While the NCAA permits student-athletes to profit from their NIL, it fails to show the timing of when a student-athlete enters such an agreement would destroy the goal of preserving amateurism.”4

c. Less Restrictive Alternatives: Even if the Court accepted the NCAA’s argument that procompetitive benefits flow from the NIL-Recruiting Ban (which it did not), the benefits to Student-Athletes and the States can be accomplished through less restrictive NCAA rules already in place.

The Court noted Student-Athletes are required to continue to maintain progress towards their respective degrees and meet minimum credit hour requirements and GPAs, which it asserts are more effective in preserving amateurism than the NIL-recruiting ban. Moreover, the Court rejected the NCAA’s argument that the NILRecruiting Ban fosters “‘…competitive balance” among the member schools by promoting a more fair distribution of talent across the collegiate athletic landscape. While the Court acknowledged this is an important endeavor, it held: “…spreading competition evenly across the member institutions by restraining trade is precisely the type of anticompetitive conduct the Sherman Act seeks to prevent.” Finally, although protecting vulnerable Student-Athletes from unfair and abusive agreements is a legitimate concern, the Court rejected the NCAA’s argument that protecting Student-Athletes from exploitation and unfair/abusive NIL deals ‘do[es] not make it any less unlawful.’” 5

(2) Plaintiffs Successfully Showed Irreparable Harm.

By: E. Michael Brezina, III Reynold, Atkins, Brezina & Stewart, PLLC

Even though the argument was not specifically advanced by the Plaintiffs, the Court specifically found Plaintiffs satisfied their obligation to demonstrate irreparable harm, noting: …without the give and take of a free market, student-athletes simply have no knowledge of their true NIL value. It is this suppression of negotiating leverage and the consequential lack of knowledge that harms student-athletes. The harm is irreparable because judgment in favor of Plaintiffs at the conclusion of the lawsuit will not make student-athletes whole.

The Court observed this is particularly applicable to prospective student-athletes, who have very limited and finite windows of opportunity to earn NIL money.6

(3) Issuing the Injunction Will Not Cause Substantial Harm to Others.

(4) The Public Interest is Served by the Issuance of this Injunction by Preventing an Anticompetitive Market.

Practical Impact:

The Court’s ruling likely will have both long and short-term impacts on college sports. Some of the short-term impacts already include or probably will include the following.

• The value of NIL contracts for the country’s elite collegiate athletes likely will increase – particularly for prospective Student-Athletes in the transfer portal and top-rated players coming out of high school. The current system has, in effect, no salary cap, no free agency, and no supervising entity to regulate the industry.

• The schools with the deepest NIL Collective pockets likely will successfully recruit the best players in the country, to the detriment of other schools.

• NIL Collectives can openly recruit prospective athletes in conjunction with athletic programs and coaches.

• We may also see the Southeastern Conference take the reins and regulate NIL for its conference, member schools and Student-Athletes. If this occurs, I think we can expect to see it catch on across the country.

• It will likely further erode the notion of “amateurism” in collegiate athletics – particularly in Football and Men’s Basketball.

The game has changed. Only time will tell how much.

1 Tennessee & Virginia v. Nat’l Collegiate Athletic Ass’n, No. 3:24-CV-00033-DCLCDCP, 2024 U.S. Dist. LEXIS 32050, at *1 (E.D. Tenn. Feb. 23, 2024). Plaintiffs also sought an injunction enjoining the NCAA from enforcing the “Rule of Restitution” as it applies to the NIL-Recruiting Ban, which would allow retroactive punishment of Student-Athletes if it is later determined injunctive relief was not warranted. The Court also granted this injunction.

2 Id. at * 1, 3.

3 Id. at * 6-7.

4 Id. at * 7-8.

5 Id.

6 Id. at * 9-12.

By: Bill Ramsey

By: Phil Hampton

TECH FOR THE NERDY GARDENER

It’s gardening time! And Farmer Bill is ready to collaborate with Phil to claim the Tech Gardener of the Year title. As you know, gardening is a delightful blend of art and science. In this digital age, technology offers innovative solutions to help both novice and seasoned gardeners achieve better results. These smart gadgets can transform your garden space. Here are some cutting-edge tools that will make Bill’s spacebar callused thumb a little greener.

1. Garden Plan Pro IPad (gardenplanpro.com)

Having trouble plotting your plot? The Garden Plan Pro app acts as a visual aid in laying out your patches before you pick up a shovel. It also provides weather station data, gives advice on the best plants for your region, and offers information on more than 140 different species of flowers and vegetables.

2. Propane Flame King Weed Burner Torch (flameking.com)

This item lets Bill channel his inner Beavis and Butthead and yell “Fire, fire, fire!” Weeds are the bane of a gardener’s existence. They appear every year and everywhere in your garden. You can use a hoe or pull by hand, but torching is easier and more fun. While a small blow torch from the hardware store will burn and kill weeds well enough, it may strain your back to constantly crouch down. The Flame King torch ($45 at Amazon) comes with a long, 3-foot wand, fully assembled, and with an adjustable flame switch. You do have to take extreme precautions not to set your yard or garden on fire. Torches are best for eliminating weeds from seams in patios or driveways. This is way better than dousing your outdoor space in pesticides and weed killers.

3. Brinno GardenWatchCam (Brinno.com)

This is a techie gardener’s dream. Set this up in your garden and watch your flowers grow, or see which critters are grazing from the gardens. And, you can do so while sitting inside (day or night) and looking at your phone, computer, or iPad. It is super easy to use and fun. The time-lapse motion camera can be set to snapshots at intervals from 1 minute to every 24 hours. Just stick the camera outdoors and watch your garden grow and be consumed by critters.

4. Bosch Isio Cordless Shrub Shear (Amazon)

Trimming hedges and shrubs just got easier with the Bosch Isio Shrub Shear. This handheld multi-tool features a lithium-ion battery that provides almost an hour of work on a single charge. Its efficient design ensures continuous cutting, even in dense foliage. Say goodbye to manual pruning struggles and hello to precise, effortless trimming.

5. Vegibee Pollinator (Amazon)

Good gardeners love pollinators, and Bill is no exception (except when he gets a bee sting and cries like a baby). This gadget is for garden connoisseurs looking to finetune their craft. The VegiBee imitates the high-frequency vibrations of a bee’s wings during pollination. The waves release pollen onto a spoon, which the gardener can use to hand-pollinate other plants for a 30 percent increase in crop yield. Plus, you get the satisfaction of giving Mother Nature a helping hand.

6. Netatmo Weather Station and Rain Gauge (Netatmo.com – many models)

Bill loves playing with this personal weather station. He loves its smart speaker look and its ability to inform you of upcoming

weather patterns. It also keeps track of weather history for months. If you add the Rain Gauge accessory, you will know exactly how much water you need to make your garden grow. It monitors the indoor environment as well as the outdoor weather. Among other features, this weather station measures indoor CO2 levels and provides the air quality index in real-time. Netatmo links to your smartphone, keeping track of what’s best for your home, plants, and garden.

7. SmartPlant (android or iOS)

As most of you know, Bill is getting old and forgetful. He often forgets what he has planted and needs help from SmartPlant. SmartPlant is a mobile app that uses image recognition to identify plants and provide information on how to care for them. Users can identify plants by taking a photo of them, and the app will provide information on what the plant is and how to care for it. SmartPlant also includes reminders to help users keep their plants alive.

Remember, these gadgets aren’t meant to replace your green thumbs and hard work but to complement them. Embrace the fusion of nature and technology and watch your garden flourish like never before. Maybe you can compete with Bill for the Nerdy Gardener of the Year award.

SCHOOLED IN ETHICS

By: Judy M. Cornett University of Tennessee College of Law

ETHICAL WITNESS PREPARATION

In August 2023, the ABA issued Formal Ethics Opinion 508, “The Ethics of Witness Preparation,” addressing pre-deposition and pre-trial witness preparation.1 The opinion aims to help lawyers walk the tightrope between witness preparation, which is required by the ethical duty of competence,2 and coaching, which is prohibited by the ethics rules.3

The opinion first lists the things a lawyer can ethically do to prepare a witness:

• Remind the witness that they will be under oath

• Emphasize the importance of telling the truth

• Explain that telling the truth can include a truthful answer of “I do not recall”

• Explain case strategy and procedure, including the nature of the testimonial process or the purpose of the deposition

• Suggest proper attire and appropriate demeanor and decorum

• Provide context for the witness’s testimony

• Inquire into the witness’s probable testimony and recollection

• Identify other testimony that is expected to be presented and explore the witness’s version of events in light of that testimony

• Review documents or physical evidence with the witness, including using documents to refresh a witness’s recollection of the facts

• Identify lines of questioning and potential crossexamination

• Suggest choice of words that might be employed to make the witness’s meaning clear

• Tell the witness not to answer a question until it has been completely asked

• Emphasize the importance of remaining calm and not arguing with the questioning lawyer

• Tell the witness to testify only about what they know and remember and not to guess or speculate

• Familiarize the witness with the idea of focusing on answering the question, i.e., not volunteering information4

The opinion goes on to list the following activities that are unethical:

• Counseling a witness to give false testimony5

• Assisting a witness in offering false testimony

• Advising a client or witness to disobey a court order regulating discovery or trial process

• Offering an unlawful inducement to a witness

• Procuring a witness’s absence from a proceeding6

Coaching a witness to give false testimony can be direct. For example, a Georgia lawyer was disbarred when they “instructed six witnesses to say that a fictitious man by the name of ‘David Thompson’ was the real father of a child whose paternity was disputed.”7 Or it can be less direct as when a lawyer was disbarred for instructing a witness to “’downplay’ the number of times they met to discuss testimony to prepare

for trial.”8

What about the situation in which the testimony is truthful but is pre-scripted or programmed by the lawyer? The opinion notes, “Except in extreme cases of witness programming . . . , the extent to which a lawyer can ‘script’ or ‘prefabricate’ otherwise truthful witness testimony has not been definitively resolved.”9 However, the opinion cites a California case as an example of unacceptable witness coaching, where the court found the “prosecutor’s secret pre-trial coaching of [the] forensic pathologist who had performed [the] autopsy of [the] victim was so intrusive and extensive that it ‘tampered with the heart of [the witness’s] testimony.’”10

Rule 3.4(h) states that a lawyer shall not “pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent on the content of his or her testimony or the outcome of the case,” and Opinion 508 notes that this prohibition applies even to truthful testimony. For example, a Nevada lawyer was suspended for “offering to pay a witness $7,000 for his ‘honest testimony’ in support of certain facts and threatening the witness with personal liability and ‘the legal implications of perjury’ if he testified the other way.”11 It is also unethical to procure the absence of a witness; a Washington lawyer was disbarred when they “gave [the] victim-witness $3,000 and a one-way bus ticket to Oklahoma so [the]witness would not testify against defendant in a criminal case.”12

The bottom line on witness coaching is this: in walking the tightrope, lean toward the truth, including allowing the witness to tell the truth in their own words. Preparation such as suggesting that the witness “downplay” certain facts or excessively rehearsing a witness’s truthful testimony can cross the line into unethical coaching. If you fall by not sticking closely to the truth, you’ll be walking the tightrope without a net.

1 The opinion also addresses lawyer-witness interactions during depositions and trial proceedings, as well as lawyer coaching during remote proceedings, but in this column, I address only the issue of pre-proceeding coaching.

2 Tenn. R. Prof. Conduct 1.1 states that “Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

3 In contrast to most ABA Formal Ethics Opinions, this opinion does not focus primarily on one or two Model Rules of Professional Conduct. Instead, the opinion draws heavily upon court decisions and secondary sources to exemplify prohibited witness preparation. Although no Tennessee state or federal cases or secondary sources are cited, the Model Rules relied upon in the opinion are identical, in material respects, to the corresponding Tennessee Rules of Professional Conduct.

4 American Bar Association, Formal Opinion 508, at 3-4 (Aug. 5, 2023) (footnotes omitted).

5 Tenn. R. Prof. Conduct 3.4(b) provides that “[a] lawyer shall not . . . counsel or assist a witness to offer false or misleading testimony.” In addition, Tenn. R. Prof. Conduct 1.2(d) prohibits a lawyer from counseling or assisting a client to engage in “conduct that the lawyer knows or reasonably should know is criminal or fraudulent.” Likewise, Tenn. R. Prof. Conduct 3.3 imposes certain duties on the lawyer to prevent perjury or rectify the effects of perjured testimony.

6 Formal Opinion 508 at 4.

7 In re Mitchell, 244 Ga. 766, 262 S.E.2d 89 (1979).

8 In re Meltzer, 21 N.Y.S.3d 63, 64 (2015).

9 Formal Opinion 508 at 5 n.19.

10 Id. (quoting In re Brooke P. Halsey, Jr., Case No. 02-O-10195-PEM (State Bar of California Hearing Dept., Aug. 1, 2006)).

11 In re Discipline of Callister, No. 70901 (Nev. 2017).

12 In re Discipline of Kronenberg, 155 Wash.2d 184, 198 (2005).

MONTHLY MEETING

Plan now to attend the Barristers monthly meet-up on Wednesday, May 8, starting at 5:15pm at The Firefly, the outdoor patio at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00pm. All Barristers members are invited to attend, meet fellow attorneys, and learn about upcoming Barristers events.

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS

The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15am at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15am and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30am. It’s a great way to serve the community! Please contact either Matt Knable at mknable@ wkfirm.com or Miranda Goodwin at mirandaegoodwin@gmail.com with any questions and/or about volunteering.

DIVERSITY COMMITTEE COLLECTS DONATIONS FOR SCHOLARSHIP FUND

The Barristers Diversity Committee has created a scholarship fund to help with travel and lodging costs for diverse students who are invited to attend preview days hosted by the local law schools. Members are asked to make a donation to help ensure that one student, who may not

otherwise be able to afford to visit a law school in Knoxville prior to their enrollment, is able to attend a preview day. If you have questions, please reach out to Mariel Bough (mariel.bough@verasafe.com) or Grant Williamson (gwilliamson@bradley.com) for more information on how your donation will be used, or for more ways to get involved with the Barristers Diversity Committee’s efforts to make the Knoxville Bar Association a more inclusive and diverse organization. Information on how to donate online can be found on the KBA website on the Barristers Diversity Committee page.

Working Together For The Best Result

Since 1993, our focus has been on preserving our clients’ financial assets, managing growth, and efficiently transferring wealth from one generation to another.

We work closely with attorneys to ensure the coordination of our clients’ personal and financial goals.

MANAGEMENT COUNSEL: LAW PRACTICE 101

By: Cliff B. Robins General Counsel, Foothills Land Conservancy

LESSONS LEARNED: A PERSPECTIVE ON MANAGEMENT FROM A FORMER JUDGE ADVOCATE CURRENTLY

IN CIVILIAN PRACTICE

After serving in the U.S. Army Judge Advocate General’s Corps (JAG Corps) as a Captain Judge Advocate, I came to understand and value a philosophy of management that permeates the U.S. Army and is stated in the maxim: “People first.”

In August 2019, then Chief of Staff of the U.S. Army, Four Star General James C. McConneville, established the official Army priority of “people first,” which he explained as, “We must take care of our people and treat each other with dignity and respect. It is our people who will deliver on our readiness, modernization, and reform efforts.”1 The way this philosophy played out in practice at the unit level was managers understood that once the individuals who were assigned to a mission were both taken care of and treated well, then those individuals were in a better position to successfully accomplish that unit’s mission. This sentiment rings true for any organization, military or civilian. The most effective managers I have worked with have the ability to recognize the unique skills and talents of those they supervise to connect those skills and talents to the varying aspects of the task, all the while creating a supportive environment for those individuals to succeed.

It is this overarching sentiment that has shaped my philosophy on management in my legal career both in the Army and now as a civilian attorney. While in the JAG Corps, I had the privilege of serving in many different capacities as an attorney: I advised infantry commanders in Thailand during the COVID-19 Pandemic on the ever-changing national and international laws, prosecuted felony and misdemeanor crimes for a major infantry division, advised a two-star general and staff members as an associate general counsel, and supervised three fellow Captains and three paralegals. This array of experience exposed me to many different legal managers, varying styles of leadership, and also provided me with opportunities to manage a team myself. Since leaving the Army, I have practiced at a civil litigation firm and currently serve as general counsel for a non-profit. Through these experiences working for colonels, law firm partners, and an executive director, I have discerned certain traits and philosophies which effective managers utilize that encompass the “people first” maxim.

Different Employees Require Different Types of Leadership: We are not all made alike. Many managers expect those they supervise to strictly adapt to the manager’s leadership style. The most effective managers I have experienced adapt their personal leadership style to those they supervise by determining what motivates each individual and how much communication and oversight each individual needs in order to be effective. This fosters individual accomplishment, team success, and a positive work environment. It can be determined through a conversation with the employee and also through experience working with that employee.

Communicate Clear Expectations: This is one of the most

important skills that I have witnessed effective managers utilize. An effective manager will identify the task, expectations, timelines, and then encourage the employee to move forward with the knowledge that the manager’s door is always open if a question or issue arises. This helps an employee to become independent with the knowledge that the manager is ready and willing to support the employee if something comes up along the way.

Feedback: Feedback (good, bad, and in-between) is critical, in particular for the development of junior attorneys. When a junior attorney turns in a project, the manager should always take the time to personally review that attorney’s work-product and then review the workproduct with the junior attorney, regardless of its quality. Even though this takes time, in the long run this approach helps the junior attorney grow toward greater independence and assists in building confidence more efficiently. Additionally, it is always beneficial to set up a review structure with employees, at least bi-annually, but ideally quarterly. This benefits both the organization and the individual in tracking and identifying the employee’s progress.

Help Employees Grow: Every employee grows through facing and overcoming new challenges. Effective managers help employees identify areas where they need to grow or improve then assist in providing specific opportunities for growth in those areas. An effective manager will always provide adequate supervision when the employee is taking on something new to ensure the employee feels prepared and supported. And, if the employee comes up short on that new experience, an effective manager positively assists the employee in identifying what went wrong and why, as the employee prepares to take that new challenge on once again.

Get to Know Your Employees: This is an overlooked quality of an effective manager – the ability to connect personally with employees, peers, and superiors. Employees want to be valued by the organization they work for, and an effective manager can connect with their employees simply by asking how the individual is doing, chatting with the employee about their weekend, getting to know about an employee’s interests, and following up with the employee regularly. Personally, I was always willing to work harder for managers, employees, and peers that I cared for and who I felt cared for me.

By no means am I an expert in management, leadership, or fostering effective work cultures, but I have been an employee of several different managers with varying styles of leadership across military and civilian organizations and have held supervisory roles myself. Based on those experiences, I actively try to instill the “people first” philosophy in my management style by utilizing the above traits.

1 McConneville, J. C. (2019, August 15). New Army chief of staff sends message to soldiers. Joint Base San Antonio. https://www.jbsa.mil/News/News/ Article/1935571/new-army-chief-of-staff-sends-message-to-soldiers/

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 Sam Henninger at shenninger@wmbac.com.

HOW TO THRIVE IN LAW AND LIFE

By: Emily Heird, LPC/MHSP Vantage View Coaching

HOW TO ALLEVIATE ANXIETY

A new lawyer client recently stated to me, “I want to figure out how to succeed in this profession without so much fear and anxiety.” The majority, if not all, of the clients I work with want to stop feeling a constant hum of anxiety about work (and life). According to the ALM’s 2023 Annual Survey on the Mental Health of Lawyers, 73% of survey participants experienced anxiety within the previous two weeks of taking the survey. This does not mean they have a mental health diagnosis or illness. Maybe you can relate. If you experience anxiety, you are human. It is hard-wired into our biology. The nervous system is designed to activate in certain situations to signal danger (real or perceived threat) or to improve performance (see Yerkes-Dodson Law). The goal is never to get rid of anxiety completely. The goal is to alleviate unhelpful anxiety that is hindering your well-being and performance at work.

From my vantage point, anxiety is a normal response to the highpressure and demanding environment. Attorneys are juggling the demands of clients, colleagues, and the judicial system; meeting billable hours requirements and/or generating business; supervising, mentoring, and steering businesses; delivering meticulously prepared work product; and tending to family and personal life. There are many things I can add to this list. Anyone would experience stress and fear about dropping the ball because they are juggling so many of them every day and they carry a lot of responsibility. However, they can learn the psychological skills necessary to succeed in the environment with far less anxiety. Here are a few strategies I share with my clients that you can put into action now.

1. Have some compassion and grace for yourself. If practicing law feels difficult, challenging, and exhausting, it’s because it is all those things. Acknowledge this experience rather than beating yourself up or wondering what’s wrong with you for feeling anxious.

2. Get curious about the sources of your anxiety. Our thoughts are a major source, but there are others that cause the physical symptoms of anxiety which we interpret as feeling anxious.

3. Take an inventory to see if substances or medications are contributing to anxiety symptoms. Caffeine, energy drinks, alcohol, nicotine, and other drugs all increase anxiety when the drug is in the system or when the body is withdrawing from the drug. Anxiety can be a side effect of some medications, or as the dosage is tapering off, anxiety may ramp up due to the withdrawal. It can be challenging to change habits such as drinking coffee all day long for energy or consuming alcohol to wind down at night. But what you put in your body could be a significant source of anxiety symptoms.

4. Assess your nutrition and hydration habits. Research has shown that food is tied to our mental/brain health, and foods can increase or decrease anxiety. Mild levels of dehydration can trigger the fightor-flight response, increasing anxiety and irritability. The brain’s environment is not optimized for functioning, and it is sending you a message.

5. Assess your sleep habits. Lack of sleep undermines your emotional functioning, decreases positive moods, and puts you at a higher risk for anxiety symptoms (e.g., rapid heart rate and increased worrying). Anxiety and poor sleep can be a vicious cycle. Thinking anxious

thoughts at bedtime can interfere with the ability to fall and stay asleep. Or you may be up late working. Both result in sleep loss that increases anxiety, and the cycle reinforces itself. Work towards improving sleep habits.

6. Limit exposure to the news and social media. Be aware of your media diet, what you are consuming, and notice how it makes you feel.

Our thoughts are the root source of irrational anxiety – which occurs when we overestimate a danger and underestimate our ability to handle it. Examples: “I have so much to do, and I don’t know how I’m going to get it all done.” Most sentences that start with “What if….” cause irrational anxiety. Worrying about what other people think and ruminating on situations causes anxiety. This irrational anxiety drains energy, ramps up stress, impacts well-being, and hinders performance. Your mindset is paramount to your success and experience in life, and it can be changed.

Here are a few strategies to help with anxious thoughts when they come:

1. Deep breathing calms your body and mind. When you are in an anxious state, the amygdala (the fear center) of the brain is in charge. You are thinking emotionally, not logically. Before you can work with your thoughts from a rational perspective, you need the prefrontal cortex to be in control. Deep breathing helps calm the physical sensations of anxiety and switches the command center of the brain to the prefrontal cortex. Pick a focal point in the room and inhale through the nose for a count of four, hold for two, and exhale out the mouth for a count of 8. Repeat 3-5 times or until you feel calm.

2. Talk to yourself in the third person as though you were coaching a colleague through this. Ask yourself what you can do about the situation. What can you control? What is the next step you can take and how are you going to accomplish it?

3. If your worries are about variables out of your control, then do an activity to redirect your thoughts and dissipate the anxious energy from your body. It needs to be released. There are many strategies to choose from. You can experiment and see what works, or it may depend on the situation. Here are a few ideas: exercise (cardio); journal/write out your thoughts; spend time in nature; engage in 10 minutes of mindfulness; try progressive muscle relaxation; find a way to laugh or connect socially.

As always, talking with someone or asking for help can be a great way to get outside the echo chamber in your mind, welcome other perspectives, and receive support. Seek out mentors, trusted colleagues, or masterminds. Join a professional association. Welcome friends, family, and spiritual advisors. Coaches, therapists, and medical professionals can help, too. What strategies are you going to try?

THE CLOSER

That’s the way that the world goes round

You’re up one day, the next, you’re down It’s half an inch of water and you think you’re gonna drown That’s the way that the world goes round.

John Prine

I have the great privilege of being asked to speak to classes and groups every now and then. During my career, I’ve had the opportunity to teach at two law schools and speak to lawyers in seminars. Because of my life experiences, I’ve also been invited to speak to church and grief groups. I enjoy it. Over the past couple of months, I’ve been in pretty high demand. I finished up teaching my last class at Tennessee, eulogized a friend, and spoke to the entire 1L class at LMU. Then, I was asked to speak to the TBALL class in March. TBALL is the Tennessee Bar Association’s leadership program. Every year, they select lawyers with 5-15 years in practice experience to serve as future leaders in their community and the bar. The best young lawyers from around the state would be my audience. Not only was I asked to speak, but I was also asked to close day one of the program. When I inquired what the topic would be, I was told “Navigating Through Life as a Lawyer.” Wow. That is a broad topic. I was being called on to impart my knowledge gained from life and law to these elite, hand-picked leaders of tomorrow. They asked for a short bio, and I gave them one. Just a paragraph on my excellent credentials to substantiate a decision to cast me as The Closer. I’m pretty awesome. Right?

A few days before I was to change the lives of these people, I received a copy of the program. Red Flag. My bio, my tiny bio, was nestled in among the full-page CVs of my co-presenters who ranged from a Supreme Court Justice to the President and CEO of the Knoxville Area Urban League. However, the brevity of my credentials became the least of my concerns when I realized that I would follow Justice Dwight Tarwater. I know Justice Tarwater. I have great respect for him and the amazing life he has led, but I’ve never heard him speak. So, my insecurity ramped up to only a 5 or 6 on the scale of 1-10. Okay, maybe a 7.

Public speaking takes a bit of courage. You have to believe that you have something to say and that the listener will benefit from the words coming from your mouth. You have to believe you are a “Closer”– that no one would want to follow you. Justice Tarwater’s topic was Leadership Qualities. I hoped (and prayed) that it would be a boring recitation of qualities that involved power point topics. Turns out, that ain’t how Dwight rolls. He was barely into his presentation when I knew I was misplaced in the order if not in the program itself.

Dwight Tarwater told his life story. He covered his career path to founder of Paine Tarwater, his marriage to the daughter of a civil rights trailblazer, and his rise to the Supreme Court of our great state. He talked about his personal life - his Olympian son (who won gold in a swimming relay with Michael Phelps), his aspirations as a young lawyer, and the shocking and untimely death of his wife of 30 plus years. He covered every base of life and law with vulnerability, emotion, and grace, not to mention the added one-two punch of his impeccable intelligence and disarming good looks. The audience–my audience–laughed and cried and

OUTSIDE MY WINDOW

By: Robbie Pryor Pryor, Priest & Harber

was clearly in the palm of his hand. It was very clear to me that his life is, in fact, THE blueprint to . . . “Navigating Through Life as a Lawyer.” There is a fine line between being humbled and humiliated. I was being dunked on. My speech, which I intended to be part stand-up routine and part challenge to the future leaders, transformed into nothing short of the greatest example of my own personal courage. I felt like I was following Martin Luther King, Jr. after his “I Have a Dream” speech (which, of course, Justice Tarwater discussed). I just about left the building.

As I looked into the eyes of these intelligent advocates, they started checking their watches. I began to resent my children because they didn’t even try during swim team practice. I put together some practical advice on how to handle the rigors of a law practice and balance family life and passions outside of law. Then I tossed my notes. I said that Justice Tarwater and I were so much alike. We were members of long-standing prestigious firms. Both of our wives died unexpectedly, sending us into a tailspin. His son won a gold medal. I have a son who makes great beer (Head Brewer at Crafty Bastard Brewery). It was certainly obvious that our careers have taken us to unexpected heights - He has gone on to the Supreme Court, and I have a chair reserved at my local dog park. Finally, barely keeping my head above water, I focused on the important lesson from comparing our lives. We, as lawyers, need each other.

In 2012, at the urging of a federal judge, Justice Tarwater and I spoke shortly after his wife passed. Unfortunately, I had the perspective granted by such loss. I don’t know that my words had any impact, but losses like ours create a sense of community, or at least reveal one.

Members of the KBA surrounded and came to both of us in our moment of great sadness. I suppose it is one of the many reasons the loss of our first wives didn’t kill us. We still had work to do. We have both gone on to live and to live well. The great moment of the day came at the end of Justice Tarwater’s speech when he announced to the audience that he planned to get remarried. Perhaps the only takeaways of listening to both of us are that the key to navigating life is to keep living when there may be a time you do not want to and to always, always know who is giving a speech before you.

BARRISTER BITES

By: Angelia Morie Nystrom Vice President for Advancement and Chief Legal Counsel East Tennessee Foundation

GREAT MEMORIES OF GOOD TIMES

One of my favorite songs has a line: “Accept the gifts you’re given, and accept that it ends too soon.” With Trace’s approaching high school graduation, I’m feeling a bit nostalgic. It seems like yesterday that I was dropping him off for the first day of kindergarten. Now, we are less than 30 days away from his last day of school. It has been a gift to watch him grow up, and it is really hard to believe that, after 13 years, our time as Webb School parents is coming to an end. It’s too soon.

Hugh and I have been trying to do some of the things that have always been special at our house. The Easter bunny brought a basket with all the treats fit for a six-year old instead of the gourmet chocolates and other treats that Trace loves. We have been visiting places that we visited when Trace was young, and we have been pulling out the recipes that we made years ago when our nights were filled with Curious George and Lightning McQueen.

When Trace was a baby, our “go-to” for family get-togethers started with boursin-stuffed chicken breasts, accompanied by a salad and rosemary roasted potatoes. For dessert, I always made an “almost homemade” lemon poppy seed cake. In a nod to the past, I thought I would give it a try.

I have always loved it because it is simple to make and tastes really good; however, it had been a while since I had made it. Since we are reliving the “good old days,” I decided to try it again to see if it was as good as I remembered. It was, and I thought I would share.

For the salad, start with fresh spinach. Top with mandarin oranges (I like the ones from the snack packs, drained), crumbled feta cheese, and toasted almonds and toss with Brianna’s poppyseed dressing. It is simple and tasty.

To prepare the boursin-stuffed chicken breasts, you will need 4 whole boneless skinless chicken breasts, 1 cup melted butter, 2 cups white wine, 2 cups Italian bread crumbs, salt and pepper to taste, 8 tablespoons boursin cheese, 8 sprigs fresh parsley, and a dash of paprika.

Rinse the chicken and pat dry. Cut each chicken breast into halves. Pound each piece of chicken with a mallet until of even thickness. Pro tip: ask the butcher to run the chicken through the meat tenderizer. The first time I prepared this dish, I hammered the chicken with a mallet and ended up with chicken pieces all over the kitchen. I have not made that mistake since.

Combine the melted butter and wine in a shallow bowl. Place the chicken in the bowl and refrigerate for around an hour. Place the breadcrumbs on a plate. Remove the chicken from the wine and butter mixture and coat with breadcrumbs. Sprinkle with salt and pepper.

Place 1 tablespoon of boursin cheese in the center of each piece of chicken. Roll chicken to enclose cheese; secure with wooden toothpicks and place seam side down in a buttered baking dish. Drizzle with a little of the wine mixture.

Bake at 450° for 20 minutes or until chicken is tender and golden brown. Top with parsley and paprika. Serve immediately.

The boursin-stuffed chicken pairs nicely with roasted rosemary potatoes. To prepare, I use red potatoes (cubed) tossed in olive oil, coarse kosher salt, fresh ground black pepper, and lots of chopped fresh rosemary. I bake them in the oven at 350° until they are crispy on the outside.

While the chicken is amazingly good, the dessert is the star of the

meal. One of my favorite all-time desserts is my “almost homemade” lemon poppy seed cake. To prepare, you will need, 1 (18.5 oz) package yellow cake mix, ½ cup sugar, ⅓ cup vegetable oil, ¼ cup water, 1 cup plain non-fat yogurt, 1 cup egg substitute, 5 TBS lemon juice, 3 TBS poppy seeds, and a home-made lemon glaze.

To prepare, combine the cake mix and sugar in a large mixing bowl. Add vegetable oil, water, non-fat yogurt, egg substitute, and lemon juice. Beat at medium speed with an electric mixer for 6 minutes. Stir in poppy seeds.

Pour the mixture into 10-cup Bundt pan coated with cooking spray. Bake at 350° for 40 minutes or until a wooden toothpick inserted in center comes out clean. Cool in pan on a wire rack for 10 minutes. Remove from pan and drizzle with lemon glaze. For the lemon glaze, combine 1 cup sifted powdered sugar and 4 tablespoons lemon juice, stirring until smooth. Be sure that the consistency is such that it can be poured but is not runny. I like to serve it with a dollop of whipped cream.

This meal reminded me exactly why it was my “go-to” for family events for many years. It is easy, yet tasty. And it brings back the best memories. And hopefully it can be a “go-to” for hungry UT boys next year.

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TOP TEN

By: Sarah M. Booher Tennessee Department of Human Services

IF LAWYERS WERE CEREALS–PERSONALITIES IN A BITE

Last week, a neighbor of mine posed a question to her Facebook friends: You have to eat an entire box of cereal in one sitting. What are you reaching for? My response was immediate, fingers frantically typing without so much as a second’s thought. Obviously Lucky Charms.1

However, it reminded me of a time years ago when I told my then-husband that we were out of dinner cereal. This launched days of in-person and online discussions about what constitutes a dinner cereal and good examples of each. And as I went down a breakfast food rabbit hole and have obviously spent more time pondering cereals than a reasonable adult should, I now give you the Top 10 Lawyer Personalities as Cereals.

10. Generic Bran Flakes: They are economical, efficient, and good in a pinch, but they lack much personality of their own. Much like the banana or blueberries often mixed in here, these lawyers generally have the sweetest and most encouraging support staff that make the work arrangement tolerable.

milk. Cheerio Lawyer is a recent law school graduate, a new hire, and man, they are working overtime trying to grow their practice and their skill set. They are competent, as they just passed the Bar for Pete’s sake, but we also aren’t going to ask them to be something they aren’t.

4. Frosted Flakes: Frosted Flakes are everywhere, from your pantry to a cruise ship or hotel to the corner market. And so. . .pleasant without being offensive. Just like the Tony the Tiger mascot, Tony the Lawyer is “GREAT!” He’s easy to work with, and you can find him everywhere. He’s in random rural counties holding hearings, taking your call every time you ring, dropping in at local charitable events, and he’s going to make you great, too!

9. Cinnamon Toast Crunch: This lawyer is winning the popularity contest, but why? Because they are successfully handling the world’s easiest cases, much like the way this cereal is replicating an already wildly easy and delicious breakfast food? Their style might be fun, but their substance is lacking and if you don’t hurry, they get soggy fast.

8. Small Batch Granola from the Local Coffee Shop: This cereal is locally sourced and just set you back $15.95, but it’s okay because we support small business. Small Batch Lawyer is on the cutting edge of the law and technology, wears expensive clothes from brands you’ve never heard of, is hip to the trendiest restaurants, and will implement a sustainability plan for your firm if you don’t already have one.

7. Wheaties: This lawyer ran in the Covenant Health Knoxville Marathon earlier this month. This lawyer does Cross Fit and tells you about it. This lawyer’s sole identity is brawn. They probably aren’t the smartest lawyer in the room, but they have the most tenacity and are taking swings until they are KO’ed or the buzzer rings, and they win just enough for us to keep betting on them.

6. Cap’n Crunch: This cereal is unhinged. It is 44.4% sugar while ripping the roof of your mouth to absolute shreds. Cap’n Crunch Lawyer is no different - wild. This lawyer is the captain of the party life and is on a collision course with their career, but we adore them and really want them to get help. But they might also be the lawyer who is super sweet to your face while simultaneously ruining your life. Either way, do your ethical duties, and then steer clear.

5. Cheerios: We tend to eat Cheerios when we’re babies and without

3. Grape Nuts: If your first thought when you think of Grape Nuts is, “Do they even still make those anymore?!” then you’re also thinking of Grape Nuts Lawyer. They’ve been around a long time. They’ve seen lawyers come and go. They’re selfdeprecating, respectable, genteel members of society, albeit perhaps a touch eccentric, and new lawyers just aren’t made like ’em nowadays. And if you start digging into their past, just like the 1897 cereal, there’s some hot gossip in their origin stories.2

2. Lucky Charms:3 Lucky Charms stay grounded with a puffy oat foundation, all the while believing in the wonder of diamonds, leprechaun hats, rainbows, balloons, and celestial wonders. They’re magically delicious. Well, Lucky Charm Lawyers fortify themselves with vitamins and minerals but also have a lucky accessory that is required every time they walk into the courtroom. They balance their financial accounts and have life insurance, but they also know a lot about Mercury in Retrograde and sports superstitions.

1. Steel Cut Oats: Honey, this lawyer is your one-stop shop. Keep them on hand. This lawyer may not have pizazz, but much like oatmeal’s culinary range (meal-prepping healthy overnight oats, giving a delicious cookie some extra oomph, and holding moisture in Granny’s meatloaf), Oatmeal Lawyer can take any case on any day and get through it. Might not always be pretty, recognized, or appreciated, but super food equals super lawyer.

So, who do you know on this list?

1 It’s my favorite, it isn’t dense in fiber (so a person would have a better chance of actually getting through the entire box), it’s fortified with vitamins and minerals (good marketing ploy to get our moms to acquiesce to the purchase), and I would just have so much fun!

2 Think corporate theft and, as they were called back then, insane asylums.

3 I know you didn’t think this list wouldn’t contain history’s greatest cereal, did you? It’s basically the nectar of the gods.

PRO BONO SPOTLIGHT

By: Caitlin A. Torney Director of Pro Bono Legal Aid of East Tennessee

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

JUSTICE IN FOCUS: APRIL VETERANS’ LEGAL ADVICE CLINIC

In 2024, the Veterans’ Legal Advice Clinic switched to a bimonthly schedule. This has led to consistently larger client turnout at each clinic, and we could definitely use more attorney volunteers to help us meet the increased demand for legal advice at each clinic! In April, we served 16 veterans over a two-hour span with four attorney volunteers in person. Clients came in to ask for help with contract disputes, with questions about estate planning, for help reviewing pro se litigation filings, to address custody concerns, and we even got an interesting question about the application of the castle doctrine to civil claims. Law students from both LMU Duncan School of Law and UT College of Law attended to help with intake and remarked that they really enjoyed the chance to listen in as local attorneys advised clients. The next clinic will be held on Wednesday June 12th starting at Noon at the Public Defender’s Community Law Office on Liberty Street. I hope to see you there!

Attorney

Upcoming Clinic Opportunities

Debt Relief Clinic: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Signup via the KBA website.

• Saturday, May 4 9:00 AM – Noon

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

• NOTE: The clinic will be held bimonthly in 2024. • Wednesday, June 12 Noon – 2:00 PM. • Wednesday, August 14 Noon – 2:00 PM

Virtual Pro Se Name Change Clinic: Zoom. Thursday July 11th, 4:30PM-6:00PM.

Second Chance Initiative: Please keep an eye out for an in person expungement clinic sometime in July or early August. Training will be offered in advance.

LAET Attorneys Rebecca Spicer-Keller and Clint Wren work the check-in table.

Attorney John Rosson and UT law student Devon Rogers meet with a client.

James Wagner meets with Mr. Howard Jenkins. Mr. Jenkins is a regular attendee at our clinics and always has great questions about the legal system!

Attorney and Barristers President Chuck Sharrett is a regular volunteer at the clinic.

LEGAL LIBATIONS: KNOXVILLE BREW REVIEW

By: Parker Bohne

LMU Duncan School of Law

J.D. Candidate, 2026

PRETENTIOUS BEER CO.

Pretentious Beer Co. is a brewery like no other. The Beer Co. is only half of the heart of the operation; the other half is Pretentious Glass Co. Pretentious Beer Co. is the brainchild of a glass artist who decided to open a brewery, and the resulting experience is entirely unique and one that can only be found at 131 S. Central Street in the heart of Knoxville’s Old City.

The Atmosphere

When you enter the front taproom of Pretentious Beer Co., you’re immediately greeted by a smiling face. The ambiance feels homey, almost as if you’ve wandered into a friend’s personal workshop. The brewery’s design is welcoming, with many whimsical, colorful decorations and an arcade game tucked in the corner, adding to the relaxed vibe. In juxtaposition from the colors and warmth of the taproom, there is a long line of large, metal kettles where the brewing magic happens, with a wooden bar top running alongside them. It almost feels as if you get to be a part of that magic when you’re sitting next to the kettle itself, sipping on the same beer it produces.

Venturing through the back door reveals a wonderland of murals and a variety of seating options, further enhancing the cozy feel. The patio, completely covered to shield patrons from the elements, is equipped for any season with large overhead heaters for chilly nights and industrial fans for hot days. This thoughtful setup ensures that guests can enjoy their time comfortably year-round, making it a popular spot for both locals and visitors.

Now, what truly sets Pretentious Beer Co. apart from other breweries is the glassblowing studio next door: Pretentious Glass Co. At Pretentious, visitors have the unique experience of enjoying a beer brewed in-house from a glass also created in-house. All of the glasses used by the Beer Co. are handcrafted next door and specifically designed to complement the various brews offered to achieve maximum flavor profiles.

From the back patio at the Beer Co., visitors can take their beers next door to visit the

Glass Co. There, a long, wooden bar top with stools provides a front-row seat to watch the magic happen as the glassblowing masters manipulate molten-hot glass into beautiful creations of art – all while never missing a sip of that delicious beer from the Beer Co.

The Brews

Like the works of art created in the Glass Co., the Beer Co. specializes in creativity, featuring lagers, IPAs, porters, sours, and seltzers. The brewery’s selection has something for everybody, whether you’re wanting all the hops or you’re looking for something light and crisp, rich and decadent, or fruity and refreshing. The friendly faces behind the bar are always available to help find the perfect choice for guests. No matter what you choose, the dedication of the Beer Co. to its craft is evident in the effortless combinations of flavors, and the specially crafted glasses from the Glass Co. further amplify the flavors and experiences of each sip.

The Food

Though Pretentious offers no food menu of its own, it is conveniently located in the heart of Knoxville’s ever-growing Old City. The brewery is only a short walk (in some cases, only a few steps) from several top-notch eateries like Southern Grit, Kaizen, Fin-Two, Stir, and many, many more.

BENCH AND BAR IN THE NEWS

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

KBA MEMBERSHIP RENEWAL

KBA is successful wholly because of your support and involvement. If you’ve already renewed, thank you! If you haven’t yet, there’s still time. You can renew your KBA Membership by clicking on “Membership Renewal” within your myKBA profile. It is the last item listed under your name. We encourage you to pay online and update your profile. To see which committees and sections you are affiliated with, click on the “My E-Communities” tab under your myKBA profile. We are excited about new programs, continuing education offerings, and networking opportunities on the horizon in 2024.

CASA OF EAST TENNESSEE SPRING GALA

CASA of East Tennessee will hold its Spring Gala, “Change a Child’s Story,” on Friday, May 10 at the Press Room from 6 to 9 pm. There will be live entertainment, dinner, a signature cocktail, and live and silent auctions. For more information, please contact CASA Executive Director Amy Jackson at 865.329.3399 or amy@casaofeasttn.org

KBA MEMBER SHOUT OUTS

As part of this year’s focus on celebrating our bar association’s diverse membership and exploring creative ways for members to connect, network, and experience fulfillment in the practice of law, we would like to highlight the accomplishments and contributions of KBA members who are making a difference in the legal arena and beyond. Send links to news to posts or articles, pictures, or just a blurb about what’s going on to membership@knoxbar.org.

FREE CLASSIFIEDS AVAILABLE

Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

LEGAL HISTORY VIDEOS AVAILABLE

In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. Interviews of Tim Priest, Bob Pryor, and Charles Swanson have been recently added. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE:

• North Knoxville, right off I-640/275. Part of a larger office with an established attorney. Free Parking and Internet, access to Kitchen and Conference room. Separate entrance. Excellent set-up for a new attorney. $500 per month. Contact Daniel Kidd, dan@ danielkiddlawoffice.com.

• First class furnished individual offices for rent on the 19th floor

right off the elevator in First Horizon Plaza, 800 S. Gay Street. Please contact Lance Baker at 865-310-0997 for further details if you are interested.

• Downtown Office Space for Rent - Large corner office with a view of downtown. Located in the First Horizon Building. $900 monthly. Inquiries can be sent to jfanduzz@gmail.com.

Address Changes

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

John L. Billings

BPR #: 025268

The Law Office of John L. Billings

4617 Chambliss Ave.

Knoxville, TN 37919-5119

Ph: (865) 801-1755

billings2120@gmail.com

Shauna B. Collins

BPR #: 027114

Smoky Mountain Legacy Partners

9041 Executive Park Dr., Suite 250

Knoxville, TN 37923-4657

Ph: (865) 465-8014

shauna@smokylegacy.com

Alexis Greene

BPR #: 041255

Lavelle Law Firm

800 S. Gay St., Suite 751

Knoxville, TN 37929-9729

Ph: (800) 745-4878

alexisgreene@sandiego.edu

Ryan Price

BPR #: 039688

494 Oakland Rd.

Sweetwater, TN 37874-1750

Ph: (815) 258-9810

price.ryan.dale@gmail.com

Adam Strachn

BPR #: 033915

Strachn Law, PLLC

11124 Kingston Pike, Suite 119-317

Knoxville, TN 37934-2863

Ph: (865) 419-0747

adam@strachnlaw.com

Kasey A. Wasson

BPR #: 038640

Lincoln Memorial UniversityDuncan School of Law

601 W. Summit Hill Drive

Knoxville, TN 37902-2011

Ph: (865) 545-5300

kaseywassonlaw@gmail.com

WELCOME NEW MEMBERS

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

NEW ATTORNEYS

Richard L. Gaines

Corbin H. Payne McClanahan & Winston, P.C.

Justin B. Stivers Stivers Wealth Management

NEW LAW STUDENT MEMBERS

Samantha J. Brooks

David Forrest

By: John Brock Brock Shipe Klenk, PLC

A GENTLEMAN IN MOSCOW,

BY AMOR TOWLES

After all, what can a first impression tell us about someone we’ve just met for a minute in the lobby of a hotel? For that matter, what can a first impression tell us about anyone? Why, no more than a chord can tell us about Beethoven, or a brushstroke about Botticelli. By their very nature, human beings are so capricious, so complex, so delightfully contradictory, that they deserve not only our consideration, but our reconsideration – and our unwavering determination to withhold our opinion until we have engaged with them in every possible setting at every possible hour.

Our story begins in Moscow. It’s 1922. The Bolshevik revolution is approaching its fifth year, the systematic extermination of the bourgeoisie is well underway, and Count Alezander Ilyich Rostov, recipient of the Order of Saint Andrew, member of the Jockey Club, Master of the Hunt, is on trial before the Emergency Committee of the People’s Commissariat for Internal Affairs. The Count appears to be headed to the firing squad, but thanks to the attribution of a poem considered a prerevolutionary call to action, he is placed under permanent house arrest at his residence, the Hotel Metropol in Moscow. Rostov is warned, however, that should he ever step foot outside the hotel again, he will be shot on site.

Thus begins the decades-long journey of a life to be lived within the confines of Moscow’s finest hotel. The reader’s initial inclination may be to envy the Count – having had reason to regularly travel this past winter, I grew accustomed to the comforts and conveniences of hotel living – but for Rostov, it is the intent of the Party that his life become significantly diminished. Instead of the spacious suite that previously served as his residence, he is assigned new quarters consisting of one hundred square feet of attic space. (“So, this is their game, thought the Count.”) Hurriedly, he must winnow-down “some of the finest of the Rostovs’ furniture,” while the rest will become “the property of the people.”

The Count, however, despite his privileged life, is accustomed to loss. We learn his parents died of cholera when he was 10, and during his generation, Russia had suffered a world war, civil war, famines, and now class warfare – “an era of upheaval that had spared none.” Four years prior, upon learning of the Tsar’s execution, Rostov had left Paris to close the family estate and evacuate his grandmother, the Countess. As a child, the Countess taught him to never give his adversaries the satisfaction of knowing they’ve bested you, so once the painful culling had been made, “the Count looked once more at what heirlooms remained and then expunged them from his heartache forever.”

Such practical family wisdom had also taught Rostov that “adversity presents itself in many forms; and that, if a man does not master his circumstances, then he is bound to be mastered by them.” So, facing a life of confinement, the Count determines to master his circumstances by living in the moment of simple practices and pleasures. With the aid of a treasure the Count has managed to hide, Rostov undertakes a routine of fine dining at the hotel’s Boyarsky restaurant, a weekly trim at Yaroslav’s hotel barbershop, and mille-feuille from

Filippov’s bakery.

However, “[w]ith so little to do and all the time in the world to do it, the Count’s peace of mind continued to be threatened by a sense of ennui –that dreaded mire of the human emotions.” Despair over his increasing anonymity and even suicide creep into his thoughts. Plans are made and affairs are put into order. Ultimately, we find the Count “climbing to the roof of the Metropol Hotel in his finest jacket and gamely approaching its parapet in order to throw himself into the street below.”

Fortunately for the Count, “for the virtuous who have lost their way, the Fates often provide a guide.” In the case of Ilyich Rostov, such guides come in the form of an unexpected friendship, love, a family, loyal comrades, and a new career. Ultimately, it’s not a solitary routine of luxurious living, but complicated and unpredictable relationships that prove to be most satisfying. Says the Count:

I’ll tell you what is convenient …. To sleep until noon and have someone bring you your breakfast on a tray. To cancel an appointment at the very last minute. To keep a carriage waiting at the door of one party, so that on a moment’s notice it can whisk you away to another. To sidestep marriage in your youth and put off having children altogether. These are the greatest of conveniences, Anushka – and at one time, I had them all. But in the end, it has been the inconveniences that have mattered to me most.

Reading of these “inconveniences” is immensely enjoyable, and wise observations appear throughout. The man-made disasters caused by the Bolsheviks and war are not forgotten but are contrasted against the Count’s full life, one forged out of a refusal to be mastered by his circumstances.

A lawyer’s life can be lonely. There are many hard hours spent alone, contemplating the complexities of your client’s case and laboriously researching and drafting the brief or contract. Like the Count, those in our profession can experience the “dreaded mire” of ennui, while viewed by many as most unsympathetic characters.

But the Count does not intend to be sympathetic, but rather admired. We, too, can master our circumstances, remembering that “Fate would not have the reputation it has if it simply did what it seemed it would do,” and choosing to give others our full consideration and reconsideration.

Editors’ Note:

As many of you likely have already heard, one of DICTA’s long-time contributors, Jack H. (Nick) McCall, Jr. passed away in April. From 2007 to January 2021, Nick’s Last Word column owned the final page of every issue, making sure our readers did, in fact, read all the way to the end. After he retired his column, Nick continued to serve—coordinating our Well Read column and serving as a guest columnist (without too much arm-twisting). If you ever had 5 minutes to get Nick’s “random thoughts” on literally anything, it was 5 minutes well-spent. We will miss him terribly, and we thought it only fitting to re-print his final Last Word. After all, could anyone other than Nick McCall tell Nick McCall’s story? Rest in peace, friend.

Q: Nick, what are your “last words” for the KBA’s readers as you end this column?

A: Jack H. (Nick) McCall

“You never really understand a person until you consider things from his point of view—until you climb into his skin and walk around in it.” --Atticus Finch to Scout, To Kill a Mockingbird

If anyone wondered how this DICTA column began: like so many things, it started with a phone call. In this case, that was a call from Marsha, mid-December 2007, that went like this: “Nick, Don Paine has an idea for a new DICTA column. He’s read columns in several bars’ magazines that makes him think that we need a closing column in DICTA. Don and I think you’d be a great candidate to write it. Don suggested we call it ‘The Last Word.’ ”

Silence for a moment. (Flattery just might get you somewhere, especially if you happen to be Marsha Watson, and even more so if the “flatteree” is me.)

Nick to Marsha: “Sounds like it might be fun. When do you want me to start?”

Marsha to Nick: “We need a column in two or three weeks—your first column will be in the February 2008 issue.” [Gulp.] “But, I’ve got an idea for someone who you can interview…how do you feel about contacting the KBA’s most far-flung member, a lawyer in Canada?”

And, with that, the “Last Word” was off and running. I never suspected then that this column would have run for so many issues, or be as popular as it has been with many DICTA readers. But, first and foremost, credit must go to Marsha and to my late mentor, occasional coauthor, and friend, Don.

My primary philosophy behind choosing topics or interviewees? I arrived at a cross of what one would get if the folksy interviews of the famed CBS TV correspondent Charles Kuralt meshed with Studs Terkel’s way of getting people to sound in his writings as if they were actually

speaking directly to the reader, in their own voice and idiom—with, of course, a legal “flavor” to the proceedings. As I reviewed my master list of all of the “Last Words,” about half of them were the fruits of my interviewing the subject of a particular article. The other half or so were where I suggested a topic to a prospective subject who had responded: “How about my writing it and sending it to you?” The latter was certainly much easier for me, but the former approach tended to better capture the individual voices, styles and mannerisms of those interviewees.

While many were legally themed, my general aim was to kind of reach up and beyond, or outside, our usual daily work lives to capture something different or unique—something that, as Arsenio Hall said, makes you go “Hmmmm”--about one of our colleagues or a particular topic. Hopefully, the columns usually succeeded in achieving that goal.

A favorite Last Word? Oh, that is too hard; there are so many to choose from! Between raccoon whisperers, elephant wranglers, klezmer musicians, athletic heroes and sports fans, entrepreneurial and charitablyminded colleagues, learned and insightful judges, speed racers, world globetrotters, iguana catchers, and a plethora of others…for me to be selective feels like I am shortchanging one of my children.

Judge Wimberly’s photos—only a few of which could be published within DICTA’s space constraints—ranged from breathtaking, to funny, to: “What on earth was up with that?” (E.g., March 2014’s DICTA: one look at his photo of a young woman dressed up a la “Alice in Wonderland,” playing croquet with a bowling ball, and you’ll see what I mean.) But, the “Last Word” tribute to Don Paine, not long after his death in fall 2013, remains most poignant. After all, Donnie was, in many ways, truly the godfather of this column.

I leave you for now with four random thoughts.

Abide by the truth. Forget Pontius Pilate’s cynical words: “The truth? What is the truth?” I am committed to an abiding belief that most lawyers seek the truth and want to get at the truth. How we do that in this profession is admittedly imperfect. Yet, we live in a society--and, perhaps, a world at large—where finding and defending the truth once we have assayed and established it, is increasingly, seemingly, as rare as hen’s teeth. In such times, lawyers’ commitments to standards of integrity and process, and striving to find and establish the truth, are essential. If we desire to maintain a civil society and the democratic republic that we have known under our Constitution, it falls squarely on the members of our profession to stand firm and abide by those precepts. If not us, then who?

Be kind to each other, and to yourself. While this may be self-explanatory, let me add: we can be tough professionals, zealously representing our clients, without being jerks. We can try to “put ourselves in the other fellow’s moccasins” once in awhile. Sometimes, it is not at all unprofessional to ask your adversary out for coffee or lunch.

THE LAST WORD

By: Jack H. (Nick) McCall

Permitting ourselves kindness and respect, even in the midst of legal strife, is not only something we should do as far as visualizing what our opposing counsel may face. We can—and must—afford the same opportunity to ourselves. Let me elaborate. We need to take the time to afford ourselves the chance to permit ourselves a little bit of humanity. Even hard-charging lawyers need the fresh perspective of “R&R” time. It has taken me some years to recognize that need in my own self, and to acknowledge that it is not weakness or laziness to go with that need. For more on that…

Always take your lunch time. This may sound odd (one can hear Gordon Gekko from Wall Street snarling: “Lunch? Lunch is for wimps!”), but for those of us who drive ourselves hard, we need nutrition. We need time to process and “de-program” from the daily demands of law practice. Lunch can be a very good way to do those things. If you don’t eat lunch, that’s okay: taking lunchtime for exercise, a good walk or yoga break, or anything that can give you a mental change of space/change of pace can also do the trick.

After almost thirty years of practice, I cherish the time I can take at midday to “recharge my batteries.” Taking that lunch break is what usually works for me. Besides, per the late, great, Bob Bailey: “I often tell young lawyers that they should always take the time to each lunch out of the office. It just might be the only good thing that you can count on happening during your day.”

Last, cherish your legal friendships. As a lawyer whose work has tended to focus on some esoteric practice areas—federal securities

and state Blue Sky laws; REITs; franchising law; e-commerce; medical imaging; and federal procurement laws— practice can be somewhat isolating and insular. It is no exaggeration to say that the friendships I have made through bar activities and the KBA have helped me not only feel grounded as a professional, those are among the very best and most fulfilling friendships I have had over almost sixty years of life. “The Last Word” has also helped me make quite a few new friendships, and helped cultivate existing ones, too.

Beyond those sentiments lie intrinsically important thoughts for us as members of a shared, hard-learned range of skills, talents, and ways of thinking and acting. “We must indeed all hang together,” as Ben Franklin said in 1776, “or most assuredly, we shall all hang separately.” In a world where law, the rule of law, and the legal system are under attack, those words may seem to have a powerful and renewed resonance to many of us in this profession. As Bob Ritchie once eloquently opined, we are all brothers and sisters before the bar. “We are but warriors for the workingday,” Shakespeare wrote.1

My immense thanks to Marsha and Don for their brainstorm in fall 2007 that led to this column. Thank you, too, for allowing me to share a host of stories, memories, and adventures of our fellow lawyers with you over the last twelve years. I hope that you have enjoyed these articles and colleagues’ insights and adventures as much as I have enjoyed bringing them to you.

1 William Shakespeare, Henry V, act 4, sc. 3.