the magazine of the Memphis Bar Association
Vol. 33, Issue 5
THIS ISSUE:
What Freedom Means to Me Welcome to the Jungle: Comfort Animals in the Courthouse
St. Jude and Team MBA
What the FLSA? How to Prepare Your Clients For December 1, 2016
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Volume 33, Issue 5
FEATURES 8
What Freedom Means to Me
10
What the FLSA? How to Prepare Your Clients For December 1, 2016
12
Welcome to the Jungle: Comfort Animals in the Courthouse
14
10 Common Ways that Lawyers Harm Their Non-Citizen Clients
20
Tips for Using Microsoft Word – Using Fields
26
St. Jude and Team MBA
BY ALEX SAHAROVICH BY COURTNEY LEYES
BY KELLY PEEVYHOUSE BY ARI SAUER
BY SEAN ANTONE HUNT
BY EARLE SCHWARZ AND JARED RENFROE
COLUMNS 6
President’s Column
18
Memphis Bar Foundation: Salute to the Tennessee Supreme Court Dinner
30
CLC: With a Little Help from Our Friends
BY SHEA SISK WELLFORD
BY EMILY STOTTS
32 MALS CORNER Beyond Service: Providing Community-Based Legal
Advocacy to Veterans
BY CHRISTOPHER A. MILLER
DEPARTMENTS 9
Memphis Bar Happenings
24
Circuit Court Report
22
Criminal Court Report
34
People in the News
38
Classified Advertisements
BY STEPHEN LEFFLER
BY DEAN DECANDIA
3
MEMPHIS LAWYER
2016 MBA Officers
the magazine of the Memphis Bar Association
MBA Publications Committee Stephen R. Leffler, Chair Karen Campbell Dean DeCandia Nicole Grida Sean Hunt Laura Martin Gigi Gaerig McGown Harrison McIver Jared Renfroe Ellen Vergos Mary Wagner Mason Wilson
Shea Sisk Wellford President
Dean DeCandia Vice President
Earle Schwarz
Secretary/Treasurer
Thomas L. Parker Past President
2016 Board of Directors Mike Adams Jeremy Alpert Megan Arthur Lara Butler Betsy Chance Annie Christoff Jennifer Hagerman Doug Halijan Jonathan Hancock Maureen Holland Earl Houston Carrie Kerley Andre Mathis
Gigi Gaerig McGown Asia Diggs Meador Elijah Noel, Jr. Lisa Overall Jill Steinberg Section Representatives Imad Abdullah Stuart Canale Maggie Cooper Anne Davis Sean Hunt Toni Parker
ABA Delgate Danny Van Horn AWA Representative Jodi Runger NBA Representative Felisa Cox Law School Representative Elizabeth Rudolph YLD President Jonathan May
MBA STAFF
The Memphis Lawyer is a publication of the Memphis Bar Association, Inc. that publishes six times each year. The publication has a circulation of 2,200. If you are interested in submitting an article for publication or advertising in an upcoming issue, contact Anne Fritz at 527.3575; afritz@memphisbar.org The MBA reserves the right to reject any advertisement or article submitted for publication.
Anne Fritz
Executive Director
The Memphis Bar Association 145 Court Ave. Suite 301 Memphis, TN 38103 Phone: (901) 527-3573 Fax: (901) 527-3582
www.memphisbar.org
4
Lesia Beach
CLE/Sections Director
Charlotte Gean
Executive Assistant/ Membership Coordinator
Katherine Newsom Communications and Membership Director
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PRESIDENT'S COLUMN by SHEA SISK WELLFORD
NO MATTER HOW MANY ATTORNEYS ARE IN THE ROOM, I’LL NEVER THINK OF YOU AS A FRAGRANT GOAT On September 1, 2016, 148 attorneys and their guests gathered in Destin, Florida for the Bench Bar Conference, which spanned three days and provided attendees the opportunity to obtain all of their CLE for the year while enjoying the beach. More importantly, it gave the attorneys and judges in attendance the opportunity to spend time together in CLE sessions and during planned (fun run, football watch party, beach volleyball, judicial dine around) and unplanned social activities.
I received a lot of feedback and comments about the conference. Some came from older attorneys and longtime judges and others from newer members of the bar. Two themes were repeated in many of those conversations – collegiality and professionalism. Specifically, judges and practitioners alike expressed how the Bench Bar Conference benefitted them by allowing them to get to know each other, which in turn helps foster the collegiality and professionalism that is a hallmark of the Memphis bar. The Judges especially emphasized the conference as a unique opportunity for 6
them to get to know those appearing in their Courts. A number of participants also expressed concerns about the nationwide decline in participation in bar association activities that bring us together as a legal community. Your bar association has not escaped this trend. Many reasons are given for the decline -that millennials are not “joiners,” that the pressures of practicing today are too great and demanding to dedicate time to bar activities, that some attorneys view the practice of a law as merely a job and not a profession, and that some attorneys do not want to spend their free time with other attorneys (this last reason baffles me, as I always look forward to spending time with my fellow attorneys). I do not know if any of these are valid or are the moving force behind the trend, but I do know that getting lawyers away from their desks is an age old problem. In his Epistle 1.5, Horace wrote to his friend Torquatus, an attorney, inviting him to dinner. He practically begs his attorney friend to come spend an evening with him, saying
Forget ambition and the making of still more money, forget Your famous clients: tomorrow is Caesar’s birthday, Everyone’s allowed to relax and to sleep. . . . Bring anyone you like, I have room Though too many guests can turn into fragrant goats.
in the bar – and to you I want to send a version of Horace’s invitation. While Horace implores Torquatus to leave law and lawyers to have dinner with him, I would implore you to leave your law practice for just a bit and spend some time with your fellow lawyers. Take one hour – perhaps two – a month to spend on bar association work or at a bar association events. I wager that you will be surprised at the benefit to you both personally and professionally.
Write me, tell me how many, then leave law and lawyers – And escape from that client, waiting to ambush you out in the hall! Some of you may be dismissive of the importance of spending time with your colleagues
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7
What FREEDOM Means to Me By ALEX SAHAROVICH
I
was born in Bucharest, Romania in 1960. At the time, Romania was governed by an oppressive Communist regime. Romanians didn’t have the right to protest or the freedom to speak publicly against the Communist party. Further, communism didn’t favor religion, so my parents weren’t able to practice Judaism for fear of losing their jobs. Economic conditions were bad and I remember my father having to sit in long lines, sometimes for over 2 hours, to buy fresh fruit. In Romania, my dad was a lawyer and my mom was a chemist. As a result of the communist regime, systemic religious persecution, and terrible economic conditions, my parents made the courageous decision to apply to immigrate to the United States. The moment that they applied to immigrate, both of my parents lost their jobs in Romania. After a difficult period, my family was allowed to leave Romania and go to Italy, where we lived in an immigration housing development waiting for visa to come to the United States. After six months in Italy, we received the visa. I was 12 years old and my brother was 8. We immigrated to Memphis where we began our new lives despite the fact that we knew very little English. The beginning was difficult but my parents worked very hard and did everything possible to shield us from the fears of moving to a new country. My parents would go to English classes in the evening so that they could learn to communicate with their peers. In addition, they had to learn about the monetary system and about checking and savings accounts. Although everything was different in our new home, we were fortunate that nice neighbors helped my parents learn about the American way of life during those early years. In fact, my parents still live in Memphis to this day and have remained friends with many people who helped make the adjustment to American life possible. After a few weeks in America, I started Snowden Junior High School where I began to learn to speak 8
English. In the first year, I remember feeling different from my classmates particularly in the way that I dressed and because of my accent. I remember coming home and telling my parents that I felt like we had moved to a new planet. I would study the dictionary and the thesaurus at night. Also, I started listening every night to St. Louis Cardinals' baseball on the radio which helped with my vocabulary. Slowly I made friends at school and really started appreciating the freedoms that this country offers. I was able to experience a Jewish summer camp where I learned about Judaism and its traditions. I also marveled at the freedom of the press and the ability of journalists to express their opinions. I attended high school at White Station High School and worked very hard to integrate in American society. One of the happiest days of my life was when I became a United States Citizen in 1977. I remember studying for the test and beaming with pride once I was told that I had passed and become a citizen. After high school, I attended Northwestern University where I felt I wanted to do my best to succeed since I owed a deep sense of gratitude to my parents for making the difficult journey. After graduating law school from University of Tennessee, I worked in a law firm and in 1990 started our law firm. I am proud that our firm has grown from 3 lawyers to 33 lawyers and over 120 employees. I am very grateful to America and I love this country. I have had the opportunity to travel abroad on numerous occasions but I always come back thinking that America is the best country in the world because it allows people from diverse backgrounds to work hard, follow their dreams, and live in free democratic society. t Alex Saharovich is a Founding Member and Managing Member of Nahon, Saharovich and Trotz, a regional plaintiff personal injury law firm.
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October 19 Legal Clinic Boot Camp October 20 John Dice Seminar
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9
What the FLSA? How to Prepare Your Clients For December 1, 2016 By COURTNEY LEYES
U
nless you’ve been living under a rock this year, you are aware that the Department of Labor has revised the regulations pertaining to what are called the “white collar exemptions” under the Fair Labor Standards Act (the “FLSA”). These new regulations become effective December 1, 2016. For those of us who regularly practice wage and hour law, we anticipated much worse than what the DOL proposed and approved. Simply put, the DOL’s new regulations impact the “salary basis test” portion of the exemptions. (NOTE: There are other changes but this article only will address these new provisions). Currently, to be exempt from the overtime provisions of the FLSA, an employee must be paid at least $455 per week on a salary basis and meet the specific duties under one or more of the white collar exemptions – the executive, the administrative, the professional, computer and/or outside sales exemptions. In short, a “salary basis” means that the employee makes that salary no matter how much or how little that employee works, subject to few exceptions under the regulations. For those of us wage and hour gurus, we also believed the DOL would change the duties portion as well. For now, the DOL has left that alone.
As of December 1, 2016, to be exempt from the overtime provisions of the FLSA, an employee must be paid at least $913 per week on a salary basis (or $47,476 annually) and meet the specific duties under one or more of the white collar exemptions. Employers can use nondiscretionary bonuses (these would not be discretionary holiday bonuses, for example) and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level. But I am sure you know all of this. The real question is, now what? What should we do to assist our clients to come into compliance by December 1? Look no further, because below I will provide you with a stepby-step self-audit either you or your client (or your law school buddy who happens to specialize in labor and 10
employment law, hint hint) can do to ensure compliance with the new regulations.
1. PULL YOUR CLIENT’S CURRENT EMPLOYEE PAY DATA. This is the obvious first step. You will want your client to pull a current employee list with their titles, names, and annual salary, and classification (whether they are considered exempt or nonexempt from the FLSA). Remember, an employee can still be salaried nonexempt from the FLSA. Also, if your client has a workforce that includes exempt employees who are paid commissions and/or incentive payments, make sure those amounts are included in this analysis, but are separated from the base salaries.
2. REVIEW THIS DATA TO FIND TWO TYPES OF EMPLOYEES. In analyzing this data, you will want to identify two types of employees. The first set will be the employees who are salaried, exempt, and who are making around that magic $47,500 number. The second set will be the employees who are also salaried, nonexempt, but are making below $47,500.
the number of hours worked (50). Then, you would multiple the regular rate ($10) by the number of hours worked over 40 (10) to obtain the overtime pay of $50. Therefore, in that example, you would pay that employee $550 for that week. Again, these are just a couple of options for your clients. You will want to explore these and other exemptions under the FLSA to meet your client’s particular industry and needs.
3. USE THIS AUDIT AS AN EXCUSE TO LIKEWISE REVIEW THE EXEMPT EMPLOYEES’ DUTIES.
5. RE-TRAIN ON TIMEKEEPING POLICIES, PRACTICES, AND PROCEDURES.
For those employees who are hovering around that $47,500, whose salaries will be bumped up to that $47,500 salary, now is the time to reevaluate their duties to ensure they meet one of the white collar exemptions. Just because your client has always treated them as exempt under the FLSA does not necessarily mean that these employees perform exempt duties.
This would also be a good time to re-train your client’s workforce on its timekeeping policies, practices, and procedures, especially if your client will be converting a large percentage of its currently exempt workforce to nonexempt, which will require them to keep track of these nonexempt employees’ time per the FLSA.
4. GET CREATIVE.
You can always contact one of your pals from law school who specialize in wage and hour work. t
For those currently exempt employees whose salaries fall significantly below the $47,500 threshold (this would also include those employees whose total compensation take into account up to ten percent of nondiscretionary bonuses, commissions, and incentive payments), you will need to get creative here, as your client has many options. A couple of ideas – First, you can back your way into a regular hourly rate, that when calculated by the number of hours worked (plus number of overtime hours at time-and-one-half ) in a work week, that employee is making roughly the same amount when they were salaried, exempt. Another idea is to subject these employees to what is called a “fluctuating work week,” which would require your client to have these employees sign an acknowledgment, acknowledging that their salaries are meant to compensate them for all hours worked in a work week. Then, for any hours worked in a particular work week over 40, those employees would be paid an overtime rate at half their regular rate for that week. To illustrate this concept, take an employee who makes a weekly salary of $500. This employee works 50 hours during one work week. To obtain the regular rate, you would divide $500 by
6. ANY QUESTIONS?
11
Welcome to the Jungle: Comfort Animals in the Courthouse by KELLY PEEVYHOUSE
A
recent trend in the law has seen the admission of comfort animals to courtrooms across America to aid in the testimony of certain witnesses. The trend has made its way to Tennessee where two different courtrooms have recently considered whether or not the presence of these animals is appropriate. Although animals in the courtroom may seem outlandish, in reality, the use of these animals has been very limited. To date, comfort animals have only been allowed in Tennessee courts where children have been asked to take the stand. And when it comes to child witnesses, the use of support animals is not a far cry from typical procedures. Historically, courtrooms have been given a good deal of discretion to allow special accommodations for child witnesses. Both Federal and Tennessee State laws allow child witnesses to be accompanied to the witness stand by support items (such as blankets or teddy bears) or even support persons (such as parents or guardians)1. For a period of time, child witnesses were even given the opportunity to testify in a room separate from the defendant via closed circuit television until concerns were raised about the impact of such a procedure on the Confrontation Clause.2 Taking a bold step in support of the use of support animals for child witnesses, Tennessee has recently amended its Juvenile Procedure Rules to explicitly allow for the presence of these animals as testimonial aids.3 In May of this year the Court of Criminal Appeals upheld the decision of a trial court in DeKalb County to allow a trained facility dog to be present in the courtroom.4 The case centered on the alleged rape of a 12
child and the trial court allowed the presence of the dog during the testimony of the victim - who was 10 years old at the time of trial. The dog – who belonged to the Child Advocacy Center who worked with the victim prior to trial – was trained to sit quietly in the courtroom and gently nuzzle the child when it sensed the child was anxious or stressed. The defense objected to the use of the animal in the courtroom, claiming that the dog’s mere presence, not to mention its nuzzling behavior would be overly prejudicial to the defendant by evoking sympathy from the jury and a presumption that the witness is telling the truth. In upholding the decision, the Criminal Court of Appeals admitted that, “[w]hile the cases involving the use of a facility dog during a trial are not plentiful, it is clear that the evolving law permits their use.”5 In reaching this decision, Tennessee cited cases in a number of other jurisdictions that have held the presence of these animals justified where a child witness was involved and where certain procedural safeguards were set in place.6 The court ultimately determined that although the animal’s presence could evoke sympathy in the jury, it would likely not be more than the sympathy naturally evoked by the sight of a scared child on the witness stand. The question now is how far this legal reasoning will go to opening the courtroom to other kinds of comfort animals. Just last month a Criminal Court Judge in Cookeville rejected the motion of a female defendant up on drug charges to bring her comfort monkey into court with her.7 Rejecting the Defendant’s arguments that the American Disability Act protects comfort animals
5
Id. at *11.
6
People v. Chenault, 227 Cal. App. 4th 1503 (Cal. Ct. App. 2014); People v. Tohom, 109 A.D.3d 253 (N.Y. App. Div. 2013); State v. Dye, 309 P.3d 1192 (Wash. 2013).
7
Tracey Hackett, Judge Says No Monkey Business in Courtroom, Herald-Citizen (Aug. 25, 2016), http://herald-citizen.com/stories/ judge-denies-motion-for-monkey-in-the-courtroom,16919.
8
See Americans with Disabilities Act, 28 CFR § 35.104 (2016) (which defines a service animal as a dog to the exclusion of all other animals, both wild and domestic, and which indicates that the provision of comfort does not constitute work or tasks such as to make an animal
Not a service animal, but Lola the Bar Dog
a service animal); see also Americans with Disabilities Act, 28 CFR § 35.136 (2016) (outlining the requirements of a public entity to make accommodations for individuals with service animals).
in public spaces, Judge Gary McKenzie reasoned that he is still not required to admit all emotional support animals to his courtroom. While comfort animals may be allowed in other settings, a government agency is not required to admit them to his courtroom because they are not service animals as defined under the ADA. A service animal is defined narrowly as a dog that has been trained to perform a specific job or task.8 A comfort animal – even a registered one such as was involved in this matter – is merely an animal that provides comfort to an individual merely by bring present with a person. Because the monkey, unlike the dog in the child rape case detailed above, was not trained to behave appropriately in the confines of a courtroom, Judge McKenzie was not required to admit him. As the number of registered comfort animals in America rises, however, it is a good bet that this will not be last word on the presence of these animals in court. t 1
See Victims of Child Abuse Act of 1990, 18 U.S.C. § 3509 (2016); Tenn. R. Juv. Pro. 306 (2016).
2
enn. R. Juv. Pro. 306(c)(6)(2016) (“Upon motion of any party T or upon its own initiative and upon good cause shown based upon the best interest of the child, the court may order one or more of the following accommodations allowing the presence of a properly trained comfort animal.”).
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See Casey Holder, All Dogs Go to Court: The Impact of Court Facility Dogs as Comfort for Child Witnesses on a Defendant’s Right to A Fair Trial, 50 Houston L. Rev. 1155, 1162–63 (2013).
3
Kelly Peevyhouse is a May 2016 graduate of the University of Memphis and Memphis Law Review Alum. She is currently awaiting her TN bar results and working as a law clerk at Rice, Amundsen and Caperton, PLLC.
State v. Reyes, No. M2015-00504-CCA-R3-CD, 2016 Tenn. Crim.
ALBERT M. ALEXANDER, JR., CSSC
Senior Managing Director albert@wundernet.com wunderlichsecurities.com/settlementsolutions
Settlement Solutions
App. LEXIS 396 (Tenn. Crim. App. May 24, 2016). 13
10 COMMON WAYS that Lawyers Harm Their Non-Citizen Clients By ARI SAUER
N
o matter what area of law you practice, your clients come in all colors, shapes, and sizes. For most lawyers, your clients will also come with varying immigration statuses. Immigration status falls into several categories. The most important legal distinction is that of U.S. citizens versus non-citizens (which I will refer to as foreign nationals). All foreign nationals are subject to the laws and regulations found in the Immigration and Nationality Act (INA) and Title 8 of the Code of Federal Regulations. The INA refers to non-citizen foreign nationals as aliens. Foreign nationals usually fall within four categories: 1) Permanent Residents, commonly known as green card holders; 2) Refugees and Asylees; 3) Nonimmigrants, who hold temporary immigration status (examples of common nonimmigrant statuses include: B-1/B2 visitors; F-1 students; J-1 exchange visitors; E-2 investors; and H-1B specialty occupation workers); and 4) Individuals who are in the U.S. without status, either because they entered the U.S. without status or they violated a condition of their status. Each immigration status has its own eligibility requirements, rights and benefits, and obligations for maintaining status. The following is some common ways that lawyers fail to take into account the complexities of U.S. immigration law and their foreign national clients’ rights and obligations. 1. N ot asking your client if they are a U.S. citizen: In order to know whether any of the other items apply to your client, you first need to know whether your client is a U.S. citizen or not. Asking your client where they were born and their immigration status is a simple and helpful addition to your standard initial consultation process. Unfortunately, few lawyers ask these important questions. Immigration status can be relevant to a whole 14
host of areas of law, including, but not limited to: criminal law, family law, employment law, corporate law, and tax law. You can’t tell someone’s immigration status by how they look, how well they speak English, or the fact that they have U.S. citizen family members. Many foreign nationals speak English fluently and are completely assimilated as Americans. Therefore it’s recommended that you ask all of your clients whether they are a U.S. citizen and, if not, what their immigration status is. 2. M aking assumptions about what your foreign national clients can and cannot do in the U.S.: There are a lot of misconceptions about the U.S. immigration laws and foreign nationals that even lawyers believe. For example, if your client is in the U.S. without status, that doesn't necessarily mean they are deportable. There are a number of ways that an individual without status might be eligible for an immigration benefit or relief from deportation that provides them with status or allows them to remain in the U.S. in an authorized period of stay. Also, being married to a U.S. citizen, or having U.S. citizen children, doesn’t necessarily make a foreign national eligible to remain in the U.S. All foreign nationals have certain rights and responsibilities which differ depending on their particular immigration status. For example, foreign nationals are generally allowed to invest in and own a business in the U.S., but that doesn’t necessarily mean they are allowed to run the business while in the U.S. Whether or not a foreign national is authorized to work in the U.S. will depend on their immigration status. While some foreign nationals are’nt allowed to work in the U.S., others are required to work in a particular occupation, for a particular employer, or they will lose their immigration status. Also, foreign nationals are generally allowed to
marry and divorce in the U.S. Whether or not doing so would cause them to lose or gain eligibility for an immigration benefit will depend on their immigration status and their situation. Most of what’s considered common knowledge about our U.S. immigration laws is either completely wrong or an oversimplification of nuanced statutes and regulations. That’s why it’s helpful to build a relationship with an immigration lawyer that you trust, and turn to them with questions about your foreign national clients. 3. L etting your client plead guilty without first advising them of the immigration consequences: Criminal convictions can sometimes have a devastating effect on a foreign national and their family. Depending on the crime and the foreign national’s immigration status and criminal history, criminal convictions can result in the foreign national losing eligibility to apply for U.S. citizenship, losing the ability to travel outside the U.S., losing the ability to extend their immigration status or change to a different immigration status, and even being subject to deportation from the U.S. That’s why it’s so important that lawyers not allow their foreign national clients to plead guilty or nolo contendere to a criminal charge, even a misdemeanor, without first advising them of the consequences of the conviction on their current immigration status and eligibility for future immigration benefits. You might keep your client from spending any time in jail, but in doing so, you subject them to the possibility of being exiled from the U.S. and their family. Lawyers who allow their clients to plea without knowing the immigration consequences of the plea isn’t just a pet peeve amongst immigration lawyers. The US Supreme Court took issue with this as well. In Padilla v. Kentucky ( 253 S.W. 3d 482) the Court held that it is part of a foreign national’s Sixth Amendment right to counsel for their attorney to advise them of whether accepting the plea could subject them to being deported. Failure to do so is considered ineffective assistance of counsel. It’s the duty of the attorney to advise the foreign national, so even when the court provides a warning to your client, you still have a separate requirement to advise your client of the immigration consequences of the plea.
4. B elieving that the criminal charge is dismissed through an Order of Deferral / Judicial Diversion: An Order of Deferral or Judicial Diversion in Tennessee is considered a conviction for immigration purposes. This is because the INA has a very different definition of a “conviction”. Under INA § 101(a)(48)(A), 8 USC § 1101(a)(48)(A), a conviction occurs not only where there is a formal judgment of guilt entered by the court, but also where a judgment of guilt has been withheld, but A) a judge or jury has found the alien to be guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and B) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. In Tennessee, the process for judicial diversion is for the foreign national to enter a plea of guilty or nolo contendere and for the judge to order the foreign national to serve a period of probation and pay a fine or fees, or fulfill other requirements, before the judge dismisses the criminal charge. This meets the requirements for a conviction under the INA, and the fact that the charge is later dismissed by the court doesn’t change that fact. Although it’s no longer available in Tennessee, Pretrial Diversion, where there’s no requirement for the foreign national to enter a plea of guilty or nolo contendere, or to admit sufficient facts to warrant a finding of guilt, should not result in a conviction under immigration law. So in states where qualifying pretrial diversion is available, it’s often the preferred option. But a conviction is not always required for a criminal act to have immigration consequences, so you should be clear with your foreign national clients that having the charge dismissed doesn’t mean that it no longer exists. 5. H aving your client’s criminal charges expunged without first obtaining the records that your client will need for future immigration benefits: Which brings us to our next item. Immigration lawyers are probably the only lawyers who cringe when they hear that their client’s criminal records have been expunged. This is because the INA doesn’t make an exception for an expungement, pardon, or amnesty in the definition of a conviction. An order of expungement has no effect under 15
immigration law, and your foreign national client is still subject to the same penalties and restrictions resulting from the conviction. The charges will still show when the government runs security background checks and your client is still required to disclose the charges when applying for most immigration benefits. What the expungement order accomplishes is to make it difficult for your client to obtain the necessary court documents that they’ll need when they travel abroad and re-enter the U.S. or when they apply for other immigration benefits. That doesn't mean that you can’t obtain an expungement order for your client. It only means that you should obtain numerous certified copies of the court disposition before having the charges expunged. 6. C alling an immigration lawyer from the courthouse: Immigration lawyers often receive calls from lawyers standing in the courthouse asking if a foreign national client should accept a particular plea agreement. Immigration law is very complicated. The intersection of criminal law and immigration law is one of the more complicated areas within immigration law, and is extremely fact-specific. Before a reliable immigration lawyer can advise you and your client on how to proceed, the immigration lawyer will first need to assess the foreign national’s immigration status, their criminal history, their personal history, their current eligibility for immigration benefits, potential future immigration benefits, the full facts resulting in the criminal charge, the wording of the relevant state statutes, the potential maximum criminal penalties for the charge, and the actual penalties likely to be given for the charge. The immigration lawyer will need to discuss potential alternative deals and options with the criminal lawyer, and make an assessment for each of them, in order to help the criminal lawyer and the client make an informed decision on the best options for that particular foreign national in that particular situation. The best advice an immigration lawyer can give you when you call from the courthouse, is to tell you to get a continuance, to allow you and your client to assess the immigration consequences of pleading guilty or nolo contendere. As explained above, Padilla v. Kentucky requires this assessment as part of your client’s right to effective counsel. 16
7. N ot advising your foreign national client to talk to an immigration lawyer when they have been the victim of a crime: The U nonimmigrant status is a special immigration status for victims of qualifying crimes who have suffered substantial physical or mental abuse from the crime, and who make themselves available to assist law enforcement in the investigation and/or prosecution of the crime. Alternatively, certain victims of domestic abuse are eligible for immigration benefits under the Violence Against Women Act (VAWA). Protection under VAWA doesn’t necessarily require that the abuse be reported to the police. Therefore, when you learn that your foreign national client or their close family member has been the victim of a crime in the U.S., it’s helpful for you to refer them to talk to an immigration lawyer to determine if they would be eligible to apply for U nonimmigrant status or any other immigration benefit. Your foreign national clients are often the most vulnerable to being the victim of a crime. Their lack of citizenship, as well as negative experiences with the police and government in their home country, often makes foreign nationals afraid to report crimes and to pursue criminal charges when they are victimized. Sometimes the person of authority that they will turn to for advice is the lawyer that has helped them with legal issues in the past and who is bound by attorney-client confidentiality. This means that you may be the only person in a position to lead them toward the immigration benefit that they desperately need. 8. N ot advising your foreign national client to talk to an immigration lawyer when they are considering a change in their marital status: Many foreign nationals are in an immigration status, or are in the process of obtaining an immigration status, that’s based upon their relationship to a family member. Changes in marital status will often affect a foreign national’s current immigration status, their eligibility for future immigration benefits, or the eligibility of their spouse or children for an immigration benefit. Also, it’s common for immigration status to be raised as an issue during divorce proceedings, when one of the parties is a foreign national. Lawyers should have their foreign
national clients consult with an immigration lawyer when considering a marriage, separation, divorce or annulment. 9. N ot considering immigration consequences as a part of the due diligence for corporate restructuring: Many companies employ foreign nationals that have an immigration status that is dependent on employment with a specific employer, in a specific occupation, in a specific location. Other companies employ foreign nationals who have an immigration status that’s dependent on the continued ownership relationship between the U.S. company and their previous employer abroad. Some companies employ foreign nationals that have an immigration status that’s dependent on the company continuing to be majority-owned by nationals of a particular country. When these issues aren’t taken into consideration prior to a corporate restructuring, it can result in these employees losing their immigration status and their employment authorization.
10. Dabbling in immigration law: I want to be clear that I am not discouraging any lawyer from the practice of immigration law. If you are interested in practicing immigration law as a significant part of your practice, you should join the American Immigration Lawyers Association, find some good mentors, and put in the time and effort to become educated in the practice of immigration law. But the field of immigration law is extremely complex. If you think that immigration law is just filling out forms, and you plan on representing the occasional foreign national with their immigration case, I can guarantee you that you will eventually cause severe harm to your foreign national clients. t Ari Sauer practices immigration law with the Memphis office of the Siskind Susser law firm. Ari has served on the Board of Governors of the American Immigration Lawyers Association (AILA) since 2011, and is a Past Chair of AILA’s Mid-South Chapter. Ari can be reached at asauer@visalaw.com.
17
Memphis Bar Foundation: Salute to the Tennessee Supreme Court Dinner
O
n November 2, the Memphis Bar Foundation (MBF) – the charitable arm of the Memphis Bar Association – will host all five justices of the Tennessee Supreme Court, Chief Justice Jeffrey S. Bivins, Justice Cornelia A. Clark, Justice Holly Kirby, Justice Sharon G. Lee, and Justice Roger A. Page, at a dinner in the Grand Ballroom of the Peabody Hotel. This is the first time that all five Justices will be honored at a dinner in Memphis. Justice Holly Kirby, who was instrumental in helping to arrange this dinner, said “I am proud to bring my colleagues to my hometown, to spend some social time with Shelby County's excellent lawyers and to showcase the important work being done by the Memphis Bar Foundation. It will be a great evening!” Added Chief Justice Jeffrey Bivins, “We are so pleased to have the opportunity to attend the dinner sponsored by the Memphis Bar Foundation. The Bar Foundation does many good things for the legal profession, and we are happy to help in their efforts. We look forward to seeing everyone at the dinner." Retired Justice Janice Holder will introduce the Justices. Also at the dinner, new MBF Fellows and 2016 grant recipients will be recognized. Proceeds from the dinner will be used to support the Foundation’s grant-making activity. Since 2009, the MBF has awarded nearly $275,000 to non-profit organizations that: • Provide legal help to unaccompanied immigrant children and immigrants seeking asylum; • Pay the court costs for those eligible for expungement of their record or restoration of their citizenship rights; 18
• Assist women and young adults seeking to recover from addiction; • Offer opportunities for juveniles to turn their lives around; • Allow law students from across the country to serve the Memphis community; and • Provide training for volunteers to help children in dependency and neglect proceedings and a safe place for supervised visitation. Tickets are $80 per person; a table of 10 is $800. A cash bar will be available. The cocktail reception will begin at 5:30 pm, followed by dinner and the program at 6:30 p.m. Online registration is available at www. memphisbar.org. Sponsorships range from $500 to $5,000. If you are interested in sponsorship opportunities, please contact Barbara Zoccola (901.229.2071; barbara. zoccola@usdoj.gov) or Anne Fritz (901.527.3575; afritz@memphisbar.org). t
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Tips for Using Microsoft Word! Using Fields by SEAN ANTONE HUNT
S
ince most of us use Microsoft Word at some point, it simply makes sense to use the program to its fullest. But, most of us only use a small portion of its capabilities, not realizing what it can actually do. Automating your document is an easy way to save time with creating the document. With the right automations, most practitioners find it easier and less time-consuming to create their own documents than it is to have a secretary or assistant transcribe a dictated document – which, of course, needs to be proofread by the writer later. Below is one of the situations where you can use fields to help automate your document.
Automated Dates Most of us know how to put in the normal date into a document and some of us even know how to make it update itself each time. But, did you know that you could put in only a portion of the date or change the style in which the data shown. One example that is often used is the date in a certificate of service. Most of us are used to seeing this:
But, did you know that you could have Word put in the date, even in this format, automatically for you. The way to do it is using Fields. Here’s how. First, go to the place where you have your first underline for the “date” to go and delete the line. Then, leave space for something to go. Click on the “Insert” 20
tab and choose “Quick Parts” then choose “Field” from the drop-down menu.
When you see the Field dialog box, change the category to “Date and Time.” This will give you several options including one item that just says “Date.” More likely than not this will be the one that you want to use as this will give the current date of when you are editing the document. The other items are self-explanatory. Thus if you want to use the date when the document was created then you would use “CreateDate” or if you want to use the date that you print the document then you would use “PrintDate,” etc.
Now comes the tricky part, plays a “d” in the space under “Date formats” which is located under the section heading of “Field properties.” Then click on the button in the bottom left corner that entitled “Field Codes” for the additional options you will need. The dialog box will change and you will now see that the right section is called “Advanced field properties.” Under the item “Field codes” you will
actually see the codes used for the date that you have currently described, i.e., the calendar number of the day
of the month in single digits. But, most of us want this to show up as not just “14” but instead we wanted to show up as “14th.” So to make this happen, we need to add something to the field codes. In that option box, at the end of the line, we need to add the following “\*Ordinal” as written without the quotation marks. This is known as a “switch” and it will tell Word to change the format from just 14 to 14th. Next, go to the line where you normally put the month and the year and replace those with a field as well. Go through the same steps as you did with the day of the month, but this time, in the box where it says “Date formats" you want to put the following: “MMMM, yyyy”. You can even put the period in there as it will show up as well. This format simply tells Word to use the full word version of the name of the month rather than the number and to use a full four-digit year in numbers. It also tells punctuation as well by telling it to put a comma in between the two. There is no need for switches in this situation. Now, your certificate of service looks like the following:
Note that you can also use fields for paragraph numbering, numbering of list items, referencing various portions of your document and more. Take for example using a building block that simply puts in the following: “INTERROGATORY NO. : ” where the number that is showing is actually a field that will continue to change depending upon how many you add, giving you an automatic count. t
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COURT REPORT
THE
by DEAN DECANDIA
CRIMINAL COURT—Covers the weeks of July 18 to Sept 12, 2016 COURT
JUDGE
DIV. I
SKAHAN
VERDICT 1. STATE V. WALTER COLLINS: Trial from Jul 18 to 22. Indicted for 1st Degree Premeditated Murder. Verdict: Guilty as indicted. Prosecution: Pam Stark, Sam Winnig. Defense: Amy Mayne, Jenny Case. 2. STATE V. LEVIE ROBERTS: Trial from Aug 8 to 12. Indicted for 2d Degree Murder. Verdict: Guilty as indicted. Prosecution: Pam Stark. Defense: Joe McClusky, Bill Massey. 3. STATE V. JOVAN PONDER, GAINES RICHARDSON: Trial from Aug 15 to 18. Both defendants indicted for 2 counts of Aggravated Robbery. Verdict: Ponder found guilty of 2 counts of Facilitation: Aggravated Robbery. Richardson found guilty as indicted. Prosecution: Sam Winnig. Defense: Blake Ballin (Ponder); Mark Renken (Richardson).
DIV. II
WRIGHT
1. STATE V. ANTONIO PAVON: Trial from Aug 15 to 17. Indicted for Aggravated Sexual Battery. Hung Jury. Prosecution: Lessie Rainey. Defense: Michael Burton. 2. STATE V. JOSEPH PROFFITT: Trial from Aug 22 to 25. Indicted for 2 counts of Criminal Attempt: 2d Degree Murder, 3 counts of Aggravated Assault, 2 counts of Employment of a Firearm. Verdict: Guilty as indicted. Prosecution: Muriel Malone. Defense: Mark McDaniel. 3. STATE V. MAURICE HARRIS, JOHNNIE TRENELL: Trial from Aug 29 to Sept 1. Both defendants indicted for Criminal Attempt: 2d Degree Murder, Employment of a Firearm, Aggravated Assault-acting in concert, Felon in Possession of a Firearm. Verdict: Both defendants found not guilty. Prosecution: Bo Summers. Defense: Jeff Jones (Harris); Brett Stein (Trenell). 4. STATE V. JERRISAC MORGAN: Trial from Sept 12 to 15. Indicted for Carjacking. Verdict: Guilty of Facilitation: Carjacking. Prosecution: Dennis Johnson. Defense: Katherine Oberembt.
DIV. III
CARTER
DIV. IV
BLACKETT
NO JURY TRIALS THIS PERIOD 1. STATE V. BRANDY SPARKS: Trial from Aug 15 to 17. Indicted for Aggravated Assault. Verdict: Not guilty. Prosecution: Anita Spinetta. Defense: Lee Filderman. 2. STATE V. KEVIN TURNER: Trial from Sept 6 to 9. Indicted for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Paul Goodman. Defense: Shannon Davis, Missy Branham.
DIV. V
LAMMEY
1. STATE V. ROGER REED: Trial from Aug 22 to 26. Indicted for 1st Degree Premeditated Murder, 1st Degree Murder in the Perpetration of Aggravated Robbery, Especially Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Glen Baity, Sam Winnig. Defense: Juni Ganguli, Laurie Hall. 2. STATE V. KELLEY GOODWIN: Trial from Aug 29 to 30. Indicted for DUI, Reckless Driving. Mistrial. Prosecution: Billy Bond. Defense: Mike Working.
DIV. VI
CAMPBELL
1. STATE V. MIGUEL GOMEZ: Trial from Jul 18 to 20. Indicted for 3 counts of Aggravated Assault-acting in concert. Verdict: Guilty as indicted. Prosecution: Omar Malik. Defense: Blake Ballin. 2. STATE V. DANIEL PEREZ: Trial from Aug 1 to 3. Indicted for Aggravated Robbery. Mistrial. Prosecution: Olivia Brame. Defense: Neil Umsted. 3. STATE V. DANIEL PEREZ: (Re-trial) from Sept 12 to 14. Verdict: Guilty as indicted. Prosecution: Olivia Brame, Leslie Byrd. Defense: Neil Umsted.
DIV. VII
COFFEE
1. STATE V. CORDARIUS FRANKLIN: Trial from Jul 18 to 22. Indicted for Rape of a Child, Aggravated Sexual Battery, Child Abuse/Neglect. Verdict: Guilty as indicted. Prosecution: Lessie Rainey, Jessica Banti. Defense: Tim Williams. 2. STATE V. MARLON BOYD: Trial from Aug 1 to 5. Indicted for 1st Degree Premeditated Murder, Aggravated Assault, Felon in Possession of Firearm. Verdict: Guilty as indicted. Prosecution: Alanda Dwyer, Steve Ragland. Defense: Trent Hall, Jim Hale.
22
CRIMINAL COURT—Covers the weeks of July 18 to Sept 12, 2016 COURT
JUDGE
DIV. VIII
CRAFT
VERDICT 1. STATE V. MARIO PATTERSON: Trial from Aug 8 to 11. Indicted for 1st Degree Premeditated Murder. Verdict: Guilty as indicted. Prosecution: Reggie Henderson, Tracye Jones. Defense: Juni Ganguli, Laurie Hall. 2. STATE V. LAWRENCE HOPSON: Trial from Aug 15 to 18. Indicted for Theft of Property ≥ $10,000. Verdict: Not guilty. Prosecution: Byron Winsett. Defense: Claiborne Ferguson, John McNeil. 3. STATE V. NAJEYAH EL-AMIN: Trial from Aug 29 to 30. Indicted for DUI, Reckless Driving. Verdict: Guilty as indicted. Prosecution: Michael McCusker. Defense: Leslie Ballin.
DIV. IX
WARD
1. STATE V. DEVIN BUCKINGHAM: Trial from Jul 25 to 29. Indicted for 1st Degree Premeditated Murder. Verdict: Guilty as indicted. Prosecution: Greg Gilbert, Jose Leon. Defense: Greg Carman, Phil Harvey. 2. STATE V. GABRIEL DOTSON: Trial from Aug 15 to 17. Indicted for Rape of a Child, Aggravated Sexual Battery, Rape, Incest. Verdict: Guilty as indicted. Prosecution: Bryce Phillips, Sarah Poe. Defense: Marty McAfee. 3. STATE V. ADAIR DORSEY: Trial from Sept 12 to 14. Indicted for 1st Degree Premeditated Murder. Guilty plea during trial to Voluntary Manslaughter. Prosecution: Greg Gilbert, Sarah Poe. Defense: Charles Waldman, Jason Matthews.
DIV. X
BEASLEY
1. STATE V. JAQUAN GATHING, PRINCE PARKER: Trial from Aug 1 to 6. Both defendants indicted for 2 counts of Criminal Attempt: 1st Degree Murder, 1 count Criminal Attempt: Especially Aggravated Robbery, 4 counts of Aggravated Assault-acting in concert, Aggravated Robbery, 2 counts of Criminal Attempt: Aggravated Robbery, 1 count Especially Aggravated Robbery. Verdict: Gathing found guilty of 1 count Criminal Attempt: Especially Aggravated Robbery, 1 count Especially Aggravated Robbery, 3 counts Aggravated Assault, 1 count Facilitation: Aggravated Assault, 1 count Criminal Attempt: Aggravated Robbery, 1 count Criminal Attempt: 1st Degree Murder, 1 count Facilitation: Aggravated Robbery. Parker found guilty of 2 counts Criminal Attempt: 1st Degree Murder, 1 count Facilitation: Especially Aggravated Robbery, 5 counts Facilitation: Aggravated Assault, 1 count Aggravated Robbery, 1 count Criminal Attempt: Aggravated Robbery, 1 count Facilitation: Aggravated Robbery. Prosecution: Karen Cook, Ann Schiller. Defense: Terrell Tooten (Gathing); Jennifer Mitchell (Parker). 2. STATE V. LUCAS HINES: Trial from Aug 15 to 19. Indicted for 2 counts of Vehicular Homicide. Verdict: Guilty of 2 counts Reckless Driving. Prosecution: Billy Bond, Stephanie Johnson. Defense: Art Quinn.
WE’RE MOVING Mid-South Drug Testing is moving to 950 Mt. Moriah Suite 101
Sept. 1
23
Circuit Court Report by STEPHEN LEFFLER
DIV 1: FELICIA CORBIN-JOHNSON 1. CT-001659-14: 5-16-16, Jesse Morgan v. Frank Fiveash, Cook Sales Inc., and Memphis Light Gas and Water, Slip and Fall / GTLA, Non-Jury, Halbert Dockins for Plaintiff, Thomas Branch and Sasha Gilmore for M.L.G.W., Defense Verdict. 2. CT-000239-15: 6-20-16, The Germantown Manor Homeowners Association, Inc. v. GGAT Development, Corp. and Charleston II Builders, Inc., Breach of Contract (Failure to pay Homeowner Dues), Non-Jury, Brandon F. McNary for Plaintiff, Eugene Douglass and Robert W. Reid for Defendants, Plaintiff Verdict against GGAT Development, Corp. for $10,800.00 and against Charleston II Builders for $1,800.00.
DIV 2: JAMES F. RUSSELL No contested cases tried to verdict in this reporting period.
DIV 3: VALERIE L. SMITH 1. CT-000957-16: 5-2-16, Peppertree Apartments v. Felicia Coleman, Landlord / Tenant, Non-Jury, Ben Sissman for Plaintiff, Defendant pro se, Plaintiff Verdict for Possession.
DIV 4: GINA C. HIGGINS 1. CT-001171-16: 4-29-16, Marathon Management, LLC, v. Lawrence King, Property Dispute / Adverse Possession, Non-Jury, Lisa Zacharias for Plaintiff, Scottie Wilkes for Defendant, Plaintiff Verdict for Possession. 2. CT-005702-11: 5-16-16, Victor Cole v. Joe Caruso, Breach of Contract Unjust Enrichment, Jury, Charles M. Weirich, Jr. for Plaintiff, Robert L. Moore for Defendant, Plaintiff Verdict for $10,000.00. 3. CT-003655-14: 6-2-16, Kevin Twisdale v. James Gann and Andrea Guinn, Auto Accident (Assessment of fault for liquidated property damage claims) Jury, Ashleigh C. Kiss for Plaintiff, Loys A. “Trey” Jordan III for Defendant - Guinn, Christopher B. Sullivan for Defendant – Gann, Plaintiff Verdict against Gann for $2,314.57 (45% fault) and against Guinn for $2,828.92 (45% fault); Guinn’s Cross Claim against Gann for property damage dismissed because Guinn’s fault exceeded Gann’s fault. 4. CT-001698-14: 6-28-16, Rhonda D. Williams v. Yolanda Alexander, Individually and as next friend 24
of T.A., a Minor, Auto Accident, Jury, Bobby Martin for Plaintiff, H. Lynne Smith for Defendant, Plaintiff Verdict for $6,871.00 (on stipulated fault) 5. CT-004604-12: 8-2-16, Jonathan Trentham v J. Scott Williams, M.D., Med Mal, Jury, W. Bryan Smith and Jodi Black for Plaintiff, James T. McColgan and Sherry Fernandez for Defendant, Plaintiff Verdict for $1,971,000.00. 6. CT-003913-14: 8-9-16, Lisa Hamer-Mayes and Eules Mayes. v. Elizabeth Reed and Penny Reed, Auto Accident, Non-Jury, Kristina A. Woo and Halbert E. Dockins, Jr., for Plaintiffs, William D. Montgomery for Defendants, Plaintiff Verdict for $25,000.00.
DIV 5: RHYNETTE HURD 1. CT-005380-14: 4-15-16, Jamie Burrows v. K2 Lounge, LLC, Slip and Fall, Non-Jury (Stipulated Liability), Shannon D. Elsea for Plaintiff, Defendant pro se, Plaintiff Verdict for $10,000.00. 2. CT-001956-15: 5-17-16, Dorothy Finley v. Cheryl Mimms, Landlord / Tenant (General Sessions Appeal), Non-Jury, Theresa H. Patterson for Plaintiff, Murray B. Wells for Defendant, Plaintiff Verdict for $33,000.00 plus attorney fees. 3. CT-002164-14: 5-26-16, Tennessee Farmers Mutual Insurance Company v. Estate of Richard M. Archie and Jessica Cossitt, Declaratory Judgment (Insurance Coverage), Non-Jury, Andrew H. Owens for Plaintiff, Dawn Davis Carson for State Farm Mutual Automobile Insurance Company, Matthew V. Porter for Defendant, Jessica Cossitt, Verdict finding coverage. 4. CT-003898-14: 7-18-16, James Hawkins, Jr. v. Patricia Denise Whiteside, Paternity/Fraud (General Sessions Appeal), Non-Jury, Katherine E. Smith for Plaintiff, Sam Blaiss for Defendant, Directed Verdict for Defendant. 5. CT-004215-14: 7-26-16, Grace Curtis v. Pernell Rogers, Auto Accident, Non-Jury, Grace Curtis, pro se, Nicholas J. Owens, Jr., for Defendant, Defense Verdict. 6. CT-000340-15: 8-3-16, Samuel Given v. Joslin B. O’Guinn, Auto Accident, Jury, David A. McLaughlin for Plaintiff, Andrew H. Owens for Defendant, Plaintiff Verdict for $15,000.00 (reduced by 15% comparative fault for a net verdict of $12,750.00)
DIV 6: JERRY STOKES 1. CT-002503-14: 4-18-16, Angela Neeley v. Peter Ballenger, M.D., Memphis Obstetrics and Gynecological Associates, P.C. and Methodist LeBonheur Healthcare, Med Mal, Jury, Louis P. Chiozza, Jr., for Plaintiff, William H. Haltom, Jr., Marcy D. Magee and Natalie M. Bursi for Defendant, Peter Ballenger, M.D. and Memphis Obstetrics and Gynecological Associates, P.C. and Craig Conley for Methodist LeBonheur Healthcare, Defense Verdict. 2. CT-002857-14: 4-25-16, Jeff Kalmowicz, DDS v Mary Hilty, Breach of Contract, Non-Jury, Joe Barton for Plaintiff, Bradley C. Ball for Defendant, Defense Verdict. 3. CT-000886-16: 7-21-16, Brian Elder’s Roofing Solutions, LLC v Dorothy McDonald, Breach of Contract, NonJury, Andrew L. Wener for Plaintiff, Thomas D. Yeaglin for Defendant, Plaintiff Verdict for $6,690.00. 4. CT-003774-15: 8-1-16, Cherylynne Wallace, Calvin Chin and Steven Chin v Cheryl Jenise Mock , Breach of Contract, Non-Jury, Richard L. Rikard for Plaintiff, Robert W. Reid for Defendant, Erik Allen Krueger, Cheryl Jenise Mock pro se, Plaintiff Verdict for $3,862.50. 5. CT-000496-13: 8-9-16, Vincent Little v. CMRG Lamar, LLC d/b/a Value Place Memphis Lamar/Getwell and Jerome Williams d/b/a Tight Net Protective Services, Premises Liability (Third Party Criminal Attack), Jury, Patrick M. Ardis and Geoffrey Gaia, for Plaintiff, Scott C. Campbell for CMRG Lamar, LLC d/b/a Value Place Memphis Lamar/Getwell and J. Ashley Ogden, Joseph Broy, and Kevin D. Bernstein for Defendant, Jerome Williams d/b/a Tight Net Protective Services, Plaintiff Verdict for $750,000.00 (Remitted to $500,000.00 and accepted by Plaintiff). Comparative Fault: CMRG Lamar, LLCd/b/a Value Place Memphis Lamar/Getwell – 32%; Jerome Williams d/b/a Tight Net Protective Services – 60%; and Vincent Little – 8% for net verdicts of $160,000.00 against CMRG Lamar, LLC d/b/a Value Place Memphis Lamar/Getwell and $300,000.00 against Jerome Williams d/b/a Tight Net Protective Services.
DIV 7: DONNA M. FIELDS 1. CT-003696-10, 2-10-16: Carol Freiberger, Executrix of the Estate of Arthur T. Freiberger v. Illinois Central Railroad Company, FELA, Jury, William P. Gavin for Plaintiff, Thomas R. Peters and S. Camille Reifers for Defendant, Defense Verdict. 2. CT-004986-13, 5-20-16: Ephraim Urevbu and Sheila Urevbu v. City of Memphis, GTLA (Negligence in sewer repairs), Non-Jury, John Heflin III for Plaintiff, Michael Fletcher for Defendant, Plaintiff Verdict:
Ephraim Urevbu for $150,000.00 and Sheila Urevbu for $25,000.00. 3. CT-001848-14, 6-24-16: Carolyn Marton Rothschild v. Candie K. Krumholt and Kenneth Cole, Auto Accident, Jury, Thomas D. Yaeglin for Plaintiff, Robert L. Gatewood for Defendants, Shaterra Reed for Safeco UM, Plaintiff Verdict for $8,904.00.
DIV 8: ROBERT S. WEISS 1. CT-005435-14, 5-3-16: Rejeana Mason v. Hugh A. Wright, Auto Accident, Jury, Jennifer L. Miller for Plaintiff, James E. Conley, Jr. for Defendant, Defense Verdict (50% fault to each party). 2. CT-005310-12, 5-27-16: Shawn Hall v Illinois Central Railroad Company, GTLA, Jury, Stephen R. Leffler and F. Tucker Burge for Plaintiff, Thomas Peters and S. Camille Reifers for Defendant, Plaintiff Verdict for $4,936,048.00 reduced by 50% comparative fault; Net verdict - $2,468,024. 3. CT-004061-14, 6-8-16: Elatrice Ingram v Cornell Caster, Breach of Contract, Non-Jury, Plaintiff pro se, Defendant pro se, Plaintiff Verdict for $4,000.00. 4. CT-002077-15, 7-26-16: Jean Freet and Bradley Freet v. Keenan Greear, Auto Accident, Jury, Thomas R. Greer for Plaintiff, James E. Conley, Jr. for Defendant, Effie Bean Cozart for Liberty Mutual, Plaintiff Verdict: Jean Freet for $23,501.00 and Bradley Freet for $7,267.00.
DIV 9: ROBERT L. CHILDERS 1. CT-003238-15, 5-10-16: Sunshine Corporation v. Terry Davis, Landlord / Tenant, Non-Jury, Lisa Zacharias for Plaintiff, Defendant pro se, Plaintiff Verdict for $1,159.81 and possession. 2. CT-000922-14, 5-18-16: Ronald Braden v. Willie Clayton, Breach of Contract, Non-Jury, Van D. Turner, Jr., for Plaintiff, Theresa D. Childress for Defendant, Plaintiff Verdict for $3,500.00 3. CT-002621-15: 6-2-16, S&F Financial, LLC v. Quinton White and All Star Automotive Services, Inc., Breach of Contract, Non-Jury, Roger A. Stone for Plaintiff, Joseph D. Barton for Defendant, Plaintiff Verdict for $3,500.00 4. CT-004537-14: 6-20-16, Aaron Bailey and Erika Price v. Antone Esgro and Latoria Oher, Auto Accident, Jury, Shannon Elsea for Plaintiff, Dawn Davis Carson for Defendant, Defense Verdict. 5. CT-000483-15: 6-28-16, Christopher Freeman and Ashley Freeman v. Kevin Laird, Sr. and Kevin Laird, Jr., Auto Accident, Jury, Shannon Elsea for Plaintiff, Nicholas J. Owens, Jr. for Defendant, Defense Verdict. 25
St. Jude and Team MBA by EARLE SCHWARZ and JARED RENFROE
T
he goal was to run a half marathon during the St. Jude Marathon weekend before I turned 61. I failed due to a torn meniscus while training. Then, after a full year off, the goal was to run a half marathon as part of the St. Jude Marathon weekend before I turned 63. I failed again because I trained too hard, too fast and my lower body broke down.
As I took my place near the back of the pack of 15,000 participants, I was confident that I was prepared. I had trained diligently and I had studied the course to locate the hills. I had a game plan: Go out slowly; take what the terrain gives you and hydrate often. I was fully prepared for the distance, but I was not the least bit prepared for the emotional experience.
There were well-wishers lining the entire length of the course; there were hundreds of volunteers, handing out water, Gatorade and energy supplements; there were bands located strategically to provide a steady beat for flagging runners; there were teams of participants, running in support or memory of a St. Jude patient. AND there were the kids and their families standing by, cheering and high-fiving runners as the route wound through the St. Jude campus. By the time I got there, they had been at it for a while, but the level of EARLE SCHWARZ enthusiasm and gratitude was still sky high.
Then, the goal was to run the St. Jude half marathon before I turned 64. I made it this time. I registered for the event on June 1, which is the first day of registration for those not wanting to make a fundraising commitment. I was aware that the half sells out early and I wanted to have some skin in the game that I would be forced to walk away from if I did not follow through and participate in the event. [Although not as much “skin in the game” as a minimum fundraising commitment].
Learning from my mistakes, I trained very slowly over eight months or so. For aerobic capacity, I participated in a spin class 3 days a week at the Jewish Community Center. For endurance, I ran three days a week, including a long run on the weekend, with the distance increasing slowly over time, maxing out at 12 miles two weeks before the event. I also paid careful attention to the training tips from “Coach Kevin” that are available on the St. Jude Website and heeded oft-given advice to avoid going breathless during a training run. I suppose that I should point out that to say that I “run” is not completely accurate. My “run” more closely resembles a “waddle,” as my adult children have affectionately called it. Speed is neither a goal nor a concern for me. 26
Crossing the finish line, I, too, was sky high. This was easily one of the proudest days of my life. There is only one thing hanging on the vanity wall in my office: a shadow box with a picture, my number (12036) and the finisher’s medal from the event. Not because of my time, which was slow; but, because I finished. As I was waddling along the river, it occurred to me to wonder why the Memphis Bar Association had not supported the St. Jude Marathon weekend in an organized way. There are a lot of reasons we should do so. St. Jude is the most visible non-profit in Memphis; we, attorneys, should support it and be associated with it. There are members of our legal community who have been touched by St. Jude and would be grateful for our
help. Every dollar raised is important. Here’s the kicker: You will benefit from the experience far more profoundly than you could ever imagine or I could ever describe. Join the Memphis Bar Association’s St. Jude team. You can participate in an event, you can make a donation(s) or you can volunteer. Just, don’t miss out on the experience. To register or donate, go to heroes.stjude.org/memphisbarassoc. See you at the finish line.
allows them to focus on their top priority – their child. Do you know how much it costs to operate St. Jude? 2.2 million dollars. Every day. And did you know that this is primarily covered by individual contributors? You can easily become the next contributor, and St. Jude and its children truly appreciate every single donation.
Although I have never had a family member or friend’s child become a St. Jude patient, there are so many that have. My From team member Jared Renfroe: words could never mean as much as their words, and could not touch you the way When I first learned that I could their stories do. Their “stories” are not really help support St. Jude Children’s Research stories, because every St. Jude patient’s Hospital by joining the Memphis Bar real life involves constant treatment for Association’s team for the St. Jude Memphis something they did not ask for, did not Marathon Weekend, I immediately signed up. I actually joined the Committee, but deserve, and are far too young for. But they you do not have to be on the Committee to JARED RENFROE push on. Maybe the “Memphis” gets in support Team MBA as we gather together them and they “grit-and-grind” their way through each to support St. Jude. I know that we are stronger as a day of their life. But they push on. And their families are group than as individuals, and we can spread the word there to support them, and you can be there to support and raise more money as a group than if we attempted them, too. to do it alone. I hope that you will join me in this cause – join our Families never receive a bill from St. Jude for team – and make a donation to St. Jude. Become the treatment, travel, housing or food, because St. Jude next St. Jude Hero. t
Team MBA Members: Team Captain Earle Schwarz
Kathy Hughes
Brittany Moody
Audrey C.
Clarice Hunt
Katherine Newsom
Jim Newsom
Sean Hunt
Bill O'Connor
Jackie
Leslie Isaacman
Tommy Parker
Mitchell Ashkenaz
Donna Jenkins
Brad Reasonover
David Childe
Craig Kelly
Jared Renfroe
Ormonde Deallaume
Tracy Kelly
Stephen Shelton
Peter Gee
Christopher Lazarini
Kerry Slattery
Caroline Giovannetti
Laura Martin
Abigail Webb
Whitney Harmon
Gigi Mcgown
Krista Williams
Carol Harshman
Liz McKee
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With a Little Help from Our Friends
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by EMILY STOTTS
ne fall morning I walked into MIFA, where the Community Legal Center (“CLC”) has been for the past twenty years. As usual, the lobby was full of people seeking various services, including a panicked woman and her teenage son. Walk-ins are common, but we rarely can spare the time to meet with them. None too eager to rush to the mountain of paperwork on my desk, I decided to go over and see what they needed. The woman had driven all night from Johnson City, Tennessee, to see if we could help her teenage son, Jose Pedro. Like the countless other teens I’ve seen since joining the CLC’s Immigrant Justice Program (“IJP”), Jose crossed the U.S./Mexico border after fleeing death threats from local gang members in Honduras. He’d been captured by U.S. immigration officials and detained for a month before being released to his mother, who had herself fled El Salvador several years earlier due to unrelenting domestic abuse. He’d already been before the Immigration Judge twice without an attorney and the judge had given him one more chance to find an attorney and file for immigration relief or she would deport him back to El Salvador. His next hearing was the very next week. They were desperate. So, I broke my no walk-in rule and we sat down to see what, if anything, could be done. During the meeting, it became apparent that Jose Pedro was a perfect candidate for a form of immigration relief called Special Immigrant Juvenile Status (“SIJS”) that, if approved, would allow him to remain in the U.S. as a permanent resident. The problem – SIJS requires a state court child custody order, which in Tennessee must be done by a child’s eighteenth birthday. Jose Pedro would be eighteen in two weeks. Further, I’d need to find an attorney in Johnson City willing to represent Jose’s mother pro bono in the state court proceeding since neither the family nor CLC had the resources to pay anyone. I explained to the family 30
that we would try to make this happen, but in truth I held little hope that we would actually succeed. I began firing off e-mails in search of a pro bono attorney in Johnson City willing to help. Late that night I got a bite. Mark Fulks, a litigator with Baker Donelson’s Johnson City office had been forwarded my plea and responded, “I’m not exactly sure what you need to have done, but I’ll be glad to help if I can.” That’s all it took. I walked Mark through the state court proceeding process, the custody order was granted, and Jose Pedro applied for and was approved status as a Special Immigrant Juvenile. He’s also now a permanent resident of the U.S., and both he and his mother are comforted by the fact that he will not have to go back to El Salvador. Mark is just one of the many attorneys who has graciously volunteered to assist our clients over the years. Since its inception in 2006, the CLC’s IJP has relied on the private bar to help meet the ever-increasing need for pro bono representation of noncitizens in the Mid-South. Whether it’s volunteering an afternoon at a Deferred Action for Childhood Arrivals workshop, assisting with a custody proceeding for an SIJS-eligible child, or representing a woman and her child in filing a claim for asylum, pro bono attorneys allow IJP staff attorneys to leverage our resources and provide access to justice to more individuals than we can alone. October is “Celebrate Pro Bono Month”. I encourage each of you to reach out to us and offer a helping hand. No immigration knowledge or experience is required; we will guide you through every step. And, although I don’t have enough space here to thank everyone individually, I would like to send out a heart-felt thank you to everyone who has agreed to do what they can over the past decade. You have forever changed the lives of so many and we’re so grateful to call you our friends. t
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Providing Community-Based Legal Advocacy to Veterans by CHRISTOPHER A. MILLER
P
resident Abraham Lincoln understood the importance of providing the necessary support to our veterans when he said, “Honor to the soldier and sailor everywhere, who bravely bears his country's cause. Honor, also, to the citizen who cares for his brother in the field and serves, as he best can, the same cause.” Although a country’s cause may change, the cause of the citizen remains constant. It’s the care and support of those soldiers and sailors serving their country. Prior to attending law school at the University of Memphis Cecil C. Humphreys School of Law, I served eight years in the United States Navy. I can’t help but think about the men and women in uniform who have served before me and continue to make the necessary sacrifices so that we may enjoy our freedom here at home. It’s truly a humbling experience to have been afforded the opportunity to serve the men and women who have fought so bravely for this country and it’s with great pleasure that I continue to do so through my internship at MALS. With the combination of my military experience and current internship, I’ve been afforded a unique opportunity to view the Department of Veterans Affairs (VA) claims process from two vastly different perspectives.
During the past five months I’ve become familiar with the VA administrative law process concerning the filing of initial claims for benefits and the subsequent appeals process. The claims process from the date of initial filing until the final disposition of the claim can be extremely lengthy and discouraging to many of our veterans. Most veterans haven’t been advised what their legal rights are concerning in-service injuries or prior injury aggravation sustained while in the service. As a prior service member I sympathize with these veterans. Under the supervision of VA accredited attorney Rita Gibson Rayford, I’ve been able to assist veterans with VA benefits claims at every level. Each claim is as unique as each veteran that we serve. 32
Throughout the process I’ve become increasingly aware of some serious issues affecting our veterans in the greater Memphis area. The first is the lack of easily understandable information and accessibility to the administrative and legal process. Many of our veterans have been unable to acquire the stability, resources, and knowledge required to pursue a claim s`ince leaving the service. The Supportive Services for Veteran Families (SSVF)
program at MALS provides veterans with temporary housing, benefits claim representation, and other available community resources that address individual needs. Unfortunately, many veterans in need are still unaware of the resources and assistance available to them. In an effort to combat these deficiencies the staff at MALS conducts a weekly outreach in which attempts are made to locate and provide veterans with the information about the supportive services offered by MALS. Countless hours are spent at various libraries, churches, and community organizations across the City of Memphis and surrounding areas. Despite these efforts and those of our partners in the community some veterans still remain unreached, primarily due to the nature of homelessness. However, this form of outreach serves as a crucial step that is instrumental in rectifying the lack of knowledge and accessibility plaguing veterans in our community. The veterans that are reached often speak about some of the prior difficulties they faced when attempting to submit VA claims. These conversations are usually about the lack of available advocates that provide veterans with legal assistance and advocacy. Veteran stability is obviously affected by this barrier. As a result, MALS strives to provide each veteran individualized legal services so they may receive the representation and benefits they so greatly deserve. Through the SSVF team at MALS the veterans now have a voice, counsel, and the most dedicated advocates anywhere. My interactions with the MALS staff and veterans during this internship have been extremely positive and rewarding. I am convinced that with our continued professionalism and dedication, we can continue to provide the care that our veterans have earned through their sacrifice for our country. t
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Christopher Miller is third-year law student at the Cecil C. Humphreys School of Law. After serving in the U.S. military for several years, Mr. Miller decided to embark on a legal career. He has spent the last several months serving other veterans at MALS through the Supportive Services for Veteran Families (SSVF) program. 33
MEMPHIS AREA LEGAL SERVICES, INC. is pleased to announce that CRAIG P. BARNES has been promoted to Managing Attorney of its Consumer Benefits, Education, and Tax Unit. Barnes is also the 2016 B. Riney Green Award Recipient; an award presented by the Tennessee Alliance for Legal Services for promoting inter-program cooperation and for strengthening access to justice across the state. Craig received his undergraduate degree from Duke University and his J.D. from St. Louis University School of Law. BRIAN S. FAUGHNAN has been appointed to the Board of Directors of the Association of Professional Responsibility Lawyers (APRL) for a two-year term. APRL is a non-profit membership organization with more than 500 members worldwide and is made up of lawyers and academics who represent and advise law firms on ethics and professional responsibility, risk management, legal malpractice, and the law of lawyering. GEORGE T. "BUCK" LEWIS of Baker Donelson has been appointed as chair of the American Bar Association (ABA) Standing Committee on Pro Bono and Public Service. As chair of the committee, Mr. Lewis leads a group whose mission is to ensure access to justice through the expansion and enhancement of the delivery of legal and other lawrelated services to the underserved through volunteer efforts of legal professionals nationwide. The committee fosters the development of pro bono programs and activities by law firms, bar associations, corporate legal departments, law schools, government attorney offices and others; analyzes the scope and function of pro bono programs; and proposes and reviews policy that affects lawyers' ability to provide pro bono legal services. Shelby County Juvenile Court JUDGE DAN MICHAEL has been elected to a three-year term on the board of directors
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of the National Council of Juvenile and Family Court Judges (NCJFCJ). Shelby County Juvenile Court Judge Dan Michael has been elected to a three-year term on the board of directors of the National Council of Juvenile and Family Court Judges (NCJFCJ). The group is based in Reno, Nevada, and bills itself as the nation's oldest judicial membership organization. Glankler Brown, PLLC is pleased to announce that RICHARD J. MYERS has joined the firm as a Member Attorney. Myers concentrates his practice in the areas of litigation, real estate and public law and governmental relations. He graduated from Cornell Law School in 1992. He currently serves as City Attorney to Oakland, Tennessee and has served as City
If you are a MBA member in good standing and you’ve moved, been promoted, hired an associate, taken on a partner, or received an award, we’d like to hear from you. Talks, speeches, CLE presentations and political announcements are not accepted. In addition, we will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers). Notices must be submitted in writing and limited to 100 words; they are printed at no cost to members and are subject to editing. E-mail your notice and hi-resolution photo (300 dpi) to sklarson@memphisbar.org.
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THOMAS L. PARKER of Baker Donelson has been inducted as a Fellow of the American College of Trial Lawyers. He is past president of the Memphis Bar Association and a recipient of the Sam A. Myar Jr. Memorial Award, which recognizes a Memphis Bar Association member under the age of 40 who has rendered outstanding personal service to the Memphis and Shelby County legal profession and community. NICHOLAS J. PIEROTTI was appointed as Assistant Town Attorney to serve as an Assistant Prosecutor for the Town of Collierville Municipal Court. Pierotti has a Memphis-based practice where he represents clients in all aspects of civil, family and probate law. SHAYLA N. PURIFOY, who worked at Memphis Area Legal Services, for nearly 8 years, was appointed by a majority vote of the Shelby County Commissioners. Commissioner Purifoy continues to serve on the Young Lawyers' board of the Memphis Bar Association, the Memphis and Shelby County Domestic and Sexual Violence Council, and volunteers with the Ben F. Jones' Chapter of the National Bar Association.
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JOHN RYDER of the Harris Shelton Hanover Walsh PLLC law firm has been named the 2016 Republican Lawyer of the Year by the Republican National Lawyers Association, the national bar association for Republican Lawyers. A highly prestigious honor, this award recognizes one lawyer each year from across the nation for outstanding professional accomplishments and years of dedicated service to the Republican Party and its ideals. Glassman, Wyatt, Tuttle & Cox, PC partner ED WALLIS has been selected as Vice Chair for the Memphis UrbanArt Commission for 2016-2017. Wallis joined the UrbanArt Commission Board of Directors in 2015. Wallis is a Memphis, Tennessee trial attorney that practices in Tennessee, Arkansas and Kentucky. He handles a variety of matters that require resolution using pre-suit evaluation, litigation and trial. While not an exhaustive listing, some of the areas in which he helps his clients include business litigation, probate litigation, construction disputes, legal malpractice, medical malpractice, medical devices and products liability.
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