Nashville Bar Journal | April/May 2019 by Nashville Bar Association

JOURNAL Journal Journal

APRIL/MAY 2019 | VOLUME 19 | NO. 2

FEATURE

Trumping Environmental Law ALSO

The Lingering Impact of the 2010 Nashville Flood Sparks Fly in TVA Liability Case Mediation, Nashville Style

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OFFICIAL BANK PARTNER OF THE NASHVILLE BAR ASSOCIATION Insurance Products, Investments & Annuities: Not A Deposit | Not Guaranteed By The Bank Or Its Affiliates | Not FDIC Insured | Not Insured By Any Federal Government Agency | May Go Down In Value Insurance Products and Annuities: May be purchased from any agent or company, and the customer’s choice will not affect current or future credit decisions. FTB Advisors is the trade name for wealth management products and services provided by First Tennessee Bank National Association (operating as First Tennessee Bank and Capital Bank) (“FTB”) and its affiliates. Financial planning and trust services provided by FTB. Investment management services, investments and annuities available through FTB Advisors, Inc., member FINRA, SIPC, and a subsidiary of FTB. Arkansas License # 416584. Insurance products available through FTB Advisors Insurance Services, Inc. (”FTBIS”), a subsidiary of FTB. Arkansas License # 247414. In some states, insurance products and annuities are provided by First Horizon Insurance Services, Inc. (“FHIS”), a Tennessee corporation, and a subsidiary of FTB. The principal place of business of FHIS is 165 Madison Ave., Memphis, TN 38103. California License # OD12174. FTBIS, FTB Advisors, Inc., FHIS, and their agents may transact insurance business or offer annuities only in states where they are licensed or where they are exempted or excluded from state insurance licensing requirements. FTB Advisors does not offer tax or legal advice. You should consult your personal tax and/or legal advisor concerning your individual situation. Banking products and services provided by FTB. Member FDIC. ©2018 First Tennessee Bank National Association operating as First Tennessee Bank and Capital Bank.

JOURNAL 6 Journal Journal APRIL/MAY 2019 | VOLUME 19 | NO. 2

FE ATU R E

Trumping Environmental Law J.B. Ruhl

DEPA R TM E N TS

From the President

Calendar of Events

Hear Ye, Hear Ye

Laura Smith

Family Zoo Day Golf Tournament Law Day Lunch Memorial Service NBFLF Nominations Ode to Otha Upcoming Events

19 Photo Gallery 36 Hearsay 38 100% Club 40

CLE Schedule

The Lingering Impact of the 2010 Nashville Flood 11 Jonathan Wardle

Sparks Fly in TVA Liability Case 27 Robert D. Martin & Eric C. Lyons

29 Mediation, Nashville Style:

The History of Mediation Practice in Middle TN

Mike Abelow

CO L UMNS

Background Check 13 Bart Pickett Capitol Notes 15 Peggy Sue, the Beagle Hound Gadget of the Month 17 Bill Ramsey & Phillip Hampton Nonprofit Spotlight: Turnip Green Creative Reuse 33 Lauren Poole

APR/MAY 2019 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL FROM THE PRESIDENT Law Day 2019 | Laura Smith Journal In 1958, President Eisenhower established Law Journal Day as a day of national “dedication to the ideals of

LAURA SMITH, Publisher

WILLIAM T. RAMSEY, Editor-in-Chief

CAROLINE E. SAPP, Managing Editor LAUREN POOLE, Managing Editor

JILL PRESLEY, Layout/Design/Production

EDITORIAL COMMITTEE JERRY BRIDENBAUGH KIMBERLY CLARK TIM ISHII KELLY FREY ROB MARTIN OLIVIA PARK BRUCE PHILLIPS BART PICKETT SYDNEY RAINES MIKE SANDLER KRISTIN THOMAS JONATHAN WARDLE CRAIG WEBB ELEANOR WETZEL NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1050, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1050, Nashville, TN 37219-2419. No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/NashvilleBarJournal. The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials to Jill.Presley@ nashvillebar.org to be considered by the editorial committee for publication in a future print or online content. NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1050 Nashville, TN 37219 615-242-9272 | NashvilleBar.org The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. The NBA—with 2,500+ members—is the largest metropolitan bar association in Tennessee.

equality and justice under law.” Three years later, Congress declared May 1 as Law Day. Today, courts, schools, community organizations, and bar associations conduct Law Day programs throughout both April and May. The NBA hosts its annual Law Day event on the first Friday of every May. This year’s theme—established by the American Bar Association—is Free Speech, Free Press, Free Society. It calls on us to delve into the fundamental constitutional rights of the First Amendment, develop a deeper understanding of it, and take action to protect it. Our country’s founders were committed to the ideals of free speech and a free press. Alexander Hamilton advocated for a free press in Federalist Paper No. 84, saying it should be “inviolably preserved.” Gene Policinski, a veteran journalist and president of the Freedom Forum Institute and its First Amendment Center, notes “a free press is the ultimate defender of our personal liberties…essential to a functioning representative democracy.” Most of us endorse the notions of free speech and free press...until we are confronted with ideas and positions with which we disagree. Criticism of government, its leaders, and its symbols—concepts at the core of transparency—are often attacked by those in power. In 1918, Congress passed the Sedition Act, imposing criminal penalties on those expressing criticism of the government, its symbols, or its World War I mobilization efforts. (The law was later repealed.) In 1943, SCOTUS overturned a West Virginia law requiring students to salute the American flag, concluding “compulsory unification of opinion achieves only the unanimity of the graveyard.” In 1971, when the government acquired a temporary restraining order halting production of two prominent newspapers following their publications of the Pentagon Papers, the Supreme Court found that the restraint violated the First Amendment. Also in 1989, they found that a prohibition against burning the American flag was protected “speech” under the First Amendment. Justice Anthony Kennedy said, “The First Amendment is often inconvenient—but that is beside the point. Inconvenience does not absolve the government of its obligations to tolerate speech.” The digital age is making the expression of speech, the dissemination of messages, and the ability to connect with others easier than ever. The availability of information and the ease of communication seems to exacerbate attempted limitations on the expression of speech and freedom of the press in a polarized society. On May 3, at the Downtown Renaissance Hotel, we will explore some of these issues when Martha Craig Daughtrey, Senior US Circuit Judge for the Sixth Circuit Court of Appeals, speaks at Nashville’s Law Day. Judge Daughtrey will address the topic of Free Speech, Free Press, Free Society as a jurist and the wife of a journalist. Her husband Larry, who passed away in 2016, was a highly regarded journalist and political reporter. I look forward to seeing you there. Happy reading! —

NASHVILLE BAR JOURNAL | APR/MAY 2019

NashvilleBar.org/ Calendar of Events | Full calendar online at NashvilleBar.org.

APRIL 2019 M O N D AY

T U E S D AY

W E D N E S D AY

NBA Board Mtg | 4:00pm Dial-A-Lawyer | 6:00-8:00pm

Ballots and Bullets with James Robenalt Co-Produced with Napier Looby 11:30am | Bradley

CLE Committee Mtg | 11:30am

NBF Trustees Mtg | 12:00pm

Historical Committee Mtg 11:30am | Hal Hardin’s Office

The Nixon Court 9:30am | Montgomery Bell Academy

4 NBF Leadership Forum State & Local Courts Program 10:00am | A.A. Birch Bldg

YLD Board Mtg 12:00pm | Waller

Memorial Service Committee Mtg 12:00pm

Ethics Committee Mtg | 12:00pm

Friday FUNdamentals | 11:30am

Appellate Committee Happy Hour 5:00pm | Del Frisco’s

LAW Btg | 11:30am

Friday FUNdamentals Meet the Judges Reception 4:30pm | Lewis Thomason

F R I D AY

Diversity Committee Mtg | 12:00pm

T H U R S D AY

General Sessions Committee Lawyers and Lattes 9:00am | Birch Bldg

5 Friday FUNdamentals | 11:30am

11 Membership Committee Mtg | 9:00am High School Intern Mtg | 12:00pm NBJ Editorial Committee Mtg 12:00pm | Neal & Harwell YLD/LAW Happy Hour 5:30pm | Smith & Lentz Brewing

12 GOOD FRIDAY Holiday | NBA Office Closed

Attorney Health & Wellness Committee Mtg | 12:00pm

22 Probate Committee Mtg | 11:30am

MAY 2019 M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

F R I D AY Law Day Lunch 12:00pm | Renaissance Hotel

Diversity Committee Mtg | 12:00pm

1 High School Intern Interviews 4:00pm

Dial-A-Lawyer | 6:00-8:00pm

Historical Committee Mtg 11:30am | Hal Hardin’s Office

NBF Leadership Forum Graduation 4:00pm | Baker Donelson

High School Intern Interviews 4:00pm

YLD Board Mtg | 12:00pm | Waller

6 Employment Law Committee Mtg 12:00pm

LAW Board Mtg | 11:30am

9 Membership Committee Mtg | 9:00am Golf Tournament 12:00pm | Vanderbilt Legends Club

Federal Court Committee Mtg 12:00pm | Federal Courthouse

14 Ethics Committee Mtg | 12:00pm

High School Intern Interviews 4:00pm

Finance Committee Mtg | 4:00pm

TN Paralegal Association | 12:00pm

Spring Memorial Service 10:00am | Downtown Presbyterian Church

Veterans Committee Happy Hour 5:00pm

Arts Immersion 6:00pm | Fort Houston

High School Intern Committee Mtg 12:00pm

Executive Committee Mtg | 4:45pm

Criminal Law & Health Law Joint Committee Mtg 11:30am | Birch Bldg

10 World IP Day 8:00am | Bradley

24 High School Intern Orientation 3:00pm

MEMORIAL DAY Holiday | NBA Office Closed

APR/MAY 2019 | NASHVILLE BAR JOURNAL

31 3

JOURNAL JOURNAL Journal Journal

Hear Ye, Hear Ye |

2019 Law Day Lunch

2019 NBA BOARD OF DIRECTORS LAURA SMITH, President

Join us on Friday, May 3, at the Downtown Renaissance Hotel for our annual Law Day Lunch. This year’s theme—Free Speech, Free Press, Free Society—will be presented by our keynote speaker, Judge Martha Craig “Cissy” Daughtry. For more information and tickets, visit NashvilleBar.org/LawDay. n

LAURA BAKER, President-Elect

JACQUELINE DIXON, First Vice President

WENDY LONGMIRE, Second Vice President SAL HERNANDEZ, Secretary MALAKA WATSON, Treasurer JEFF ALLEN, Assistant Treasurer GULAM ZADE, YLD President LELA HOLLABAUGH, General Counsel ERIN PALMER POLLY, Immediate Past President BRANT PHILLIPS, First Vice President-Elect TRACY KANE, Second Vice President-Elect MICHAEL ABELOW RAQUEL BELLAMY DANIEL BEREXA MARK BEVERIDGE HON. MELISSA BLACKBURN

Events of Interest

Annual Golf Tournament Presented by the Nashville Bar Association & the Nashville Bar Foundation WHEN: Thursday, May 16 | 12:00pm – Range Balls Available | 1:00pm – Shotgun Start WHERE: Vanderbilt Legends Club, Franklin, TN

BRIGID CARPENTER

ENTRY FEE:

SAMUEL FUNK

(includes range balls, greens fee, cart, beverages, snacks, and dinner)

MARY TAYLOR GALLAGHER

NBA members | $160.00 Non-members | $180.00 Registrations must be submitted by Thursday, May 9.

JEFF GIBSON LYNNE INGRAM MARTESHA JOHNSON RYAN LEVY

We will have a cook-out and prizes at the conclusion of the tournament. There will be prizes for both team and individual contests, such as longest drive, longest putt, closest to pin, etc. To register, visit NashvilleBar.org/GolfTournament. n

CHANCELLOR ELLEN HOBBS LYLE LIZ SITGREAVES ERIC SMITH DARKENYA WALLER CHANCELLOR BILL YOUNG STEPHEN ZRALEK

NBA TEAM MONICA MACKIE, Executive Director SHIRLEY CLAY, Finance Coordinator WENDY COZBY, Lawyer Referral Service Coordinator JAN MARGARET CRAIG, CLE Director TRACI HOLLANDSWORTH, Programs & Events Coordinator JILL PRESLEY, Marketing & Communications Director CHELSEA RAYMER, CLE Coordinator VICKI SHOULDERS, Membership Coordinator, Office Manager

HAVE AN IDEA FOR AN ARTICLE? We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Jill.Presley@nashvillebar.org.

NBF Leadership Forum Nominations

As many of you know, the Nashville Bar Foundation established the NBF Leadership Forum—a local leadership program for lawyers with three to eight years of experience—designed to bring together emerging leaders to participate in monthly workshops for nine months to help them realize their potential and to benefit the legal profession and our local community. Nominations are currently being sought for the 2020 class—which begins this September—and we ask for your help in identifying intelligent, inquisitive, diverse lawyers who have already demonstrated their willingness to make and keep a commitment. Visit NashvilleBar.org/NBFLeadershipForum and submit the names of nominees you recommend for this innovative opportunity to learn, collaborate, network, and serve the legal profession and our community. Self-nominations are welcome. All nominations must be submitted by Friday, May 31. n

NASHVILLE BAR JOURNAL | APR/MAY 2019

The Young Lawyers Division is hosting Arts Immersion on Wednesday, May 22, at Fort Houston at 6:00pm. The event will showcase Nashville’s creative community through live music, dance, theatre, and interactive art. A silent auction celebrating creative and local gems will be held, and all proceeds will support the Arts & Business Council’s Volunteer Lawyers & Professionals for the Arts program. To learn more, visit NashvilleBar.org/ArtsImmersion. n

Spring Memorial Service

Our Spring Memorial Service will be held on Thursday, May 23, at the Downtown Presbyterian Church. The service begins at 11:00am with a reception lunch—featuring Martin’s BBQ—immediately following in the Fellowship Hall. Among those being honored are*: Robert Kendrick, Sr.

Elliott Ozment

William Carpenter, Jr.

Andy Veazey

Ken Jackson

James Flexer

James Walsh

Joel Leeman

Judge Thomas Higgins

Hardy Moyers

Samuel Selecman

Bart Leathers, Jr.

Charles White

David Downard

Judge Sue Evans

Mark Hartzog

William Bruce

Samuel Bartholomew, Jr.

NBA Family Zoo Day

Gather with your lawyer friends and their families on Saturday, June 8, for our Annual NBA Family Zoo Day at the Nashville Zoo! Upon arrival, stop by the NBA table between 10:00am and 12:00pm to pick up complimentary treats. Need tickets? Email Traci.Hollandsworth@nashvillebar. org, and let her know how many FREE tickets you need and they will waiting for you at the NBA table when you arrive. Limit four tickets per NBA member. Already have tickets or zoo passes? Come by the NBA table to say hello and pick up fun snacks and goodies on your way into the zoo. Visit NashvilleBar.org/ZooDay for more information. A wonderful outing for the entire family! n

*list subject to change

Memorial resolutions recounting the lives and legal careers of the deceased are prepared and read at the service by friends and colleagues of the bench and bar. Family members and friends of the deceased are also invited to attend. n

Upcoming Events May 3 | Law Day Luncheon @ Renaissance Hotel May 16 | Golf Tournament @ Vanderbilt Legends Club May 22 | YLD Arts Immersion @ Fort Houston May 23 | Spring Memorial Service @ Downtown Presbyterian Church Jun 1 | Bill Ramsey’s “Ode to Otha” Block Party @ Sweetbriar Jun 8 | Family Zoo Day @ Nashville Zoo Sep 26 | Annual Free Member Picnic @ Walk of Fame Park Nov 21 | Fall Memorial Service @ Downtown Presbyterian Church Dec 5 | Annual Banquet @ Music City Center

“Ode to Otha” Block Party

Each year, NBA member and former past president, Bill Ramsey, hosts a block-partybirthday-bash honoring longtime friend Otha Turner. Benefiting Second Harvest Food Bank, bring your family and friends to 1711 Sweetbriar on Saturday, June 1, at 2:00pm and join in on the celebration! Enjoy the outdoors for a casual day of music and dancing, food and drinks, and the centuries-old fife and drum tradition that Otha’s family proudly carries on. Visit NashvilleBar.org/OdeToOtha to learn more. n APR/MAY 2019 | NASHVILLE BAR JOURNAL

Feature Story | J.B. Ruhl

NASHVILLE BAR JOURNAL | APR/MAY 2019

Trumping Environmental Law Since the dawn of the Republic, incoming presidents have been undoing their predecessors’ policies. However, few have matched the intensity of the directional change President Trump has steered with regard to environmental policy. Reversing President Obama’s environmental record was a major theme in President Trump’s campaign, and he has delivered as promised. Nonetheless, no incoming president, since the wave of federal environmental legislation in the 1970s, has reversed the environmental policies. This reversal has played out over the past two years—not only from the White House—but from agencies, in Congress, and in the courts. The White House Presidents exercise a good deal of authority through “direct actions,” which include executive orders, presidential memoranda, proclamations, and similar instruments the president can issue without going through agencies or Congress. Because direct actions require no special process to issue, a president can rescind or amend a prior executive’s direct actions with the stroke of a pen. For example, the President used one executive order to rescind several initiatives put in place by the previous administration, which involved how agencies implement compensatory mitigation and plan for climate change.1 He also used direct actions to instruct the Environmental Protection Agency (EPA) to reconsider rules and policies the agency had promulgated during the Obama Administration, such as the Clean Air Act regulation of greenhouse gas emissions.2 Perhaps most controversially, Presi-

dent Trump issued proclamations dramatically reducing the size of two large national monuments President Obama and President Clinton had designated in Utah under the Antiquities Act.3 By the end of his first year in office, President Trump had altered all direct actions by his predecessor aimed at focusing on climate change mitigation and adaptation. President Trump has framed this initiative as an effort to build the nation’s energy independence,4 and to expedite construction and repair of important infrastructure through streamlining of environmental assessment laws.5 This stark change in focus illustrates how quickly and decisively a president can change course through direct actions. Contrast the above approach to the much slower and litigation-prone world of agency rulemaking. The Agencies Much of environmental law is embodied in agency regulations and guidance. Incoming presidents can use the appointments process to exercise considerable influence over the direction agencies take in this regard, but a president cannot act unilaterally—the agency must do the work, and must follow the statutorily-required process. When federal agencies promulgate regulations implementing statutory authority, they must adhere to the notice-and-comment and other procedural requirements of the Administrative Procedure Act, plus a host of other requirements Congress has added over time. Undoing a regulation requires another regulation and all the process that goes (continued on page 8) (continued on page 00)

APR/MAY 2019 | NASHVILLE BAR JOURNAL

Feature Story | along with that, and thus the “repeal and replace” effort often moves slowly, but surely. High profile examples in the Trump Administration include efforts to repeal and replace two of the Obama Administration’s showcase environmental rules—the EPA’s Clean Power Plan, which regulates greenhouse gas emissions under the Clean Air Act,6 and the EPA’s joint rule with the Army Corps of Engineers defining the scope of “Waters of the United States” under the Clean Water Act.7 While these reversals have not moved as quickly as perhaps the EPA and Corps leadership had intended, they and many other rulemaking initiatives, including a suite of proposed rules changing the way the Endangered Species Act is administered,8 seem on course to be finalized in 2019. Of course, litigation challenging the substantive and procedural compliance of those new rules can be expected. Agencies also implement policy through guidance instruments, which do not require the extensive process

Trumping Environmental Law (continued from page 7)

of rulemakings and can thus be more easily undone. Federal agencies have been making more and more use of guidance to administer environmental laws, which has become a controversial practice given the ease with which guidance can be issued and altered. Much like presidential direct actions, it is common practice for a new president, particularly when from the “other party,” to direct federal environmental agencies to quickly get rid of the prior guidance and usher in a new regime. An example in the Trump Administration has been the unraveling of agency guidance implementing President Obama’s compensatory mitigation order mentioned above, as bureaus within the Department of Interior rescinded the mitigation guidance documents they had issued to implement President Obama’s directive.9 President Trump is by no means alone in steering agencies away from predecessor policies. The upshot of this practice is what some commentators call a “pathology” of pendulum

swings that keep business and environmental interests alike guessing as to what the “policy du jure” will be. For example, the next administration in the White House will have equal discretion to rework agency rules and guidance. This instability in law and policy complicates long term planning for the agencies as well as for businesses. The Congress Presidents hoping to shape legislative agendas need the cooperation of Congress, which usually requires the rare alignment of the political party in control of the White House, Senate, and House of Representatives. Notwithstanding that President Trump found himself in that enviable position upon taking office, Congress enacted no meaningful environmental legislation implementing the compensatory mitigation order mentioned above. However, early in President Trump’s term, Congress did use an obscure authority to rescind several rules promulgated in the last year of the Obama Administration. The Congressional Review Act of 1996 allows Congress to reach back and rescind agency rules promulgated within the last 60 legislative days and, through legislation signed by the president, rescind the rule in its entirety.10 It had been used only once, in 2001, but Congress and President Trump worked quickly in 2017 to rescind over a dozen rules including a Department of Interior rule governing protection of streams11 and another governing planning of land uses on federal public lands.12 The Courts President Trump has also been (continued on page 14)

NASHVILLE BAR JOURNAL | APR/MAY 2019

NASHVILLEBAR.ORG

HIGH SCHOOL INTERN PROGRAM The NBA and the Diversity Committee seek the commitment of your firm—as an employer—to hire one or more of the talented individuals we select to participate in our 7-week intern program beginning in June.

STUDENT BENEFITS

Provide rising and graduating seniors with personal experience in the day-today legal workplace of private law firms, corporate law divisions, governmental law offices, and other legal organizations.

EMPLOYER BENEFITS

Gain access to a variety of diverse talent through identification of outstanding students, as well as participate in the efforts among the Nashville legal community to promote diversity.

SPONSORSHIP OPPORTUNITY

Participate in the formal educational component of the program and sponsor a Lunch & Learn, which exposes interns to a wide diversity of legal employment opportunities.

MAKE A DIFFERENCE Each year, several highly qualified students are interested and apply but must be turned away. This year, the Diversity Committee desires to place more students in the program. To accomplish this goal, we need your help!

GET IN TOUCH If you are interested in participating as an employer OR you know a student who would like to apply for the High School Intern Program, contact Traci.Hollandsworth@nashvillebar.org or visit NashvilleBar.org/DiversityCommittee.

Diversity Committee High School Interns

CAN YOU NAME THESE PEOPLE?

Be the first person to email the correct answer to Jill.Presley@nashvillebar.org, and your name—along with the correct answer—will appear in the next issue.

FEB/MAR GOLDEN OLDIES

Congrats to James Omer, Sr. for identifying the individuals in last issue’s photo. From left to right: Judge Casey Moreland, Justice William Koch, Judges Gale Robinson and John Brown, Chancellor Ellen Hobbs Lyle, and George Lindsey May (center).

NBA Trivia Night Winners

The Legility Team—comprised of (pictured left to right) Michael DeLisle, Jamie Machamer, Christa Ellis, and Blake Howell—took the first place slot out of over 30 teams at last month’s sold out NBA Trivia Night at Sea Salt Nashville. Congratulations to all! 10

NASHVILLE BAR JOURNAL | APR/MAY 2019

Editorial |

Jonathan Wardle

Looking Back: The Lingering Impact of the 2010 Nashville Flood Natural disasters have an immense cost and can wreak extensive damage when Mother Nature asserts her heavy hand. Widespread flooding experienced in and around Nashville earlier this year caused many to recall the catastrophic flood nine years ago. However, for many, the memories and the aftermath are still fresh.

However, as you would expect from the Volunteer State, there were heroic rescues and equally heroic community support. Local government recorded over 29,000 volunteers providing more than 375,000 hours of service to help flood victims. Nashville is justly proud of the way the entire community pulled together to help its own.2

A Record-Breaking Flood Between May 1, 2010 and May 2, 2010, the National Weather Service recorded 13.57 inches of rainfall in a 48 hour period, more than double the previous two-day record. The Cumberland River crested at 12 feet above flood stage. In Bellevue, the Harpeth River rose so high that it washed away the measuring gauges. However, water marks indicated the river rose to 33 feetâ&#x20AC;&#x201D;almost 9 feet higher than the previous record. Portions of the Red River, Duck River, and Buffalo River all crested at record heights, as did Browns Creek, Whites Creek, Mill Creek, and Richland Creek.1 In total, the flood and its aftermath claimed the lives of 11 people. It also caused an estimated $2 billion in damages to private property. This damage impacted nearly 2,800 businesses, which employed over 14,500 workers.

Law in the Wake of Disaster It was not long before legal disputes followed the May 2010 flood. Though impossible to describe every legal battle that resulted from the flood, suffice it to say that all areas of life in and around Nashville were impacted.

Pointing Fingers Accusations and blame for the flood itself abounded. For example, in a consolidated dispute, the Opryland Hotel and Grand Ole Opry, Nissan North America, Inc., and various insurance companies all claimed the Army Corps of Engineers exacerbated the flood by failing to follow its own protocols. So did two individuals, (continued on page 12)

APR/MAY 2019 | NASHVILLE BAR JOURNAL

Editorial |

The Lingering Impact of the 2010 Nashville Flood (continued from page 11)

in a separate lawsuit.3 Some flood victims faulted insurance carriers for leaving them without adequate coverage by mapping their homes into the wrong flood zone. Others placed blame upon landlords for flooded and damaged property for failure to advise tenants that the property was located in a flood plain.4 Property Damage The sheer magnitude of the scope of the flood loss generated voluminous lawsuits for property damage. One noteworthy example was the flooding at Opry Mills. The owner of the 1.1 million square foot facility claimed damages of $200 million after it was submerged in 10 feet of water forcing it to close for months.5 Some lost property as a result of passing through Nashville at the wrong time. In one case, the plaintiffs lost over $200,000 of fabric when a shipping facility was flooded. In another, the plaintiff claimed over $100,000 in damaged pharmaceuticals because the truck driver took a 10-hour break in Bellevue and awoke to find the parking lot filled with rising flood waters.6

He abandoned the truck to be submerged in the floodwaters. Unfortunately, some of the hardest hit victims were already struggling to get by. For example, a debtor in a bankruptcy case requested relief from her homeowners’ association fees when the flood forced her to permanently leave her home.7 Other flood victims were targets of scams by those purporting to help them in the weeks and months after the flood.8

carrier based on those expenses.9 Today, the flood continues to affect our community. Only a few months ago, FEMA asked Metro Nashville to repay $400,000 of the $70.3 million provided to help Metro with flood damages.10 While we do not know the full extent of the lasting legal impacts of the flood, the examples presented allow us to evaluate legal reverberations in all areas of the law that follow in the wake of natural disasters. n

Damage Control Litigation continued in the rebuild following the flood. Sumner County sued a homeowner who refused to sign a deed of trust to secure the repayment of a loan provided through a home-rehabilitation program. In another case, homeowners claimed their neighbors’ attempt to repair a pipe exposed by the flood caused a creek to be diverted towards the claimants’ house. One commercial tenant claimed the landlord never reimbursed the tenant for expenses incurred remediating the property, even though the landlord received payment from its insurance

Endnotes 1

See Remembering the May 2020 Flood, Nat’l Weather Serv.

See Nashville Flood May 2010, Metro. Gov’t Nashville & Davidson County; see also In re Pigg, 453 B.R. 728, 730, 734 n.10 (Bankr. M.D. Tenn. 2011). On a personal note, I well remember the volunteers from Cross Point Church and my own congregation of The Church of Jesus Christ of Latter-Day Saints who helped affected residents in my Bellevue neighborhood. I also remember the volunteers from Harpeth Heights Baptist Church who staffed a tent for months, providing lunches and encouragement to those working to rebuild their lives neighborhood. 2

See A.O. Smith Corp. v. U.S., 774 F.3d 369 (6th Cir. 2014); North v. U.S., No. 3-12-1057 (M.D. Tenn. Feb. 28, 2013).

4 See Harris v. Nationwide Mut. Fire Ins. Co., 832 F.3d 593 (6th Cir. 2016); Airpro Sys., Inc. v. Prologis North Carolina Ltd. P’ship, No. 3:11-00526, 2012 WL 2357443 (M.D. Tenn. June 20, 2012).

See Opry Mills Mall Ltd Partnership v. Arch Ins. Co., No. M201601763-COA-R3-CV, 2018 WL 576194 (Tenn. Ct. App. Jan. 26, 2018), perm. app. denied (Tenn. May 16, 2018).

See Zydus Pharm. (USA), Inc. v. British Airways PLC Corp., No. 3:12-cv-00067, 2013 WL 3092828 (M.D. Tenn. June 18, 2013); Omega Apparel Inc. v. ABF Freight Sys. Inc., No. 2:11-0031, 2012 WL 2814300 (M.D. Tenn. July 10, 2012).

See In re Equip. Finders, Inc. of Tenn., 473 B.R. 720 (Bankr. M.D. Tenn. 2012); In re Pigg, 453 B.R. 728 (Bankr. M.D. Tenn. 2011).

Cf. State v. Hall, -- S.W.3d --, 2019 WL 117580, at *1-3 (Tenn. 2019) (describing a man’s attempt to sexually exploit a minor whose family he moved in with to help them repair damage from the flood); E. Thomas Wood, Nashville at law: Condo owners sue over flood rehab, Nashville Post (Aug. 14, 2010), (describing damages allegedly caused by unlicensed contractors working on flood-damaged homes).

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615.385.0686 | w w w. p r i c e c p a s . c o m

NASHVILLE BAR JOURNAL | APR/MAY 2019

See Dog House Inv., LLC v. Teal Props. Inc., 448 S.W.3d 905 (Tenn. Ct. App. 2014); Ray v. Neff, No. M2016-02217-CCA-R3-CV, 2018 WL 3493158 (Tenn. Ct. App. July 20, 2018) (no perm. app. filed); Sumner County v. Small-Hammer, No. M2017-02328-COA-R3-CV, 2018 WL 2438205 (Tenn. Ct. App. May 30, 2018) (no perm. app. filed).

See Joey Garrison, FEMA wants Nashville to pay back $413K in federal aid from 2010 flood, Tennessean (Dec 6, 2018).

This article represents the opinions of the author and not necessarily those of the Office of the Tennessee Attorney General and Reporter.

JONATHAN WARDLE is an Assistant Attorney General in the Criminal Appeals Division of the Office of Tennessee Attorney General, services on the NBJ Editorial Committee and is a Fellow of the Nashville Bar Foundation.

BACKGROUND CHECK

Chancellor Patricia Head Moskal | Bart Pickett

On January 17, Governor Haslam appointed Patricia (Pat) Head Moskal as Chancellor for Davidson County Chancery Court, Part I. The move was the first in Moskal’s 30-plus year legal career. Pat grew up in Indianapolis as the third of six children. Her father, a WWII veteran, owned a small business that provided radio and color television repairs. Her mother was an artist and stay-at-home mother. As she was finishing high school, her family moved to Chattanooga, and she attended her freshman year at the University of Tennessee-Chattanooga. Following Pat’s freshman year, however, she returned to her home state to attend Indiana University-Bloomington (IU). While at IU, Moskal majored in psychology and then graduated in 1976. Following graduation, Pat returned to Chattanooga and worked as a psychiatric teacher/counselor for special needs children at a residential facility for five years. She also began working on her Master’s in Education and participating in some education advocacy work, which led her to change career directions and apply for law school. In 1982, Pat started at the Uni-

versity of Tennessee College of Law where she spent her time between Chattanooga and Knoxville (her husband worked and lived in Chattanooga). She spent two years as research assistant for Professor Joe Cook and finished third in her law school class, graduating with highest honors. After law school, Pat took a job at Boult Cummings (now Bradley) in 1985. She had no connection to Nashville, but she appreciated the legal atmosphere. For almost 35 years, she remained at Boult. Her practice consisted of 100% litigation—both trial and appellate work. The majority of the work was in chancery court, though she also worked on administrative and federal court cases. Pat had long aspired to enter public service and give back to the community, so when the chancellor position opened recently, she decided the time was right to apply. The same week she found out she had been selected, she found herself preparing for her son’s wedding. To say the least, her family had lots to celebrate that week. Luckily, with the support of her co-workers at Bradley, Pat has been able to wrap up her practice rather quickly in 32 days and assume the bench. She was officially sworn in on February 19, with an investiture on March 28. In her short time on the bench, Pat finds the biggest difference from private practice is not being the advocate. She is enjoying the ability to review files and briefs to prepare for hearings. Perhaps exemplifying her Midwestern roots and humility, Pat expresses her extreme gratitude and

honor in serving in her new role. She’s quick to say she has some big shoes to fill following in the footsteps of Chancellor Claudia Bonnyman. Pat resides in the Bellevue neighborhood of Nashville and has two sons, ages 26 and 25—one works in New York City at an engineering design firm, and her other son lives in Nashville and works as an inspector for a local erosion control company. During her legal career, Pat has been active in the bar and local bar associations. She has served as board member of the Nashville Bar Association and the Tennessee Lawyers Association for Women, as well as serving as the president of Nashville’s Lawyers’ Association for Women. In her free time, Pat enjoys reading and cooking. She is also a sports fan and loves following college basketball, pro baseball, the Titans, and the Predators. She also loves music— especially classical—and has season tickets to the Nashville Symphony. Anyone who knows Chancellor Moskal already knows that she will continue the great work of the Davidson County Chancellors. Her appointment will last through 2020 when she will be up for election beginning in March 2020. n BART PICKETT is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty Mutual Group, Inc.’s insureds and customers of its affiliated groups in litigation throughout Middle Tennessee. Prior to practicing, Pickett worked as a law clerk for the Honorable Judge Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joseph P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

APR/MAY 2019 | NASHVILLE BAR JOURNAL

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Trumping Environmental Law (continued from page 8)

steadily appointing judges to the federal courts, including Supreme Court Justice Kavanaugh, who presumably will approach environmental policy issues through a more conservative ideology. At the Supreme Court level, there have been no “big” cases on which Justice Kavanaugh has participated, so it remains to be seen how his appointment will steer the Court’s environmental jurisprudence. It does seem even more unlikely, though, that the Court will embrace novel arguments being made in the lower federal courts regarding governmental and corporate liability for climate change. Although litigation over the new versions of rules and guidance discussed above is inevitable, it has not progressed enough in the lower courts to get much of a read on how the new appointees will handle environmental policy issues. Though it is too early to evaluate the impact, and there have been no high-profile judicial decisions as of yet, President Trump’s judicial appointments surely will have a long-lasting effect on the shape of environmental law of the future. Since its earliest days, environmental policy has been marked by rough-andtumble politics and pendulum swings as the White House and Congress change parties. The Trump Administration’s first two years were no exception. Whether you agree with the underlying policy goals or not, it is hard to describe it as anything less than sweeping in scope and a decisive rejection of President Obama’s policies. On the other hand, no legislation has been enacted to fundamentally alter any environmental laws, and the regulations being promulgated by EPA, the Department of Interior, and other environmental agencies will likely become mired in litigation. The next president,

NASHVILLE BAR JOURNAL | APR/MAY 2019

whether in 2021 or 2025, could undo all of President Trump’s direct actions and the agencies’ guidance—the only difference would be who’s complaining! n Endnotes 1

Executive Order 13783, 82 Fed. Reg. 16093 (Mar. 31, 2017).

Id.

82 Fed. Reg. 58081 (Dec. 8, 2017); Fed. Reg. 58089 (Dec. 8, 2017).

Executive Order 13783, supra note 1.

82 Fed. Reg. 8793 (Jan. 30, 2017).

83 Fed. Reg. 44746 (Aug. 3, 2018).

83 Fed. Reg. 67174 (Dec. 28, 2018).

83 Fed. Reg. 35174 (July 25, 2018).

83 Fed. Reg. 36469 (July 30, 2018).

5 U.S.C. 801-808 (2018).

Pub. L. No. 115-5 (Feb. 16, 2017).

Pub. L. No. 115-12 (Mar. 27, 2017).

J. B. RUHL is the David Daniels Allen Distinguished Chair in Law at Vanderbilt Law School. He is an expert in environmental, natural resources and property law, and also studies the legal industry and legal technology. He was named director of Vanderbilt’s Program on Law and Innovation in 2014, serves as the co-director of the Energy, Environment and Land Use Program, and chairs the Environmental Law Committee for the NBA. J.B. has taught at the Southern Illinois University School of Law, as well as Florida State University, and has been a visiting professor at Harvard and George Washington University.

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound Bill Dunn that would authorize the two Speakers or a majority of the members of both houses to intervene in any legal proceeding to defend the constitutionality of a challenged statute or assert the General Assembly’s constitutional legislative authority or to advocate for a construction of a statute different from that advocated by the State Attorney General. Go figure the state’s position in those cases.

—Nervous as a three-legged dog at a fire hydrant. Trustees of the Legal System Robert Grey, former ABA President, speaking at the January TBA Public Service Luncheon noted, “We need to protect those individuals who seek justice. It is not just an idea—it is a reality that we need to make happen. Lawyers are the trustees of our legal system. We didn’t ask for that role, but we assume the responsibility when we take the oath.” Nervous We are always nervous when the General Assembly is in session. We know that Robert Grey was on to something when he noted that lawyers are trustees of our legal system. Our legislative friends always like to tinker with the legal system. Aristotle noted that the law is reason, free from passion. Our legislative friends are a passionate lot, and this year is no exception. Senate Joint Resolution 1 by Ken Yager appears to be on its way to passage this year. SJR 1 would set in

motion a constitutional amendment to revise the selection process for Tennessee’s Attorney General and Reporter. Presently under Article VI, Section 5, of the Tennessee Constitution, the Supreme Court chooses the Attorney General and Reporter for an eight-year term. Tennessee is unique among the 50 states for this selection process that dates to our 1870 Constitution. SJR 1 would require the Supreme Court’s selection to be confirmed by each house of the General Assembly for a six year term. This year’s legislative work does not finish this process. As it should be, it is hard to amend our Tennessee Constitution. If SJR 1 receives 50 affirmative votes in the House concurring with its previous approval in the Senate, the same language must be approved by the 112th General Assembly, which will be elected in November 2020 by a two thirds vote in each house. Then the measure would appear on the November 2022 general election ballot as a referendum question for the state’s electorate. The General Assembly also has SB 316 by Bo Watson / HB 194 by

Every Dog Has Its Day Governor Bill Lee has signed SB 1129 by Art Swann / HB 999 by Bill Beck, a Nashville lawyer, into law. The bill designates the bluetick coonhound as Tennessee’s official state dog. The beagle hound lobbying was intense for a substitute amendment, but when the fire was put out and the dogs were called in and the hunt was over, the bluetick coonhound prevailed in a unanimous vote in each house. Congratulations are in order to Smokey who has served the University of Tennessee loyally since September 1953. Congratulations Delishia Porterfield prevailed in the March 19 special runoff election over Nick La Mattina in Metro Council District 29. Councilwoman Porterfield will serve for the remainder of the unexpired term and will have to opportunity to seek a full four year term in the regular August 2019 election. Congratulations are also in order for Patricia Head Moskal who received the appointment of Governor Bill Haslam on January 17 for the Davidson County Chancery Court, Part I, after the retirement of Chancellor Clau(continued on page 16)

APR/MAY 2019 | NASHVILLE BAR JOURNAL

Capitol Notes | dia Bonnyman. Additionally, congratulations are in order for Paul Rose of Covington who won a special election on March 12 to fill the remainder of the term for State Senate District 32 composed of Tipton County and an eastern slice of Shelby County. The vacancy was created by the appointment and confirmation of Senator Mark Norris to the position of Judge for the United States District Court for the Western District of Tennessee. Checklist for April and May 1. Sign up to attend the Law Day Luncheon on noon Friday, May 3, at the Downtown Renaissance Hotel. Judge Martha Craig Daughtry is the keynote speaker.

Peggy Sue, the Beagle Hound (continued from page 15) 2. Start paying attention to the candidates vying for election in the Metro Government races. While we celebrate our past success, we must awaken the future with good public officials. 3. Our community is going to be a very busy place for the next several weeks with many visitors. Practice hospitality. Calendar Notes State and NBA offices will be closed on Friday, April 19, for Good Friday and Monday, May 27 for Memorial Day. Noon on Thursday, May 16 is the qualifying deadline for a candidate to qualify for the August 1 Metropolitan General Election for the offices of Mayor, Vice Mayor, and Metropolitan Council. Any necessary

runoff elections will be Thursday, September 12. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

PROUD TO SUPPORT THE NASHVILLE BAR ASSOCIATION HERMAN HICKS

Vice President Private Client Relationship Manager (615) 734-6186 • hahicks@ftb.com

RESERVE OUR FACILITIES Did you know? The Nashville Bar Association offers its conference rooms to be used for arbitrations, mediations, meetings, depositions, and other events for attorneys who need a convenient place to meet in downtown Nashville. We have a spacious Conference Center and a smaller Board Room— both of which have Wi-Fi access, a computer, and phone—available for your use. For more information, contact Vicki.Shoulders@nashvillebar. org or visit NashvilleBar.org/ ReserveOurFacilities.

NASHVILLE BAR JOURNAL | APR/MAY 2019

BILL & PHIL’S GADGET OF THE MONTH

To Dream the Impossible Burger | Bill Ramsey & Phillip Hampton

In addition to our passion for technology, we also share a love of efficiency, ecosystem conservation, and delectable culinary treats. So, when we heard about a company that combines all these elements in one product, we had to take a look—and taste. Impossible Foods is the company, and the Impossible Burger is the product. Probably our most enjoyable assignment to date was trying out this new product—which meant, of course, we had to eat it. Read on to see our verdict. First, a little background. Impossible Foods has been around since 2011 with a mission to reduce humanity’s destructive impact on the environment by replacing animals as a food source. In 2016, they debuted their first Impossible Burger, made entirely from plants. In 2019, the company introduced its new and improved Impossible Burger 2.0 at the 2019 Consumer Electronics Show. (We were there, of course.) The Impossible Burger is designed to fool even the biggest meat eaters among us into believing they are actually eating beef. The burger is completely meatless and consists mostly of wheat, potato proteins, and coconut oil. But the magic ingredient is heme—something that is inside every living being—and, according to the company, this ingredient is what gives beef

the unique flavor that we identify as real meat. But the heme used in the Impossible Burger is derived from the root of soy plants and is produced on a largescale basis by fermenting genetically modified yeast. The result is a meatlike substance that tastes—and even smells—like the real thing. However, it requires 75% less water and 95% less land to produce and generates about 87% less greenhouse gas emissions. In other words, the Impossible Burger is a bonanza if it can pass the taste test. We decided to give it a try. Finding a restaurant that carries the Impossible Burger on the menu in Nashville was no problem. There are over 30 places that carry it in the Metro Nashville area. We found one in very close proximity to our downtown offices. So, after a busy day at the office, we strolled on down to Del Frisco’s Grille for the Impossible Burger taste test. The sizzling burgers arrived shortly after we ordered them, and they did indeed have the scent of freshly cooked beef. We lifted the bun to see what was on the inside, and the “meat patty” looked like a slightly drier beef patty. We wasted no time commencing with the “test” (see photo inset). We were impressed. While we could tell they were not real beef burgers, they still tasted good, really good. We have had meatless burgers before, and, for the record, we were not fans. The Impossible Burger was the best meatless burger we have ever tasted and came very close to emulating the actual taste of beef. However, we don’t think you would have fooled us by substituting this for a real burger and us not knowing it. The texture is slightly different, and the taste is subtly different. But there was no residue left from our test—we obviously had no problem

gulping down the entire test “specimen.” The good news is that the burger is cholesterol and gluten free. So, what is our verdict? Thumbs up. We were a little disappointed that the restaurant charged us a $2 upcharge for the Impossible Burger. But what’s $2 when while we’re eating, we’re helping save the planet? At least, that’s what we told ourselves. Our server told us that the restaurant had just recently begun carrying the Impossible Burger on the menu. Apparently, after the successful CES debut of the Impossible Burger 2.0, the company has been working hard to place the product in numerous locations. The company website claims they are in over 5,000 restaurants in the US, Hong Kong, and Macau. Impossible Foods is now working to get an Impossible Burger product that you can buy in grocery stores to use in your own cooking. Over the next decade, the company states that all the food that we currently get from animals will begin to be replaced by plant-based ingredients. We saluted their effort and ordered another round of burgers to go. n Until next time,

APR/MAY 2019 | NASHVILLE BAR JOURNAL

ARE YOU INTERSTED IN TRAVELING TO EUROPE WITH THE NBA? SEPTEMBER 1-8, 2019 The NBA CLE division is excited to announce opportunities in September to visit London, England, or Caen, France—or both! Join us September 1–8 for: • Customized itineraries for London and Caen • CLE credit • Social, cultural, and educational opportunities • Travel abroad with friends and colleagues Registration is separate for each destination and must be received no later than Wednesday, May 1. You may register for either London or Caen, or you may choose to travel to both destinations. For details, visit NashvilleBar.org/JourneyToEurope!

HIGHLIGHTS INCLUDE . . . LONDON | SEPT 1-5, 2019 • Parliament Square including Westminster Abbey, Big Ben, 10 Downing Street, and the Palace of Westminster • Churchill’s Cabinet War Rooms and British Museum • Inns of Court, day trip to Runnymede, and Riverboat Cruise to visit Windsor Castle • CLE credit and more! CAEN | SEPT 5-8, 2019 • Welcome and farewell dinners • Excursion to the D-day beaches • Optional free homestay with French family and meals with family • CLE credit and more! For details, visit NashvilleBar.org/JourneyToEurope!

NASHVILLE BAR JOURNAL | APR/MAY 2019

NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. MONDAY, APRIL 1 5 | LIVE SEMIN A R

TU E S D AY, A P R I L 16 | LI V E S E MIN A R

BALLOTS AND BULLETS

THE NIXON COURT

Black Power Politics and Urban Guerrilla Warfare in 1968 Cleveland OVERVIEW Presented by the Nashville Bar & Napier-Looby Bar Associations Attorney and author James Robenalt will discuss his book— Ballots and Bullets: Black Power Politics and Urban Guerrilla Warfare in 1968 Cleveland—and race violence in America, continuing issues with police, and implicit bias. All are welcome. The event is free, with a fee for those seeking CLE credit. A complimentary lunch and parking validation will be provided by our host. PRESENTER James Robenalt Author of Ballots and Bullets Partner, Thompson Hine D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST

OVERVIEW Featuring John Dean & James Robenalt John Dean and James Robenalt are back in Nashville to present their three-hour ethics CLE, The Nixon Court. This seminar explores Nixon’s appointments to the Supreme Court—Justices Burger, Blackmun, Powell, and Rehnquist—along with a behind-the-scenes look at the decision in Roe v. Wade. PRESENTERS John Dean James Robenalt D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:00 – 9:30am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:30am – 12:45pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 Dual Location. . . . . . . . . . . . . . . . . . . . . . Montgomery Bell Academy COST NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $149 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $249 For registration after April 1, add a $25 late fee. SPONSORS

CLE Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

APR/MAY 2019 | NASHVILLE BAR JOURNAL

T UE S DAY, A PRIL 2 3 | LIVE SEMINAR

TH U R S D AY, M AY 2 | LI V E S E M I N A R

STAYING HEALTHY DURING HEATED LITIGATION

LUNCH WITH CHANCELLOR ANNE MARTIN

Attorney Health & Wellness Committee OVERVIEW Deborah Denson is a Supreme Court Rule 31 General Civil/ Family Mediator and focuses on conflict management. During this seminar, she will discuss strategies for working with difficult adversaries while maintaining a healthy mindset. Deborah is passionate about managing conflict because it underpins managing stress, personal relationships, business relationships, and life in general. This seminar will be held at a meeting of the NBA Wellness Committee. All are welcome. The event is free, with a fee for those seeking CLE credit.

OVERVIEW The fourth Lunch with the Judges CLE features Chancellor Anne C. Martin. Join Chancellor Martin as she addresses issues, tips, and insights related to practice in Davidson County Chancery Court. The NBA will provide a pizza and salad lunch at 11:30am. From 12:00 to 1:00pm, there will be an hour-long CLE related to courtroom practice with opportunity for questions. PRESENTER Hon. Anne C. Martin, Chancellor

PRESENTER Deborah Denson, Supreme Court Rule 31 Listed General Civil/Family Mediator

D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 Dual & 1.0 CME Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST CLE Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

NASHVILLE BAR JOURNAL | APR/MAY 2019

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $39 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $59 For registration after April 30, add a $10 late fee.

T UE S DAY, MAY 7 | LIVE SEMINA R

TH U R S D AY, M AY 9 | LI V E S E M IN A R

HEALTH OR HIGH?

WHAT HAPPENS IN THE OTHER ROOM?

The Evolving World of Cannabis OVERVIEW Although Tennessee has not legalized medical marijuana—let alone recreational marijuana—hemp and its oil derivatives are legal pursuant to some significant regulations. Clients frequently need guidance to keep them within the statutory confines, given the gray areas in the law. At this CLE, you will learn: • Comparisons of marijuana and hemp, both from a scientific and legal perspective; • General background of laws pertaining to each; and • Expectation of legal and regulatory changes on the horizon.

Looking Behind the Curtain for a Successful Mediation OVERVIEW

Mediation is a part of the schedule for every civil case. It is a perfect time to showcase the strengths of your case but to be candid about your weaknesses.

PRESENTER

In this one hour program, you will learn how to deal with what is happening in the other room of the mediation. Best practices for pre-mediation activities, conduct at the mediation, and wrapping up the cases will be discussed. The session is highly interactive and entertaining. Join us to learn about how to put your best foot forward in mediation.

Mary Parker, Parker & Crofford

PRESENTER John R. Tarpley, Lewis Thomason

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after May 3, add a $10 late fee.

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General & 1.0 CME Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after May 7, add a $10 late fee.

APR/MAY 2019 | NASHVILLE BAR JOURNAL

MONDAY, MAY 1 3 | LIVE SEMINAR

TU E S D AY, M AY 14 | LI V E S E M I N A R

PAY EQUITY LAWSUITS IN A #METOO AGE

VIEW FROM THE BENCH: DISTRICT JUDGE ELI J. RICHARDSON

Employment Law Committee OVERVIEW

Equal pay continues to be a key topic for employment lawyers—and it has no signs of slowing down. From new state pay equity legislation to key court rulings to new global developments such as gender pay gap reporting, employers need to stay in the know in this important area. This session will provide the latest on pay equity, focusing on practical takeaways that lawyers can glean from pay equity litigation on topics like class certification, affirmative defenses, and more. This seminar will be held at a meeting of the NBA Employment Law Committee. All are welcome. The event is free, with a fee for those seeking CLE credit.

Federal Court Committee OVERVIEW

This CLE features Judge Eli J. Richardson’s views from the bench. Judge Richardson will discuss his procedures as they relate to pretrial and trial practice. This seminar will be held at a meeting of the NBA Federal Court Committee. All are welcome. The event is free, with a fee for those seeking CLE credit. PRESENTER Hon. Eli J. Richardson, District Court Judge

PRESENTER Liz Washko, Ogletree, Deakins, Nash, Smoak & Stewart, PC

D E TA I L S D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST CLE Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

NASHVILLE BAR JOURNAL | APR/MAY 2019

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . Probate Training Room, Federal Courthouse COST CLE Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

F RI DAY, MAY 1 7 | LIVE SEMINA R

TU E S D AY, M AY 21 | LI V E S E M IN A R

WORLD IP DAY: TACKLING INTELLECTUAL PROPERTY RIGHTS THEFT

AN OVERVIEW OF VA BENEFITS & REPRESENTATION

Intellectual Property Committee OVERVIEW

For World IP Day, the NBA Intellectual Property Committee presents a CLE on enforcing intellectual property rights using new fashioned measures against old fashioned crimes. Topics include: • The impact of counterfeiting and piracy on health, safety, and the economy • Intellectual property enforcement (administrative, civil, and criminal) • Best practices for creating and implementing an effective anti-counterfeiting/piracy program • Investigating IP crimes: operation team player This seminar will be held at a meeting of the NBA Intellectual Property Committee. All are welcome. The event is free, with a fee for those seeking CLE credit. Thank you to Bradley for sponsoring breakfast and hosting this seminar!

OVERVIEW This seminar covers all topics necessary to gain or renew accreditation to practice before the Veterans Administration. This will qualify you to help our Veterans who need our help to get the benefits they have earned and deserve for serving our country. Topics include: • Overview of the benefits the VA provides and what the VA requires of attorneys who wish to practice before the VA • Qualification for benefits overview: net worth and income and how that interacts with the needs of your client; applications and expedited qualification • Benefit rates, service connected disability programs, pension program, appeals, and dependent and indemnity compensation All attendees and NBA Veterans Committee members are invited to a reception following the CLE. PRESENTERS Karl D. Warden, JD, LLM Seth Ogden, PhD, Patterson Intellectual Property Law D E TA I L S

PRESENTERS

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 1:30pm

See NashvilleBar.org/WorldIPDay for a full list of presenters.

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:30 – 4:50pm

D E TA I L S

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Registration & Breakfast. . . . . . . . . . . . . . . . . . 8:00 – 8:30am

COST

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30am – 12:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.25 General Location. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bradley

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 General

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $279 For registration after May 17, add a $10 late fee.

COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . $39 per credit Non-Members. . . . . . . . . . . . . . . . . . . . . . . $89 per credit hour Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

APR/MAY 2019 | NASHVILLE BAR JOURNAL

W E DNE S DAY, MAY 2 2 | LIVE SEMINAR

FR I –S ATU R D AY, JU N E 21–22 | LI V E S E MIN A R

MENTAL HEALTH IN THE CRIMINAL JUSTICE CONTEXT

INTRODUCTORY INTERDISCIPLINARY COLLABORATIVE DIVORCE TRAINING

Criminal Law & Criminal Justice Committee Health Law Committee OVERVIEW Tough cases will be discussed in this CLE focusing on services provided to defendants while in custody and when released. Competency evaluations and competency training will be discussed in detail, and the limited options for defendants found to be incompetent and Not Guilty by Reason of Insanity will be explored. This seminar will be held at a joint meeting of the NBA Criminal Law and Criminal Justice Committee and the Health Law Committee. All are welcome. The event is free, with a fee for those seeking CLE credit. PRESENTERS Jeff Feix Director of Forensic & Juvenile Court Services TN Department of Mental Health & Substance Abuse Services Adam Graham, LPC-MHSP Director of Emergency Psychiatric Services Mental Health Cooperative Xyzeidria Ensley Director of Behavioral Health Services Davidson County Sheriff’s Office D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm

OVERVIEW Presented in Partnership with the Middle Tennessee Collaborative Alliance Want to help families move through divorce in a way that helps preserve relationships, honors privacy, and respects their needs and interests? Join family law practitioners who are committed to helping families resolve their differences peacefully rather than battling as adversaries in the courtroom and become trained as a Collaborative Divorce professional. This interactive training demonstrates a Collaborative Divorce case from beginning to end and teaches the skills needed to be a Collaborative Divorce practitioner. Get ready to be engaged, surprised, and laugh while obtaining 14 CLE credits and learning how to add this ADR method to your practice. PRESENTERS View the full agenda and presenters online at NashvilleBar.org/CollaborativeDivorceTraining. D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:00 – 8:30am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30am – 5:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm

Early Bird Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . $545

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

For registration after May 10, add a $50 late fee.

Location. . . . . . . . . . . . . . . Birch Building Jury Assembly Room COST CLE Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

NASHVILLE BAR JOURNAL | APR/MAY 2019

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Understanding Employment Law April 15, 8:00 – 4:15am

1.0 Dual | 5.5 General

Complimentary breakfast included.

How to Prepare an Initial Public Offering April 30, 8:00am – 4:00pm

6.25 General

Complimentary breakfast included.

Appellate Advocacy April 30, 11:45am – 4:00pm

3.75 General

Delaware Law Developments What All Business Lawyers Need to Know May 9, 8:00am – 4:00pm 1.0 Dual | 5.0 General Complimentary breakfast included.

Patent Eligibility, Prior Art and Obviousness Current Trends in Sections 101, 102, and 103 May 13, 8:00am – 4:00pm 6.0 General Complimentary breakfast included.

Understanding Patent Law May 22, 8:00am – 4:00pm

6.0 General

Complimentary breakfast included.

Health Care Technology: New Risks and How to Plan for Them in Cyber Threats, Digital Medicine, IoT and Technology Agreements May 29, 8:00am – 4:00pm 6.25 General Complimentary breakfast included.

Doing Business in and with Emerging Markets June 3, 8:00am – 4:00pm 1.0 Dual | 5.0 General Complimentary breakfast included.

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NASHVILLE BAR JOURNAL | APR/MAY 2019

Editorial |

Robert D. Martin & Eric C. Lyons

Sparks Fly in TVA Liability Case In the summer of 2013, a fishing tournament on the Tennessee River turned deadly when a downed power line seriously injured Gary Thacker and instantly killed his friend. This accident occurred while the Tennessee Valley Authority (TVA) was attempting to raise a partially submerged power line. Mr. Thacker filed suit alleging TVA negligently failed to take the proper steps in preventing the accident. Almost six years later, the Supreme Court of the United States heard arguments in Thacker’s case. In a broad sense, the government is immune from civil liability unless it has explicitly authorized suits against itself. The most common authorization for suing the federal government is the Federal Tort Claims Act (FTCA), which waives sovereign immunity to allow private citizens to sue the government for torts committed by federal employees in the scope of their employment.1 This waiver, is subject to several statutory exceptions, the main one being the “discretionary function exception.”2 The discretionary function exception provides that the United States is not liable for any claim “based upon the exercise or performance or the failure to exercise or per

form a discretionary function or duty on the part of a federal agency or an employee of the Government . . . .”3 In other words, the exception gives the government the latitude to make choices between different viable policy actions without fear of a civil suit. The kicker is that the FTCA specifically excludes the TVA. This exclusion means that the waiver of sovereign immunity—and the accompanying discretionary function exception—theoretically should not apply.4 While the TVA is subject to its own “sue-and-be-sued” clause, the TVA Act subjects TVA to its own discretionary functions.5 The issue before the Supreme Court is whether the discretionary function exception should nonetheless apply to the TVA. The Court has read exemptions into similar “sue-andbe-sued” clauses in the past. For instance, in Federal Housing Authority v. Burr, the Supreme Court established the presumption that the power to “sue-and-be-sued” limits liability only in extraordinary circumstances, such as when a lawsuit would cause “grave interference” with government (continued on page 28)

APR/MAY 2019 | NASHVILLE BAR JOURNAL

Editorial |

Sparks Fly in TVA Liability Case (continued from page 27)

functions.6 Thacker encouraged the courts to apply the Burr analysis to his case. The district court dismissed the lawsuit for lack of subject matter jurisdiction, finding that the TVA’s emergency response represented precisely what “the discretionary function exception was designed to protect.”7 The Eleventh Circuit agreed and expressly applied the discretionary function exemption to the TVA.8 During oral argument at the Supreme Court, no Justice appeared enthusiastic to accept the government’s position that the TVA should enjoy discretionary function immunity. The government argued that, in passing the TVA Act with the “sue-and-be-sued” language, Congress “[u]nderstood that discretionary-function immunity would survive.” Justice Gorsuch, in perhaps the biggest zinger of the argument, responded that “if the government wishes to compete in private industry and the commercial world,” we should expect it to “make it clear that it

wishes to retain its immunity a little bit more clearly than enacting a statute that says the entity may be sued.” Justice Breyer suggested that it may be preferable to apply the well-established body of FTCA law to other government liability cases rather than Burr’s case-by-case analysis. Justice Breyer seemed to suggest that the “grave interference” standard and the discretionary function exception test appeared to create a distinction without a difference. So why does this case matter? SCOTUSBlog has pointed out that whichever way the Court holds, it will choose between two competing lines of precedent: on one hand, the federal government is generally protected from tort claims that implicate public policy; on the other hand, government corporations are usually treated as commercial entities subject to tort liability.9 At a time when the Supreme Court’s decisions seem increasingly unpredictable, the Thacker decision could open the doors for more litiga-

tion against TVA, the largest regional planning agency of the federal government. One thing the decision won’t do is draw a line as to what constitutes a discretionary function and what does not. The Supreme Court is not reviewing the application of the discretionary function exception to this case but rather whether the analysis should be applied at all. n Endnotes Amy M. Hackman, The Discretionary Function Exception to the Federal Tort Claims Act: How Much is Enough?, 19 Campbell L. Rev. 411 (1997). 1

28 U.S.C. § 2680(a).

Id.

Id. § 2680(l).

16 U.S.C. § 831c(b).

309 U.S. 242, 245 (1940).

Thacker v. Tennessee Valley Auth., 188 F. Supp. 3d 1243, 1245 (N.D. Ala. 2016), aff’d, 868 F.3d 979 (11th Cir. 2017). 7

868 F.3d 979 (11th Cir. 2017), cert. granted, 139 S. Ct. 51, (2018), amended, 139 S. Ct. 52 (2018), and cert. granted in part, 139 S. Ct. 52 (2018).

Gregory Sisk, Argument preview: When the Tennessee Valley Authority’s activities cause personal injury, may it claim discretionary policy immunity from liability?, SCOTUSblog (Jan. 7, 2019, 12:51 PM).

ROBERT D. MARTIN is an attorney at Meridian Law, PLLC, where he practices in general civil litigation defense. He is a graduate of Belmont University College of Law, a former intern for both Tennessee Supreme Court Justice Jeffrey Bivins and US Magistrate Judge John Bryant, as well as the US Attorney’s Office. ERIC C. LYONS is an attorney at Meridian Law, PLLC. He is a graduate of Vanderbilt Law School and was formerly a law clerk for Judge Gilbert S. Merrit, Jr. of the US Court of Appeals for the Sixth Circuit.

NASHVILLE BAR JOURNAL | APR/MAY 2019

Editorial |

Mike Abelow

Mediation, Nashville Style: The History of Mediation Practice in Middle Tennessee Nearly every civil case of any significant size involves at least one mediation. It was not always so. Indeed, regular mediation is an innovation of the last 25 years. To understand how this happened, I interviewed renowned mediators Gail Ashworth, Lynn Barton, Jim Kay, Lew Conner, Tracy Shaw, and Marietta Shipley for their perspectives. Though various dates are pinpointed for the first mediation in Nashville, the practice of mediation began in Nashville in the mid-to-late 1990s. Prior to this time, some courts held judicial settlement conferences. These conferences were precursors to what we recognize as mediation today; however, the conferences were conducted at a much faster pace (about two hours) and without a lot of the back and forth seen today. Several interviewees referred to Judge Barbara Haynes, who regularly conduct such conferences. In the short time allowed for the judicial settlement, Judge Haynes provided litigants a strong sense of what she thought would happen if the case did not settle and helped drive the parties to a settlement value. Other than judicial settlement conferences, settlement talks happened informally and often on the eve of trial, especially in Circuit Court. Typically, the cases were not specially

set; when a case was scheduled for trial, it might be 15th on the trial docket for that week. This meant lawyers often would not know if they would actually go to trial at some point that week, so they would be on standby. Sometimes the lawyers would receive a call on a Tuesday morning advising they would try the case that afternoon. Interviewees recounted that this uncertainty contributed to some courthouse steps’ settlements. Turning from state court to federal court, Tracy Shaw recounted that Judge Thomas Higgins conducted conferences before private mediation became popular. Judge Thomas often warned defense counsel that “lightning strikes in a courtroom and you might walk away with a bloody stump” while simultaneously admonishing plaintiff’s counsel, “if you leave money on the table and get a bad result, that walk across 8th and Broad will seem a mile long.” Other than judicial settlement conferences in some state and federal courts, there was no mechanism for alternative dispute resolution. If the cases settled, it was due largely to the lawyers knowing each other. Indeed, Jim Kay attributed the (continued on page 30)

APR/MAY 2019 | NASHVILLE BAR JOURNAL

Editorial |

Mediation, Nashville Style (continued from page 29)

LAWYER REFERRAL & INFORMATION SERVICE

Are you looking for another avenue for revenue and referrals, specifically those tailored to your practice area? If so, the NBA Lawyer Referral & Information Service needs you. We are currently in need of attorneys who handle issues such as: Consumer Family Law Social Security Disability Tenants’ Rights For information on joining the NBA LRIS, contact Wendy.Cozby@ nashvillebar.org or visit NashvilleBar. org/LRISAttorneyRegistration. We look forward to hearing from you!

THE EXCLUSIVE REFERRAL SERVICE FOR THE NBA 30

advent of mediation, in part, to lack of familiarity between lawyers, as well as to the increasing use of email, which can raise tension in a case since it feels less personal than a phone call or in-person conversation. Mediation then becomes required to ratchet down the tension to get the case back on track where settlement is possible. Marietta Shipley, Lynn Barton, and Tracy Shaw emphasized how mediation also became popular in the family law context on the East and West Coasts before migrating over to other civil cases there, and then making its way to Nashville. Everyone emphasized the importance of the Tennessee Supreme Court’s Rule 31, in legitimizing the practice of mediation. Prior to the adoption of Rule 31 in 2001, there was no bar to mediation, but there was no official imprimatur on it either. Interviewees reported CLE attendance for mediation seminars skyrocketed once the Court signaled its approval. With all these pieces in place, the increased use of mediation can be attributed to a few of the insurance companies. These insurance companies had a backlog of cases and convinced the plaintiffs’ attorneys to agree to mediation. Some of these cases started as three-panel arbitrations for very small cases, but everyone determined mediation was a better option to efficiently resolve the cases and less expensive than arbitration or litigation. Interviewees were split as to whether there are any disadvantages of mediation. Lew Conner—while recognizing the many advantages of mediation— regrets that the very success of mediation has caused trials, particularly jury trials, to largely disappear. Others felt it was

NASHVILLE BAR JOURNAL | APR/MAY 2019

not fair to attribute the sharp decrease in trials to mediation, but instead to the rising costs of discovery, especially expert discovery. All were concerned about the ability of younger lawyers to gain trial experience and thus be able to advise their clients at mediation on the likely outcome if the case does not settle. I asked how one particular aspect of mediation in Nashville developed— the lack of opening statements. When mediation started in Nashville, opening statements were common, but mediators found they were spending the first half of the day calming down the litigants from the opening statements. Gradually, Nashville mediators phased out opening statements for most cases. While some interviewees believe there are downsides to the prevalence of mediation, the consensus was the “good old days” were not so great for clients. Mediation allows clients to structure a settlement that works for them and achieves something other than a “winner takes all” outcome. Gail Ashworth emphasized mediation has taken the place of the “day in court,” and very often is the most important day in the case. The mediator has effectively replaced the judge and jury in the vast majority of cases. How that developed was somewhat accidental, through trial-and-error, and without anyone designing the system we have today. For young litigators especially, it can be helpful to recognize that “it was not always thus,” and, therefore, could change again. n MIKE ABELOW is a member at Sherrard Roe Voigt & Harbinson and represents claims in commercial litigation and bankruptcy. He is also a Fellow of the Nashville Bar Foundation.

NashvilleBar.org/FindAMediator

NEW! Personalized Mediator Listings As a mediator or arbitrator, you can now create a personal profile to showcase your expertise and personal brand. Your mediator profile will be searchable based on qualifications—Rule 31 Civil and/or Family, Arbitration, or Federal Court— subject area experience, and last name.

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Think Win-Win and Sign Up Today! Visit NashvilleBar.org/FindAMediator to learn more. Fees for a listing are $200/year for NBA members and $350/year for non-members. Nonattorney mediators may participate if they have been approved as a Supreme Court Rule 31 mediator.

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APR/MAY 2019 | NASHVILLE BAR JOURNAL

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ABOUT THE NASHVILLE BAR ASSOCIATION The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. The NBA—with over 2,600 members—is the largest metropolitan bar association in Tennessee.

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Turnip Green Creative Reuse | Lauren Poole

With Earth Day on Monday, April 22, now is the time to discuss what Nashville’s Turnip Green Creative Reuse (TGCR) is doing to keep reusable materials out of landfills. Founded in 2010, TGCR is celebrating nine years of creativity and sustainability through reducing, reusing, and recycling. By offering diverse ways for Nashville to help achieve its mission, there is something for everyone to feel good about. Donate, Shop, Create TGCR is a one-stop destination where the community can donate, shop, and create. All materials are purchased with a pay-as-you-can mentality. Simply chose your materials and propose the amount you would like to donate. This philosophy allows for the TGCR to support all creative minds no matter the budget. An open studio allows for the community to create on site. TGCR has two galleries exclusively featuring works by artists created with reused materials.The Green Gallery has two locations—one on location at TGCR, and another at the new East Side Station in East Nashville. All art is available for purchase, and the artist chooses what portion of the proceeds will go to benefit TGCR in lieu of a fixed commission.

Real Sustainable Impact TGCR’s mission is not just an ideal for a utopian society. It is a proven and expanding model for reuse—and Nashvillians are responding. In a record breaking year, TGCR’s 2018 donations alone diverted 87,408 pounds of reusable materials from the landfill. While donations are a driving force of the reduce mission, TGCR showcases its sustainable impact on Nashville in large part through its educational services, as they partner with Metro Nashville Public Schools (MNPS) to provide after-school programs for thousands of students a year. Last year, TGCR provided daily after school programs in 15 MNPS schools, serving 500 students per week, with a total of 36,000 participants in its Reuse Workshops. This was an increase of 96% from 2017. Not only do these projects foster creativity, but they support key missions in five STEAM magnet schools across Davidson County. These are not only creative arts classes, but calculated additions to a well-rounded curriculum. MNPS recently credited TGCR in finding a direct correlation between its programing and reduced chronic absenteeism with children who participate in its programing. Not surprisingly, TGCR’s impression and presence in the Nashville community has been met with an overwhelming increase in support. For example, in 2018, TGCR provided 962 Waste Reduction Programs—a 459% increase from 2017. Its expansion into 15 after-school programs is a 200% increase from 2017. As TGCR grows, its footprint on the community does as well. TGCR’s newest projects are centered on working with local restaurants and coffee shops to become zero waste establishments.

Take Away While TGCR receives the bulk of its funding from a variety of grants, none of the grants are permanent or guaranteed. It still relies heavily on support from community members. Monthly donors who give as little as $5 per month are providing programing for one child. As TGCR grows, its need for continued support from community and leaders grows too. A portion of every donation to TGCR and every purchase of art goes directly to school programs. This impact is felt directly by the children who participate in TGCR programs. “Over 90% of the kids in TGCR programs have full scholarships to attend,” says Turnip Green Executive Director, Leah Sherry. “We pay teaching artists to provide hands on learning projects that are student led to allow for discovery and exploration by the students that has shown to increase student learning. All schools and lessons are different—each supports a key mission to reduce landfill waste and teach children to reduce, reuse, and recycle.” Say hello to Turnip Green Creative Reuse at Nashville’s Earth Day celebration in Centennial Park on Saturday, April 20, where over 20 artists will be leading free reuse art activities for all ages. If you would like to donate to TGCR and/or sign up for the newsletter, visit TurnipGreenCreativeReuse.org. n LAUREN POOLE is an attorney at Taylor, Pigue, Marchetti, & Blair, PLLC where she practices civil litigation, including creditors’ rights and bankruptcy. Poole is a Board Member of Turnip Green Creative Reuse Board and currently serves as a managing editor of the Nashville Bar Journal. She is a graduate of Belmont University College of Law and the University of Tennessee, Knoxville.

APR/MAY 2019 | NASHVILLE BAR JOURNAL

Thank You for Your Membership! The NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to NBA programs and services. Contact Vicki.Shoulders@nashvillebar.org for information on how to become a Premier Member.

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Gail Vaughn Ashworth

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Christopher Cardwell

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Wendy Longmire

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Kimberly Silvus Ronald Small Eric Smith Laura Smith Saul Solomon John Spragens Joycelyn Stevenson Michael Stewart Gerard Stranch Jim Stranch Hon. Aleta Trauger Howard Vogel Michael Wall Elizabeth Washko Jim Weatherly, Jr. Thomas White Thomas Wiseman, III

Welcome to the NBA! Congratulations on your new membership! Thank you for joining the NBA and all that it has to offer. We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@nashvillebar.org for questions and general information.

NEW MEMBERS (JANUARY 1 - FEBRUARY 28)

Alexander H. Gardner

Destin Tisher

Kaylee A. Kohlmaier

Nicole A. Keefe

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Pamela Brisendine

Andrew Farley

Ginette Brown

Kris Lier

Robert Levine

Andrew P. Harrison

Hamilton Jordan

Kristen L. G. Taylor

Sandra Bess

Anna C. Kaufman

Hayley E. Vos

Lauren N. Jones

Shea T. Hasenauer

Austin W. Holland

John D. Clark

Lloyd E. Houk

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Brandy Arena

Joshua C. Cumby

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Trey H. Woodall

Caroline C. Waters

Julie A. Musolf

Lucian D. Geise

William B. Pierce

Charles C. Myers

Katherine G. McCain

Mary E. Futrell

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Matt J. Gornick

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Michael McGee

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Predators CLE @ Bridgestone

APR/MAY 2019 | NASHVILLE BAR JOURNAL

Hearsay | Honors & Awards, On the Move, Firm News HONORS & AWARDS Kelly Frey, Partner at Nelson Mullins, was selected by the National Law Journal as one of 27 “IP Trailblazers” from across the US for achieving remarkable success in patent, copyright, trademark, and trade secret law. A prolific writer, Frey authored Frey on Technology Transactions, deemed a definitive treatise. Frey is one of fewer than 10 attorneys selected as a Fellow of the World Technology Network. Nashville attorney Hal Hardin was recently recognized by the Nashville Bar Association, the National Association of Former US Attorneys, and the Tennessee Supreme Court Historical Society. The NBA presented Hardin with the John C. Tune Public Service Award, the highest award that can be bestowed upon a member by the Bar. The National Association of Former US Attorneys presented Hardin with a painting of downtown Nashville in honor of his service as president from 2017-2018. And the Tennessee Supreme Court Historical Society presented Hardin with a leadership plaque for his service as past president. Hon. Lynda F. Jones, General Sessions Judge, has been selected by her peers in the state wide conference to serve as the Middle Tennessee Vice-President. She is slated to serve

as President of the 185 member body in two years. Bradley is pleased to announce the selection of Nashville attorney Racquel B. Martin as a Fellow to the 2019 National Employment Law Council (NELC) Academy. NELC is a non-profit organization charged with enriching minority bar members who represent management in the field of labor and employment law. Martin is a member of Bradley’s Labor and Employment Practice Group representing employers in litigation involving discrimination and retaliation, wage and hour, FMLA, and non-compete issues. Richard Myers, Jr., Partner at Stites & Harbison, has been elected to a two-year term on the Management Committee, which serves as the firm’s board of directors and is responsible for all matters related to firm management. Members are nominated for election by a Nominating Committee drawn from the members of the firm. Myers is a Registered US Patent Attorney and part of the firm’s Intellectual Property & Technology Service Group. Dwight E. Tarwater, former General Counsel to Governor Bill Haslam, is now rejoining his law firm, which has transitioned to the name Paine, Tarwater and Bickers, LLP. Tarwater was one of the founding members of the firm, estab-

NASHVILLE BAR JOURNAL | APR/MAY 2019

lished in 1987. His career with the firm has included extensive and wide-ranging trial and appellate experience, representing Fortune 500 companies and other businesses in mass tort, product liability, pharmaceutical, and commercial cases. Stites & Harbison attorney John Wingo has been named as a Fellow of The Litigation Counsel of America (LCA). Wingo is a Member of the Stites & Harbison Business Litigation Service Group and joins three other firm attorneys as LCA Fellows. Wingo has more than 16 years of litigation and trial experience, including representation involving financial institutions, insurance companies, and manufacturers. ON THE MOVE Lisa Bashinsky has joined the law firm of Gullett Sanford Robinson & Martin PLLC (GSRM Law) as an associate attorney. Bashinsky will practice in the firm’s Business and Corporate section, with a focus on providing legal representation to businesses, entrepreneurs, individuals, and professionals with their business transactions and commercial needs. Derick Blakely joined Bradley as an associate in the Healthcare Practice Group. Prior to joining Bradley, Blakely was an associate with Bass, Berry & Sims PLC. He

Hearsay | Honors & Awards, On the Move, Firm News provides healthcare regulatory counsel related to compliance, operational, and transactional matters. Attorneys Adam Castellarin and Brooke McLeod Coplon have joined Wiseman Ashworth Law Group, PLC. Castellarin is a 2018 graduate of the University of Tennessee College of Law, where he served as President of the Student Health Law Association. Coplon is a graduate of the Vanderbilt School of Law and has a diverse practice with experience in personal injury, employment, civil rights litigation, nursing home litigation, health care law, mental health law, and premises liability. Burr & Forman LLP announces the addition of associate Tara Lay to the firm’s Nashville office in the Intellectual Property service group. Lay is a registered US patent attorney, and practices in the areas of patent and trademark prosecution, portfolio management, clearance investigations, copyrights, and transactional matters. Bradley is pleased to announce that Patricia Head Moskal, partner in the firm’s Nashville office, was appointed Chancellor of the Chancery Court for the 20th Judicial District, Davidson County, on January 17, by then Governor Bill Haslam. A

member of Bradley’s Litigation Practice Group, Moskal has more than 30 years of experience as a trial and appellate lawyer handling business and commercial disputes. She has successfully represented clients at every level of the state and federal courts and before various administrative tribunals and agencies. Mozianio “Trey” S. Reliford has joined Neal & Harwell, PLC, as an Associate. He has experience in the areas of complex white collar and regulatory defense, securities, antitrust, employment, and intellectual property law. Gullett Sanford Robinson & Martin PLLC is pleased to announce that William C. Scales, Jr. recently joined the firm as an associate attorney. William will practice in the firm’s Litigation and Employment Law sections. FIRM NEWS J. Wallace Irvin, and Whitney Henry Kimerling have been named shareholders at Lewis Thomason’s Nashville office. Irvin focuses his practice on construction law and Kimerling represents businesses and individuals in a variety of litigation-related practice areas.

VOLUNTEER FOR DIAL-A-LAWYER Thank you to our February and March volunteers!

GINA CROWLEY CHRIS HUGAN TOM LAWLESS DOUG PIERCE JOE RUSNAK

Dial-A-Lawyer is held the first Tuesday of each month from 6:00 – 8:00pm, and the public is invited to call in with basic legal questions. If you would like to volunteer and help the NBA support this program, please contact our LRIS Coordinator at Wendy. Cozby@nashvillebar.org. Pro Bono credit applies, and a complimentary dinner is provided. To learn more, visit NashvilleBar.org/DialALawyer

APR/MAY 2019 | NASHVILLE BAR JOURNAL

Thank you for supporting your local bar association!

The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. To become part of NBAâ&#x20AC;&#x2122;s 100% Club, contact Vicki.Shoulders@nashvillebar.org and support your local bar association today!

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NASHVILLE BAR JOURNAL | APR/MAY 2019

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