Nashville Bar Journal | May 2016 by Nashville Bar Association

Nashville Bar Journal

MAY 2016 • VOL 16 • NO 4

Reflections on Miranda's 50th Anniversary James G. Thomas

The Human Trafficking Epidemic Tammy H. Meade

Introducing the Defend Nashville Initiative Patrick Hakes & Georgia Sims

Nashville Conflict Resolution Center Eleanor Wetzel

YOU CHOOSE THE CHECKING WE’LL PAY YOUR NBA DUES Open a First Tennessee checking account with direct deposit, and we’ll pay your Nashville Bar Association membership dues (currently a $245 value) for one year. We have several great checking options you can choose – each available with the convenience of free Banking Online and Mobile Banking. Learn more at FTB.com/checking or present this ad at any financial center in Middle Tennessee. See terms and conditions below for offer details.*

Terms and Conditions: Offer valid beginning with the enrollment of Nashville Bar Association membership year beginning November 1, 2015. Offer expires March 31, 2016. You must present this printed offer at a financial center in Middle Tennessee when you open your checking account. Minimum opening deposit is $100, and cannot be transferred from an existing First Tennessee account. Cannot be combined with other checking offers or promotions. Accounts opened online are not eligible. You must be a new checking household, which means that no member of your immediate household has had an open First Tennessee consumer checking account in the previous 12 months. A direct deposit must post to this account within 60 days. You agree to maintain the account in good standing for at least 6 months. If you meet the conditions of this offer, you will receive a voucher in the mail within 6 weeks of your first direct deposit. You will be able to present this voucher to the Nashville Bar Association. The Association will then return it to us, and we will pay to them your dues for your one year of NBA membership. Upon delivery of the voucher to you, First Tennessee is required to report the $245 value as interest income on Form 1099-INT. This voucher is non-transferable, cannot be redeemed for cash or any alternative bonus, and must be presented by you to the Association by June 30, 2016. FSR: Use promo code NBADUE. ©2015 First Tennessee Bank National Association. Member FDIC.

Departments

Articles 6 10

Reﬂections on Miranda's 50th Anniversary James G. Thomas

The Human Trafﬁcking Epidemic and Nashville's Response

From the President

Communique

Tammy Meade

Introducing the Defend Nashville Initiative

Joycelyn Stevenson

Golf Tournament • Arts Immersion • Ode to Otha Spring Memorial Service • Lawyers for Littles

Continuing Legal Education (CLE)

Patricia Hakes & Georgia Sims

Center Insert

Nashville Conﬂict Resolution Center Eleanor Wetzel

100% Club Members

Caen and Nashville

23 24

NBA Member Beneﬁts

Welcome New NBA Members • Premier Members

Classiﬁeds

Steve Cobb

Columns 9

The Road to Wellness

Tracy Kane

Gadget of the Month

Capitol Notes

Disclosure

Announcements • People on the Move • Firm News

Bill Ramsey & Phillip Hampton Nathan H. Ridley

Golden Oldies

Who can name these guys?! Be the first person to email the correct answer to jill.presley@nashvillebar.org and your name (along with the correct entry) will appear in next month's issue. Additionally, if you have any photos to submit for the Golden Oldies, please send to the email above. April 2016 Golden Oldies James C. Hofstetter of Hofstetter & Hofstetter correctly identified the individuals in the April 2016 Golden Oldies photo. Pictured (left to right) were Jimmy Cheshire, William "Bill" Byrn, and Roger May. Congrats again, James!

' A Monthly Publication of the Nashville Bar Association

Joycelyn A. Stevenson, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org

E�� C�� Noel Bagwell Kimberly Faye Carline Sapp Hudson Tim Ishii Tracy Kane Everette Parrish Bart Pickett Matthew Pierce Bill Ramsey Mike Sandler Kristin Thomas Jonathan Wardle Victoria Webb Eleanor Wetzel David Winters

N�� B�� A�� S�� Monica Mackie Executive Director ----------Shirley Clay Finance Coordinator Wendy Cozby Lawyer Referral Service Coordinator Traci Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Jill Presley Marketing & Communications Director Vicki Shoulders Membership Coordinator • Oﬃce Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 2429272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy. POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219 No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork. All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reﬂect the opinions of the Nashville Bar Association.

N�� B�� A�� 150 4th Ave N, Suite 1050 Nashville, TN 37219 615.242.9272 • NashvilleBar.org

Nashville Bar Journal • May 2016

From the President Why We Serve

By Joycelyn A. Stevenson I am asked regularly by law students why I wanted to become an attorney. The truth is, there is nothing else I ever wanted to do. I always felt it was something I could do, and I admired the work of lawyers in my community—and of course the ones I saw on television. Even after 15 years of practice, I am still in awe of the work of so many excellent lawyers in Nashville. We are at an interesting point in our city. When I decided to stay in Nashville years ago, it was because I believed Nashville was a city where someone like me could make a difference. I believed it was a city that cared about its citizens, and that it would be a great place to start a career. At that time, I also felt Nashville was a place where a person could find easy ways to get involved in the community and take on leadership roles. All of my beliefs turned out to be true. Nashville was the “it” city for me before it became the “it” city for everyone else in the world. The interesting thing now is determining how to navigate the “it” city as a practicing attorney in a leadership role. What is the role for someone like me or you in a city that is growing rapidly, where diversity is extremely important but not always considered, where more and more corporations, immigrants, retirees, and millennials are moving each day? Clearly, I believe involvement in the Nashville Bar Association is a great start. The programming, networking opportunities, access to community leaders, and opportunities to gain leadership positions are endless. Other areas where attorneys can make a difference are the judiciary, state, and local government and the nonprofit world. One of key components in my opinion to the “it” city moniker from the legal perspective is our judiciary. Nashville has arguably one of the strongest judiciaries in the country. We have some of the brightest legal minds at every level of the court; however, their work off of the bench is just as important as the work they perform each day. I had a the pleasure of attending the annual meeting of the Lawyers’ Association for Women a few weeks ago, and many of the speakers talked about the important work of the founders in getting women elected to the bench when there were none. As I listened to some of the stories, I reflected on how many judges I see active in the NBA and in the community. Their dedication and involvement provide a valuable lesson to each of us in the importance of having judges present and active in the community. I have appreciated the benefit of serving on several boards with judges—including the Nashville Bar Association where Judges Sheila Calloway, Joe Binkley, former Justice William Koch, and Randal Mashburn are all currently serving. Another factor in how we are viewed as a city is our state legislature and city council. For years, many have stated that we need more attorneys willing to run for office so that there is a stronger legal presence at the state and local level. One of our NBA past presidents, Bob Mendes, took up this charge last year and was elected to an at-large seat on our city council. As our state and local government continue to tackle challenging and very important issues, the rule of law and effects of those laws become even more important. I am hopeful that more members of the NBA will take on the challenge of getting involved and using their legal minds to shape the direction of our city. Finally, many of us have our own non-legal projects where we devote much our time. For some, it is a religious institution, school board, or other nonprofit organization. For me, my project for years was working with the Council on Aging of Greater Nash-

2016 NBA BOARD OF DIRECTORS

ville. I am very passionate about working and advocating for issues related to older adults and caregivers. What I learned from seven years on that board—including two of those as President—is that nonprofit boards need attorneys. For some of our newer attorneys, a nonprofit board provides great opportunities to get involved, to attain leadership positions, and to network with non-attorneys in a meaningful way. I highly recommend it for those looking to make their own mark on our city. No matter what most of you are doing or planning to do in the future, I encourage you stay actively involved in the NBA. The NBA will, in turn, continue its mission of improving the practice of law through education, service, and fellowship. We will continue to support our members, encourage involvement on practice committees, and will be offering cutting edge opportunities for continuing legal education in the upcoming months. We are also in the home stretch of a new rebranding effort that will bring the NBA to you in a new and more effective way. Stay tuned! n

NBA Calendar of Events May 11 Historical Committee Meeting 11:30am (Hal Hardin's Office)

May 19 (continued) Lawyers for Littles: Bowl for Kids Sake 5:30pm (Donelson Plaza Strike and Spare)

May 12 Solo/Small Firm Committee Meeting 11:30am (The Skillery)

May 25 NBF Trustees Meeting 12:00pm

May 16 Probate Committee Meeting 11:30am

YLD Arts Immersion 6:00pm (W.O. Smith School of Music)

May 17 CLE Committee Meeting 11:30am

May 26 IP Law Committee Meeting 11:30am

Ethics Committee Meeting 12:00pm

May 30 Memorial Day NBA Offices Closed

May 19 The NBA / NBF Golf Tournament 12:00pm (Vanderbilt Legends Club)

June 1 Business Law Committee Meeting 12:00pm

Editorial Committee Meeting 12:00pm (Neal & Harwell)

June 2 Diversity Committee Meeting 12:00pm

Finance Committee Meeting 4:00pm

Committee Meetings are held at the NBA Offices unless otherwise noted. Full calendar online at NashvilleBar.org.

Follow us on Social Media Facebook.com/NashvilleBarAssociation @NashvilleBar LinkedIn.com/Company/Nashville-Bar-Association

Joycelyn A. Stevenson, President Nathan H. Ridley, President-Elect Matt Potempa, First Vice President Andrea P. Perry, Second Vice President April Knox, Secretary Eric W. Smith, Treasurer Stephen G. Young, Assistant Treasurer Edward D. Lanquist, Jr., Immediate Past President Justin McNaughton, YLD President Lela Hollabaugh, General Counsel Irwin J. Kuhn, First Vice President-Elect Claudia Levy, Second Vice President-Elect Mark S. Beveridge Robert C. Bigelow Hon. Joe P. Binkley, Jr. Hon. Sheila D. Calloway Kay Caudle Jacqueline B. Dixon Samuel P. Funk Margaret M. Huff Hon. William C. Koch, Jr. Ryan D. Levy Wendy Longmire Hon. Randal S. Mashburn Erin Palmer Polly David L. Raybin Sara F. Reynolds Saul A. Solomon Laura Smith Tidwell M. Bernadette Welch

NASHVILLE BAR ASSOCIATION Each day, we work hard to help people and businesses in our community. The NBA has a wide variety of services and programs that can help lawyers work smarter, stay informed, and keep connected with fellow attorneys. From sole practitioners to the largest firms, from legal aid attorneys to those in private practice, the NBA supports all of us so we can better serve our clients and the justice system. Our Bar Association is much more than just a collection of services. The power of our membership lies in the power of the people. WE are the Bar. And together, we shape the future of the legal profession. Got an Idea for an NBJ Article? We want to hear about the topics and issues readers think should be covered in the magazine. Send ideas to jill.presley@nashvillebar.org! Nashville Bar Journal • May 2016

communiqué

The 2016 NBA / NBF Golf Tournament Presented by the Nashville Bar Association & Nashville Bar Foundation WHEN: Thursday, May 19 (12:00pm – Range Balls Available | 1:00pm – Shotgun Start)

WHERE: Vanderbilt Legends Club, Franklin, TN ENTRY FEES: (includes range balls, greens fee, cart, beverages, snacks, and dinner)

• NBA members on or before May 12: $140.00 • Non-NBA members on or before May 12: $160.00 We will have a cook-out and prizes at the conclusion of play. There will be team prizes and individual contests (longest drive, longest putt, closest to pin, etc.). To register, visit NashvilleBar.org. If you have any questions, please contact our Programs & Events Coordinator, Traci. Hollandsworth@nashvillebar.org. n

May 25 | 6:00pm

presented by THE ARTS & BUSINESS COUNCIL OF GREATER NASHVILLE in partnership with THE NASHVILLE BAR ASSOCIATION YOUNG LAWYERS DIVISION

An intro via immersion to Nashville’s creative community, this summer soirée showcases music, acting, dance, film, visual, and performance art from some of our finest local talents. The evening is topped off with a unique silent auction featuring everything from co-writing sessions with top songwriters to enticing offers from local businesses. Arts Immersion celebrates the convergence of Nashville’s creative and business communities. Attorneys, artists, and a plethora of business professionals—a.k.a.—the perfect blend of suits and skinny jeans. Proceeds from the night benefit Volunteer Lawyers & Professionals for the Arts, a program of the Arts & Business Council. The VLPA program has provided $1 million worth of free legal and business help to over 1,000 low-income artists and 300 nonprofit arts organizations over the past five years. Individual tickets are $40 in advance or $50 at door. For more information or to purchase tickets, visit ABCNashville.org/workshops-for-artists/arts-immersion-2016-22558012623. n 4

Nashville Bar Journal • May 2016

NBA Annual Spring Memorial Service The Nashville Bar Association's spring Memorial Service will be held on Thursday, May 26, at the Downtown Presbyterian Church. The service begins at 11:00am with a reception immediately following in Fellowship Hall. A project of the NBA's Historical Committee, the Memorial Service honors the memory of those Nashville lawyers and judges who passed away during the preceding six-month period. Memorial resolutions recounting the lives and legal careers of the deceased individuals are prepared and then read at the service by friends and colleagues of the bench and bar.

Mike Bennett Barrett Sutton, Sr. Mary Boyd William Crawford, Jr. John Hollins, Sr. John Jay Hooker, Jr. Brad Reed Alden Smith, Jr. Arthur Crownover II Vallie Brooks

Family members and friends of the deceased are invited to attend. n

Gather with your lawyer friends and their families on Saturday, May 14, for Family Day at the Nashville Zoo! Reserve your tickets now for a discounted price and upon arrival, stop by the NBA table at the zoo entrance between 10:00am and 12:00pm to collect your tickets, name tags, and complimentary treats. Thank you to Accounting, Economics & Appraisal Group LLC—a consulting firm that provides financial, economic, and strategic advice to parties involved in complex financial transactions and business challenges—for exclusively sponsoring this new event. For more information, visit NashvilleBar.org or refer to our weekly NBA News eblasts. n

Updates on Nashville's Downtown Development Wednesday, June 1 | 12:00pm The Business Law Committee cordially invites all NBA members to a timely discussion on "Updates on Nashville's Downtown Development," presented by Matthew Wiltshire, Director of Mayor's Office of Economic and Community Development. This event will be taking place at the NBA offices. For more information, please contact Alexander Davie at adavie@riggsdavie.com. n

Lawyers for Littles: Bowl for Kids Sake Thursday, May 19 | Registration: 5:30pm | Bowling 6:00-8:00pm Donelson Plaza Strike and Spare

Bowl for Kids' Sake is a fun and easy way for you to support the life-changing work of Big Brothers Big Sisters of Middle Tennessee. Form a team, collect donations, and bowl! It's that easy to help BBBS match more at-risk children with more positive mentors. For full details, visit TNBowling.org or contact Bart Pickett at Bart.Pickett@libertymutual.com. n Nashville Bar Journal • May 2016

COVER STORY

Reﬂections on Miranda's 50th Anniversary By James G. Thomas

The Supreme Court’s decision in Miranda v. Arizona1 turns 50 on June 13. Miranda has been described as the “centerpiece of the Warren Court’s revolution in American criminal procedure.” In relatively recent memory, the Court itself has characterized Miranda as “part of our national culture.”2 However, serious legal scholars have pronounced its demise as a meaningful protection against coercive law enforcement interrogation techniques, which were its chief concern. For example, Professor Charles D. Weisselberg concluded after extensive review of police training materials, social science literature, and post-Miranda court decisions, “that little is left of Miranda’s vaunted safeguards and what is left is not worth retaining.”3 Regardless of whether Professor Weisselberg’s harsh assessment is correct, it is difficult from the remove of 50 years to fully appreciate the “shock and awe” that Miranda’s release generated in its day. But whatever else might be said about the case, no serious contemporary observer would suggest with a straight face that it has significantly impeded the workings of the criminal justice system. As Professor Weisselberg’s article illustrates, there are a number of ways that law enforcement officers can—quite legally—“work around” Miranda, and even when the full-blown warnings are administered, a surprisingly large number of criminal defendants will waive their rights—up to and including signing written waivers. Multiple studies have concluded with surprising consistency that the figure is upwards of 80%. Against this backdrop, I thought it would be an interesting 50th anniversary exercise to look back and see how the four dissenting Justices in Miranda viewed the likely consequences of their colleagues’ majority decision. The four dissenters were—in descending order of seniority— Justices Clark, Harlan, Stewart, and White. As we shall see, it is fair to say that they had deep fears about the potential impact of the majority’s decision—fears that, for better or worse, 50 years of experience have not borne out. 6

Nashville Bar Journal • May 2016

As a frame of reference, the starting point for this discussion must be Chief Justice Warren’s majority opinion, which was joined by Justices Black, Douglas, Brennan, and Fortas. (Somewhat ironically, in hindsight, the then-future Justice Thurgood Marshall argued for the government as Solicitor General in one of the three cases that was consolidated with the namesake Arizona case.) While the majority opinion goes on at some length, its essential holding was succinctly stated. Prior to any “custodial interrogation” (a term of art that has generated its own cottage industry of case law) “the person [being questioned] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Failure to observe these “procedural safeguards” in custodial interrogation would preclude the prosecution’s use of any statements obtained in their absence (i.e., suppression). The Court rooted its holding in the Fifth Amendment privilege against self-incrimination.5 Justice Clark wrote only for himself in dissent. Justice Harlan wrote a separate dissent joined by Stewart and White, while Justice White authored an opinion that Harlan and Stewart joined. While the three dissenting opinions all challenged the constitutional underpinnings of the majority’s holding (Justice Harlan’s probably to the greatest effect), they also all expressed genuine alarm at what they feared would be the real-world consequences of the new regime in criminal procedure that the majority had ushered in. Referring to the exclusion of otherwise admissible statements by an accused (as a result of the Court’s holding), Justice Clark, in his brief opinion, chose an incongruous medical metaphor to warn that “[s]uch a strict constitutional specific inserted at the nerve center of crime detection may well kill the patient.”6 Justice Harlan began his opinion with these two ominous

sentences: “I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell.”7 He went on to predict that “the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all.”8 Justice Harlan would presumably be pleased to learn that his fears were misplaced. In a curious turn to his opinion, Justice Harlan questioned the efficacy of the majority’s holding on the grounds that unscrupulous police officers who would lie about the use of “third-degree tactics and deny them in court” would just as well lie “skillfully” about “warnings and waivers.”9 This seemingly frank acknowledgement by a highly-esteemed Supreme Court Justice that some police officers lie in court— in the form of an argument against the Miranda requirements—is eyebrow raising to say the least. Under the heading “Policy Considerations,” Justice Harlan reiterated his view that the Court’s “new code” would “markedly decrease the number of confessions,” and that “[h]ow much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy.”10 He intoned that the Court was “taking a real risk with society’s welfare in imposing its new regime on the country,” and that “[t] he social costs of crime are too great to call the new rules anything but a hazardous experimentation.”11 Justice Harlan’s ringing conclusion merits quotation in full: Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavyhanded and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and

farsighted words of Mr. Justice Jackson in Douglas v. Jeannette, 319 U.S. 157, 181 (separate opinion): “This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”12 Referring to the Court’s institutional role, Justice White observed that what the majority had done was “to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution,” in keeping with what the Court had historically done and would continue to do absent “some fundamental change in the constitutional distribution of government powers.” He questioned, however, “the advisability of its end product in terms of the long-range interest of the country.”13 In Justice White’s view, the majority had “for all practical purposes,” forbidden interrogation “except in the presence of counsel.”14 This, in turn, effectively meant the end of confessions as admissible evidence, as Justice White saw the matter.15 He rejected what he viewed as the majority’s implicit premise that “the process of confessing is injurious to the accused,” commenting that “[t]o the contrary, it may provide psychological relief and enhance the prospects for rehabilitation.”16 But that was not all. He went on to darkly predict that the majority’s opinion would reduce the incidence of guilty pleas and increase the number of trials, all the while enhancing the chances that a defendant who “otherwise would have been convicted” would now go free. Justice White further warned, even more specifically, that “[i]n some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.” He went so far as to suggest that the net effect on law-abiding citizens would be to incite “violent self-help with guns, knives and the help of their neighbors similarly

inclined”17 (i.e., vigilante justice). While Miranda has, from time to time, had the effect of returning the occasional murderer or rapist to the streets, Justice White’s “zombie nation” scenario did not unfold. Indeed, at this remove and in hindsight, it sounds almost unhinged. In short, Miranda has not lived up (or down) to the dissenters’ dire predictions. The temple did not collapse, and Miranda remains a fixture on the American criminal procedure waterfront. The Court’s 2000 decision in Dickerson v. United States18 suggests that Miranda will remain such a fixture for the foreseeable future. In a 7-2 split, the Dickerson Court, with Chief Justice Rehnquist himself writing for the majority, rejected Congress’s long-dormant 1968 attempt to statutorily overrule Miranda in legislation codified as 18 U.S.C. § 3501. Over Justice Scalia’s vigorous dissent (joined by Justice Thomas), the majority squarely held that Miranda was “a constitutional decision of this Court” that could not be overruled by an act of Congress, nor would the Court overrule Miranda itself.19 In keeping with Professor Weisselberg’s partial reliance upon post-Miranda decisions for his conclusion that little was left of Miranda’s “vaunted safeguards,” the Chief Justice actually allowed as how the Court’s “subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement . . . .”20 Concerning Chief Justice Rehnquist’s “self-congratulatory euphemism” about the Court’s post-Miranda case law, it bears emphasis that President Nixon made four Supreme Court appointments in his first term after his 1968 election: Warren Burger, Harry Blackmun, Lewis Powell, Jr., and William Rehnquist—thereby replacing three members of the Miranda majority. In the words of a leading treatise, Justices Burger and Rehnquist in particular “played a prominent role in downsizing and dismantling”—but not outright overruling—Miranda.21 Continued on page 8 Nashville Bar Journal • May 2016

Continued from page 7

In speculating about Miranda’s continued existence—despite its partial “downsizing and dismantling”, it also bears noting that the Court has taken up a number of Miranda-related “merits cases” since Dickerson. In two of these eight cases—Missouri v. Seibert and J.D.B. v. North Carolina, the criminal defendant even prevailed. And in J.D.B., a 5-4 majority actually expanded Miranda’s reach by holding that a juvenile’s age, if known or objectively apparent to a “reasonable officer,” is relevant to the analysis of whether the defendant was “in custody” for purposes of triggering the Miranda requirements. In the wake of Dickerson, a noted student of confessions and Miranda law summed up the situation as follows: “Once feared to be the equivalent of sand in the machinery of criminal justice, Miranda has now become a standard part of the machine.”23 His point is probably well taken. Miranda lives on—though far from robustly as its dissenters had feared. n Endnotes 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2

Dickerson v. United States, 530 U.S. 428, 443 (2000) (Rehnquist, C.J.).

Charles D. Weisselberg, Mourning Miranda, 96 Cal. L. Rev. 1519, 1524 (2008).

4 Miranda, 384 U.S. at 444; see also id. at 479 (clarifying that an attorney will be appointed before any questioning if the suspect cannot afford one). 5

Id. at 439.

Id. at 500.

Id. at 504.

Id. at 505.

Id.

Id. at 517.

Id.

Id. at 525-26.

Id. at 531. (Note especially the frank acknowledgement that the Court does, in fact, make public policy, which would be off limits under the “umpire calling balls and strikes” metaphor that is seemingly obligatory today.) 13

Id. at 536.

See id. at 537-38.

Id. at 538. (Or, to paraphrase, “confession is good for the soul.”)

Id. at 541-42.

Dickerson v. United States, 530 U.S. 428 (2000).

Id. at 432.

Id. at 443. One commentator has characterized this as Rehnquist’s “wonderful, almost self-congratulatory euphemism” for the Court’s post-Miranda case law. Stephen F. Smith, Activism as Restraint: Lessons from Criminal Procedure, 80 Tex. L. Rev. 1056, 1110-12 (2002). 20

Yale Kamisar, et al., Modern Criminal Procedure 590 (13th ed. 2012).

See Yarborough v. Alvarado, 541 U.S. 652 (2004); Missouri v. Seibert, 542 U.S. 600 (2004); Continued on page 20

Nashville Bar Journal • May 2016

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The Road to Wellness By Tracy Kane

May: Mental Health Awareness Month For over 65 years, the month of May has been observed as Mental Health Awareness Month to bring attention, focus, and compassion to those struggling to achieve or maintain mental health. Did you know that 33% of lawyers struggle with a significant mental health condition? And, a full 70% of lawyers suffer from stress related issues. The ABA-Hazelden Betty Ford Foundation study released earlier this year found that 61% of lawyers reported concerns with anxiety at some point in their career and 46% reported concerns with depression. Do you know the signs—in yourself or your colleagues? Symptoms include changes in energy level or sleep patterns; noticeable restlessness and irritability; feeling empty, sad, hopeless, worthless, or guilty; loss of interest or pleasure in activities; difficulties with concentration or decision making; changes in appetite, eating habits or weight; or frequent thoughts of death or suicide. You might have one or more of these and it may not be constant. It may be easy to explain it away or just push the feelings aside for a time. Mental health conditions, such as depression or anxiety, are real, common, and treatable. Recovery is possible, but not all of us think about our mental health enough or seek assistance, no matter how mild or severe our symptoms. Despite having some of the best access to, and resources for, therapy or treatment, fears surrounding their reputation remain a barrier to treatment for many attorneys. The ABA-Hazelden noted that confidential and professionspecific programs have proven very successful among physicians and that the confidential nature of lawyer-assistance programs should be more widely publicized in an effort to overcome privacy concern barriers. The Tennessee Lawyers Assistance Program (TLAP) was established by the Tennessee Supreme Court as an approved impaired lawyers program pursuant to a Rule 33 of the Rules of The Supreme Court of Tennessee. Accordingly, all communications with TLAP are confidential and members of TLAP are relieved of their duty to report ethical violations discovered as a result of their TLAP work. This means that any misconduct or ethical violation discovered or revealed to a member of TLAP will not be reported to any disciplinary board. Additionally, communications with TLAP are confidential and privileged by virtue of T.C.A. § 23-4-101, et seq. When you call TLAP or other lawyer-specific assistance programs, you can be sure that complete confidentiality will be maintained.

Did you know? Taking a screening is one of the quickest and easiest ways to determine whether you are experiencing symptoms of a mental health condition. Free, confidential screenings are available through resources such as MentalHealthAmerica.net/mental-healthscreening-tools and TLAP.org. TLAP offers confidential consultations, crisis stabilization, assessments, referrals, interventions, education, peer support services, anonymous support groups, and more for a range of health and personal issues including grief and loss, stress and burnout, substance abuse and addictions, anxiety, anger management, and depression and suicide, among others. Part of the battle with mental health is to understand what it feels like when it's happening, share your own experiences, and seek help when needed. I recently suffered from post-partum anxiety following a miscarriage. It took me several weeks before I was able to fully understand what I was feeling and then several months to work through recovery, but acknowledging my condition helped me seek assistance and talk with my colleagues about it. Thankfully, this recent episode was temporary, but it was very real and scary at the time. I have no doubt that it might have become worse, lasted much longer, or even impaired my work were it not for my supportive family and colleagues. I know many lawyers who do not feel they can talk with their colleagues about a mental health struggle. If we are to improved the statistics, we must create the time and space to consider our mental health and that we—as lawyers—seek confidential assistance when needed and openly talk about our experiences as we recover. n Tracy Kane is a partner with Dodson, Parker, Behm & Capparella, P.C., providing common sense guidance and solving complex problems for individuals, businesses, non-profits, and governmental agencies. Tracy’s wide ranging practice guides clients through company formation, growth, succession planning, mergers and acquisitions, real estate transactions, intellectual property protection, and regulatory compliance. She is a Tennessee Supreme Court Rule 31 Listed Mediator, graduate of Vanderbilt University Law School and former law clerk to the Honorable Richard Dinkins on the Tennessee Court of Appeals. Nashville Bar Journal • May 2016

The Human Trafﬁcking Epidemic and Nashville's Response By Tammy H. Meade

It’s hard to turn on the television or open the paper and not see something on human trafficking. Human trafficking is modern day slavery, involving both labor trafficking and sex trafficking. It is a worldwide epidemic—even happening locally. As a $32 billion a year “business”, human trafficking is now the most profitable illegal activity in the world second to illegal drug trafficking. The common misconception from people that I speak to is that human trafficking happens somewhere else. It would never happen in Nashville. We have too many great things going on here to have something so awful happening in our city. If that is your opinion, then I am sorry to say that you are wrong. Human trafficking is happening right here in every zip code of Music City. It is here and it must stop. When District Attorney General Glenn Funk took office, he promised the people of Nashville that he would be tough on crime while also being a champion of victims and victim rights. To prove that, he has stepped up the prosecution of domestic violence by expanding the office’s domestic violence division with both additional attorneys and victim witness coordinators. He has made it a point to address victim issues at every level. In May 2015, General Funk saw the need for a dedicated team of attorneys to deal with the “hidden crime” of human trafficking. The human trafficking most prevalent in Nashville is sex trafficking. Sex trafficking is defined as subjecting someone to or benefitting from another person’s provision of a commercial sex act. The commercial sex act must involve force, fraud, or coercion, unless involving a child victim. If the victim is under 18, then no force, fraud, or coercion is required. Sex trafficking includes the acts of recruiting, enticing, harboring, transporting, providing, purchasing, or obtaining another person for a commercial sex act. This type of trafficking can be accomplished by (1) threatening physical harm to the victim or her family, (2) physically or threatening to physically restrain the victim, (3) holding the 10

Nashville Bar Journal • May 2016

victim’s identification/documentation, and/or (4) blackmailing or threatening financial harm. The purpose of this new District Attorney team is two-fold. First, this team personally handles all human trafficking and promoting prostitution cases in Davidson County and works to prosecute those who choose to sell another human being to the fullest extent of the law. Second, this team works with the victims of human trafficking to not only get them through the court system but to help put these victims on a path to a healthier and safer lifestyle. This new unit currently consists of assistant district attorney generals Tammy Meade, Deb Smith, Zoe Adams, and Vince Wyatt. With this new team in place, we started creating new programs to do whatever we could to help the victims of human trafficking escape and move forward with their lives. On May 29, 2015, the new “Grace Empowered” program began. It's a four-hour program that provides information to both human trafficking victims and other persons caught in the cycle of prostitution. We open the program to women or men who we identify as “caught in the cycle of prostitution,” because studies show that even if someone engaging in prostitution is not currently under the ownership of a pimp, chances are very high that he or she has been trafficked at some point and are still suffering the effects of the trauma of trafficking. With this program, we want to reach as many victims of trafficking—both past and present—as possible. It is a “seed planting” program to get the women, men, and transgendered persons that we serve, to begin thinking about a safer life. Because the overwhelming majority of the victims we serve are suffering from some form of trauma and are generally untrusting of anyone, especially someone who says, “We’re from the government and we’re here to help,” we keep Grace Empowered as low-key as possible. While it is a court docket, it is not held in the courthouse. It is held in a separate location where we can remove the stigma of court and

operate in a casual atmosphere. We believe that this helps the victims relax, listen to the information, and open up about what they need to begin their journey to health. Grace Empowered is on target to work with approximately 200 women, men, and transgendered persons within the next year. Grace Empowered begins with a brief discussion about violent crimes that occur against sex workers in Davidson County. It is a few minutes of “scared straight,” if you will. A human trafficking survivor tells her story and offers information about two phenomenal programs in Davidson County, End Slavery Tennessee, and Thistle Farms. After that, a representative of the Sexual Assault Center of Nashville speaks about trauma and the services that the Sexual Assault Center offers. Representatives of Davidson County Drug Court, who have survived addiction, speak about addiction issues and the services available to these victims, if needed. Lastly, a representative from the Lentz Public Health Department speaks about health issues, specifically HIV and STDs.

court is led by Davidson County General Sessions Judge Casey Moreland and a treatment team that includes representatives of the District Attorney’s Office, Public Defender’s Office, and the treatment providers. If someone wishes to participate in Cherished H.E.A.R.T.S., she will go through a two-level assessment screening then be presented to the treatment team to see if she would be a good candidate for the program. Once accepted, she will be in the program for six months to a year. The court is set up in two phases. The first phase requires the participant to come to court weekly. She will be subjected to weekly, random drug screens; must participate in any drug treatment, if necessary; and must participate in trauma counseling, if necessary. We also work to get the participant safe, stable housing. Without safe housing, none of this will work. The first phase will generally last approximately 90 days.

During the program, each participant gets an HIV/STD test and is provided with breakfast and lunch. Upon departure, each participant receives a bag of hygiene products, snacks, cosmetics, and other goodies to take with them. If a participant is ready to leave his or her trafficker that day or is ready to leave the cycle of prostitution, our participating services providers are there, on site, to take them. If the participant is ready, he or she never has to go back to that life again. Also, once the program is completed, the charge or charges that got them to Grace Empowered will be dismissed and expunged.

Once the participant has completed phase one, she will move to phase two, which requires bi-weekly court appearances and random drug screens. In phase two, in addition to continuing with drug treatment and trauma counseling, she will receive GED tutoring, if needed, plus obtain vocational training and aftercare planning. It is very important to help the individuals obtain meaningful employment when they leave the program because without meaningful employment, she may slip back to the former lifestyle and be ripe for trafficking again. As with Grace Empowered, Cherished H.E.A.R.T.S. costs the participant nothing. It is paid for through the generosity of the Davidson County Drug Court and treatment grants.

Grace Empowered is absolutely free to the participant. The program partners with the Davidson County Drug Court and operates on the generosity of Drug Court plus the generosity of private individuals and churches who donate items to put in the goody bags. Because of the trauma and lack of trust that the Grace Empowered participants initially have, a participant is allowed to attend the program twice. If the participant is arrested or brought into the justice system for a third time, she is offered Cherished H.E.A.R.T.S.

While the majority of the participants of both Grace Empowered and Cherished H.E.A.R.T.S. come from prostitution arrests, participants can also come to us from the recommendations of probation officers and other court staff. In addition, participants can come to us from police stings where the participant is not arrested but the officer believes that he or she may benefit from the programs. While Cherished H.E.A.R.T.S. is an adult only court, juveniles who have either been trafficked or have been identified as being at risk, can participate in Grace Empowered.

Cherished H.E.A.R.T.S. of Nashville is a brand new treatment court for human trafficking survivors and those caught in the cycle of prostitution. It is the fifth such court in the country, behind New York City, New Orleans, Chicago, and Columbus. Cherished H.E.A.R.T.S. stands for “Healing Enslaved and Repressed Trafficking Survivors.” We have again partnered with some of the best treatment providers and nonprofits that Nashville has to offer to provide extensive services to our victims, including agencies such as Davidson County Drug Court, End Slavery Tennessee, Thistle Farms, The Next Door, Recovery Community, Court Foundation Center, Phases, the Sexual Assault Center of Nashville, the Mental Health Co-Op, Mending Hearts, Rest Stop Ministries, and others to provide these victims with the most comprehensive care possible to help them move forward to a safer and healthier lifestyle. The

Tennessee—and particularly Nashville—is a national leader in the effort to combat human trafficking. Even though we have programs such as Grace Empowered and Cherished H.E.A.R.T.S. in place, these programs are not the end of the fight or the end of the assistance that we can provide to the victims of this on-going and unfortunately, in some cases, accepted tragedy. Your DA’s office will continue to create programs and projects to do whatever it can to stop human trafficking in Nashville and throughout Tennessee. It must stop. n Tammy Meade serves as an Assistant District Attorney General for the Davidson County District Attorney’s Office. She heads the District Attorney's Human Trafficking Division, the Grace Empowered Prostitution Intervention Program and the Cherished H.E.A.R.T.S. Human Trafficking Court. Nashville Bar Journal • May 2016

BILL & PHIL'S GADGET OF THE MONTH

Battle of the Pros: iPad Pro 12.9 vs iPad Pro 9.7 By Bill Ramsey & Phillip Hampton

We love to buy gadgets as soon as they hit the market. We are fully aware that you pay extra for being an early adopter. Guess we enjoy being broke (and also being the first kids on the block with the new toy). So, it should come as no surprise that we bought Apple’s big screen 12.9 iPad Pro as soon as it hit the market. The iPad Pro 12.9 We must admit, we were a bit disappointed when we started fooling with it. Yes, the iPad Pro 12.9 was the biggest, fastest Apple tablet ever made. You can buy a really nice keyboard to go with it, and we did. You can also buy a pressure-sensitive stylus/pencil to take notes, sketch, and really create great art. We bought that too. The giant screen is beautiful, and the quad speakers are incredible. The large screen really works well with split screen apps that are now available in the new iOS 9 series. You can watch movies on the right-side of your screen and edit documents on the left, for example. In other words, you can play and work at the same time; which we don’t necessarily recommend but do occasionally enjoy. But, we were not as overjoyed with our new pricey toy as we thought we would be. First, by the time we added additional storage, a cellular modem, a Bluetooth keyboard, and the pencil, the price tag was creeping up north of $1,200. For that price we could buy a very nice fully functional laptop (keyboard included). In addition, the large size makes the iPad Pro 12.9 seem less portable. Its size almost defeats the purpose of having an iPad. (At least we felt that way after we bought it.) The 12.9” display is so large you really need to carry it in a laptop bag, and it just does not have the portable, compact feel that made the original iPad and its successors so popular. So, while the iPad Pro 12.9 is powerful and has a great deal of potential—especially for graphic designers and media creators—it is not a laptop killer in our opinion.

The iPad Pro 9.7 We’re not sure if the Apple execs heard our complaints about the 12.9 iPad Pro, but we took it as a nod in our direction when they subsequently announced a smaller iPad Pro, the 9.7. Gadget nerds like us and our money are soon parted. So, when the new iPad Pro 9.7 became available, we had to buy one immediately, as well. And, as usual, we were excited in anticipation of delivery of our new gadget. We were certain that the new, smaller iPad would be more portable and more in line with the iPads we had come to know and love, while providing all the “Pro” advantages. Unfortunately, we had become spoiled. After using the iPad Pro 12.9, the screen on the 9.7 seemed tiny (yes, we know we complained that the 12.9 was too big; forgive us for being tech divas). With the 9.7 we began to feel like we were just looking at an iPhone screen. In fact, it was very hard to tell the difference between a regular iPad or iPad Air 2 and the iPad Pro 9.7. Yes, the iPad Pro 9.7 has a faster, more power processor than the iPad Air 2. Yes, Apple has updated the iPad Pro cameras. Yes, you can take great selfies and great pictures with the high-resolution camera that comes with it. Yes, you can even record videos in 4k resolution. Nevertheless, for just regular users it is very hard to tell the iPad Pro 9.7 apart from the iPad Air. The displays are nearly identical. They run the same software. They use the same apps. There just does not seem to be a great advantage to having an iPad Pro 9.7 versus having a regular iPad (especially the sleek iPad Air 2). iPad Pro 12.9 v. iPad Pro 9.7 Returning to the comparison of the iPad Pro 12.9 to the iPad Pro 9.7 (yes, we got a bit sidetracked), we believe the iPad Pro 12.9 is actually a superior product. The high resolution and the four-speaker system take greater advantage of the faster processor and superior display on the iPad Pro models. In addition, you have more screen real estate to use the split screen feature that is bundled into iOS 9—now 9.3.1. Of course, you can use the split screens feature on any iPad, but it just works better on Continued on page 13

Nashville Bar Journal • May 2016

EARN YOUR CLE WITH QUALITY NBA DISTANCE LEARNING SEMINARS NBA TELEPHONE SEMINARS NATIONAL FACULTY & CURRENT TOPICS AT OUR FINGERTIPS 12:00pm – 1:00pm (CST) DISTANCE LEARNING CREDIT

TABLE OF CONTENTS PAGE 2

LIVE CLE SEMINARS PAGE 3

LIVE CLE SEMINARS

MAY May 10

Ethics and Establishing and Ending an Attorney / Client Relationship (Dual)

May 11

Adding a New Member to an LLC

May 12

2016 Ethics update, Part 1 (Live Replay) (Dual)

May 13

2016 Ethics update, Part 2 (Live Replay) (Dual)

May 16

How Ethics Rules Still Apply When Lawyer’s Act as Non-Lawyers (Live Replay) (Dual)

May 17

Workout of Defaulted Real Estate Project

May 18

Estate & Income Tax Planning Issues in Divorce (Live Replay)

May 19

2016 Retaliation Claims in Employment Law update

May 20

Ethics and Virtual Law Practices (Dual)

May 23

Ethics and Keeping Your Paralegal and Yourself Out of Trouble (Live Replay) (Dual)

May 24

Joint Ventures in Businesses, Part 1

May 25

Joint Ventures in Businesses, Part 2

May 26

Ethics & Conflicts with Clients, Part 1 (Live Replay) (Dual)

May 27

Ethics & Conflicts with Clients, Part 2 (Live Replay) (Dual)

May 31

Civil Rights and Diversity: Ethics Issues (Live Replay) (Dual)

JUNE June 1

Drafting Trust Distribution Clauses: Health, Education & Maintenance (Live Replay)

June 2

Choice of Entity in Real Estate

June 3

Ethics of Preparing Witnesses (Live Replay) (Dual)

June 6

2016 Estate Planning update

June 7

2016 Ethics in Litigation update, Part 1 (Dual)

June 8

2016 Ethics in Litigation update, Part 2 (Dual)

June 9

Advanced Choice of Entity, Part 1 (Live Replay)

PAGE 4

WEBINARS, PLI LIVE WEBCASTS & ONLINE COURSES PAGE 5

MOVIE WEBCASTS PAGE 6

CLE REGISTRATION FORM

NBA CLE STAFF Jan Margaret Rogers CLE Director Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator

June 10 Advanced Choice of Entity, Part 2 (Live Replay) June 13 Drafting Reps and Warranties in Real Estate Acquisitions & Projects (Live Replay) June 14 Successor Liability in Transactions June 15 Professionalism for the Ethical Lawyer (Live Replay) (Dual)

FOR REGISTRATION AND TO SEE ADDITIONAL COURSES, VISIT NASHVILLEBAR.WEBCREDENZA.COM

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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MAY 11, 2016

HEALTH LAW INSTITUTE

REGISTRATION 11:30am SEMINAR 12:00pm – 4:20pm 4.0 CLE Hours – General

WHO SHOULD ATTEND: New health law attorneys, health law attorneys seeking a refresher course on several timely and important topics, and non-health law attorneys seeking an overview of federal and state health care fraud and abuse laws, HIPAA, telemedicine and health care decision making

COST NBA Members: $205 Non-NBA Members: $399

INSTITUTE HIGHLIGHTS • An overview of some of the most important health care laws commonly encountered by health care lawyers and non-health care lawyers alike. • Timely information on recent and proposed developments in fraud and abuse, HIPAA, telemedicine and health care decision making. • Basic information for those unfamiliar with health law topics or needing a refresher course. • Helpful tips to help lawyers detect health care fraud and abuse issues. • A discussion of important considerations relating to end-of-life issues and the use of health care powers of attorney, living wills/advanced directives and advance care plans. FACULTY:

Michaela Poizner, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Kyonzté Hughes-Toombs, Tennessee Department of Health Professor Deborah Farringer, Belmont University School of Law Mark Ison, Sherrard & Roe, PLC Travis Lloyd, Bradley Arant Boult Cummings LLP

PRODUCER:

Mark Ison, Sherrard & Roe, PLC

JOIN THE NBA AND SAVE $$$ $329

(Fee includes 2016 NBA membership year and seminar at NBA Member rate.)

LOCATION Nashville Bar Association 150 4th Ave N, Suite 1050 Nashville, TN 37219 PARKING • 4th Ave next to One Nashville Place • 4th Ave across from One Nashville Place • Commerce Street • Main Library (between 6th & 7th Avenues) Registration must be received on or before May 9 to guarantee written materials at the program. Refund or credit will not be issued after May 9; however, a substitute may attend for a registered participant.

VISIT NASHVILLEBAR.ORG/CLE FOR MORE INFORMATION!

MAY 12, 2016

DEPOSITIONS: GETTING EVERYTHING FROM A WITNESS OVERVIEW: Although the most common goal for depositions is to discover everything the witness knows, too often that goal is frustrated or simply not met. This program will focus on basic techniques that allow the questioner to find out everything the witness knows, create sound-bites on critical testimony, and limit the witnesses’ ability to change their story later. YOU WILL BENEFIT KNOWING: • How to exhaust a witness’s recollection or knowledge. • Creating sound-bites. • Boxing a witness in to make it diﬃcult for them to change their story later. • Ignoring “rabbit trails” so you can accomplish your goals. FACULTY:

Phillip H. Miller, Miller Law Offices

PRODUCERS: Wendy Longmire, Ortale Kelley Law Firm

REGISTRATION 11:00am SEMINAR 12:00pm – 1:00pm 1.0 CLE Hour – General COST NBA Members: $55 Non-NBA Members: $99 JOIN THE NBA AND SAVE $$$ $179

(Fee includes 2016 NBA membership year and seminar at NBA Member rate.)

LOCATION

Nashville Bar Association 150 4th Ave N, Suite 1050 Nashville, TN 37219

PARKING

• 4th Ave next to One Nashville Place • 4th Ave across from One Nashville Place • Commerce Street • Main Library (between 6th & 7th Avenues) Registration must be received on or before May 10 to guarantee written materials at the program. Refund or credit will not be issued after May 10; however, a substitute may attend for a registered participant.

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Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

COMING SOON! MORE LIVE CLE PROGRAMS FOR YOU! June 7 Labor & Employment Law 1.0 Hour – General June 9 Movie Festival: To Kill a Mockingbird 3.0 Hours – Dual

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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LIVE CLE ETHICS WEBINARS (FEATURING SEAN CARTER, ESQ.) The Nashville Bar Association partners with Sean Carter and Mesa CLE to bring you CLE Netshows—entertaining and contentfilled ethics and professionalism live webinars. Sean and Stuart are not only nationally recognized education experts, but also excellent communicators who actually make learning fun. Both received rave reviews from area lawyers for their in-person NBA CLE seminars. Watch your inbox for program details and registration links! You can also register at NashvilleBar.org/CLE.

MAY / EARLY JUNE WEBINAR LINE-UP May 16

Legal Ethics Is No Laughing Matter Noon – 1:00pm CST | 1.0 CLE Hour – Dual – Distance Learning Credit

May 21

The Ethy Awards 10:00am – 12:00pm CST | 2.0 CLE Hours – Dual – Distance Learning Credit

May 24

Who Calls the Shots? 11:00am – 12:00pm CST | 1.0 CLE Hour – Dual – Distance Learning Credit

June 2

Lies, Damn Lies & Legal Marketing 12:00 – 1:00pm CST | 1.0 CLE Hour – Dual – Distance Learning Credit

June 7

Yelp, I’ve Fallen for Social Media and I Can’t LinkedOut Noon – 1:00pm CST | 1.0 CLE Hour – Dual – Distance Learning Credit

PLI & THE NASHVILLE BAR ASSOCIATION BRING YOU LIVE WEBCASTS The Practicing Law Institute and the Nashville Bar Association are working together to bring PLI’s sophisticated and cutting-edge programs to Tennessee attorneys through live webcasts held in the NBA Conference Center. Attorneys attending the live webcasts at the NBA oﬃce will earn “live” CLE credit! Visit NashvilleBar.org/CLE for course details and to register. All start times listed below are Central Standard Time. June 30, 2016

Writing for Litigators 2016

1:00 – 4:15pm

Questions? Contact Christine Seisler at PLI at cseisler@pli.edu or 212.824.5798.

NBA ONLINE CLE • PERSONALIZED LEARNING ON YOUR SCHEDULE N is the exclusive online support network for the NBA

Check out these NEW online courses and REGISTER NOW at NashvilleBar.org/CLE. Reading and Understanding Financial Statements Most, if not all, attorneys need to be able to understand basic accounting concepts and read and interpret financial statements. Leigh Griffith and Vic Alexander introduce attorneys without an accounting or finance background to the broad strokes of accounting and financial statements. (1.50 General CLE Hour) View from The Bench: Hon. Melissa Blackburn | Davidson County Mental Health and Veterans Treatment Courts Learn from Hon. Melissa Blackburn about Mental Health Court and Veterans Court. Gain understanding on how these courts use an individualized approach to address the underlying problems of clients who have committed a variety of offenses. (1.00 General CLE Hour) Thoughtful Evaluation and Selection of Contingent Fee Clients Deliberate, structured cases analysis must be taken before accepting cases on a contingent fee. The failure to do so threatens financial security, increases stress, and results in poor outcomes, all of which impacts your future. In this seminar, John Day gives you the key elements that should be part of your analysis. (1.00 General CLE Hour)

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Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

Put some DRAMA into your CLE with these engaging movie webcasts! ALL WEBCASTS ARE ON MONDAYS OR WEDNESDAYS. REGISTRATION MUST OCCUR AT LEAST ONE HOUR PRIOR TO THE PROGRAM. Distance Learning Credit

The Art of Advocacy

What Can Lawyers Learn from Actors?

Ben Franklin on Ethics

Facilitated by Katherine James

Featuring Christopher Lowell

June 1 11:00am – 2:30pm CST 3.25 CLE Hours

June 15 11:00am – 12:00pm CST 1.0 CLE Hour

General - Distance Learning

Clarence Darrow:

Crimes, Causes, and the Courtroom

Dual - Distance Learning

Impeach Justice Douglas!

Featuring Graham Thatcher as Clarence

Featuring Graham Thatcher

May 11 • June 29 11:00am – 2:15pm CST 3.0 CLE Hours

June 8 11:00am – 2:15pm CST 3.0 CLE Hours

Dual - Distance Learning

Lincoln on Professionalism

Dual - Distance Learning

Thurgood Marshall’s Coming Featuring T. Mychael Rambo

June 15 12:15pm – 1:30pm CST 1.25 CLE Hours

May 25 11:00am – 1:40pm CST 2.5 CLE Hours

Dual - Distance Learning

Maxims, Monarchy and Sir Thomas More Featuring Graham Thatcher

June 22 11:00am – 12:15pm CST 1.25 CLE Hours Dual - Distance Learning

For movie webcast details and to register, go to Periaktos.Bizvision.com. Brought to you by the Nashville Bar Association CLE and Periaktos Productions, LLC. . . . The dramatic difference in CLE.

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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TBD

MAY 12

June 7

JUNE 9

(NBA use only)

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ADDRESS: __________________________________

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3.0

1.0

4.0

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CLE HOURS

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CLE PASS:



 N/A

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NBA MEMBERS

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

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EARLY REGISTRATION FEES

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 $55

 $205

NBA MEMBERS

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CLE EASY PASS

Exp. Date: ______________ Signature: ____________________________

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Total Amount: $____________________________________________

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1. Charge your CLE by phone 615.242.9272 or fax 615.255.3026.

TO COMPLETE YOUR REGISTRATION:

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check to:

3. Detach and mail this form with a

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2. Visit our website at NashvilleBar.org/

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*Non-Member: Select the Discounted Member Rate for the course above, and then add $122.50 for membership through 10/31/16.

COMING SOON! Movie Festival: To Kill a Mockingbird

COMING SOON! Labor & Employment Law

Depositions: Getting Everything from a Witness

Health Law Institute

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Continued from page 12

the larger screen. The bottom line is that while the 12.9 iPad Pro is a bit more cumbersome to carry, you get spoiled once you have used the larger screen. You do not want to return to a smaller iPad model. So, in our opinion, the iPad 12.9 is the winner (but barely) over the iPad Pro 9.7 or just a regular iPad.

MEETING SPACE @ THE NBA CENTER

But, here is a word to the wise and thrifty. If you are not a spendthrift like us, our best advice is to buy neither “Pro” model and stick with an iPad Air 2. Save your money. n See you next month. Bill and Phil The NBA Center is available for you to host meetings, arbitrations, depositions, and other events. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access. Wi-Fi is also available. For more information, contact vicki.shoulders@nashvillebar. org and indicate the date, time, and meeting room preference. Please note that meeting space is subject to availability.

Nashville Bar Journal • May 2016

Introducing the Defend Nashville Initiative By Patrick Hakes & Georgia Sims

As public defenders, we are accustomed to clients asking us questions that reflect their perceptions about who we are and what we do: Do I need to hire a real lawyer to represent me? How can I trust you to fight for me since you work for the State? Don’t you get paid more if I plead guilty?

criminal justice system.”5 The Atlantic hosted “Race and Justice in America: an Atlantic Summit” in November 2015, which included a segment entitled “The Role of the Court.” No lawyers for the poor were included, although two prosecutors and a former judge were included.6 What does this have to do with Nashville? Dawn Deaner, the elected Metropolitan-Davidson County Public Defender and Chief of the Nashville Defenders, says it best:

As public defenders, we also work on the front lines of Nashville’s criminal justice system and have seen how it—like most criminal justice systems across our nation—is broken. Making matters worse is the fact that we face such a high volume of work we often don’t have the time or capacity to address the systemic problems.

Every day, the staff at the Public Defender’s Office bears witness to a criminal justice system that dehumanizes our clients and values efficiency over fairness, wealth over poverty. While we strive to represent every client as if they were a member of our family, we sometimes fail—not for lack of trying, and certainly not for lack of skill, ability or desire. When we fail, it is most often due to the impossible volume of work we face, and our inability to do everything necessary in the time we have to defend every client as the law requires. The consequences to our clients, their families, and our community can be devastating. In today’s Nashville, I believe anyone who understood this reality would find it unacceptable. The trouble is very few people beyond our client community know about it.7

The good news is that our nation’s leaders and media are beginning to pay attention to the criminal justice system. A national conversation has emerged, with contributions from a broad array of people, from John Oliver1 to President Obama.2 But public defenders are noticeably absent from this conversation. Last October, a White House forum on mass incarceration included a federal prosecutor, a police chief, and the Commander in Chief himself.3 The panel did not include a public defender or a private defense attorney. Following this forum, the Marshall Project4 began covering “an ongoing effort by President Obama—and a new alliance of law enforcement and prosecutors—to reform our

In an effort to change this status quo, our Office has launched a new initiative called Defend Nashville. With this initiative, we hope to educate those in our community who are not familiar with the court system about the systemic failures we see and the tragedies our clients experience. We want Nashville to know that our clients on misdemeanor probation must pay between $11 and $24 to a for-profit corporation every time they are drug screened, even when they are not on probation for a drug or alcohol related offense.8 We want to tell Nashville about clients serving doubledigit years for non-violent drug felonies. We want Nashville to see what the presumption of innocence looks like from inside the

While these questions are frustrating to hear, the more disturbing reality is that they stem from real problems that exist in America’s public defense systems—problems that remain largely obscure to all but those who experience the criminal justice system as a defendant. Those individuals are largely poor, marginalized, voiceless, faceless, and powerless.

Nashville Bar Journal • May 2016

dirty, roach-infested cages where we house our brothers and sisters who are unable to pay bond while their case is pending. We want Nashville to know our clients who have lost homes, family, and jobs due to nothing more than an accusation. The list goes on. And while it is easy to talk about what we think is wrong, it is even more important to hear and give voice to those who feel the greatest impact—our clients. We cannot complain about the national conversation on criminal justice reform not including defenders without also pointing out the absence of our clients’ voices. From our perspective, this conversation first and foremost needs to be about shifting power, both in the courtroom and beyond. This can only happen when those who are disempowered stand and speak for themselves—and when those in power (including ourselves) are brave enough to hear how we have failed them. In the end, our goal is to see our clients empowered, and united with the rest of our community to make equal justice a reality for everyone in Nashville. There are five ways to connect with the Defend Nashville initiative: 1. Speaking Tour As public defenders, we tell our client’s stories every day in the courtroom. On our speaking tour, Nashville Defenders visit houses of worship and other community centers to start a dialogue about Nashville’s criminal justice system. Our Chief, Dawn Deaner, discusses the need for criminal justice reform and our role as public defenders in that reform. We then open the floor for questions and conversation between Nashville Defenders and audience members in a panel format. On February 11, our speaking tour had an excellent conversation with roughly 150 people at The Temple in West Nashville. If you know a group interested in learning more, contact us. 2. Listening Tour Meaningful reform cannot happen with-

out listening to those individuals impacted by our criminal justice system. We visit houses of worship, community centers, and support groups in our clients’ neighborhoods so that we can learn how we, as part of the system, might better meet their needs. This spring we will make a listening tour stop in a Nashville jail. It is our hope that this aspect of the Defend Nashville campaign will teach us more about why our client community distrusts us, and allow us to show our commitment to changing that. If you think we need to hear from you, contact us. 3. Court Watch It is one thing to explain how the criminal justice system dehumanizes someone. It’s something entirely different when people can view the system for themselves. Witnessing the way the system works firsthand can have a profound impact on those who know nothing about it. Years ago, one of our coworkers brought an attorney friend to watch the citation docket 9 here in Nashville. She had never seen the docket and was interested. The defender had many cases to handle and went about his business while his friend sat and watched the organized chaos. A few hours into the docket the defender looked over to find his friend crying because of the appalling treatment the defendants were receiving. Court Watch provides the opportunity for small groups of people to tour the courthouse, and witness what happens there for themselves. If you want to see for yourself, contact us. 4. Participatory Defense A criminal arrest can be a confusing, overwhelming, and debilitating experience not only for the person arrested, but for his or her family as well. The participation of others in a loved ones’ defense can be crucial, but it is difficult for an outsider to figure out how to help. Participatory Defense meetings create a forum for families and friends of individuals facing criminal charges to connect, support each other, and create collective knowledge about how to make a positive impact on a loved one’s defense. The Participatory Defense group,

hosted by Family Reconciliation Center and Martha O’Bryan Center staff, meets every Thursday night at 6:00pm at the Family Reconciliation Center (inside Saint John’s Church) located at 6300 Charlotte Pike. Consider attending a meeting to check it out. 5. Our Clients, Ourselves Defenders’ offices need to be active and vocal both in local communities and nationally in order to improve the criminal justice system. Through a series of videos, our office is collecting stories from clients and defenders to bridge the gap in communication. We are developing a YouTube channel where we will publish videos, each with a different topic. We intend to use this channel to make the criminal justice system and its processes more accessible to those interested or needing to learn more. Nashville’s “It City” status is visible in the new restaurants, new condominium complexes, and new Nashvillians all over the city. There is no better time than now to bring new ideas, new opportunities, and new improvements to our criminal justice system. We hope you will join us to Defend Nashville. To arrange for a Defend Nashville Speaking Tour, Listening Tour, or Court Watch contact SaraSharpe@jis.nashville.org. n Endnotes 1 Laura Bradley, John Oliver Tells us How an Accurate Law & Order About the Public Defender System Would Look Like, Slate (Sept. 14, 2015), Slate.com/Blogs/ Browbeat/2015/09/14/john_oliver_s_public_defender_system_breakdown_on_last_week_tonight_starring. html. David Hudson, President Obama: Our Criminal Justice System Isn’t as Smart as It Should Be (July 15, 2015), Whitehouse.gov/Blog/2015/07/15/president-obamaour-criminal-justice-system-isnt-smart-it-should-be.

Andrew Cohen, Commentary, Radley, DeRay, and Piper on Obama’s Conversation with The Marshall Project (Oct. 25, 2013), TheMarshallProject.org/2015/10/23/ balko-deray-and-piper-on-obama-s-conversation-withthe-marshall-project#.HveNJPlJm.

The Marshall Project, TheMarshallProject.org/ about?via=navright#.fuBijIPFQ (describing itself as “a nonprofit news organization that focuses on the American criminal justice system”).

Continued on page 20 Nashville Bar Journal • May 2016

Restorative Justice

Partnership Between Davidson County Juvenile Court and the Nashville Conﬂict Resolution Center By Eleanor Wetzel

Although the victim-oﬀender mediation reconciliation model began to take form in the United States in the late 1970s, it was not until 1994, that the American Bar Association endorsed its use.1 The restorative justice movement slowly grew over the late 1990s as its eﬀectiveness and cost-savings convinced punitive justice advocates of the rehabilitative benefits.2 Founded by the Nashville Bar Association’s Alternative Dispute Resolution Committee in August 2000, the Nashville Conflict Resolution Center (NCRC) became incorporated as a self-running 501(c)(3) nonprofit the following year, and currently is one of the NBA’s three “Community Partners.” The NCRC’s first mediation program, the General Sessions Court Civil Mediation Program, commenced in 2001, after receiving unanimous approval from the court judges, and it continues to serve nearly 2000 people each year. Over the past decade, NCRC’s mediation programs have expanded exponentially, and fall into four primary service areas: (1) parenting, custody, and visitation mediation, (2) housing security and eviction mediation, (3) conflict management workshops, and (4) restorative justice mediation with adult and youth victim-offender programs.3 The Adult Victim-Offender (AVO) program launched in 2006, in collaboration with the District Attorney’s Office as a pilot program and later in contract with the Metro government. This program continues to offer restorative justice through referrals from the Warrant Intake Division, and as of 2015, takes additional referrals directly through each of the 20 MDHA (public housing) properties. The companion Juvenile Victim-Offender (JVO) program began in 2011, and it now responds to referrals 16

Nashville Bar Journal • May 2016

from the Juvenile Justice Center, Metro Police Youth Services, and MDHA properties.

During 2016, the NCRC will help more than 2000 individual resolve their disputes by providing at least 2100 hours of in-session mediation expertise. NCRC will provide $420,000 in professional service through its volunteer mediators free to people who desperately need the help and cannot otherwise access it (valued conservatively at $200/hour as professional rates range from $200-$700/hour). NCRC will have provided mediation services worth significantly more than the entire 12-month organization budget. Additionally, the estimated 700+ NCRC victim offender mediations conducted during 2016 will provide a minimum of $1,400,000 - $3,500,000 in savings to courts and taxpayers (assessed at $2,000 - $5,000 savings per each of the 700 cases, considering costs associated with litigation for judicial and clerical staff).5

Copious research has shown the effectiveness of restorative justice programs,4 and NCRC’s JVO program has demonstrated the same over the last five years. Now, with Juvenile Judge Sheila Calloway’s commitment to restorative justice and the hiring of Dana Wolfe as the Victim Services Coordinator, the Juvenile Court has solidified its partnership with the NCRC to increase significantly the number of cases referred to mediation. In the majority of cases, mediation results in no formal charges and successful diversion from further court involvement. Occasionally, however, cases are referred to mediation from the DA’s Office or from the settlement docket when warranted to promote accountability as part of a punitive sentence. Assistant District Attorney Stacy Miller, Juvenile Court Team Leader, cites research demonstrating that the more contacts a juvenile has with the court system, the more likely he or she is to have contact in the future; thus, diverting delinquent cases such as property crimes and minor domestic disputes decreases recidivism while providing community-based intervention that holds the juvenile offenders accountable. This process also provides greater satisfaction to victims, who are able to receive a much-needed apology or specifically negotiated restitution to move forward. Judge Calloway responded, “We are very excited about expanding our use of mediation services with NCRC. It is our goal to put a greater emphasis on restorative justice practices to not only divert cases from Juvenile Court, but more importantly to teach our kids and our community ways to resolve their

differences outside of court. We hope that with Juvenile Court putting the emphasis on mediation and restorative justice we will empower our families to be more proactive in seeking positive and nurturing resolutions to any problems that arise. These skills, when learned and utilized, will help in all of their life experiences and make them better citizens and community members.” While the focus of the JVO program is to mediate with the juveniles, parents and guardians are included in part of the mediation process, which allows the adults to participate and support the resolution agreed upon by the juveniles. Sara Figal, Executive Director of NCRC, notes that “the process is excellent in helping juveniles (and sometimes their parents) overcome a fear of appearing weak, a fear that hinders their ability to offer an apology and accept accountability for the problem at hand. When the parties are able to apologize and feel good about it, something really important has shifted in the way they approach relationships.” Figal elaborates that largely, the population served by NCRC has a history of chronic poverty, low school performance, and disproportionate rates of violence and incarceration. Studies have shown that kids growing up in this type of environment have a heightened “flight or fight” response, making it particularly hard to work calmly through conflict. For these kids, participating in the mediation process is important not only as a positive resolution of the issue at hand, but also as a crucial life lesson in managing conflict. Rule 31-trained mediators conduct nearly 700 NCRC mediations pro bono each year. Any attorney who is Rule 31 trained is welcome to volunteer as a mediator in one of the NCRC’s mediation programs—an excellent way to fulfill pro bono credits. NCRC provides special program training and coordinates all logistics, so mediators need only appear on the scheduled date to complete the mediation. NCRC offers orientation sessions for new volunteers every two to three months. Attorneys looking to obtain Rule 31 certification also may receive their Rule 31 training through NCRC at a significant discount when signing on to be a volunteer mediator. For more information about mediator training and the NCRC’s programs, visit NashvilleConflict.org, or click on the “Community Partner” tab on the NBA website. Attorneys who wish to arrange mediation services in Juvenile Court should contact, Dana Wolfe, Victim Services Coordinator, at 615-862-5497. n Endnotes 1 Mark S. Umbreit, Betty Vos, Robert B. Coates & Elizabeth Lightf, Restorative Justice in the Twenty-First Century: A Social Movement Full of Opportunities and Pitfalls, 89 Marq. L. Rev. 251, 262 (2005). 2 See, e.g., Washington Institute of Public Policy. Evidence-Based Juvenile Oﬀender Programs: Program Description, Quality Assurance and Cost (June 2007), available at wsipp.wa.gov/ ReportFile/986/Wsipp_Evidence-Based-Juvenile-Offender-Programs-Program-DescriptionQuality-Assurance-and-Cost_Full-Report.pdf; William Nugent, Mona Williams & Mark Umbreit, Participation in Victim-Offender Mediation and Prevalence of Subsequent Deliquent Behavior: A Meta-Analysis, 14 Research on Soc. Work Prac. 408-416 (Nov. 2004), available at http://restorativejustice.org/rj-library/victim-offender-reconciliation-

Continued on page 20

National Victims' Rights Week Tree-Planting Ceremony Review By Jonathan H. Wardle

The National Crime Victims’ Rights Week annual Tree-Planting Ceremony was held the morning of April 11, with participants representing several state agencies, law enforcement officers, community advocates, and other community members. Participants gathered on the lawn at Bicentennial Mall State Park among the dogwood trees planted in prior years to similarly honor victims of crime. Metro Nashville Police Department Bagpiper Emily Davies began the ceremony with a prelude followed by the presentation of the federal and state flags by a Tennessee Highway Patrol honor guard. News anchor Steve Hayslip served as the Master of Ceremonies. Participants recognized Sharon Travis, a prevention specialist for the Sexual Assault Center, as the 2016 Nashville Voice for Victims, and Patricia Glaser Shea, CEO of the YWCA of Nashville and Middle Tennessee, as the 2016 Tennessee Voice for Victims. Other participants included David Rivera, the United States Attorney for the Middle District of Tennessee; Mark Gwyn, Director of the Tennessee Bureau of Investigation; Derrick Schofield, Commissioner of the Tennessee Department of Corrections; Richard Montgomery, Chairman of the Tennessee Board of Parole; and Raul Regalado, Interim CEO of the Tennessee Rehabilitative Initiative in Correction, among several others. Remarks made by the many participants echoed a similar refrain of compassion and diligence on behalf of all victims of crime. The ceremony concluded with honorees planting this year’s dogwood tree in honor of crime victims, a symbol of the pliable strength victims must possess to overcome their wounds. n Jonathan H. Wardle graduated from Vanderbilt University Law School in 2006. He is with the Oﬃce of the Attorney General, in the Criminal Appeals Division. (Disclaimer: This article represents the opinions of the author and not necessarily those of the Oﬃce of the Tennessee Attorney General and Reporter.) Nashville Bar Journal • May 2016

Caen and Nashville

Celebrating 25 Years of an Unusual Partnership By Steve Cobb

Most local American bar associations probably don’t have foreign policies and foreign relationships. The Nashville Bar Association is an exception, with a longstanding relationship with the Bar Association of the city of Caen, located about 10 miles south of Sword Beach, one of the World War II D-Day landing beaches. In a sense, it is very appropriate that an American bar association should develop and maintain ties with a sister bar in Normandy. The French in this region remember very well the sacrifices made by American and other allied troops who landed there over 70 years ago. Americans with an interest in the history of our country know that the help of the French was crucial to success in our revolutionary war. There were more French troops than American at the Battle of Yorktown. These ties apply to all Americans. However, there are thousand year old symbolic and historical connections that apply most clearly to lawyers. In 1066, William the Conqueror left the continent for England to claim what he felt was his rightful throne. When he won, he set up one of the first real centralized nation states since the fall of the Roman Empire. American lawyers today still practice in the Anglo-American common law system, which owes much to William’s conquest. This year, the city of Nashville is celebrating the 25th anniversary of the signing of the charter establishing the sister city relationship between Caen and Nashville. This was not the beginning of ties between the two cities. Those had begun long before with faculty exchanges between the University of Caen and Vanderbilt and TSU on this side of the Atlantic. Lawyers however played a key role in solidifying and enlarging the relationship. In the early 1980s, we were contacted by members of the Caen Bar Association led by Charly Badache who wanted to create a joint seminar at which lawyers and judges from both sides would join together to discuss legal topics of mutual interest. In June of 1985, a delegation of NBA members and others interested in the topic flew to Caen for the first comparative law seminar. The topic in this initial effort was an examination of consumer protection law in the two countries. Of course, initial comments on the nature of the two legal systems set the stage for discussion of the main topic. Needless to say, the colloquium provided a wonderful opportunity for us to meet our French colleagues and to visit some of the wonderful sights of the Norman region including the castle of William the Conqueror, the cathedral he ordered built and the American D-Day landing site at Omaha Beach where almost 10,000 Americans lie buried. It soon became clear that we were 18

Nashville Bar Journal • May 2016

going to invite the French to visit us the following year. The comparative law seminars have become an annual affair. We just completed the 32nd annual meeting of the Caen and Nashville Bar Associations. This year, we discussed developments in the law of the two countries pertaining to end of life issues. Working with the Tennessee Foreign Language Institute, we arranged for simultaneous translation of the presentations for the first time. Honoring long standing tradition, we made our regular inspection of the Jack Daniels facilities. Feeling that the long standing relationship between the lawyers of Caen and the lawyers of Nashville merited a special formal recognition, in 1996, the lawyers of Caen proposed that the presidents of the two bars sign a document recognizing the twining relationship between the respective bar associations. This charter now hangs on the wall of the NBA’s conference room. The NBA and the NBF have been long time supporters of the relationship between the two bars and the two cities. Hundreds of lawyers have participated in hosting French lawyers and their families when they visit Nashville. Hundreds have journeyed to France to experience personally the extraordinary hospitality of our French colleagues and to enjoy interesting discussions of how both systems of law deal with the very same types of issues that all humans face. When the global sister city program was established in the Eisenhower administration in the 1950s, one of the main purposes was to promote citizen diplomacy. The program has been a success in Nashville in part due to the support of the Nashville Bar Association. People get to meet each other and to develop life-long friendships. Americans have friends in France and the French have friends in America. That means that even when our governments disagree on policies, we each have friends whom we know and trust and who can help us think about different points of view in the inevitable disagreements that arise from time to time. The Bar’s creative support of this unusual but wonderful program has been a key to its success for the past 25 years. More lawyers need to take advantage of the wonderful opportunity this program presents. n Steve Cobb, a founder of the Caen-Nashville sister city partnership, is a former member of the Tennessee House of Representatives, Fulbright lecturer at the University of Caen, a legislative counsel for the Tennessee Bar Association and former president of the Nashville Bar Association.

Capitol Notes By Nathan H. Ridley Energy and persistence conquer all things. —Ben Franklin

All Done For This Year With the adoption of SJR 844 by Senate Majority Leader Mark Norris the 109th General Assembly adjourned sine die at the close of business on April 22, 2016. Sine die is a Latin phrase meaning "without a day" to return. Barring two highly unlikely events, a call for an extraordinary session by Governor Bill Haslam or two-thirds of both houses agreeing to reconvene, formal legislative work is all done for this year and for the 109th General Assembly.

affidavit. The General Assembly responded with SB 1560 by Ferrell Haile / HB 1472 by William Lamberth, both of Sumner County. Governor Bill Haslam signed the legislation on April 19, 2016.

The 110th General Assembly will convene after the 2016 election cycle, in an organizational session at 12:00pm on Tuesday, January 10, 2017.

Checklist for May 1. July 5 is the deadline to register to vote for the August 4, 2016 primary election. Early voting begins July 15. It’s a good time to be sure you have the mobile phone number of your state and local elected officials or even the challenger of your choosing.

Legislature 101 The legislative process is ongoing. One of the by-products of shorter time actually spent in a formal legislative session is the additional work to prepare for the upcoming session. While 2016 has those pesky primary and general elections in August and November, some interested parties and public officials will begin to work on their 2017 initiatives during the summer and fall of 2016. For example, on April 26 and 27, House Speaker Beth Harwell’s five member Healthcare Task Force met for the first time. The group had no formal agenda and most of the time was spent with a presentation by our TennCare program leaders on the nuts and bolts of the existing program. Some saw the appointment of the task force as an effort by Speaker Harwell to deflect criticism as shown in several Nashville area billboards of the General Assembly’s refusal to approve Governor Haslam’s proposal “Insure Tennessee”, which would have opted Tennessee into the Medicaid expansion option of the Affordable Care Act. After Purple Rain Before Prince’s lack of a will becomes part of the public conversation, our legislative friends tackled the issue of will execution during the 2016 legislative session. T.C.A. §32-1-104 dealing with the execution of a will is one that is seldom revised by the General Assembly for obvious reasons. On February 9, 2015, however, Judge Armstrong writing for the Court of Appeals reversed and remanded a will contest case, In Re Estate of Bill Morris.

If estate practice is part of your work, the case and resulting new statute deserve a reading. Before you rush to change your forms and templates, be sure to note that the new statute only applies to wills executed prior to July 1, 2016.

2. Plan on attending on attending a May NBA event such as a new offering this year, Family Day at the Nashville Zoo on Saturday, May 14, or an old reliable—the Annual Golf Tournament on Thursday, May 19. Discounted tickets are available for the former, and prizes are available for the latter. 3. Call your Mother. Mother’s Day was Sunday, May 9. Calendar Notes Davidson County Chancellor Carol McCoy is retiring, effective September 1, 2016. The Trial Court Vacancy Commission is now accepting applications for the vacancy. Interested applicants must complete the application and submit it to the Administrative Office of the Courts by 12:00pm CST on May 20, 2016. Monday, May 30, 2016, is Memorial Day. Federal, State, and Local Government along with the NBA offices will be closed in observation of the holiday. n Nathan H. Ridley is an attorney with the Nashville firm of Bradley. You may contact him by email at nridley@bradley.com.

In essence, the Court held that the statute means what it says and just signing the affidavit is not the same as signing the will and the Nashville Bar Journal • May 2016

Miranda's 50th Anniversary United States v. Patane, 542 U.S. 630 (2004); Florida v. Powell, 559 U.S. 50 (2010); Maryland v. Shatzer, 559 U.S. 98 (2010); Berghuis v. Thompkins, 560 U.S. 370 (2010); J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011); Howes v. Fields, 132 S. Ct. 1181 (2012). 23 Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rez. 975, 1027 (2001).

James G. Thomas joined Neal & Harwell in 1982. Thomas has experience in a broad range of civil and criminal litigation matters, primarily in the federal district and appellate courts. In addition to Tennessee state and federal courts, Thomas is admitted to the bars of the United States Supreme Court and the United States Courts of Appeals for the Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits. He earned his J.D. in 1980 from Vanderbilt University School of Law.

Nashville Bar Journal • May 2016

Restorative Justice

Defend Nashville

Continued from page 8

Continued from page 17

Continued from page 15

The Marshall Project, Prison Policy and the President (ongoing coverage), TheMarshallProject.org/tag/prisonpolicy-and-the-president#.cIyAFgSkZ.

AtlanticLive, The Role of the Court/Race and Justice in America (Nov. 12, 2015), YouTube.com/ watch?v=vSmfTOXM_f8&index=6&list=PLwj46yNDL yTXpuPUliI36xJ4YKvu6nRg6.

Metro Nashville & Davidson Co. Public Defender, Introducing the Defend Nashville Initiative (2016), PublicDefender.Nashville.gov/defend-nashville-initiative/ introduction/.

See Metro Nashville & Davidson Co. General Sessions Court Probation, FAQs, GSCourtProbation.Nashville. gov/f-a-q-s/; Avertest, About Us, Avertest.com/about-us.

The 1A docket is a fast-paced docket where over 200 defendants go daily for resolution of a criminal citation. While most offenses are low level driver’s license and other misdemeanors, each defendant potentially faces jail time and few have attorneys.

Patrick Hakes and Georgia Sims are Assistant Public Defenders at the Nashville Defenders Oﬃce.

programs-juvenile-property-offender-recidivism-and-severity-of-reoffense-in-three-tennessee-counties/4948/ (doctoral dissertation examining effectiveness of victim-offender programs in three Tennessee counties Impact Justice, http:// impactjustice.org/about-us (contains a variety of resources and data from “the Oakland Project” led by Sujatha Baliga, Director of Restorative Justice Project). 3 For more information about each of these programs, see the NCRC website at NashvilleConflict.org. 4

See, e.g., Washington Institute, supra note 2.

Statistics from NCRC.

Eleanor Wetzel is licensed to practice in Tennessee and Indiana, and she focuses on constitutional and criminal law. She has served as a volunteer mediator for the Nashville Conflict Resolution Center since 2013.

TENNESSEE CHAPTER Nashville Area Members recognized for Excellence in the field of Mediation or Arbitration

Gail ASHWORTH (615) 254-1877

John BLANKENSHIP (615) 893-4160

Stephen COX, Sr. (615) 665-1230

Paul DeHOFF (615) 893-8896

Hon. Robert ECHOLS (615) 259-6478

Barry L. HOWARD (615) 256-1125

Mark LeVAN (615) 843-0300

James KAY (615) 742-4800

Gayle MALONE, Jr. (615) 651-6775

David NOBLIT (423) 265-0214

Dan NOLAN (931) 647-1501

Leigh Ann ROBERTS (615) 767-5900

Tracy SHAW (615) 244-3370

Matt SWEENEY (615) 726-5774

John TARPLEY (615) 259-1366

Mark TRAVIS (931) 252-9123

Jack WADDEY, Jr. (615) 850-8752

Check preferred available dates or schedule appointments online directly with the state’s top neutrals www.TennesseeMediators.org is free, funded by members

Nashville Bar Journal • May 2016

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. Members will be listed monthly in the Nashville Bar Journal and will appear in our annual Attorney Directory. Contact vicki.shoulders@nashvillebar.org if you have any questions. Thank you for supporting your local bar association!

Aaron | Sanders, PLLC (3) Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (104) Bone McAllester Norton, PLLC (39) Brewer, Krause, Brooks & Chastain, PLLC (14) Buffaloe & Associates, PLC (4) Burrow Lee, PLLC (3) Butler Snow LLP (58) Cameron Worley, PC (3) Cornelius & Collins, LLP (17) Corrections Corporation of America (9) Dobbins, Venick, Kuhn & Byassee, PLLC (4) Dodson Parker Behm & Capparella, PC (10) Farris Bobango, PLC (5) FordHarrison LLP (4) Frost Brown Todd LLC (27) Grissim & Hodges (3) Hale & Hale, PLC (4) Hall Booth Smith, PC (11) Haynes, Freeman & Bracey, PLC (4) Hollins, Raybin & Weissman, PC (6) Holton & Mayberry, PC (4) Howard Mobley Hayes & Gontarek, PLLC (8) Larry R. Williams, PLLC (4) Law Offices of John Day, PC (6) Leader, Bulso & Nolan, PLC (5) Legal Aid Society of Middle Tennessee (12) Leitner, Williams, Dooley & Napolitan, PLLC (8) Levine, Orr & Geracioti, PLLC (6) Lewis Thomason (28) Lieff, Cabraser, Heimann & Bernstein (4) Littler Mendelson, PC (8) Loeb & Loeb, LLP (5) 22

Nashville Bar Journal â&#x20AC;˘ May 2016

Martin Heller Potempa & Sheppard, PLLC (6) May, Hagan & Todd, PLLC (3) McAngus Goudelock & Courie, LLC (7) Mink & Duke, PLLC (3) MTR Family Law, PLLC (3) Nashville Electric Service (4) Neal & Harwell, PLC (31) Nelson Mullins Riley & Scarborough (14) North, Pursell & Ramos, PLC (8) Ogletree, Deakins, Nash, Smoak & Stewart, PC (14) Ortale, Kelley, Herbert & Crawford (23) Patterson Intellectual Property Law, PC (20) Prochaska Quinn & Ferraro, PC (3) Reid Leitner Law Group, PLLC (3) Reno & Cavanaugh PLLC (5) Riley Warnock & Jacobson, PLC (18) Robinson, Reagan & Young, PLLC (4) Sarah Cannon Research Institute (3) Shackelford, Bowen, McKinley & Norton, LLP (7) Sherrard Roe Voigt & Harbison, PLC (34) SIMS|FUNK, PLC (3) Smythe & Huff (4) Spicer Rudstrom, PLLC (13) Stites & Harbison, PLLC (30) Taylor, Pigue, Marchetti & Blair PLLC (6) Tennessee Justice Center (4) Trauger & Tuke (5) Watkins & McNeilly, PLLC (11) Waypoint Law PLLC (3) Weatherly, McNally & Dixon, PLC (3) White & Reasor, PLC (6) Wiseman Ashworth Law Group, PLC (7)

NASHVILLE BAR ASSOCIATION Benefits of Membership

The Nashville Bar Association helps build a sense of community and camaraderie among our members and comes with tangible and intangible benefits for your career, profession, and community. Our members come from the public and private sectors, from large multi-state firms to solo practices; they are judges, in-house counsel, law students, paralegals, educators, and everything in between.

HERE ARE A FEW OF THE MANY REASONS TO BELONG TO THE NBA... • Connect with Your Local Legal Community The NBA provides numerous opportunities to meet and connect with other Nashville-area attorneys. Through networking, social events, continuing education, committee work, and other career and personal development opportunities, we help bring our profession together.

• Learn from the Experts Attend NBA CLEs to hear from law practice leaders who will share their expertise and practical experience. Be educated, enlightened, and even entertained by keynote speakers and other special guests from the legal community—local, regional, and national.

• Expand Your Business and Client Base Build relationships, network, and gain referrals through activities and programs, CLEs, committee work, volunteer projects, or by joining the NBA Lawyer Referral and Information Service at the member rate.

• Be a Leader Set the pace in the legal community by serving on committees, publishing Nashville Bar Journal articles, helping produce or present CLE seminars, joining the Young Lawyers Division, participating on the NBA Board, or working with the Nashville Bar Foundation.

• Be a Better Lawyer Learn from fellow lawyers and judges at NBA events. Enhance your professional development through high-quality CLE programs and committee in-service meetings, and stay informed with insightful and timely articles in the Nashville Bar Journal. • Sharpen Your Practice Skills with CLE Attend our innovative, and engaging CLE courses featuring local, regional, and national presenters. Our skilled faculty will keep you current on the nuts and bolts of the law, local rules and customs, ethics and professionalism, winning practice strategies, and key practice procedures—all at special NBA member rates. • Give Back to the Community Serve the public and help improve the image of lawyers by participating in community service projects offered by the Young Lawyers Division and the NBA throughout the year, volunteer for Dial-A-Lawyer—a free call-in service where members provide general legal information to the public, or help with one of the many projects offered through the Minority Opportunities Program. • Meet New People Don’t just hang out with familiar faces. Use social gatherings, NBA CLE’s, committee work, and Young Lawyer Division events and community projects to build your network of contacts throughout Nashville and surrounding counties.

• Refresh and Renew Yourself Take time out from your daily routine to attend a Bar event or activity—such as the annual Golf Tournament, Free Member Picnic or one of our many Happy Hour gatherings—and catch up with old friends or unwind with new ones.

AND MORE... • Use the NBA Center—to hosts meetings, arbitrations, depositions, and other events. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access. • Visit our Online Career Center—where you can post your resume, search job postings, and access the career resources library. • Receive Announcement Emails—covering timely events, membership news, spotlighted events, and CLE announcements. • Participate in our Lawyer2Lawyer Mentoring program—a web-based resource designed to connect experienced attorneys with newer attorneys who desire assistance with substantive legal issues or the personal and professional demands of practicing law. • Use the NBA Attorney Directory—to find names, photos, and contact information for Davidson County lawyers and judges, firm listings, court information, and areas of practice of local attorneys. Nashville Bar Journal • May 2016

Disclosure Lindsey Arnold has rejoined the firm of Burr & Forman LLP in Lending Practice Group at the Nashville Office. Arnold previously served as an associate in Burr & Forman’s Banking and Real Estate section in the Atlanta office from 2007 to 2011, and the Nashville office from 2011 to 2013. Arnold represents financial institutions, private equity groups, specialty lenders and borrowers in a variety of industries, including health care, manufacturing, retail, construction, technology, hospitality, education, and logistics. She counsels clients on matters related to construction, real estate, tax credit, and acquisition financing, asset-based lending and equipment finance, cash flow lending, syndicated loan transactions, and mezzanine finance. In addition to handling complex corporate finance transactions, she has experience dealing with workouts, including forbearance agreements, and loan modifications. Arnold earned her undergraduate and law degrees from the University of Georgia. Baker Donelson has elected 15 new shareholders across the Firm, including three attorneys in its Nashville, Tennessee office: Julie A. Boswell, Claire Cowart Haltom, and Austin Shaver: Julie Boswell is a member of the Firm's Tax Group and focuses her practice in the areas of federal taxation, tax exempt organizations, estate planning and administration, mergers and acquisitions, and general corporate matters. She often collaborates with attorneys throughout the Firm, partnering with them on transactional matters and tax and financial implications of litigation matters. Boswell has been listed in The Best Lawyers in America® since 2012 and was named the publication's 2014 Nashville Corporate Law "Lawyer of the Year." She assists the Nashville office with associate training, mentoring for summer associates and currently serves as Secretary of the Board of Directors for Susan G. Komen Greater Nashville. Claire Cowart Haltom is a member of Baker Donelson's Health Law Group, concentrating her practice on the legal, regulatory, 24

Nashville Bar Journal • May 2016

\Dis*clo”sure\ (n) The act of revealing, releasing, or bringing to light relevant information concerning NBA Members and Staff. Announcements n People on the Move n Firm News and business issues related to health care services. She assists health care organizations and insurance companies with complex business transactions, strategic market analysis, clinical integration opportunities, and public policy matters. Haltom has successfully closed more than $1 billion in health care transactions and has been named a Mid-South Rising Star by Super Lawyers Magazine. A graduate of the University of Mississippi School of Law, Haltom is an active member of the American Health Lawyers Association and currently chairs the Academic Medical Centers Practice Group of the organization. Locally, she serves on the Leadership Health Care Board of Directors and the Board of Faith Family Medical Center. Austin Shaver is a member of the Firm's Business Litigation Group and the Consumer Finance Litigation and Compliance Group. His practice includes mortgage servicing litigation, lender liability claims, and wrongful foreclosures. He also has significant experience in home inspection professional liability litigation, ERISA and non-ERISA life, health and disability litigation, and general commercial litigation. Shaver previously served two terms as a County Commissioner in Loudon County, Tennessee. A graduate of the University of Tennessee College of Law, he is a member of the American, Tennessee, and Nashville Bar Associations and is an active member of Long Hollow Baptist Church in Hendersonville. Joel R. Buckberg, leader of the Baker Donelson's Commercial Transactions and Business Counseling Group and a co-chair of the Franchise and Hospitality Industry Service Team, has been inducted into the "Legal Eagles Hall of Fame" for being named to the "Legal Eagles" list 10 consecutive years by Franchise Times, a national publication for franchisors and multi-unit franchisees. Buckberg is one of 11 inductees for 2016 and was featured in the publication’s April edition. Lela Hollabaugh, Managing Partner at Bradley Arant Boult Cummings, has been invited to join The Fellows of the American Bar Foundation. This distinction recognizes at-

torneys who have demonstrated outstanding achievements and dedication to the welfare of their communities and the highest principles of the legal profession. Hollabaugh leads Bradley Arant’s business litigation team. She also serves as general counsel to the Nashville Bar Association and a trustee of the Nashville Bar Foundation. As a former chair of the Tennessee Board of Professional Responsibility, Hollabaugh is also listed on the American Arbitration Association’s (AAA) Roster of Neutrals for Commercial Litigation. Hollins Raybin & Weissman changes name and focus. The firm announces that it will now focus its practice on its strong tradition of criminal defense and personal injury work. In turn, the firm will now be known as Raybin & Weissman as long-time partner, John Hollins, Jr., has decided to move his domestic relations practice to the firm of Thompson Burton, PLLC in Franklin, Tennessee, effective June 1, 2016. Raybin & Weissman will continue to maintain its officers in the Fifth Third Center. Margaret M. (Marnie) Huﬀ received the ninth annual Grayfred Gray Public Service in Mediation Award from the Coalition for Mediation Awareness in Tennessee (CMAT). A Nashville-based mediator, Huff spearheaded formation of the CMAT in 2006, and is a Founding Member of the Tennessee Association of Professional Mediators. Huff established her independent mediation practice in 2004. In addition to presentations on conflict management to attorneys, she teaches Legal Writing and Research at Middle Tennessee State University, and previously taught ADR and Mediation Procedure courses at MTSU. Huff serves on the NBA Board of Directors and is past chair of the Tennessee Bar Association ADR Section. She served as an elected member of the ABA Section of Dispute Resolution’s Council and held various leadership roles in the Section. Huff serves as the Community Relations Committee co-chair for the Lawyers' Association for Women and volunteers as a pro bono mediator for the Nashville Conflict Resolution Center.

Continued on next page

Welcome New NBA Members! Cathryn Armistead Jermal Blanchard Tracee Clements Jenna Hohan Taylor Land Randall L. Kinnard of Kinnard Clayton & Beveridge, has been inducted into the International Academy of Trial Lawyers, which limits membership to 500 Fellows in the United States. The Academy invites only lawyers who have attained the highest level of advocacy demonstrated by skill and ability in jury trials, trials before the court and appellate practice. Kinnard was screened by means of both peer and judicial review and each recommended him as possessing the qualifications and characteristics required for members of the International Academy of Trial Lawyers to include standards of integrity, honor and courtesy in the legal profession. Ernest B. Williams, IV and Michael B. Schwegler have authored the Tennessee chapter of Commercial Lending Law, Second Edition: A Jurisdiction-by-Jurisdiction Guide to U.S. and Canadian Law, published in April 2016 by the Business Law Section of the American Bar Association. The treatise sets forth the authoritative summary of statutory and case law relevant to commercial lending in the state of Tennessee. Schwegler and Williams previously collaborated to author the Tennessee chapter of The Law of Guaranties, a Jurisdiction-byJurisdiction Guide to U.S. and Canadian Law, which is also published by the American Bar Associationâ&#x20AC;&#x2122;s Business Law Section, and which presents a comprehensive summary of cases, statutes and practice notes concerning guaranties in the state of Tennessee. n

Please send Disclosure announcements (regarding NBA Members) only to jill.presley@nashvillebar.org. Submissions are subject to editing.

Elizabeth Lombardi Meryl McVicker Matthew Schultz Berkley Schwarz Fritz Spainhour

Tiffany Taylor Ann Tycer

NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs and Services. Contact Vicki.Shoulders@nashvillebar.org for details.

2016 NBA PREMIER MEMBERS Frank Abernathy Elizabeth Alexander Gail Vaughn Ashworth Heidi Barcus Joe Bednarz Joe Bednarz, Jr. Mark Beveridge Joe P. Binkley, Jr. Jonathan Bobbit C. Dewey Branstetter Jr. Kenneth Sherman Byrd Christopher Cardwell Kathryn Caudle Mark P. Chalos John Ray Clemmons Lewis Conner Patricia Cottrell John Day Joy Day Robert Dempsey David Downard Blair Durham John Floyd Keith Frazier Grant Glassford Charles Grant Jay Harbison William Harbison Marian Harrison Trey Harwell Aubrey Harwell Lisa Helton Paul Housch R. Jan Jennings Jordan Keller John Kitch William Koch Irwin Kuhn Ed Lanquist

Andrew Laufman Thomas Lawless Claudia Levy Randal Mashburn Amanda McClendon Rocky McElhaney Robert Mendes Jeffrey Mobley Marlene Moses Patricia Moskal Michael Mossman Mattison Painter David Parsons Gregory Pease Tracy Powell David Raybin Sara Reynolds Maria Salas Kathryn Sasser Carolyn Schott Nathan Shelby Kimberly Silvus Elizabeth Sitgreaves Eric Smith Saul Solomon John Spragens Michael Stewart James Stranch III James Stranch IV Claire Thomas Hon. Aleta Trauger Howard Vogel Michael Wall Elizabeth Washko James Weatherly Peter Weiss Thomas White Thomas Wiseman Stephen Young

Nashville Bar Journal â&#x20AC;˘ May 2016

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The Nashville Real Estate Market is Exploding. Make sure YOUR listing gets SEEN.

Dial-A-Lawyer Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions. Thank you to our April volunteers! Gina Crawley Chris Hugan Tom Lawless Doug Pierce Joe Rusnak Michael Smith

To volunteer your time, please contact our LRIS Coordinator at wendy.cozby@nashvillebar.org. Pro Bono credit applies and dinner will be provided.

Join the NBA LRIS! WE MARKET & ADVERTISE YOUR SERVICES!

Join the NBA LRIS—the exclusive referral service for the Nashville Bar Association—and your practice will beneﬁt from our unique marketing and advertising programs.

ADVERTISE IN THE NBJ CLASSIFIEDS! Available Categories Positions Available, Expert Witness, For Sale, Positions Wanted, Technical Support Services, Ofﬁce Space, Litigation Services, Ofﬁce Sharing, Accounting, Forensic Document Examiner, etc.

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Line Ads: $85 for the ﬁrst 50 words and $1.25 for each additional word. Must be received no later than the 15th of the month prior to publication. Display Ads: $400 for 1/3 page • $325 for 1/4 page • $275 for 1/8 page Visit NashvilleBar.org/NashvilleBarJournal for more information.

Nashville Bar Journal • May 2016

In addition to our online presence—which attracts clients nationwide—LRIS receives client referrals through a variety of sources including the courts, Ofﬁce of the Attorney General, employee assistance programs, other Bar Associations, and the Social Security Administration. In 2015, member attorneys collected nearly $400,000 in fees generated by referrals from LRIS. For information on joining the NBA LRIS, contact wendy.cozby@nashvillebar.org or visit NashvilleLawyerReferral.org. The NBA Lawyer Referral & Information Service is the Exclusive Referral Service for the Nashville Bar Association.

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