Hear Ye, Hear Ye

2021 NBA BOARD OF DIRECTORS Journal

MICHAEL ABELOW, President MARTESHA JOHNSON, President-ElectJournal LYNNE INGRAM, First Vice President DANIEL BEREXA, Second Vice President JOSH BURGENER, Secretary JUSTIN CAMPBELL, Treasurer FLYNNE DOWDY, Assistant Treasurer LELA HOLLABAUGH, General Counsel JOSEPH HUBBARD, YLD President LAURA BAKER, Immediate Past President HON. MELISSA BLACKBURN, First Vice President-Elect LIZ SITGREAVES, Second Vice President-Elect

BAHAR AZHDARI JAZ BOON BRIGID CARPENTER RAQUEL EVE OLUYEMO SAM FELKER LORA BARKENBUS FOX MARY TAYLOR GALLAGHER JEFF GIBSON PAZ HAYNES KIM LOONEY HON. ELLEN HOBBS LYLE MARLENE ESKIND MOSES JUNAID ODUBEKO KAYA GRACE PORTER TIM WARNOCK LUTHER WRIGHT, JR. HON. BILL YOUNG GULAM ZADE

NBA TEAM

MONICA MACKIE, Executive Director CAMERON GEARLDS, CLE Director TRACI HOLLANDSWORTH, Programs & Events Coordinator ADRIENNE BENNETT CLUFF, Marketing & Communications Coordinator SHIRLEY ROBERTS, Finance Coordinator VICKI SHOULDERS, Membership Coordinator, Office Manager

HAVE AN IDEA FOR AN ARTICLE?

We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Adrienne.BennettCluff@nashvillebar.org.

2022 Board of Directors Election

Members of the NBA will be electing six new directors to serve on the Board for four-year term commencing January 1, 2022. If you are an active member of the NBA and are interested in being considered for Board service, please submit your name for consideration to Monica.Mackie@nashvillebar. org no later than Friday, August 13. The election will take place in November, and all members whose 2022 membership dues are postmarked no later than October 31 will be eligible to vote. n

Membership Renewals

It's time to renew your membership! The 2020 membership year ends on October 31. You may renew online at NashvilleBar.org/Renew (it only takes a few minutes!) or by contacting Vicki at Vicki.Shoulders@nashvillebar.org or 615-242-9272. If your firm is part of Firm Billing with

the NBA, please check with your administrator before

renewing online. Thank you for your continued support and membership! n

Have an Idea for a CLE?

We are looking for creative, relevant, and Zoom-friendly CLE seminar ideas! Please contact Cameron at Cameron.Gearlds@nashvillebar.org if you have an idea or would like to see a specific topic in the coming months. We appreciate you! n

Tune Award Nominations

We are now seeking nominations for the John C. Tune Public Service Award to be presented at the Annual Meeting & Banquet on Wednesday, December 9, to be held at the Music City Center. The purpose of the award is to recognize members who make outstanding contributions to the greater Nashville area community while distinguishing themselves as practicing attorneys. To submit your nomination, email Traci.Hollandsworth@nashvillebar.org no later than Friday, October 15, expressing why you believe your nominee is deserving of this prestrigious award. Visit NashvilleBar.org/Awards for more information. n

Annual Member Picnic (It’s Free!)

The 2021 Annual FREE Member Picnic will be held on Thursday, September 30, from 5:30-8:30pm, at Walk of Fame Park— located downtown across from the Country Music Hall of Fame. This event is co-sponsored by the Metro Law Department.

Family-friendly, casual environment, a delicious BBQ dinner, friends and colleagues galore, music, and an open bar stocked full of local beers and wine. For sponsorship and registration information, visit Nashville Bar.org/Picnic or email Traci.Hollandsworth@nashvillebar.org. We look forward to seeing you there! n

YLD Happenings

SAVE THE DATES

Aug 12 | Brews for Backpacks @ Craft Brewed

Aug 28 | The 23rd Annual Carbolic Smoke Ball @ Hard Rock Cafe

Sep 25 |YLD 17th Annual LogicForce Race Judicata @ Edwin Warner Park

Oct 12 | Law Day - Advancing the Rule of Law Now @ The Renaissance Nashville Hotel

Oct 26 | 2021 Arts Immersion @ Mercy Lounge

Dec 2 | CLE with the Davidson County Judges

View photos of these past events or at NashvilleBar.org/PhotoGallery. Be on the lookout for more information about upcoming YLD events! n

Back to Court: Jury Trials in This New Era

From March 23 through March 31, 2021, Tim Warnock and Stuart Burkhalter tried a case in the United States District Court for the Middle District of Tennessee in the courtroom to an in-person jury, with Judge Campbell presiding. At a time when widespread vaccination had not yet occurred, Warnock and Burkhalter successfully followed strict guidelines and were able to try a case from voire dire to verdict without any COVID-19 complications.

This article is not about the verdict, the parties, the issues or the lawyers. Rather, this article focuses on the way back into the courtroom for judges, law clerks, lawyers, Courtroom Security Officers (CSOs), court staff, and witnesses. While Warnock and Burkhalter admittedly had more to do with preparing for trial and little to do with the logistics, this article provides two different prospectives.

First, Tim Warnock writes about the differences between this trial and other jury trials that he has tried in the same courthouse over the past twenty-five years. Burkhalter writes from the perspective of a lawyer trying his second jury trial and bearing primary responsibility as first chair.

WARNOCK

Trial Experience During COVID-19

Before the first day of trial, the Office of the Clerk of Court had taken several steps to allow the trial to move forward. The witness stand was fitted with a plexiglass shield. Sanitizing wipes were available at the witness stand. The water pitcher had been replaced with bottles of water.

Counsel tables were moved further away from the jury box than usual. A plexiglass shield separated the lawyer at the podium from the jurors, two of whom sat in front of the jury box in order to maintain a safe social distance among the members of the jury. Both the plaintiff and the defendants had the option of using tabletop podia from counsel tables rather than the podium that included the Elmo (projector), although neither side elected that option.

Upon entering the building, we had our temperature taken as a prerequisite to the security checkpoint Once we reached the Eighth Floor, a nurse greeted us. The nurse took our temperature again and asked a series of questions about symptoms and possible exposure to COVID-19. We each received a sticker that reflected we were authorized to be on that floor on that day.

Everyone in the courtroom wore a mask except the witness while testifying and the examining lawyer while conducting an exam or otherwise speaking at the podium. The jury was led into and out of the courtroom by the CSOs (who developed a term− “stacking” −to describe the process).

Typically, lawyers see jurors outside the courtroom during the course of a trial. Lawyers encounter jurors in the elevator lobby, the hallways, or the cafeteria. The cafeteria was closed, so no one associated with the trial was in that space. We did not see a single juror outside the courtroom during the entire trial, suggesting that the practices on managing the jury may survive once things return closer to what we once thought of as “normal.”

The presentation of evidence and argument was not much different than before COVID-19 shut down most in-person proceedings. The courtroom is sufficiently large so that the lawyers and witnesses could use whiteboards and other demonstrative aids and still maintain safe social distances. For lawyers who prefer to use either trial-presentation software or the Elmo to

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Lessons Learned

One lesson that we learned involved presentation of testimony through deposition. Although some of the witnesses who appeared by deposition might have appeared live but for COVID-19, each of them was beyond the subpoena power of the court. The Local Rules of Court include deadlines for designating testimony and for making and responding to objections to designated testimony. However, in a case that requires significant testimony to be presented through deposition, lawyers should raise any issues regarding the admissibility of that evidence significantly in advance of trial to allow the Court to resolve those issues without having to inconvenience jurors during the course of the trial. To the extent deposition testimony is presented by video, the point is particularly important in order to edit the video appropriately. If the video testimony includes testimony scrolling along the bottom of the screen in real time with the witnesses’ testimony, the importance of early resolution is accentuated in order to be able to edit out stray words that are otherwise excluded.

Another lesson involved managing resources in the courtroom and in our offices. Typically, we would have hauled boxes of transcripts and exhibits back and forth each trial day. That would have been horribly inefficient, not only for the lawyers but also for the courthouse personnel and would have meant more people, more trips, and more health screenings. We anticipated this and maintained an office copy and a courtroom copy of any transcript or documents that we thought we would need outside the courtroom. Also, both sides were allowed to use witness rooms close to the courtroom to store materials and to caucus on breaks, and that was tremendously helpful.

BURKHALTER

Trial Experience During COVID-19

This was the second jury trial in my career, but the first in which I was charged with giving the opening statement and closing argument. So, in short, COVID-19 and the prospect of catching COVID-19, for better or worse, were not at the top of my list of things to be worried about as we approached trial and as the trial began. Instead, as things kicked off, I was far more concerned that my opening statement might drift into—heaven forbid—argument and then, thereafter, that I would be hurled from the courtroom by the deputy into the onrushing path of a hot-tub bus, or, else, that I might experience a sudden blackout and forget everything that we had been preparing for the past few weeks/months/years. So, for me, typical trial worries dominated.

I echo Warnock’s thoughts about the professionalism of the Court, Court staff, the jury, the witnesses, and opposing counsel. COVID-19, aside from the court room modifications and temperature screenings, rarely came up. In jury selection, not a single individual opted out due to COVID-19, even though all of them were provided that opportunity. The issues I noticed throughout trial were minor and probably wrapped up more in the fact that this was my second trial rather than a result of the coronavirus.

For instance, I did not take par-

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