Nashville Bar Journal | September 2011

Nashville Bar Journal

September 2011 - VOL 11, NO. 8

The Freedom Rides:

Making the Law Apply to All

by Charles K. Grant & Natasha W. Campbell

2011 NASHVILLE BAR ASSOCIATION NIGHT WITH THE NASHVILLE PREDATORS Thursday, October 27th @ Bridgestone Arena Predators vs. Tampa Bay Lightning @ 7pm

NBA MEMBER PICNIC September 22, 2011  Hall of Fame Park 5:30 pm - 8:30 pm

(front lawn of Country Music Hall of Fame)

For $41/person (reg. $51), each participant will receive: • Mezzanine Level ticket with All-You-Can-Eat Hot Dogs, Nachos, Peanuts, Popcorn, Pepsi & MORE • Group Name on the Megatron • Preferred Seating as a Group • Upper Level Ticket

For $25/person (reg. $34), each participant will receive: • Group Name on the Megatron • Preferred Seating as a Group • Upper Level Ticket

*** LIMITED SEATING RESERVATIONS REQUIRED *** Reserve your tickets today at: www.nashvillepredators.com/NBA (use promo code “NBA”)

Questions?: Brian Goodheart (615) 770-2384 bgoodheart@nashvillepredators.com

The 14th Annual Nashville Bar Association Member Picnic will be held on September 22, 2011! This event is FREE for all NBA Members

BBQ - Open Bars Socializing The event begins at 5:30 pm with dinner served at 7:00 pm.

The Hall of Fame Park is located centrally downtown between the Country Music Hall of Fame, Downtown Hilton Hotel and the Schermerhorn Symphony Center.

RSVP Online at www.nashvillebar.org Thank You to Our Sponsors

ABA Retirement Funds Program Blankenship CPA Group Nashville School of Law UBS Financial Services, Inc Vocational Economics

Nashville Bar Journal A Monthly Publication of the Nashville Bar Association

www.nashvillebar.org

The Freedom Rides: Making the Law Apply to All

September 13 - 11:30 am L.A.W. Meeting

PAGE 6

September 15 - 12:00 pm NBF Trustees Meeting

Charles K. Grant and Natasha W. Campbell

September 15 - 12:00 pm Government Trustees Meeting

Hiding in Plain Sight— Catch-22 on Nondisclosure of Damages Caps to Jury PAGE 10

Donald Capparella

FROM THE PRESIDENT Running Hard PAGE 2

Bob Mendes, MGLAW, PLLC

_______________________________________________ 4 Communiqué • Free Member Picnic!

• Tip from the Health & Wellness Committee • Poll Results • 2012 Dues Forms • Golden Oldies • Upcoming Events

September 22 - 12:00 pm Memorial Service Committee Meeting September 22, 2011 NBA Free Member Picnic @ Hall of Fame Park

September 19 - 11:30 am Probate & Estate Planning Committee Meeting

October 4, 2011 Sixth Annual Tennessee Supreme Court Historical Society Dinner @ Hilton Downtown

September 20 - 12:00 pm Ethics Committee Meeting

October 7, 2011 3rd Annual NBA Healthy Bar Party @ Waller Lansden

September 21 - 9:30 am Memorial Service Committee Meeting

November 5, 2011 NBF Fellows Dinner

September 22 - 9:30 am Finance Committee Meeting @ MGLAW

December 8, 2011 NBA Annual Meeting & Banquet @ Wildhorse

September 22 - 10:30 am Executive Committee Meeting @ MGLAW

_________________________________________________________ CLE Information - Center Section _________________________________________________________ 14 The Mobile Generation Kelly L. Frey, Sr. and Tatiana Melnik _________________________________________________________ 16 InCamera: Judge Amanda McClendon

View Full Calendar online at www.nashvillebar.org

-Golden Oldies-

Bart Pickett, Hall, Booth, Smith & Slover, P.C. _________________________________________________________ 18 NBA Capital Campaign Donors _________________________________________________________ 22 Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory _________________________________________________________ 24 Classified Listings _________________________________________________________ ----------------------------------------------------------------------------------------------Identify the individuals in the photo. Be the first to email the correct answer to nikki.gray@nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue.

------------------------------------------------------------------------

Nashville Bar Journal A Monthly Publication of the Nashville Bar Association

www.nashvillebar.org

Robert Mendes, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

Eleanor Wetzel, Managing Editor

FROM THE PRESIDENT

by Bob Mendes

Running Hard

eleanorwetzel@jis.nashville.org

Journal Staff: Nikki Gray, Director of Communications nikki.gray@nashvillebar.org

Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org

Editorial Committee: Kelly L. Frey Nanette Gould Marge Haines Kathleen Pohlid Tim Ishii Tracy Kane Rhett Parrish Bill Ramsey Stephanie Reevers Eleanor Wetzel

Nashville Bar Association Staff Gigi Woodruff Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Judy Phillips CLE Coordinator 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) 242-9272. 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.

Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org

2

Nashville Bar Journal - September 2011

I have written eight of these "From the President" messages and I am starting to run out of material. So, I am going to be largely derivative and share with you a few of the things that have inspired me over the last month.

First, I recently had a hearing scheduled where, objectively, it was clear that losing was the most likely outcome. The client was pretty zen about my predicted outcome, but wanted to proceed and take its chances. Not long before the hearing, I saw a tweet from James Crumlin (@jamescrumlin) that gave me a boost: Never let anyone outwork you. Never wait a second later to put in that much-needed extra effort to complete a task.

At first glance, there is nothing earth-shattering about this advice. In little league, we were taught to always run hard to first base no matter what. And, "giving 110%" is so ingrained in our society that the phrase has become trite.

But, on that day when I was preparing for the hearing I "knew" I was going to lose, James reminded me that, as a lawyer, my job is to run hard to first base – even on the weak grounders. If I have helped my client understand the range of possible outcomes, and she makes an informed decision, I need to do my best to make it happen.

I ended up with at least a partial win at that hearing. (My baseball analogy falls apart here – the ruling was most like being hit by a pitch. I cannot be sure my arguments influenced the outcome much. Also, it hurt a little, but I did get on base.) I like to think that my effort level for the hearing would have been the same regardless of whether the tweet had reminded me to give it my all. Either way, thanks to James for the extra kick in the pants.

Second, I have seen a few great examples of collegiality in our bar over the past several weeks. For this, I can't really name the names. But, in several of the cases in my office, the angst between the parties is higher than average. And, across the board, I have seen lawyers fighting hard to gain the high ground in the litigation while remaining friendly and helpful to one another personally.

In this era where the pace of communications continues to accelerate, it is good to see Nashville lawyers work to keep civility in our practice. The lawyers with whom I have been working know who they are – thanks to all of them.

Third, this summer, I went to a Bluebird on the Mountain at Dyer Observatory concert. If you have not been to one, it is a great event. It is basically the standard Bluebird Café experience, except outdoors, more wide open, with your own picnic spread, and a breeze. That evening, the inspiration was from the musicians. One of my favorite things is to watch singer-songwriter-musicians while their own songs are being performed. They close their eyes and start moving with the music. Since I have almost no musical talent, I am left to imagine what they are seeing with their eyes closed. I imagine in that moment they are becoming one with the rich tapestry of sound and feeling that they created. Their art is so ephemeral that they need to close their eyes to see it.

The "art" of what we all do is often just as short-lived and transient. There is always going to be time to worry about money, and what the competition is

2011 NBA BOARD OF DIRECTORS

doing, and how to find and keep good people, and how to find your next client. But, whether it is your own personal work, or a small project group, or leading an organization, sometimes you need to let go and just feel the music.

You can’t lead when you are looking over your shoulder at the problems.

You need to trust where you feel the music is taking you and go there.

There are a few common threads from these vignettes. At least to me, the message is to not over think things. There are fundamentals to life and our law practices that we can rely upon to guide us in most situations. Beyond this, I think these anecdotes underscore the importance of passing the fundamentals along to younger generations of lawyers. It's up to all of us to be living examples of the importance of running hard on every ground ball, and playing well with others. n

Robert J. Mendes, President John D. Kitch, President-Elect Barbara J. Perutelli, First Vice President John J. Griffin Jr., Second Vice President Alisa C. Peters, Secretary William Robert Pope, Treasurer M. Bernadette Welch, Assistant Treasurer Gareth Aden, General Counsel Rebecca C. Blair Robert E. Boston C. Dawn Deaner Charles K. Grant Barbara D. Holmes Michele M. Johnson Hon. Randy Kennedy Patricia Moskal Tracy Shaw Tom Sherrard Hon. Marietta Shipley Emily A. Shouse Michael D. Sontag John R. Tarpley Mandy Haynes Young

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 it to nikki.gray@nashvillebar.org

Nashville Bar Journal - September 2011

3

communiqué

NBA NEWS n COMMITTEE INFORMATION

n

SPECIAL EVENTS

n

NBA NEWS n COMMITTEE IN

NBA Free Member Picnic!

Tip from the Health & Wellness Committee

Please join us for the free member picnic on Thursday, September 22, 2011, at the Hall of Fame Park! The picnic will feature a barbecue dinner and assorted beverages. The event offers a wonderful casual environment to mingle with your colleagues in the Nashville legal community.

Are you due for blood work?

Hope to see you all there!

1) Do not drink coffee three days prior to the test.

2) Stop eating processed foods, especially fast food.

3) If you have any food sensitivities, eliminate those foods from your diet in the preceding days.

-Golden Oldies-

Ben Cantrell was the first to correctly identified the individuals in the August Golden Oldies photo. Pictured are: John Hollins, Gayle Robinson, and Don Smith

All of us have had our blood drawn by the doctor at some point in our lives. Should you prep for a blood test as you would for any other test? When it comes to evaluating how your body processes fats (cholesterol levels), the answer is YES! Keep in mind the following tips next time your blood is tested.

The liver and gallbladder are responsible for the elimination of toxins, digestion of fats, managing the level of fats (lipids) in your system and the metabolism of protein.

Supporting your liver is important when having a blood test. You can aid your liver and gallbladder by eating specific foods such beets, carrots, and parsley. If beets alone aren’t your preference, try making a juice mix or shake with these and other fruits and vegetables such as apples, berries, kale, cucumber and spinach. There are also whole food nutritional supplements which support the function of the liver and the other organs. Working with someone who can assist with a strategy can be very beneficial in creating optimal health and wellness.

Jessica Kennedy Nutritional Consultant Green Hills Chiropractic Clinic

3rd Annual NBA Healthy Bar Party

Toiletry Drive to Benefit the Homeless of Nashville August 22 – September 19, 2011

Come to the Third Annual Healthy Bar Party on Friday, October 7, 2011, at the offices of Waller Lansden, Nashville City Center, from 10 a.m. - 3 p.m.

You will learn tips for overcoming anxiety and depression, the role that good nutrition plays in fighting stress and anxiety, what it really means to have a balanced life, and so much more. Throughout the day we'll offer healthy snacks, free wellness checks, and chair massages.

Sponsored by Nashville Bar Association, Young Lawyers Division and NALS – Association of Legal Professionals, Nashville Chapter

The cost? It's free! However, we will be accepting donations to the William Cain Revolving Loan Fund program at the door.

The Third Annual Healthy Bar Party is brought to you by the Nashville Bar Association's Health and Wellness Committee and is Sponsored by Tennessee Lawyer's Assistance Program

We look forward to seeing you on October 7!

If you travel on business, take summer vacations, hoard toiletries in your home or frequent a grocery store, the homeless community of Nashville needs your help.

Please consider bringing home with you toiletry items provided on a complimentary basis by hotels or picking up extra toiletry items the next time you stop at Kroger.

We need: soap, shampoo/conditioner, razors, shaving cream, deodorant, lotion, floss, toothpaste and toothbrushes. Any size bottle is fine.

The YLD and NALS sponsor this drive for the benefit of Nashville’s homeless population every year because the need remains strong and has only grown in recent years. The Nashville Rescue Mission, which receives the proceeds of the drive, is always extremely grateful for the donations. Please consider giving to this worthy cause. Thank you in advance for your participation.

Joel D. Eckert, NBA YLD at (615) 252-4640 or jeckert@babc.com Michael A. Gardner, NBA YLD at (615) 465-2753 or Michael_Gardner@chs.net Tina Boone, NALS at (615) 850-8166 orTina.boone@wallerlaw.com

4

Nashville Bar Journal - September 2011

NFORMATION

n

SPECIAL EVENTS

NBA NEWS n COMMITTEE INFORMATION

n

n

SPECIAL EVENTS

n

NBA NEWS n COMMITTEE INFORMATION

NBA Solo/Small-Firm Committee Hands On Nashville Day

Second Annual ADR Mixer

Come out for Hands On Nashville Day 2011 and volunteer alongside your fellow solo and small-firm lawyers at one of Metro Nashville’s public schools.

The NBA Solo/Small-Firm Committee is recruiting a team to volunteer together and would love your participation. You are welcome to invite friends and family (18 and older) to join the team.

Thursday October 20, 2011 5:30 p.m. - 8:30 p.m.

n

Presented by the Alternative Dispute Resolution Committee

September 24, 2011

Please come join the Nashville Bar Association’s ADR Committee on Medition Day for our Annual ADR Mixer co-hosted by the ABA Dispute Resolution Section. The mixer will take place in The Nashville City Club on the 20th floor of 201 Fourth Avenue North overlooking downtown Nashville.

Please contact Amy Everhart at amy@everhartlawfirm.com if you are interested in participating.

For more information on Hands On Nashville Day, go to the following link: http://www.hon.org/AboutUs/index.php/hon_day_11/honday2011.html.

All are welcome!

Free Drinks and Appetizers

2012 Dues Forms

Event Sponsors: ABA Bethel University Consensus Conflict Management & Mediation Services, LLC

Our dues year ends on October 31, 2011. Look for your new dues statement in the mail in September. If you have any questions regarding your dues form or member benefits please contact Vicki Shoulders at vicki. shoulders@nashvillebar.org or (615) 242-9272.

Poll Results - Criminal Court Clerk 508 member participated in our recent Candidate Evaluation Poll for Criminal Court Clerk. Howard Gentry received the highest recommendation and did succeed in obtaining the position. He was sworn in on August 30, 2011.

Gayle S. Barbee Michael Craddock Frank G. Friedman Howard C. Gentry, Jr. Steven R. Murff

Highly Recommend

Recommend

Do Not Recommend

No Opinion

Rating Avg.

0.4% (2) 3.3% (17) 3.9% (20) 45.3% (230)

7.1% (36)

2.8% (14) 6.5% (33) 10.6% (54) 24.6% (125) 5.1% (26)

13.6% (69) 50.0% (254)

17.7% (90) 10.2% (52) 14.6% (74)

83.3% (423) 40.2% (204) 67.7% (344) 19.9% (101) 73.2% (372)

2.79 2.78 2.43 1.56 2.28

UPCOMING EVENTS: ----------------------------------------------NBA Picnic Thursday, September 22, 2011 @ Hall of Fame Park ---------------------------------------------------

2011 Directory Photography September 1 - September 30

The photography for the 2012 NBA Photo Directory has been set for September 1st September 30, 2011. Contact Bob Siddens Photography at (615) 419- 0355 or at bob@bobsiddensphoto.com if you have any questions or would like to schedule a session.

Sixth Annual Tennessee Supreme Court Historical Society Dinner October 4, 2011 @ Hilton Downtown -------------------------------------------------------------3rd Annual NBA Healthy Bar Party

Friday, Oct. 7, 2011, at Waller Lansden, Nashville City Center, 511 Union Street, Nashville TN.

-------------------------------------------------------------NBA Fellows Dinner November 5, 2011 -------------------------------------------------------------NBA Annual Meeting & Banquet @ Wildhorse December 8, 2011 --------------------------------------------------------------

Nashville Bar Journal - September 2011

5

The Freedom Rides: Making the Law Apply to All by:

Charles K. Grant and Natasha W. Campbell

This year marks the 50th anniversary of the Freedom Rides of 1961. We commemorate this historic movement by briefly exploring the legal issues and political climate of the time, the planning and execution of the Freedom Rides, and the overall impact of the movement. Lasting just six months, from May to November 1961, the Freedom Ride movement involved more than 400 volunteers committed to non-violent protest. These Freedom Riders changed America forever by bringing an end to segregation in public transportation.

The Freedom Ride movement was inspired by the Supreme Court decisions of Morgan v. Virginia1 and Boynton v. Virginia,2 as well as rulings of the Interstate Commerce Commission (ICC), namely its companion bus and train desegregation cases of Keys v. Carolina Coach Company3 and NAACP v. St. Louis-Santa Fe Railway Company.4 Prior to these decisions, segregation and disenfranchisement laws, known as “Jim Crow,” mandated the racial segregation of public transportation, including bus stations and train terminals, among other public venues and facilities. Jim Crow laws dominated the American South for almost 100 years, beginning in the early 1870s.5 In 1896, in the matter of Plessy v. Ferguson, the Supreme Court upheld the constitutionality of state laws requiring segregation of intrastate railway cars under the doctrine of “separate but equal.”6 Of relevance, the majority opinion in Plessy stated, We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that . . . social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. . . . Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.7 In Plessy v. Ferguson, the Supreme Court suggested that “an enforced commingling of the two races” was not necessary to achieve social, civil, and political equality for blacks. In fact, the Plessy Court further stated, “If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.”8 In spite of this belief, 6

Nashville Bar Journal - September 2011

treatment and accommodations for black Americans usually were inferior to those provided for white Americans. “Whites Only” and “Colored” signs were constant reminders of the enforced racial order.

The case of Plessy v. Ferguson did not raise a question of interference with interstate commerce because the subject company, East Louisiana Railway, was a local line.9 However, in 1946, the Supreme Court decided Morgan v. Virginia and held that Virginia’s state law enforcing segregation in interstate buses was illegal.10 In 1960, the Supreme Court decided Boynton v. Virginia and held, “[W]here circumstances show that [a] terminal and restaurant operate as an integral part of the bus carrier’s transportation service for interstate passengers[,] . . . an interstate passenger need not inquire into documents of title or contractual arrangements in order to determine [that] he has a right to be served without discrimination.”11 These Supreme Court rulings, i.e., Morgan v. Virginia and Boynton v. Virginia, were ignored by Southern states that continued to segregate interstate passengers. It was as if these decisions had never occurred. Moreover, when President John F. Kennedy took office in 1961, it appeared that the issue of civil rights in the American South had low priority. Raymond Arsenault, historian and author of “Freedom Riders: 1961 and the Struggle for Racial Justice,” and a producer of the PBS documentary titled “Freedom Riders,” has said, “[W]hen [President Kennedy] gave his inaugural address in January of 1961, he talked about spreading freedom all over the world – to China, to Latin America, to Africa – to everywhere but Alabama, and Mississippi, and Georgia.”12 Therefore, “[i]t became clear that the civil rights leaders had to do something desperate, something dramatic to get the Kennedys’ attention.”13 The response was the Freedom Ride movement.

The Congress of Racial Equality (CORE), a civil rights organization led by James Farmer, originated the Freedom Rides.14 The purpose of the Freedom Rides was to push the federal government to enforce the Morgan and Boynton decisions and to challenge the so-called “Southern way of life.” Farmer planned for mixed groups of blacks and whites to travel into the Deep South on commercial buses and to deliberately violate the segregation laws. For the first Freedom Rides, Farmer anticipated a two-week trip from Washington, D.C. to New Orleans that would culminate with a celebration on the anniversary of the Brown v. Board of Education decision.15 Thirteen riders were chosen, seven black and six white. They were provided training on non-violent protest that included simulation scenarios. However, none of their training contemplated the level of violence that the Riders would encounter during their journey.

On May 4, 1961, the Freedom Riders boarded two buses scheduled to pass through Virginia, North Carolina, South Carolina, Georgia, Alabama, and Mississippi on their way to Louisiana. Neither bus would make it. The first 10 days of the Freedom Rides, while the buses traveled between the District of Columbia and Atlanta, were uneventful. Before the buses departed Atlanta on May 14, 1961, however, Rev. Dr. Martin Luther King, Jr. warned the Riders of trouble ahead in Alabama.

Only one of the buses was scheduled to pass through Anniston, Alabama. When the bus arrived, a mob surrounded it and punctured its tires. They set the bus on fire and blocked the doors from opening. The Freedom Riders and other passengers on the bus escaped only after the fuel tank exploded and caused the mob to partially disburse. State troopers eventually arrived and took control of the scene, but not before several of the Riders were attacked with baseball bats and other weapons.

Nashville Bar Journal - September 2011

7

The Freedom Rides: Making the Law Apply to All Continued from page 7

Passengers on the second bus had no knowledge of the events in Anniston.

They also did not know that a mob of hundreds – and possibly over one thousand – people awaited them at the Birmingham bus terminal. After the Freedom Riders arrived, and deboarded to test the facilities, they were attacked.

For 10 to 15 minutes, the Riders were assaulted with various weapons. Law enforcement was present, but took no action. The mob disbursed only after police presence increased. The photographic images of the Birmingham attacks were some of the most violent images captured during the entire Civil Rights movement. These images drew national and international attention to the Freedom Rides.

8

Nashville Bar Journal - September 2011

The Freedom Riders agreed to continue their bus journey to New Orleans despite their injuries. However, commercial bus drivers were afraid to carry them. The threat of mob violence in Birmingham also continued. The Riders therefore were forced to complete their journey to New Orleans by plane and under the protection of the federal government.16 Everyone believed that the Freedom Rides were over. A student group in Nashville decided that they were not.

Members of the Nashville Student Movement had been watching the progress of CORE’s undertaking and, when it ended in near disaster, the students found it critical for the Freedom Rides to continue immediately. Emboldened by their successful movement to desegregate Nashville lunch counters one year earlier, the Nashville students felt ready for the challenge of continuing the Freedom Rides.

Eighteen students volunteered.

Under the leadership of Fisk University student Diane Nash, the Riders traveled in two groups that included the following native Tennesseans: William

Barbee, Carl Bush, Rudolph Graham, Patricia Jenkins, Pauline Knight, Frederick Leonard, Etta Simpson, Mary Smith, Susan Wilbur, Frances Wilson, and Clarence Wright.17 On May 16, 1961, the first group of Nashville Student Movement Freedom Riders was arrested in Birmingham after entering the “Whites Only” section of the bus station. These Riders were driven to the Alabama/Tennessee border in the middle of the night and told not to return. Defiantly, the Riders traveled back to Birmingham by train two days later where the second group of Nashville students was waiting.

Again, commercial bus drivers refused to transport the Freedom Riders, and the threat of mob violence persisted.

The Riders eventually departed Birmingham by bus with the protection of Alabama state troopers for travel between Birmingham and Montgomery.

At the Montgomery bus terminal, the Riders were victims of a mob attack.

As in Anniston and Birmingham, local police, standing nearby, failed to intervene.

One day after the Montgomery riot, there was a mass meeting of civil rights leaders – including Dr. King – and supporters at the First Baptist Church that was pastored by Rev. Dr. Ralph Abernathy. Approximately 1500 people attended, and a mob twice as large assembled outside of the church.

To diffuse a potentially violent situation, Dr. King reached out to Attorney General Robert F. Kennedy for help.

As a result, Alabama Governor John Patterson declared martial law that night. This was the first major victory of the Freedom Ride movement, as the State of Alabama had agreed to provide the protection necessary for the

Riders to travel safely from Montgomery to the border of Alabama and Mississippi.

The Freedom Riders encountered no violence in Jackson, Mississippi, but they were arrested on May 23, 1961 for violating the state’s segregation laws, i.e., laws that were twice ruled unconstitutional by the Supreme Court. The Riders were imprisoned at Parchman State Prison Farm, “the most dreaded prison in the South.”18 In response, leaders of the movement called for more Freedom Rides to Mississippi, and Parchman became the next site of the Civil Rights movement. More than 300 Freedom Riders from across the country traveled to Jackson and were sent to Parchman between May and September 1961.

On May 29, 1961, bowing to the demands of Dr. King and other leaders of the Civil Rights movement, as well as international outrage, Attorney General Kennedy confronted the ICC with its failure to enforce bus desegregation.19 On September 22, 1961, the ICC issued the necessary order, which went into effect on November 1, 1961.20 This order effectively ended Jim Crow in public transportation. The “Whites Only” and “Colored” signs came down, and the Civil Rights movement secured its first unambiguous victory. Moving forward, the impact of this victory would inspire many subsequent civil rights campaigns.  Charles Grant is a Shareholder with Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. His experience includes defending clients in complex employment litigation, including class actions and collective actions (wage and hour litigation); litigation concerning claims under Employee Retirement Income Security Act (ERISA); wrongful discharge; sexual, racial, age, national-origin, disability, and religious discrimination and harassment under state and federal laws; Family Medical Leave Act (FMLA); retaliatory discharge; defamation; intentional infliction of emotional distress, tortious interference with contract; employment and non-compete agreements; protection of trade secrets; drug-testing; conspiracy; reductions in force; and the Worker Adjustment Retraining and Notification Act (WARN).

Natasha Campbell is an employment lawyer with the Nashville office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. She represents nationally-based clients, defending them against claims arising under federal and state anti-discrimination, harassment and retaliation laws, as well as claims under leave and compensation laws related to employment. Ms. Campbell has additionally defended commercial litigation matters related to contracts, personal injury and property damage.

(Endnotes) 328 U.S. 373 (1946). In Morgan, the Supreme Court considered whether a Virginia law that compelled racial segregation of interstate passengers was an unconstitutional interference with interstate commerce. Id. at 377. The Court stated, “Burdens upon commerce are those actions of a state which directly impair the usefulness of its facilities for such traffic. . . . A burden may arise from a state statute which requires interstate passengers to order their movements on the vehicle in accordance with local rather than national requirements.” Id. at 380-81 (internal quotations and citation omitted).

The Morgan Court held, “As there is no federal act dealing with the separation of races in interstate transportation, we must decide the validity of this Virginia statute . . . as a matter of balance between the exercise of the local police power and the need for national uniformity in the regulations for interstate travel. . . . [S]eating arrangements for the different races in interstate motor travel require a single, uniform rule . . . .

Consequently, we hold the Virginia statute in controversy invalid.” Id. at 386.

1

2 364 U.S. 454 (1960). Boynton concerned a black law student who sought food service in the “white section” of a restaurant during a stopover in Richmond, Virginia and while traveling from Washington, D.C. to Montgomery, Alabama on a commercial bus. Id. at 455. The specific issue raised by Boynton was whether an interstate bus passenger was denied federal statutory or constitutional rights when a bus terminal restaurant refused to serve food to the passenger because of his color. Id. The Court concluded that such segregation violated the Interstate Commerce Act, which broadly forbade discrimination in interstate passenger transportation. Id. at 463.

644 ICC 769 (1955). In Keys v. Carolina Coach Company, the ICC, in response to a bus segregation complaint, explicitly rejected the Plessy v. Ferguson doctrine of “separate, but equal.” CATHERINE A. BARNES, JOURNEY FROM JIM CROW: THE DESEGREGATION OF SOUTHERN TRANSIT, 99-100 (1983). Instead, the ICC applied the Supreme Court’s holding in Brown v. Board of Education, and it interpreted the non-discrimination language of the Interstate Commerce Act as banning segregation of buses traveling across state lines. Id. 3

4

297 ICC 335 (1955).

The Rise and Fall of Jim Crow | PBS (Aug. 27, 2011), http://www.pbs.org/wnet/ jimcrow.

5

6

The case of Plessy v. Ferguson concerned a planned act of civil disobedience, where Continued on Page 12 

Nashville Bar Journal - September 2011

9

FEATURE

Hiding in Plain Sight— Catch-22 on Nondisclosure of Damages Caps to Jury by:

Donald Capparella

The wave of tort reform has crashed on Tennessee. On October 1, 2011, the Tennessee Civil Justice Act will go into effect.1 Among its many new provisions is a $750,000 cap on non-economic damages in all personal injury cases, including auto accidents, medical malpractice—all injury cases.2 But caps are old news. Also included is a lesser known but fascinatingly unworkable provision requiring non-disclosure of the damages cap to the jury. 3 Many question the constitutionality of caps on non-economic damages. This article raises a different question—is the new law even workable in a practical sense, given the non-disclosure provision? How can we pick a jury in Tennessee in a personal injury case? Don’t we have to ask the jury if they know about the new caps on damages in order to exclude jurors who know about the caps? But by asking the jury if they know, haven’t we just disclosed to them what they are not supposed to know, thereby disqualifying all of them?

Some of you may be shaking your head at this point. The Legislature in its wisdom could not have created such an impossible Catch-22. Let’s examine it. The Legislature has told us that “the limitation on the amount of non-economic damages imposed by subsections (a)(2) through (e) shall not be disclosed to the jury, but shall be applied by the court to any award of non-economic

10

Nashville Bar Journal - September 2011

damages.”4 It is thus the public policy of this State that a juror sitting in a personal injury case should not know about the caps; else why is disclosure forbidden?

The lawyers for the parties and the trial judge certainly cannot disclose the existence of the caps to the jury. However, the statute does not limit non-disclosure just by the judge and the lawyers. It says the limitation on the amount of damages “shall not be disclosed to the jury.” We must assume, then, that no one can disclose the existence of the damages caps to the jury. Therefore, it is important to know if somebody else may have disclosed to the jury that Tennessee has passed a law creating caps on damages.

Perhaps it was the newspaper that disclosed the caps to the proposed juror. After all, there was plenty of press coverage about tort reform, including the caps. Perhaps it was the television or radio, who also reported extensively on tort reform and the caps. Governor Bill Haslam campaigned on a platform listing tort reform as one of his primary goals for the State. Maybe potential jurors noticed all of the billboards listing the “577 jobs per week” that supposedly would be created by the passage of the Tennessee Civil Justice Act. The law says that the caps cannot be disclosed to jurors, but what if the caps have already been disclosed? All potential jurors are also citizens of this State. And as citizens, they are presumed to know the law.5 The non-disclosure provision seems to be mandating ignorance of the law.

The Tennessee Constitution states that “the right to trial by jury shall remain inviolate….”6 The essential purpose of voir dire is “insure the selection of a fair, competent and impartial jury.”7 Tennessee Rule of Civil Procedure 47.01 and Tennessee Code Annotated Section 22-3-101 give parties an absolute right to examine prospective jurors. The non-disclosure provision in the Act tells us that the caps shall not be disclosed to the jury, presumably because the jury would be tainted by such knowledge.8 Therefore, we are faced with a riddle wrapped in mystery inside an enigma.

How can we insure that a jury does not know about the caps without asking them, when asking them has the effect of disclosing the existence of the caps?

The law requires us to voir dire a jury so that they are fair and impartial, but the new Act tells us that a jury cannot be told about the caps, for fear that they will be unfair and wrongly influenced by the caps. There is little doubt that knowledge of caps on damages significantly influence juries, though in ways that may be surprising.9 It is ironic that the same public law that adopts the $750,000 non-economic caps, a law available to everyone, also says that prospective jurors cannot be told about the new law. A public law restricting the public’s knowledge of that same law would seem to be self-defeating. Any citizen with knowledge of the law, according to the statute, would not be qualified to serve on the jury.

The nondisclosure provision is not unique to Tennessee. The wave of tort reform has left other states in the same predicament, but strangely, very little has been written about this conundrum. Only two articles have discussed the nondisclosure provision regarding damages caps, with one of them arguing in favor of nondisclosure, while the other argues for disclosure.10 A couple of

states that have passed damages caps also include a provision preventing disclosure of those caps to the jury, while Massachusetts expressly allows disclosure.11 According to Kang, only one case has actually ruled on whether the nondisclosure provision itself is constitutional.12 In Murphy v. Edmonds,13 the Court of Appeals of Maryland “upheld a state cap on non-economic damages…”

The Court also upheld, with very little discussion, the constitutionality of the nondisclosure provision. A few other cases have discussed nondisclosure laws, without ruling on either their constitutionality or whether they are workable.14 However, there is very little written on the sheer unworkability of a provision that requires a jury not to know about a public law, and has been the subject of massive media campaigns.

Perhaps the first nondisclosure provision in a law capping damages is the 1991 Civil Rights Act.15 It provides for caps on both punitive and compensatory damages in employment discrimination cases. It also provided that “the court shall not inform the jury of the limitations [on damages.”].16 The legislative history behind the adoption by Congress of the federal nondisclosure provision is murky.17 The only comment by a legislator about the purpose of the provision was by Senator John Danforth, one of the Senate bill’s co-sponsors, who said: The bill specifically provides that the jury shall not be informed of the existence or amount of the caps on damage awards. Thus, no pressure, upward or downward, will be exerted on the amount of jury awards by the existence of the statutory limitations.18 The concern of Senator Danforth is that knowledge of the caps by the jury could

push them in either direction, either up or down. Presumably, both plaintiff and defense counsel would want to know if potential jurors have knowledge of the caps.

One could argue that the federal experience with caps in employment discrimination cases has lasted since 1991, so it can’t really be that unworkable.

However, employment discrimination cases usually involve both federal and state claims, and very often the state claims have no caps on damages for the same federal claims. In Tennessee, for example, there is no cap on damages under the Tennessee Human Rights Act even though there are caps for the corresponding claims under 42 U.S.C. Sec. 1981a. The existence of parallel state claims that are not capped can reduce the potential draconian impact of the federal caps on damages.

Federal courts are also allowed to reallocate damages between state and federal claims when the jury awards damages in excess of the federal caps. Thus, the jury’s ultimate decision can be allowed by the Court by simply reallocating damages capped by federal law to uncapped state claims.19 The ability of federal courts in employment discrimination cases to reallocate damages between federal and state claims allows the work of juries in many cases to escape the caps.

In my opinion, the primary reason why the unworkability of non-disclosure of caps provisions has not received more attention is that the publicity surrounding the tort reform movement has increased dramatically in the last twenty years since the 1991 Civil Rights Act was passed. More and more states have embraced caps on damages, though the caps are of different amounts and work differently in each state. There is a far greater chance that potential jurors know something about the caps.

Continued on Page 13  Nashville Bar Journal - September 2011

11

The Freedom Rides: Making the Law Apply to All Continued from page 9 Homer Plessy boarded a car of the East Louisiana Railroad in New Orleans that was bound for Covington, Louisiana and was designated for use by white patrons only. 163 U.S. 537, 538 (1896). Plessy was born a free person and was one-eighth black and seven-eighths white. Id. Under Louisiana law enacted in 1890, he was classified as black. Justice Henry Billings Brown authored the majority opinion, which held that a state statute requiring “all railway companies carrying passengers in their coaches . . . [to] provide equal but separate accommodations for the white, and colored races . . .” was not unconstitutional. See generally 163 U.S. 538. Justice Harlan dissented. Id. 7

Id. at 551.

8

Id. at 552.

9

Id. at 549.

10

See generally 328 U.S. 373 (1946).

11

364 U.S. at 463-64.

WGBH American Experience | Freedom Riders | PBS (Aug. 27, 2011), http://www.pbs.org/wgbh/ americanexperience/freedomriders.

12

13

Id.

CORE actually led an earlier effort to challenge local segregation laws in interstate travel after the Morgan decision. In its 1947 Journey of Reconciliation, 16 activists from Chicago-based CORE rode on interstate buses through the Upper South to test the enforcement of the Supreme Court’s ruling. The activists divided themselves between Greyhound and Trailways bus lines and usually rode with an interracial pair in the white-area of the bus, with the other activists disguised as disinterested observers in the racial sections that applied to them. The group traveled uneventfully through Virginia, but once they reached North Carolina they encountered violence and arrests. By the end of the Journey, the protesters had conducted over 24 “tests” and endured 12 arrests and dangerous mob violence. Famous civil rights activist Bayard Rustin, in a flagrant violation of the Morgan decision, was sentenced to 22 days on a chain gang in North Carolina for his participation in the Journey.

14

347 U.S. 483 (1954). Decided on May 17, 1954, the Supreme Court decision of Brown v. Board of Education declared state laws establishing separate public schools for black and white students unconstitutional.

Id. at 498. Specifically, the Brown Court held, “[I]n the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Id. This decision overturned Plessy v. Ferguson, 163 U.S. 537 (1896).

15

16 President John F. Kennedy, Attorney General Robert F. Kennedy, and Assistant to the Attorney General and Nashville native, John Seigenthaler, determined that Seigenthaler would go to Alabama and travel by plane with the Freedom Riders from Birmingham to New Orleans. See WGBH American Experience | Freedom Riders | PBS. 17

See WGBH Experience, supra note 12.

18

See supra note 12 and accompanying text.

19

Id.

20

Id.

ABOUT THE ARTwork: STATEMENT FROM THE ARTIST, Charlotta Janssen: These heroic portraits of courage are from mug shots (normally a sign of shame and criminality) of Freedom Riders arrested in the spring and summer of 1961.

Standing up against the injustice of segregation and institutionalized racism, that moment in 1961 there was no way of knowing what prison in Mississippi had in store, so these portraits are about facing an oppressive system with non violence and a deep mix of emotions, each in their own way: fear, joy, anger and innocence.

Critical details such as disheveled collars, skinny ties, bows on ruffled collars still suggestive of the fifties and loud patterns that were announcing a more modern time are crucial parts too.

Carefully recorded by a sovereignty commission their purpose was to ostracise those who stood up to segregation, certainly not intended for art.

Meeting many of these Freedom Riders (the first being Charles Jones in 2009 of Charlotte NC with whom I had a good cry-in) and activists who planned this out and hearing details of their stories and the dangers they faced moved me to retell them through oil, acrylic, rust and collage, to take the observer back into that moment. These are extraordinary humans who didn't stand by idle.

Freedom Rides are a miracle to me that we all need to know about and build on what they started: the beloved community.

The work will be on display at the downtown public library through October 9, 2011. There are 82 paintings in the exhibit. As the Nashville Scene said, “It's rare that an exhibit with roots in historical events is visually compelling on its own, but Charlotta Janssen's paintings are exceptional.”

THE ARTIST: Charlotta Janssen was born in Maine to German parents living in America by ways of the Marshall plan. In 1973 her family moved to Iran, which they fled during the revolution in 1979. Back in Germany, she studied painting at the University of Arts in Berlin from 1986-1989. She now owns a restaurant in Brooklyn that showcases her work. In 2005 she started to narrow down her color spectrum to teal, white, black and rust. In 2009 she reintroduced collage and this element created a real conversation, that keeps evolving.

Prints:

Prints can be ordered from www.charlottajanssen.com.

The following print sizes are available: single image 20" x 25.5" (upright) in Giclee double image 19" x 30" (landscape) in Giclee multi image poster 20" x 30" & 11" x 17" in Giclee and poster paper Custom Order (starting at 55 cents per square inch, up to 42" wide).

The paper is either heavyweight German Etching Paper in a giclee printing process. All giclee prints will be numbered and signed.

Poster paper prints will be signed (but not numbered).

HOW YOU CAN HELP:

There is a tremendous interest to show the Freedom Riders exhibit in other cities.

It has become apparent that funding is limited for the places these works really need to be seen: libraries and museums, especially in low income neighborhoods.

To facilitate packing storing and transporting this show as well as inviting Freedom Riders to share their experiences your generous donations and/or sponsorship will be much appreciated. If you are interested in sponsoring, donating or would like to help, please email the artist at charlottajanssen@gmail.com.

Let us get this story out there.

12

Nashville Bar Journal - September 2011

Hiding in Plain Sight— Catch-22 on Nondisclosure of Damages Caps to Jury Continued from page 11

There is little question that tort reform and damages caps have a far higher profile than they did twenty years ago.

One author arguing for the necessity of nondisclosure does so on the grounds that caps have a significant impact on juries when they know about them. The article states that “[t]oday, however, most citizens probably know little if anything about the caps. Undisclosed statutory caps operate outside the awareness of most jurors; jurors likely assume that the plaintiff will receive the award of damages that they assess.” 20 If that was ever true (the article was published in 1999) it is certainly no longer true, at least in Tennessee. In fact, the article acknowledges that “[t]his may change, however, as statutory caps become increasingly common and enter popular consciousness.” That day has come. Candidate Bill Haslam received 1,041,545 votes in winning the race for governor of Tennessee. One of his top priorities in his campaign, and since he became Governor, has been tort reform.

The current caps on damages are one of the most important parts of tort reform, and there was a spirited battle at the Legislature as to the size of the caps on damages. Any Google search on caps on damages in Tennessee results in multiple articles on the internet, and there have been multiple newspaper and radio and television reports about the Tennessee Civil Justice Act. The Court in Sasaki v. Class21 reversed a jury verdict because the plaintiff’s attorney in closing argument told the jury only that it could award damages “up to $50,000.”22 There was no express mention of the caps on damages in that case. Thus, even hinting at the existence of caps is forbidden. It follows from cases like Sasaki that “jurors should not be informed of the caps, even by other members of the jury.”23 This is rightly called a “paradox: how could the court

or attorneys discover which jurors had such knowledge and should be excluded without themselves revealing in some way that such caps exist?”24 What if we give each juror a questionnaire which they fill out in private?

Won’t that fix the problem? Let’s ask them if they know anything about whether there are any limitations on damages in Tennessee. If they answer “Yes,” they know something, they are disqualified. We can then pick the jury from those who are left. Ignorance is bliss.

This is still unworkable, because you would have to ask the question many different ways to have any chance of uncovering the forbidden knowledge. You would have to ask about damage caps, damage limits, explain the difference between non-economic damages and other kinds of caps in other types of cases. In doing so, you contaminate most of the jury just by asking them, even in private.

Surely those who claim ignorance of the law would know something is up.

You might also miss someone who does not even know what they don’t know, or does not understand the question. This would also skew the jury towards the least informed among us.25 In addition, “jurors who have some knowledge of the law may be incorrect in their understandings.”26 The potential juror could have the wrong amount of the cap in mind, or have learned about a different sized cap from another state, or think it only applies to punitive damages. That person could then misinform the rest of the jury during deliberations.

It has been argued that not disclosing the caps to the jury threatens the “integrity” of the entire jury system.27 Why? Lawyers and judges are required to withhold critical information from the jury.

If the jury awards damages in excess of

the caps, they may read in the paper the next day that the $3 Million Dollar verdict they reached for the plaintiff was substantially reduced. What about the jury who spends two days deliberating on whether to award $750,000 or $1.5 Million, only to find out later their deliberations were a waste of time. They will certainly feel their time and effort was disrespected.

In one real case, a jury’s verdict of $8.6 Million Dollars was reduced by the federal cap on damages in employment cases to $300,000.28 Someone might say, “good,” the caps did their job to curb an excessive jury verdict. This begs the question of who should be deciding what is excessive and what is not. A jury hears the actual case and facts and reaches their judgment through deliberations. The legislature arbitrarily prejudges all future cases not knowing the actual facts, and says no reasonable jury can award more than $750,000 no matter what the facts are, no matter what the circumstances.

Rights like trial by jury are enshrined as constitutional rights because we don’t want the vagaries of the electoral process to allow temporary political majorities to trample on such rights as trial by jury, freedom of speech or freedom of the press. The caps on jury verdicts have done just that—trampled on a constitutional right—the right to a trial by jury.

The additional provision that the caps on damages cannot be disclosed to the jury at all raises a different problem— it is unworkable. Keeping a jury in ignorance is impossible regarding the existence of a highly publicized public law creating caps on damages, especially in this modern age of Google. Trying to find out if potential jurors know about the caps without disclosing their existence is simply absurd.

Nashville Bar Journal - September 2011

13

FEATURE

The Mobile Generation by:

Kelly L. Frey, Sr. and Tatiana Melnik

In case you missed it, the tipping point has occurred.1 We have been released from the simple dimensions of space and time. We have become Borg2 and in the process are redefining the legal landscape for the major industries that drive our local economy: tourism, banking, and healthcare.

Remember personal computers? An historic artifact.

Remember cellphones? A transitional technology.

We have become the Mobile Generation, a generation driven by a new set of portable devices that redefine how we interact with the economy and society. iPads, iPhones, Androids, tablets, and devices whose names have yet to enter popular lexicon (all collectively referred to in this article as “Mobile Devices”) are driving cultural change. And the law is struggling to keep up with the new risks and opportunities that these Mobile Devices create.

Mobile Devices Like all revolutions, Mobile Devices are really a confluence of technology that resulted in a totally unexpected end state.3 Originally designed around silicon circuitry for voice codecs (compression algorithms specifically designed to digitize analog voice signals and transmit them on low-bandwidth digital systems), Mobile Devices have evolved into a unique amalgam of complementary technologies such as charged coupled devices (CCDs) for capturing images, global positioning systems (GPS) for 14

Nashville Bar Journal - September 2011

capturing location-related information, vibrational gyroscopes for providing relative positioning of the device-to-the-environment, thin-film visual displays and extended life batteries enhancing practical weight-to-performance characteristics, and various combinations of plug-and-play interfaces and WiFi/ wireless connectivity that allow Mobile Devices to be the constant conduit through which we interact with the world around us using not just the intelligence of the Mobile Device itself (via thousands of “apps”4 that can be stored locally on the Mobile Device), but also the network of information and knowledge popularized with the Internet and recently dubbed “the cloud.”5 Tourism6 Interested in getting from point A to point B, and once there finding a micro-brewery that serves barbeque? There’s an app for that! From simple mapping and directions via GPS enabled systems such as MapQuest and Google Map/Street View to sophisticated online ticketing offered by the major airlines, Mobile Devices help bridge the transition between the virtual and real world of entertainment.

In Tennessee you can review TDOT SmartWay video images of real time highway traffic conditions,7 find your way along hundreds of miles of the state’s hiking trails,8 and find your way to the closest Starbucks (along with thousands of other destination sites)9 with travel apps. Not satisfied with just the view?

Then overlay comments and information from webbased applications or other visitors on an image that

automatically updates as you pan the horizon with your camera function.10 But all of that capability comes with a caveat: all of us must be willing to surrender our right to privacy (and probably our Fourth Amendment rights, as well). Most Mobile Devices keep minute-by-minute logs of their geo-location (and, coincidentally an inference with respect to the location of their user). Recent criminal cases have also suggested that a Mobile Device is subject to traditional exceptions to a warrant requirement – the Mobile Device in plain view (along with all information that is stored on it) is accessible from an evidentiary perspective.11 The end result is that Mobile Device users may tacitly be forfeiting any expectation of privacy with respect to the device and the information it stores.

Beyond the mere provision of information, Mobile Devices also enable a transition from physical ticketing at venues or for transportation to eTickets that provide both convenience and reduced transaction costs. The airline industry took the lead in transitioning to eTickets and has now integrated Mobile Devices into the TSAAapproved boarding pass process through implementation of the 2D bar coded boarding passes (BCBP), reducing the cost of ticketing by an order of magnitude and saving the industry over $3 billion dollars annually according to the International Air Transportation Association.12 Colleges and universities are now making the same transition for their Mobile Device savvy students.13 But with convenience (and the billions of dollars in annual revenues from eTicket sales) comes legal risk. Ticket brokers have used online purchase engines to circumvent venue restrictions

against resale and routinely purchase the majority of live event venue tickets electronically within minutes of online sales for subsequent sales at multiples of the tickets’ face value.14 From a Mobile Device perspective, even BCBPs can be duplicated and may eventually become the province of digital scam artists.15 When added to the geo-location and time code stored in a Mobile Device, with eTickets we not only know where you are and when, but we now know what you are doing.

Banking Remember when online banking was the hottest new thing in local finance?16 Now new Mobile Device capabilities have turned currency into eMoney, with annual growth rates over 100% for mobile banking apps since 2009.

Traditional credit/debit card issues, online payment companies, telecommunications carriers, and Mobile Device manufacturers are all poised to gobble up promising tech startups and form alliances in the pursuit of the perfect digital platform for mobile payments. Storage of basic banking/ credit information on Mobile Devices and enhancements in security features to protect against fraud, have enabled a host of “tap” applications (where the user merely touches the Mobile Devices to another device to originate a funds transfer)17 and transformed the Mobile Device into a wallet.18 Fortune 1000 payment processors have also entered the marketplace with the introduction

by Heartland Payment Systems of the MoBuyle application that allows merchants to accept credit/debit card payments through Mobile Devices.19 These functionalities cumulatively allow mobile peer-to-peer payments, mobile point of sale, mobile commerce, and mobile payment acceptance any time, any place.

However, all of these services are still dependent upon the traditional payment intermediaries and Automated Clearing House (ACH) infra-structure – only the method of origination has become mobile. Because of this dependency, the “virtual money” that is transferred using Mobile Devices can be tracked and is subject to the same set of banking, theft, and fraud laws as is traditional currency. Outside the US, mobile banking means long delayed access to traditional financial services for millions of individuals who have Mobile Devices but no access to a national banking infra-structure.20 But new types of virtual money seem to be propagating across the globe, including, for example, anonymous digital cash that cannot be traced through multiple transactions and entire virtual economies that have been created within the gaming community.21 Healthcare Mobile Devices in healthcare have ushered in a new evaluation of opportunities and risks related to “mobile health” (mHealth). Health care organizations increasingly are integrating Mobile Devices into their medical records, operational infrastructure, and daily use. To encourage this use, the National Institutes of Health awarded over 100 grants for mHealth research projects.22 Even patients have joined in mHealth studies, with one recent study finding that diabetics who used Mobile Devices to monitor their blood sugar experienced a decrease in hemoglobin A1C levels.23 Add to this over 17,000 mHealth apps that are available to consumers and the trend is significant enough to garner the attention of the federal government.24 Continued on Page 17 

Nashville Bar Journal - September 2011

15

InCamera

Judge McClendon is the judge for the Second Circuit Court of Davidson, County, Tennessee. She practiced law in Nashville for 23 years before becoming a judge.

Judge Amanda McClendon by:

Bart Pickett

Judge McClendon is the product of public schools in Davidson County. She graduated from McGavock High School in 1975. She started college at Middle Tennessee State University and after two and one-half years she transferred to Vanderbilt where she graduated in 1980.

Following college, Judge McClendon took a year off before starting at University of Tennessee College of Law where she graduated in 1984. When asked to reveal her allegiance between Vandy and UT at sporting events, Judge McClendon said, "I won't commit on that question! But I will say I have always wanted the competition to be close when they play each other."

Judge McClendon worked so much while attending both schools that she rarely was able to attend sporting events.

Prior to becoming a judge, Judge McClendon served seven years on the Metro Council. She represented the 16th District which includes Woodbine, Glencliff and Hill-n-dale. McClendon recalls, "It was a great district and it was also the place where I was born."

When asked which job— judge vs. councilperson-she finds harder, McClendon points to the differences

16

Nashville Bar Journal - September 2011

between them. She finds being a judge to be more mentally challenging, whereas being on the Council was physically demanding due to the juggling of attending meetings while maintaining a law practice.

Most people probably didn't know that Judge McClendon is half-British. Her mother, who immigrated to the U.S. in 1955, is a British citizen. "She can be quite mischievous when I am running for election — she delights in telling voters that she can't vote for her daughter," McClendon tells.

Judge McClendon has quite a list of hobbies including painting, woodworking, renovating houses, boating and fishing. When asked who would win a fishing contest between herself, Judge Haynes and Judge Binkley, Judge McClendon is quick to point towards the other side of the courthouse. She considers herself a freshwater novice but is learning saltwater fishing and was thrilled when she caught her first shark in the surf.

Judge McClendon is also an excellent shot.

She learned how to shoot from a Sergeant

Major in college. When she was registering for freshman classes at MTSU, all of the P.E. classes were full except ROTC. Once enrolled, the instructors suggested Judge McClendon try competitive shooting, which it turned out, she is good at.

She competed against other college teams across the southeast in tournaments with 22 caliber small bore rifle, indoor, three position.

When asked what advice she would give other attorneys who wish to become a judge one day, Judge McClendon recommends they serve in an elected office, particularly if they plan on running for an open seat. Doing so allows voters to become familiar with your work ethic and allows the lawyer to learn his or her community.

Asked to finish this sentence: In the 2nd Circuit Court, I expect..., Judge McClendon stated, "everyone to treat attorneys and litigants with respect."

Judge McClendon plans on running for re-election in 2014. "I really would like to continue serving at least another term," she says. n Bart Pickett is an attorney with Hall, Booth, Smith & Slover, P.C., specializing in medical practice and insurance defense. He is a graduate of the University of Tennessee College of Law and former law clerk to the Honorable Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joe P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

The Mobile Generation Continued from page 15

On July 21, 2011, the FDA published its draft guidance document on Mobile Medical Applications (the “FDA guidance”).25 The “draft guidance to inform manufacturers, distributors, and other entities” provides an outline of how the FDA intends to regulate select mHealth applications (mApps).

While not binding on the FDA or third parties, the guidance reflects the “FDA’s current thinking on mobile medical applications.”

The FDA seems most interested in a subset of mApps that meet the “device” definition in §201(h) of the Federal Food, Drug, and Cosmetic Act (FD&C Act).26 The regulations apply to products “that are built with or consist of computer and/or software components or applications are subject to regulation as devices when they meet the definition of a device in section 201(h) of the FD&C Act.”27 The FD&C Act governs devices such as: “an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent [that is] intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man [or] intended to affect the structure or any function of the body of man or other animals[.]” The mApp must be “used as an accessory to a regulated medical device or [t]ransform[] a mobile platform into a regulated medical device.”28 Such regulation seems to limit the interest to “a subset of mobile apps that either have traditionally been considered medical devices or affect the performance or functionality of a currently regulated medical device.” However, the FDA clearly “intends to exercise enforcement discretion” with respect to mApps that meet the “device” definition. mApps outside of the device definition, however, do not appear to fall within the FDA’s discretionary enforcement capabilities.29 The FDA guidance is consistent with a market and a technology that is relatively new. However, the guidance also reflects concern over the risks mApps can pose within the modern healthcare environment.30 Since Mobile Devices and mApps appear to create “stickiness” between the patient and Continued on Page 18 

Nashville Bar Journal - September 2011

17

The Mobile Generation Continued from page 17

the healthcare provider, the economic incentive exists to expand mApps as part of the patient care regimen (and economic necessities of for-profit healthcare facilities).

(Endnotes) 1 “The tipping point is that magic moment when an idea, trend, or social behavior crosses a threshold, tips, and spreads like wildfire.” Malcolm Gladwell, The Tipping Point (200).

Conclusion Mobile Devices have created new opportunities and challenges for both commerce and law. To the extent that Mobile Devices merely serve as interfaces for originating or conducting traditional economic transactions, current law seems to provide a framework for assuring equitable and consistent results. However, as Mobile Devices become more complex, integrating functionality and creating a previously inconceivable evidentiary trail of their users’ life (in minute-by-minute detail), traditional frameworks seem insufficient. Lack of governmental regulation, except for clearing defined areas such as the FDAs oversight of medical “devices,” seems most appropriate as these nascent digital markets develop. At some point, however, traditional legal jurisprudence must accommodate to and specifically deal with the new digital paradigms.

Lawyers, like Mobile Devices, are at a tipping point – virtual world capabilities have now created real world problems for the general practitioner who must be armed with the knowledge and skill of both worlds to service his/her clients. n

3

The Borg are a fictional group of cybernetic aliens from the sci-fi adventure StarTrek whose singular goal is the consumption of technology.

2

As early as 1972, the Federal Communications Commission was considering licensing of a wireless communication spectrum. However, it took almost a decade to create the infra-structure in the US to enable wireless telecommunications. The result was a market opportunity for “the brick” – a two pound device that cost thousands of dollars and allowed a half-hour of talk time before recharging. First Cell Phone a real “brick”, AP, 2005. available at http://www. msnbc.msn.com/id/7432915/ns/technology_and_science-wireless/t/first-cell-phone-true-brick/.

As of March 2011, the Apple App store had over 435,000 software applications available for download to the iPhone and the Android Market had over 250,000 such applications.

4

5 “The cloud” is the current buzz word for the ubiquitous on-demand digital network access to shared computing resources, knowledge databases, private information archives, and interfaces with computer applications that are not resident on the Mobile Device itself.

Tourism is the second largest industry in Tennessee, with over $15 billion in state revenue, providing over $702 million in annual tax revenue to the state, and employing over 350,000 people (directly or indirectly). Tourism Association of Southwest Tennessee, http://tast.tn.org/Pages/tast.html

6

http://www.apple.com/webapps/travel/tennesseetrafficcams.html 7

http://itunes.apple.com/us/app/accuterra-on-demand-maps-gps/id324036903?mt=8

8

9

http://www.androidtapp.com/where/

http://www.gizmodo.com.au/2009/11/10-iphoneapps-to-augment-your-sad-reality/ 10

See generally Drew Lewis & Kelly L. Frey, II, Digital Privacy: A Brave New World, 7 Nash. B. J. 8 (Sept.

2007), republished by NEW HAMPSHIRE BAR ASSOC. (Oct. 19, 2007); see also United States v. Santillan, 571 F. Supp.2d 1093 (D. ARIZ. 2008); States v. Wurie, 612 F. Supp. 2d 104 (D. MASS. 2009)(gun and drug case holding as a matter of first impression that search of defendant’s cell phone data incident to his arrest was reasonable).

11

Fact Sheet: IATA - International Air Transport Association,http://www.iata.org/pressroom/ facts_figures/fact_sheets/pages/et.aspx (July 2011).

12

Kelly L. Frey, Sr. is a partner with the Nashville Tennessee office of Dickinson Wright and can be reached at 615-620-1730 or kfrey@dickinsonwright.com. Tatiana Melnik is an associate with the Ann Arbor Michigan office of Dickinson Wright PLLC and can be reached at 734-6231713 or tmelnik@dickinsonwright.com.

Giselle Tsirulnik, Universtiy Tickets Rolls Out Mobile Ticketing for Clients, MOBILE COMMERCE DAILY (Apr. 1, 2011), www.mobilecommercedaily.com/2011/04/01/ universitytickets-rolls-out-mobile-ticketing-for-clients.

13

Josh Mullins and Kelly L Frey, Sr., I Want My Hannah Montana! The Regulations of Ticket Sales in Tennessee, 6 Nash. B. J. (July 2008) For organizations currently lobbying against such practices, see www. countrymusicfanassociation.com 14

For an example of the low tech end of eTicket scams see the recent controversy concerning Craigslist advertisements for fake tickets of a Kid Rock concert in Michigan at http://www. dailytribune.com/articles/2011/01/19/news/doc4d3742d9a18c6694329401.txt.

15

Almost 30 million Americans utilized access to mobile financial services in the fourth quarter of 2010.

16

18

Nashville Bar Journal - September 2011

Tap functionality is defined by the near-field communication (NFC) chip technology and is device dependent because it requires a special chip set.

17

See Google Wallet at http://www.google.com/ wallet/.

18

Heartland Payment Systems® Launches Mobuyle™ Mobile Payment Acceptance Solution, Press Release, http://www.heartlandpaymentsystems.com/ article/Heartland-Payment-Systems-LaunchesMobuyle-8803.aspx (Aug. 9, 2011).

19

Dutch-Bangla Bank Limited initiated a mobile device centric banking service in Bangladesh in 2011, a country where over 70 million people have access to cellphones but less than 20% have bank accounts. See generally http://en.wikipedia.org/wiki/ Mobile_banking.

20

Virtual money is most evident in massively multiplayer online role-playing games (MMORPGs) such as Second Life and Farmville. See generally Real Legal Issues with virtual currencies, NetworkWorld, May 12, 2010 at http://www.networkworld.com/ newsletters/2010/051010sec2.html.

21

See Francis S. Collins, Mobile Technology and Health Care, 5 NIH Medline Plus 2 (2011), available at www. nlm.nih.gov/medlineplus/magazine/issues/winter11/ articles/winter11pg2-3.html.

22

Over a 12 month period, patients using the app had an average decline in A1C levels of 1.9% compared with a 0.7% decrease among those patients who did not. See Charlene C. Quinn et al, ClusterRandomized Trial of a Mobile Phone Personalized Behavioral Intervention for Blood Glucose Control, Diabetes Care (2011)(published online before print).

23

Sonia Kolesnikov-Jessop, Do-It-Yourself Health Care With Smartphones, NY Times.com, Feb. 28, 2011, www.nytimes.com/2011/03/01/technology/01ihtsrhealth01.html?_r=2&scp=8&sq=health%20 mobile%20app&st=cse (relying on a November 2010 report from research2guidance). See also Brian Dolan, 3 Million Downloads for Android Health Apps, MobiHealthNews.com, Mar. 11, 2010, mobihealthnews.com/6908/3-million-downloads-for-androidhealth-apps/.

24

See FDA, Draft Guidance for Draft Guidance for Industry and Food and Drug Administration Staff; Mobile Medical Applications; Availability, 76 FR 43689 (July 21, 2011) [hereinafter, the “Guidance”].

25

26

See 21 USC § 321.

27

Guidance, supra note 25, at n.1.

28

Id.

“This means that FDA intends to exercise its discretion to decline to pursue enforcement actions for violations of the FD&C Act and applicable regulations by a manufacturer of a mobile medical app, as specified in this guidance.” Id. (emphasis added).

29

As explained by the FDA, “mobile medical apps may pose additional or different risks [compared to traditional medical devices] due to the unique characteristics of the [mobile] platform. For example, the interpretation of radiological images on a mobile device could be adversely affected by the smaller screen size, lower contrast ratio, and uncontrolled ambient light of the mobile platform[.]” Id.

30

Nashville Bar Journal - September 2011

19

It's Your Move! Capital Campaign Contributors It is with sincere gratitude that we wish to acknowledge the pledges and contributions of the firms and individuals listed below*. It is because of your support that the Nashville Bar Association-Nashville Bar Foundation “It’s Your Move” Capital Campaign was a resounding success.

Thanks to you, we met our goal!

Visionaries

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Bass, Berry & Sims, PLC

Leaders

Bradley, Arant, Boult, Cummings LLP Miller & Martin PLLC Neal & Harwell, PLC Sherrard & Roe PLC Waller Lansden Dortch & Davis LLP

Partners

Bone McAllester Norton PLLC Frost Brown Todd LLC NBA Young Lawyers Division Waddey & Patterson, P.C. Walker, Tipps & Malone PLC

Sustainers

Branstetter, Stranch & Jennings PLLC Burr & Forman Cornelius & Collins, LLP Manier & Herod MGLAW PLLC

Supporters

Harwell Howard Hyne Gabbert & Manner, P.C. Weatherly McNally & Dixon LPC Contributors Barrett Johnston, LLC Sandra Braber-Grove Gullett, Sanford, Robinson & Martin, PLLC Mary LaGrone Leitner Williams Dooley & Napolitan, PLLC Lewis, King, Krieg & Waldrop, P.C. Bob Pope Rothschild & Ausbrooks PLLC Thrailkill Harris Wood & Boswell, PLLC Trauger & Tuke Tune, Entrekin & White, PC White & Reasor, PLC Tom White Friends Gareth S. Aden Gail Vaughn Ashworth Lee Barfield Law Office of Bart Durham Tim L. Bowden Steve Cobb Lew Conner Dickinson Wright PLLC Jim Doran Mitch Grissim William L. Harbison Aubrey B. Harwell, Jr.

Trey Harwell Hon. Thomas Higgins Howard Tate Sowell Wilson Leathers & Johnson, PLLC John D. Kitch Tom Lawless Mary A. Parker of Parker & Crofford Robert J. Mendes Paul Ney Nissan North America, Inc. Thomas H. Peebles III Alisa Childers Peters Daniel H. Puryear, Esq. William T. Ramsey Jack R. Robinson, Sr. Maria M. Salas/Salas Law Group Thomas J. Sherrard Emily A. Shouse W. Scott Sims John Tarpley The Mediation Group of Tennessee, LLC Elizabeth Tipping Bob Walker Phillip E. Walker Tom Wiseman Gigi Woodruff Edward M. Yarbrough Mandy Haynes Young & Stephen Young Young Mayden, LLC Associates Adams and Reese LLP James (J.O.) Bass C. Dewees Berry IV Shirley Clay Hon. Frank Clement Hon. Lew Conner Garfinkle, McLemore & Young, PLLC Harris, Martin & Jones, P.A. Douglas Henry Jim Higgins Lela Hollabaugh John J. Hollins, Sr. Paul Toby Housch, Esq. Hughes & Coleman Kay, Griffin, Enkema & Colbert, PLLC Neal McBrayer Judge Gilbert S. Merritt Patricia Head Moskal A. Gregory Ramos Riley Warnock & Jacobson PLC Anne L. Russell Tracy Shaw Wilson Sims Smith Cashion & Orr, PLC Michael Sontag W. Lee Corbett, P.C. Charles H. Warfield

Sheree Wright 180 Club Patrick Alexander Kimberly Allen Tina R. Ashford James L. Bass Richard Beeler Honorable Joe Binkley Susan W. Blair Zan Blue Robert Boston Martha Boyd & Rich Littlehale Judge Joe Brown Andrew W. Byrd Charles W. Cagle Kathryn S. Caudle Honorable Cornelia A. Clark Bill Cohen Stephen E. Cox Wendy Cozby In honor of Judge Martha Craig Daughtrey Maclin P. Davis Jr. Mary Taylor Gallagher Larry H. Hagar David B. Herbert Judge Bill Higgins Traci Hollandsworth Lynda F. Jones Charles A. Leach Mary Frances Lyle Andy Maloney Peggy D. Mathes Amanda McClendon Chancellor Carol L. McCoy Richard McGee Gray McLeod W. Warner McNeilly Jr. Malinda Moseley Rachel Z. Odom Marc Overlock Cynthia N. Sellers Culwell E. Ward Kent M. Weeks M. Bernadette Welch Jonathan F. Wing Fellows Frank E. Lee Ward DeWitt Jr. Frank Grace Nikki Gray Judy Phillips Arun Rattan Helen S. Rogers Vicki Shoulders Martin Sir Paul R. White

The NBA and NBF would also like to express our deep appreciation to the following individuals who volunteered their invaluable talents and countless hours toward making the new NBA/NBF headquarters a reality:

*Donations and pledges received as of August 1, 2011

Campaign Co-Chairs: Aubrey B. Harwell, Jr. and Aubrey B. (Trey) Harwell III 2011 NBA President and Facilities Committee Chair: Robert J. Mendes Facilities Committee Members: Anne Arney; William L. Harbison; Neal McBrayer; Patricia Head Moskal; William T. Ramsey; Tracy Shaw; Tom Sherrard; Elizabeth Tipping; and Phillip E. Walker

20

Nashville Bar Journal - September 2011

I do not know how this dilemma will manifest itself going forward. Perhaps lawyers in trials will demand the right to ask potential jurors if they know about the caps on damages. This would bring the problem to a head, and the appellate courts, and most likely, the Supreme Court, will have to work it out. Until then, picking a fair and impartial jury in this day of caps on damages will be well nigh impossible.

Who says there is no harm in asking? In this case, the harm is in the asking--asking the jury if they know about the caps on damages. Isn’t the decision to not disclose a public law to a jury like trying to hide something in plain sight? n Donald Capparella is a shareholder in the firm of Dodson, Parker, Behm & Capparella. He practices all types of civil litigation, especially business litigation, insurance matters, appeals and all types of tort cases.

(Endnotes) 1

Pub. Ch. 501, H.B. No. 2008.

2

TENN. CODE ANN. § 29-39-102 (a) (2) (2011).

3

TENN. CODE ANN. § 29-39-102 (g) (2011).

4

Id.

Bryan v. United States, 524 U.S. 184, 194-96 (1998) (citing the “traditional rule that ignorance of the law is no excuse”).

5

6

Art. I, Sec. 6.

4 Tenn. Prac. Rules of Civil Procedure Ann. § 47:1 (4th Ed. 2011), citing Danmole v. Wright, 933 S.W.2d 484 (TENN. CT. APP. 1996).

7

Michael S. Kang, Don’t Tell Juries About Statutory Damage Caps: The Merits Of Nondisclosure, 66 U.Chi.L.Rev. 469 (1999); Rebecca Hollander-Blumoff & Matthew T. Bodie, The Effect of Jury Ignorance About Damage Caps, 90 IOWA L. REV. 1361 (2005).

8

Both those arguing for and against disclosure of caps to juries make a persuasive case that knowledge of the caps does influence juries. See supra note 8.

Such knowledge seems to increase verdicts in the less severe cases, and decrease them in the more severe ones.

9

10

See supra note 8

11

See Maryland, MD. CTS. & JUD PROC CODE ANN.

§ 11-108(d)(1) (2011); Colorado, COLO. REV. STAT. ANN. § 13-21-102.5(4) (2011). Two others allow the court to inform juries of the statutory limit. Massachusetts, MASS. ANN. LAWS ch 231, §.

60H (2011); 12

Kang, 66 U.CHI.L.REV. at 476.

13

325 Md. 342, 601 A.2d 102,118 (1992).

14

See Kang, supra note 12.

15

42 U.S.C. § 1981a(c)(2).

16

Id.

Hollander-Blumoff & Brodie, 90 IOWA L. REV. at 1367-69.

17

18 137 Cong.Rec. S15,484 (daily ed. Oct 30, 1991), reprinted in 1991 U.S.C.C.A.N 549, 602-03.

See 90 IOWA L. REV. at 1374 n.91, listing several cases and stating that most courts have held that district courts have the power to reallocate a total damage award between state and federal claims. See also Trentham v. Hidden Mountain Resorts, Inc., 2010 WL 2757190, *5 (E.D. Tenn. 2010). In Trentham, the jury awarded $65,586.00 in damages for pain and suffering, an amount in excess of the $50,000 federal cap on damages, among other damages awards.

Upon motion, the District Court reapportioned the damages that were in excess of the cap to plaintiff’s claim for age discrimination under the Tennessee Human Rights Act.

19

20

Kang, U.CHI.L.REV. at 486.

21

92 F.3d 232, 235-36 (4th Cir. 1996).

Id. See also E.E.O.C v. E.M.C. Corp. of Mass, No. 98-1517, 2000 WL 191819, at *19 (6th Cir. Feb. 8, 2000) (holding that counsel cannot mention caps to jury, but finding error was harmless because jury awarded damages equal to the statutory maximum).

22

23 Hollander-Blumoff & Brodie, 90 Iowa L. Rev. at 1398 (citing Sasaki, 92 F.3d at 237).

24

Id. at 1398.

25

Id.

26

Id.

27

Id. at 1363, 1403.

Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493 (9th Cir. 2000).

28

What Does That Attorney Look Like Who You Only Communicate With Via Email?

Need to find the New Address of an Old Law Parnter?

----------------------------------------------Find Out In The New 2011 NBA Attorney Directory!

----------------------------------------------• Attorney Listings For All Davidson County & Surrounding Communities ----------------------------------------------• Over 500 New Member Photos ----------------------------------------------• Comprehensive Court Listings ----------------------------------------------• Field of Practice Listings ----------------------------------------------• Firm Listings ----------------------------------------------• Listings For All NBA Boards & Officers ----------------------------------------------• Committee Information ----------------------------------------------• NBA By-Laws & More ----------------------------------------------Order your 2011 directory online at www.nashvillebar.org NASHVILLE BAR ASSOCIATION 150 4th Avenue North, Suite 1050 Nashville, TN 37219 (615) 242-9272 Fax:(615) 255-3026 www.nashvillebar.org Nashville Bar Journal - September 2011

21

Disclosure Wade B. Cowan has been elected to a three year term on the Executive Board of the National Employment Lawyers Association (NELA), a professional organization dedicated to promoting the interests of individual employees and assisting lawyers who represent them. Cowan is a founding member and past President of NELA’s Tennessee affiliate, the Tennessee Employment Lawyers Association. He is a graduate of the Vanderbilt School of Law and is of counsel with the firm of Davies, Humphreys, Horton & Reese, where he focuses on representing employees in employment discrimination, retaliation, and worker’s compensation cases.

Paul Ney, Waddey and Patterson, P.C., and Deborah Varallo, Varallo Public Relations, will serve as co-chairs of the 2011 Celebration of Mission to Service to be held on Wednesday, October 26, from 6:00 p.m. to 7:30 p.m. at Hillwood Country Club. The event will benefit Catholic Charities of Tennessee, Inc. and St. Mary Villa Child Development Center. During the event, the Spirit of Service Award will be presented to an individual, group or business that has been a significant contributor to the well-being of the people served by Catholic Charities and St. Mary Villa and reflects the agencies’ values of love, goodwill, kindness, learning and laughter. Nashville Mayor Karl Dean received the award in 2010.

David Cañas, shareholder with the law firm of Harwell Howard Hyne Gabbert & Manner PC, has been elected Chair of the Board of Directors of the Tennessee Justice Center.

22

Nashville Bar Journal - September 2011

\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to light relevant information concerning NBA Members & Staff. n Announcements n Kudos n People on the Move n Firm News n

Jonathan (Jon) B. Harris recently joined the Nashville law firm of Morgan & Akins, PLLC. Harris will focus his practice primarily on commercial and business litigation, real estate, and corporate formation and advisement. He received his Bachelor of Business Administration from the University of Mississippi and attended law school at Mississippi College School of Law earning his Juris Doctorate in 2007.

Harris is licensed to practice law in all State Courts of Mississippi, Tennessee, and Alabama and is also admitted to various Federal Courts throughout the southeast. He is a member of the Mississippi Bar Association, Tennessee Bar Association, and the Alabama Bar Association.

William L. (Bill) Penny was elected Vice Chair of the American Bar Association’s 10,000-member Section of Environment, Energy and Resources (SEER).

By rotation, he will become the Section’s Chair-Elect for 2012-2013 and then take over as Chair for 20132014. A member of Stites & Harbison’s Environmental, Natural Resources and Energy Service Group, Penny has approximately 30 years of experience in environmental law. His practice has covered a broad range of administrative, regulatory, and litigation matters.

United Neighborhood Health Services (UNHS) has received a $650,000 grant to establish a full-time health clinic at the Nashville Rescue Mission. It is anticipated that the clinic will open full time in mid-September. UNHS is the only community health center organization in Tennessee to receive one of the 67 grants announced by U.S. Health and Human Services Secretary Kathleen Sebelius on August 9. The grants are funded by the Affordable Care Act.

Gordon Bonnyman, co-founder of the Tennessee Justice Center, has been honored with a Lifetime Achievement Award during the annual Health Care Heroes event in Nashville presented by the Nashville Business Journal. Bonnyman, an attorney who has dedicated his 40 year career to serving low-income people in Tennessee, is best known for his advocacy efforts on behalf of people enrolled in the state’s TennCare health insurance program for lowincome and disabled Tennesseans.

Seth B. Wilson has joined King & Ballow as an attorney in the Intellectual Property Section. Wilson received his law degree from Seton Hall University School of Law. Wilson received his undergraduate degree from Middle Tennessee State University, where he received a Bachelor of Science in Recording Industry Management. Prior to that, he also received a Bachelor of Journalism from the University of Missouri.

Jaimee Johnson (formerly Wilson) has joined Hall Booth Smith & Slover, P.C. She is a trial attorney focusing on civil litigation. Johnson has a Bachelor of Arts degree in English from Freed Hardeman University. Her Juris Doctorate is from Oklahoma City University School of Law, where she was a member of the Moot Court Team and served on the Moot Court Honors Board. She is licensed to practice law in Tennessee and Florida.

Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.

The NBA YLD Annual Meeting is set for Thursday, October 13th from 5:30 – 7:30 at Broadway Brewhouse.Officers for the 2010-2011 YLD Board will be elected at the meeting. The slate of officers up for election is:

WELCOME NEW NBA MEMBERS Justin Hight Rocky McElhaney Law Firm, PC Jason C. Kennedy

James Evan Mackler Bone McAllester Norton PLLC*

President: Sara Reynolds

Hunter Russell Mobley Howard & Mobley , PLLC*

President Elect: Robb Bigelow

Maria Pardue Law Office of Maria Pardue

Immediate Past President: Mary Taylor Gallagher Secretary: Liz Tipping Treasurer: Erin Polly Events Director: Ryan Levy Membership Director: Becca Brinkley Professional Development Director: Justin McNaughton Public Service Director: Lauren Paxton Roberts

WELCOME NEW NBA MEMBERS John L. Billings

Loy Carney The Carney Firm Philip N. Clark Brian M. Clifford Waller Lansden Dortch & Davis, LLP* Jedidiah L. Cochran Gordon Law Group, PLC Bryon Davis Jr. L. Braxton Felts Jr. Law Office of L. Braxton Felts, Jr. Deanna L. Foster

Justin P. Gunter

Harold Rushton

Ahmed A. Safeeullah

Dustin E. Sharp Lewis, King, Krieg & Waldrop , P.C.* Robert Stroud Vaughn

Jack K. West

Matthew S. White

Clayton T. Wraith * Belongs to a 100% Club firm

DIAL - A - LAWYER Dial-A-Lawyer is held the first Tuesday of each month.

August Volunteers: Helen Cornell Gina Crawley Tom Lawless

Joe Rusnak Rachel Schaffer

To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided.

2011 NBA Premier Members INCLUDE: Gail Vaughn Ashworth Robert L. Ballow Kathryn E. Barnett Barbara Bennett Michael Weimar Binkley Charles W. Bone Robert E. Boston Jay S. Bowen C. Dewey Branstetter Jr. John E. Buffaloe Jr. Joseph P. Calandriello C. Mark Carver Jonathan Cole Dixie W. Cooper Patricia J. Cottrell John A. Day David Clyde Downard John Franklin Floyd John J. Griffin Jr. William L. Harbison Trey Harwell John Scott Hickman Barbara D. Holmes Paul T. Housch John D. Kitch Neil B. Krugman Thomas W. Lawless Richard Wesley Littlehale

John Charles McCauley Rob McKinney Robert J. Mendes Elizabeth Enoch Moore Patricia Head Moskal Michael I. Mossman Katharine Elizabeth Phillips Tracy A. Powell Mark Bradley Reagan Jason B. Rogers Edgar M. Rothschild III Jerry Scott Michael W. Sheridan Thomas J. Sherrard III Marietta M. Shipley Emily A. Shouse Stacey Koontz Skillman Ronald C. Small David Randolph Smith M. Clark Spoden Irwin Bruce Venick Howard H. Vogel Karl D. Warden James L. Weatherly Jr. Peter Weiss Larry R. Williams Stephen G. Young

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 & Services.

There will be a special section in the Nashville Bar Journal and on the NBA website (www.nashvillebar.org) that will run a continual list of NBA Premier Members.

Nashville Bar Journal - September 2011

23

Classifieds

Position Available Staff Attorney - Memphis, TN St. Jude Children’s Research Hospital, located in Memphis, TN, is a premier center for research and treatment of potentially fatal childhood diseases, including cancer and certain blood, genetic, and immunodeficiency disorders. The hospital’s mission is to advance cures, and means of prevention, for pediatric catastrophic diseases through research and treatment. St. Jude is dedicated to providing unsurpassed patient care and to advancing the health of children through biomedical research.

LITIGATION ASSOCIATE Downtown Nashville Law Firm with emphasis on insurance defense, fraud, workers compensation and personal injury defense has an immediate opening for a licensed attorney with 0-2 years experience.

Insurance defense experience a plus, but not required. For consideration, please forward resume, transcript and writing sample to Jason Lee, Brewer, Krause, Brooks, Chastain & Burrow, PLLC, P. O. Box 23890, Nashville, Tennessee 372023890, or e-mail to jlee@bkblaw.com. All inquiries held in confidence.

Currently, St. Jude Children’s Research Hospital has an opening for a Staff Attorney (Job Number 20925).

For Sale

The Staff Attorney assists in research, drafting, review, negotiation and approval of various contracts, documents, policies, procedures and obligations to which the institution is or may be a party. Handles confidential/ sensitive patient, institutional, proprietary and compliance matters in a professional and ethical manner. Interacts directly with other Legal Services staff, Materials Management, department representatives, and others at St. Jude. Effectively organizes and sorts contracts by status, expiration, and renewal dates, and enters contract data into a contract management system.

Education Requirements: • A Doctorate of Jurisprudence (JD) degree required from an accredited law school Experience Requirements: • Knowledge of contract law required • One (1) year of experience in contract administration, which may include experience gained through internship is preferred Licensure Requirements: • License to practice law in the State of Tennessee is required within nine (9) months from date of hire into the position St. Jude offers a positive working culture, professional advancement, & competitive compensation. Qualified applicants may apply for this position or others via our online process at: www.stjude.org/jobs St. Jude is an Equal Opportunity Employer and a Drug-Free Workplace.

Candidates receiving offers of employment will be subject to pre-employment drug testing and background checks. www.stjude.org

Advertising: Contact Tina Ashford at tina.ashford@nashvillebar.org or (615) 242-9272

24

position available

Nashville Bar Journal - September 2011

For sale: Turn-Key Estate Planning Practice.

I am retiring after nearly 40 years of legal practice and want to make sure my 2000+ loyal clients are well taken care of. As our population ages, now is a good time to improve your estate planning practice. Sale includes client list, complete data-base, software for producing documents and other client helps, hard copy files to support data base, estate planning newsletter for client mailings, and a week of personal training for those attorneys not that familiar with estate planning. Call 615-444-6629 and I’ll send you a detailed letter.

Advertise your Office Space in the Nashville Bar Journal

CC

Office Space office space - Downtown Premium 9th floor individual office with view available for sublease to attorney. Share professional office suite, including conference room, kitchenette and client lounge, with our established association of lawyers. All-inclusive amenities consist of high speed internet, multi-line phone system, copier, fax and shared legal assistant. Call 615-478-0823 for more information.

Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550.

DOWNTOWN Law firm has office space to rent for two attorneys and assistants, if needed or option 2 attorney can sublease entire suit which will accommodate four to five attorneys and staff. Office is located in the Regions building downtown on the first floor with window view. Includes internet, all utilities, use of copy/fax/scanner, and postage machine. If interested, please e-mail rpnimmo@nimmolaw.com or contact Price Nimmo at 615-244-2244.

HOW WILL YOU ADVISE YOUR NON-CITIZEN CRIMINAL CLIENT TO PLEAD? Padilla v. Ky. (U.S. Sup.Ct. 3/31/10) has a profound impact on your duties to your foreign clients. We advise on immigration consequences of crime and handle all immigration matters.

Mention this ad for an NBA member discount on the “Padilla plea memorandum” ($750). Immigration Law Offices of Sean Lewis 615-646-6002 www.MusicCityVisa.com

Office Space Available: Victorian Era home, (+/- 6,300 sq./ ft/) with majestic chandeliers and a grand staircase upon entry, has been renovated into offices. Limited spaces available. We are located on Second Avenue, South, with free parking for attorneys and clients. Call Mary or Stephen at Parker & Crofford (615) 244-2445.

NEWS YOU CAN USE! New Workers’ Compensation Coverage

with a Dividend Plan

Lawyers’ Professional Liability Insurance with Very Competitive Rates

• Great rates

• Zero deductible available

• Opportunity for a dividend

• Choice of claims expenses — inside or outside the limits

• Easy, convenient claims reporting

• Competitive rates

• Loss control tools that may help reduce your losses

• Coverage available up to $20 million

• Endorsed by the Nashville Bar Association

• Endorsed by the Nashville Bar Association

Plus, if you are enrolled in the Workers’ Compensation Program, you can earn a 5% discount on the Business Owners policy with coverages tailored specifically for legal professionals.

IPSCO has provided professional liability insurance to attorneys since 1956. Our extensive experience, market access to thirteen admitted and several non-admitted carriers, plus very competitive rates make IPSCO a great choice.

Contact Us Today Call: 615.460.1654

Email: lawyers@assoc-admin.com

Visit: IPSCOlawyers.com

IPSCO Superior Service • Superior Solutions Insurance Planning & Service Company, Inc. • 2301 21st Avenue South • Nashville, TN 37212

Elder Law Practice of Timothy L. Takacs

Elder Law is Alzheimer’s Planning

More than 4 million elderly in the U.S. suffer from Alzheimer’s disease.

That’s one out of every ten.

Until there’s a cure, people affected by Alzheimer’s disease will need care and those who love them will need care coordination, decision-making support and legal advice.

For more than a decade our Certified Elder Law Attorney and Elder Care Coordinators have been helping families protect assets, find high-quality care and navigate the long-term care system.

When your clients are facing an Alzheimer’s diagnosis, point them in the right direction.

Call the Elder Law Practice of Timothy L. Takacs.

Serving Middle Tennessee 201 Walton Ferry Road Hendersonville, TN 37075

Voice: (615) 824-2571 Fax: (615) 824-8772

Serving the Cumberland Plateau Region Voice: (931) 268-5761 Fax: (931) 268-1071 Toll-free: (866) 222-3127

Family Website: www.tn-elderlaw.com Professional Education Website: www.elderlaweducation.com

ELDER LAW PRACTICE OF TIMOTHY L. TAKACS