Lincoln Memorial University - Duncan School of Law

From the SelectedWorks of Stewart L. Harris

June, 2017

The Last Word Stewart L. Harris, Lincoln Memorial University - Duncan School of Law

Available at: https://works.bepress.com/stewart-harris/5/ Practice Tips: Collateral Source Rules in Wrongful Death, Personal Injury, and Employment Termination Cases in Tennessee . . . Page 9

Legal Update: Circuits Split on Whether Title VII Prohibits DiscriminationBased on Sexual Orientation. . . Page 11

A Monthly Publication of the Knoxville Bar Association | June 2017

THOUGHTS OF A JUVENILE DEFENDER ON THE 50TH ANNIVERSARY OF IN RE GAULT 2 DICTA June 2017 Officers of the Knoxville Bar Association In This Issue June 2017 Cover Story 16 Thoughts of a Juvenile Defender on the 50th Anniversary of In Re Gault Critical Focus President President Elect Treasurer Secretary Immediate 5 President’s Message Amanda M. Busby Keith H. Burroughs Wynne du Mariau Hanson Tipton Past President We Can’t Afford to Lose Federal Caffey-Knight Wayne R. Kramer Funding for Legal Aid of East Tennessee KBA Board of Governors 7 Profile Dwight Aarons Dana C. Holloway M. Samantha Parris 2017 Law and Liberty Award E. Michael Brezina III Rachel P. Hurt Cheryl G. Rice Recipient Marigail Mullin Kathryn Ellis Mary D. Miller John E. Winters 9 Practice Tips Stephen Ross Johnson Carrie S. O’Rear Collateral Source Rules in Lisa J. Hall Mitchell Panter Wrongful Death, Personal Injury, The Knoxville Bar Association Staff and Employment Termination Cases in Tennessee 11 Legal Update Circuits Split on Whether Title VII Prohibits Discrimination Based on Sexual Orientation 13 Management Counsel: Law Practice 101 Writing a Release of Claims under the ADEA? Don’t be Surprised by the Statutory Requirements 21 Schooled in Ethics Marsha S. Watson Tammy Sharpe Jonathan Guess Lacey Dillon Cheater, Cheater, Pumpkin-Eater: Executive Director CLE & Sections Database Administrator Programs The Ethics of Cheating on the Bar Coordinator Administrator Exam Conventional Wisdom 6 Hello My Name Is Knoxville Bar Association Stirling Walsh 505 Main Street 10 Legally Weird Flyer Beware Suite 50 12 Outside My Office Window Knoxville, TN 37902 Don’t Stop Believin’ 865-522-6522 14 Lawyer Hobbies Fax: 865-523-5662 Lawyers on the Green www.knoxbar.org 15 Thankworthy Tracy Chain Adelyn Bryson A Charge to Keep LRIS Administrator LRIS Assistant 18 Around the Bar June Open Service Project: Beardsley Community Farm Volume 44, Issue 6 Dicta is the official 23 Long Winded publication of the Proud Of My Profession . . . Again Knoxville Bar 24 Life Hacks Dicta Association Things To Make Travel Easier When There Is No Rest For The Weary DICTA is published monthly (except July) by Publications Committee 25 Phil & Bill’s Gadgets the Knoxville Bar Association. It is designed Executive Editor Cathy Shuck Samsung Galaxy S8 to offer information of value to members Executive Editor Chris W. McCarty 26 Life & Law in Harmony of the local bar association. The news and Executive Editor When You Feel Like You’re Out of features should illustrate the issues affecting Melissa B. Carrasco Editor Your Depth the bar and its members. The opinions Lee Nutini 27 Legal Mythbreakers expressed do not necessarily represent Heidi A. Barcus Matthew R. Lyon Does The Thing Really Speak For those of the Knoxville Bar Association. Casey S. Carrigan Jack H. (Nick) McCall Jr. Itself? Elizabeth B. Ford Angelia Morie Nystrom 28 Around the Community All articles submitted for publication in Joseph G. Jarret Katheryn Murray Ogle All in a [Satur]Day’s Work: Access DICTA must be submitted in writing and in F. Regina Koho Melissa C. Reinders to Justice in Grainger County electronic format (via e-mail attachment). David E. Long Ann C. Short Exceptions to this policy must be cleared Common Ground by KBA Executive Director Marsha Watson 4 Section Notices/Event Calendar (522-6522). Managing Editor Marsha Watson 20 Barrister Bullets KBA Executive Director 22 Ask McLawyer Dicta subscriptions are available for $25 per 29 Bench & Bar In the News year (11 issues) for non-KBA members. 30 Pro Bono Project 31 Last Word June 2017 DICTA 3 EVENT CALENDAR & SECTION NOTICES Section Notices event There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. calendar Alternative Dispute Resolution Section The ADR Section has monthly CLE programs planned through the end of the year. If you have June program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720). n 8 Lunch & Learn Bankruptcy Law Section n 8 Judicial Committee Meeting The Bankruptcy Section will meet quarterly. To have your name added to the section list, please n contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please 10 Open Service Project contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). n 10 Fireflies in the Smokies Corporate Counsel n 13 Professionalism Committee Meeting The Corporate Counsel Section provides attorneys employed by a corporation or who limit n 14 Senior Section Luncheon their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact n 14 Veterans’ Legal Advice Clinic Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). n 14 Barristers Meeting Criminal Justice n 19 Diversity in the Profession Committee The KBA Criminal Justice Section represents all attorneys and judges who participate in the n criminal justice system in Knox County. To have your name added to the section list, please contact 21 KBA Board of Governors Meeting the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, n 22 Volunteer Breakfast please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515). n 22 Corn Hole Tournament Employment Law n 28 Barristers CLE The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to n in-house and government attorneys. If you would like further information on the Employment 29 Bankruptcy Section CLE Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). July Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about n 11 Professionalism Committee Meeting the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). n 12 Veterans’ Legal Advice Clinic Family Law Section n The Family Law Section has speakers on family law topics or provides the opportunity to discuss 13 Lunch & Learn issues relevant to family law practice. To have your name added to the section list, please contact n 13 Judicial Committee Meeting the KBA office at 522-6522. For more information about the section, please contact Chairs Jo n 17 Diversity in the Profession Committee Ann Lehberger (539-3515) or Steve Sharp (971-4040). n 19 Gov’t Section CLE Government & Public Service Section n The Government & Public Service Section is open to all lawyers employed by any governmental 26 In Chambers CLE entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If n 27 Volunteer Breakfast you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on June 14, 2017 at Calhoun’s on the River. KBA member Anne McKinney will present the topic “Some Things We Wish Our Estate Planning Clients Would Never Do and Post-Election Tax Landscape.” See details on page 11. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307. Solo Practitioners & Small Firms Section Annual Supreme The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at Court Dinner 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963). September 6

4 DICTA June 2017 PRESIDENT’S MESSAGE

By: Amanda M. Busby Anderson Busby PLLC

WE CAN’T AFFORD TO LOSE FEDERAL FUNDING FOR LEGAL AID OF EAST TENNESSEE As proposed, the President’s budget for FY2018 eliminates all funding to LSC will not only imperil the ability of LAET to directly federal funding for Legal Services Corporation (LSC) which in turn serve members of our community in need, but it will also greatly eliminates most, if not all, federal funding for legal aid organizations, diminish our local bar’s capacity to help these individuals. The pro bono including Legal Aid of East Tennessee (LAET). As attorneys and as activity facilitated by LSC funding is exactly the kind of public-private residents of East Tennessee communities, we truly cannot afford for this partnership the government should encourage, not eliminate. to happen. When Congress formed LSC in 1974 (in a bi-partisan vote during National, state, local and specialty bar associations across the the Nixon Administration), it found that “there is a need to provide high country are calling on Congress to continue funding LSC. On March quality legal assistance to those who would be otherwise unable to afford 31, 2017, the KBA Board of Governors sent letters to all Tennessee U.S. adequate legal counsel;” and that “providing legal assistance to those Senators and Representatives and to the Chair, Vice Chair and Ranking who face an economic barrier to adequate legal counsel will serve best Members of the House and Senate Appropriations Committees urging the ends of justice and assist in improving opportunities for low-income them to continue to provide robust funding for LSC. In the KBA’s letter, persons.” That remains true today and the need for these services in order we reminded these U.S. Senators and Representatives that LSC funding to provide access to justice is greater than ever before. is money well spent. Funding for LSC only accounts for .000001% of State studies have shown that the problems solved by legal aid offer the total federal budget. Multiple clean audits show that 93.7% of LSC’s a strong return on investment, and they even provide benefits to more total budget is awarded in grants to 133 civil legal aid programs with than just the direct client served. For example, a recent Tennessee study nearly 900 offices nationwide. LAET is one of these LSC grantees, showed that Tennessee’s legal aid organizations produced over $11.20 providing legal services to low-income Americans in 26 Tennessee in economic impact from every $1 of funding received, and that such counties from Chattanooga to Johnson City, Tennessee. Currently, impact extended to businesses, local governments and individuals across LAET receives approximately 50% of its annual funding from LSC. all social classes.1 The ABA has reported that this extended impact is LSC provides vital civil legal aid to a wide range of Americans true in other states as well. For instance, a 2011 Pennsylvania Economic (1.9 million annually): securing housing for veterans; freeing seniors Impact Study by the Pennsylvania Finance and Budget Committee and from scams; serving rural areas when others won’t; protecting battered the Pennsylvania IOLTA program estimated that for each dollar spent women; and helping disaster survivors back to their feet. LAET and its on legal aid, $11 of quantifiable economic outcomes and savings were predecessor organizations have been providing these types of civil legal realized for all residents of Pennsylvania. Likewise, the Florida Bar services to low-income East Tennessee families for over 50 years. Foundation found that the return on investment was $7 for every dollar Like most other legal services organizations, LAET originally spent. The Iowa Legal Aid foundation estimated a six-fold return on received a majority of its funding from LSC. Due to prior drastic cuts investment and Virginia found a $5 return on investment for every dollar in federal funding to LSC throughout the years, LAET has worked spent. These studies show that LSC funding of legal aid organizations diligently to diversify its funding base, securing donations and grants has an impact nationwide and is a good investment. from generous non-profit, community and private funding sources to The late U.S. Supreme Court Justice Antonin Scalia assured us that make up the shortfall. Nevertheless, LSC funding still accounts for all of his colleagues on the Supreme Court supported LSC. The state approximately 50% of LAET’s total annual funding. In 2016, LSC Supreme Court Chief Justices also have consensus support for LSC. In provided $2,519,158 in grants to LAET out of a $5,190,950 budget. fact, over 80% of Americans believe it is important that everyone has According to its most recent LSC Program Profile, LAET access to civil legal help. Also, over 80% of people are convinced that completes approximately 5,000 cases annually, benefitting over 10,500 LSC grantees’ self-help centers and legal services assistance protect the individuals with services ranging from obtaining Orders of Protection vulnerable in our communities. LSC-funded civil legal aid is essential for victims of domestic violence to preventing families from becoming to individuals living in rural areas where there are few lawyers and small homeless. You may recall that LSC funding assisted LAET in providing bar associations with limited membership. In many counties across a rapid response to Sevier County wildfire victims in need of legal our nation, LSC grantees are the only available help for low-income assistance securing FEMA benefits, processing life, medical and property Americans. insurance claims, replacing Wills and other important legal documents Funding of LSC should not be a partisan issue. As TBA President destroyed in the fire, handling landlord/tenant issues, counseling on and KBA member, Jason H. Long, stated in his President’s column for mortgage/foreclosure matters, etc. Despite the number of people LAET the Tennessee Bar Journal last month, “[w]hile we have a diverse bar, on is able to serve, LAET even without these proposed funding cuts only this point we must be united;” this is “The Right Thing To Do.” If you has the resources to assist approximately 10% of the individuals who have an opportunity to write your U.S. Senators and Representatives seek its assistance. Can you imagine the number of individuals in our about this issue, I hope you will take the time to do so. The TBA is also communities that will not have legal services if LAET and other legal aid campaigning to save Legal Aid funding in Tennessee. Additional talking organizations nationwide receive no funding from LSC? The need for points that may be used when writing to your members of Congress may services will not go away and the task of making up this financial shortfall be found on TBAImpact at https://account.votility.com/enterprise/TBA/ and providing these needed services will ultimately fall to members of our ec/302. Bar. KBA lawyers know the value of LSC first-hand. Lawyers who are 1 Economic Impact of Civil Legal Aid Organizations in Tennessee (March 18, 2015), prepared for the TBA Access to Justice Committee and the Corporate Counsel Pro Bono members of the KBA provide countless hours of pro bono legal services Initiative by Michigan-based research firm The Resource for Great Programs. LAET was to individuals in desperate need of assistance. This volunteer service is one of the nine Tennessee civil legal aid organizations that participated in the study. More dependent in part on partnering with LAET which screens cases for information about the study can be found at www.tba.org/news/access-to-justice-boosts- merit and eligibility, and trains and mentors our attorneys. Eliminating tennessee-economy June 2017 DICTA 5 HELLO MY NAME IS . . . STIRLING WALSH

By: Katie Ogle McDonald, Levy & Taylor

As attorneys, we learn many of the nuts and bolts of evidence, and the Knoxville Bar, so if you see him around the courthouse, please take the rules therein, when we sit through the required course in our second a moment to introduce yourself. Just don’t look for the guy with the year of law school. We learn the procedural steps for entering a piece ponytail. of evidence as part of the record, and the appropriate questions to ask a witness for that evidence to be admitted during the presentation of our case. However, we rarely come into contact with that evidence following its entry during our trial. For newly admitted member of the bar, Stirling Walsh, following evidence at the conclusion of a trial is something with which he is all too familiar. During his time in law school at Lincoln Memorial University’s Duncan School of Law, Stirling began working in the Knox County Criminal Court Clerk’s Office. In this position, part of his employment centered around cataloging evidence using a new system in the office. “Working in the clerk’s office and experiencing the inner workings of the legal system really helped deepen my understanding of legal procedure and the process of the criminal court here in Knox County,” notes the recent graduate. Stirling also served as the executive articles editor for the law review at LMU and managed the incoming articles from students and professors from other schools. One of his most memorable law school moments involved organizing a symposium centered around Edward Snowden in which several members of the FBI were in attendance. One may have previously remembered Stirling for his often-in-a- ponytail hair, which is uncommon in the Knoxville legal realm. Earlier this year, Stirling was on a trip to New York City and was snowed in for several days beyond his original agenda. During one of these snowbound days, he stumbled upon a barber shop near Central Park. Deciding there was no time like the present, Stirling used the opportunity to have his locks trimmed. “I’d had long hair since I was about twenty, so it was time for a change. Surprisingly, it’s the first thing many people notice these days.” A native of Kingsport, Tennessee and a graduate of Dobyns- Bennett High School, Stirling completed his undergraduate education at Middle Tennessee State University in Murfreesboro, Tennessee. Here, he majored in Sociology and minored in Criminology and American Music, all of which are well-tailored to his individual talents and pursuits. Stirling’s interest in music began when he was ten years old and briefly took piano lessons. From there, he joined the school band and was a member of the percussion ensemble. In high school, he began playing guitar and started playing bass guitar in college. Today, he shares his home with “eleven guitars, two organs, an electric piano, and a bunch of ukuleles,” all of which are played with regularity. While his collection of musical instruments is at a self-described “hoarder status,” it comes with a great explanation, as Stirling is also the member of three local bands. The “Knox County Jumpstompers” plays Appalachian music primarily from the 1920’s and 30’s; “Southern Cities,” and the “Colonel Williams House Band,” that plays country-folk music, in a similar vein to that of John Perrine. Stirling is practicing law in the greater Knoxville area, and his bands have made an appearance at the Rhythm and Blooms and Dogwood Arts festivals. He’s always looking to make new acquaintances within

6 DICTA June 2017 JUDICIAL PROFILE

By: Hon. Deborah C. Stevens Knox Co. Circuit Court 2017 LAW AND LIBERTY AWARD RECIPIENT MARIGAIL MULLIN

This year’s well-deserved recipient of the annual Law & Liberty award is Marigail Mullin, CEO of the Knoxville YWCA Marigial Mullin’s path to the Knoxville YWCA was fortuitous. Marigail was born and raised in Iowa. She received her Master’s degree in social work from the University of Iowa and had always worked in social service programming. She ultimately became the CEO of the Crittenton Center in Iowa, which is a large child welfare agency. Her husband, Tom Mullin, is a lawyer and was the elected county attorney. She and Tom had four children, and, when the children were grown and started moving away from Iowa, Marigail and Tom decided they would explore a new place to live. They spent three years taking two week vacations traveling around the country to explore locations that they thought might make a good home and a place where they could begin new careers. They came to Knoxville and found a place that met all of their criteria – mountains, water, four seasons, music and a college town. Shortly after that initial visit, they flew back to Knoxville and spent a week exploring the town. It rained the entire time they were here, but she and Tom found the people of Knoxville to be friendly and positive. They began making calls looking for jobs. Marigail called the local United Way office and asked to speak to the Executive Director. She aside time at their December meeting to create gift bags of toiletry told him she was hoping that he would have a few minutes to talk to her items for our transitional housing residents. In May the Open Service about social work opportunities in Knoxville. He graciously invited her Task Force provided a special home cooked meal and shared time and to his office, and they enjoyed a wonderful conversation. What she did conversation with the residents. not know was that after hearing her credentials on the phone, he had The Law & Liberty Award is given annually to a recipient who is contacted several members of the board of the Knoxville YWCA who visible in the legal community; fosters good relations between the legal were searching for an Executive Director. They were sitting outside profession and the community and works to advance the understanding his office. He invited them into his office, the interview process began of the legal system to the non-legal community. Marigail Mullin truly and the next thing Marigail knew, she was being offered a job. In the represents the purpose of the Law & Liberty Award. Congratulations meantime, Tom received an offer to join the office of the Knox County Marigail. Law Director. They liked Knoxville, and they had jobs; so in 2006, they began their new adventure and would now call East Tennessee their home. Marigail and Tom live in the South Knoxville on the beautiful French Broad River. They currently share their home with two golden EDITORS’ NOTE: retrievers. In the last few years, all of their children, who had been D I C T A scattered around the country, have now moved to Knoxville. Marigail and Tom are looking forward to another new adventure as they take on DICTA is a monthly publication of the Knoxville Bar the role of grandparents, as their son and his wife are expecting their first Association. DICTA is offered to all members of the grandchild. Knoxville Bar Association as one of the many benefits of The mission of the YWCA is to eliminate racism, empower women membership. This issue represents one of our “super and promote peace, justice, freedom and dignity for all. The YWCA circulation issues” and is sent not only to all members of Knoxville operates a transitional housing program called “Keys of Hope” the Knoxville Bar Association but to all lawyers licensed to which houses women for up to two years, giving them the time needed practice law in Knox County and all of its contiguous to become responsible, independent, and empowered to overcome counties, Blount, Loudon, Anderson, Union, and Sevier. significant life obstacles. They operate the Phyllis Wheatley Center in DICTA is an important publication to the Knoxville Bar East Knoxville where they provide comprehensive educational support for Association and it provides news regarding members and children in the community through an after-school and summer camp events of the Knoxville Bar Association as well as program. The Center also serves as a community center for seniors and information on upcoming CLE seminars. It also provides is home to a beautiful new community garden. The YWCA Knoxville news and notices from the Knoxville Bar Association provides advocates for victims of domestic violence, and they have president, the Barristers, and the Knoxville Bar created a nationally recognized, gender-based program, to teach violence Association's nineteen different committees and eleven prevention to middle-school boys. The YWCA Knoxville also hosts different sections. If you are interested in becoming a the annual, YWCA Tribute to Women, which recognizes the significant member of the Knoxville Bar Association, please contribution women have made to this community. contact KBA Executive Director Marsha Watson at These programs do not magically grow and thrive. It takes amazing 505 Main Avenue, Suite 50, P.O. Box 2027, leadership. It takes vision. Marigail Mullin has worked tirelessly to serve Knoxville, Tennessee 37901-2027, (865) SUPER 522-6522 or access our award-winning the clients of the YWCA and this community. She has engaged the ISSUE support of members of the legal profession as advocates, board members website at www.knoxbar.org. CIRCULATION and volunteers. Each December, members of ETLAW graciously set June 2017 DICTA 7 8 DICTA June 2017 PRACTICE TIPS

By: Charles L. Baum II, Ph.D. Professor of Economics at Middle Tennessee State University COLLATERAL SOURCE RULES IN WRONGFUL DEATH, PERSONAL INJURY, AND EMPLOYMENT TERMINATION CASES IN TENNESSEE In wrongful death (WD),1 personal injury (PI),2 and employment services is larger than the amount actually paid by the injured party (or by termination (ET)3 cases, pecuniary economic damages, such as those their insurer), which may be at a discounted rate. Which is the correct from lost earnings and employment benefits or medical expenses, are measure of damages? Tennessee courts have recently reached somewhat recoverable and may be substantial amounts. However, these amounts conflicting conclusions. will likely be significantly affected by whether income from collateral In West v. Shelby Cnty. Healthcare Corp., a case involving the sources is deducted from the economic losses. Should life insurance Tennessee Hospital Lien Act, undiscounted medical rates were not benefits be deducted from economic losses in a WD case? How should deemed to be reasonable.22 Following West, some Tennessee courts in disability income be handled in PI cases? Should earnings from non-medical malpractice cases have either ruled that tortfeasors are subsequent employment after a termination affect economic losses in ET not liable for undiscounted medical expenses23 or that undiscounted cases? medical expenses are inadmissible.24 In other non-medical malpractice In my experience as an economist assisting with damages cases, Tennessee courts have determined that gross medical bills (e.g., calculations in litigation, one of the most common questions I encounter the amount billed) are admissible and may be presumed reasonable,25 is whether it is appropriate to deduct collateral income sources from although defendants are allowed to challenge the reasonableness of those economic losses. The uncertainty is for good reason. The answer to this expenses by introducing evidence showing a discounted amount satisfies question depends on several factors that vary on a case-by-case basis, the amount billed.26 such as the source of the collateral income and whether the tort involves In medical malpractice cases under T.C.A. § 29-26-119, only the medical malpractice. In this article, I summarize the guidance provided amount actually billed for medical care is recoverable.27 by Tennessee statutes and case law for addressing collateral income sources in damages calculations in WD, PI, and ET cases. IV. Mitigation from Returning to Work The Doctrine of Avoidability typically requires those who I. Tennessee’s Collateral Source Rule are harmed to take action to limit damages. In ET cases, workers In Tennessee, benefits and payments from a collateral sources – are required to mitigate damages by obtaining another job after a a source other than the tortfeasor – are normally inadmissible, and termination.28 This is true in Tennessee employment cases29 and in economic damages are typically not reduced by payments made from terminations that violate federal laws, such as the Civil Right Act,30 collateral sources.4 However, if the tortfeasor or an entity acting on the the Age Discrimination in Employment Act,31 the Americans with tortfeasor’s behalf makes a payment or provides a benefit to the injured Disabilities Act,32 and the Family and Medical Leave Act.33 Any party, then economic damages should be reduced by that amount.5,6 earnings from subsequent employment should be subtracted from the For example, in PI cases, disability payments from a collateral source economic losses,34 with no subsequent lost earnings if earnings from would not be deducted from economic damages for lost earnings owed the terminating employer become replaced completely by subsequent by a tortfeasor.7 In ET cases, unemployment benefits financed by the employment.35 state would not be an offset, but layoff or severance pay provided by the However, the employee may not have been employed since the terminating employer would be.8 Benefits that are commonly subject to termination. If the plaintiff has not attempted to find another job, then the collateral source rule include income from Social Security, welfare, economic damages from lost earnings may be forfeited.36 In Tennessee, and pensions.9 Tennessee courts have even considered as damages the defendant has the burden of proving whether the terminated medical bills that were later partially forgiven (or reduced) by the medical employee exercised reasonable effort to find a comparable job for which provider, without admitting evidence of the reduced amount actually the employee was qualified.37 Tennessee courts do not require terminated paid.10 employees to accept a significantly different job (e.g., with substantially Tennessee’s collateral source rule may result in a double recovery for lower pay, in another occupation, or located in another state).38 injured plaintiffs.11 Just the opposite, if damages awards were credited for Similarly, in PI cases, the plaintiff may be able to work in a benefits and payments from collateral sources, then the tortfeasor would diminished capacity after the injury or may be able to recover, at least receive a windfall equal to the collateral amounts.12 Perhaps neither partially, from the injury and return to work. Earnings from employment outcome is ideal, but Tennessee courts prefer to allow double recoveries (or the ability to earn) after the injury should be considered and rather than create windfalls for tortfeasors from collateral sources.13 For subsequently deducted from the economic losses,39 but the defendant has example, a tortfeasor should not be the beneficiary (in the form of a the burden of providing the jury with this evidence.40 reduced damages verdict) of a gift to an injured plaintiff by the plaintiff ’s family. Tennessee courts intend the collateral course rule to preserve an Conclusion element of punishment for wrongdoing.14 The duty to mitigate and collateral source rules in Tennessee may significantly affect the way economic damages are calculated in WD, II. Medical Malpractice Cases PI, and ET cases. Unfortunately, plaintiffs have unnecessarily deducted Medical malpractice WD and PI cases in Tennessee are handled collateral benefits (i.e., pension income) in their calculations, which differently. Generally, in these cases, economic damages, such as lost has unnecessarily reduced damages awards for lost earnings,41 and earnings and medical expenses, are not recoverable if they have been defendants have failed to offer evidence of a plaintiff ’s ability to earn replaced or reimbursed by another source.15 Replacement benefits that from subsequent employment, unnecessarily overestimating damages would prevent recovery include those provided by an employer or the awards for lost earnings.42 This manuscript seeks to assist attorneys government, Social Security, and unemployment insurance.16 and economics experts by summarizing the stipulations and guidance However, quite a few exceptions apply. If losses or expenses provided by Tennessee courts for addressing collateral source benefits in in Tennessee medical malpractice cases have been replaced by a damages calculations. source provided by the plaintiff or the plaintiff ’s family, then they are 17 recoverable. If the source has subrogation rights (e.g., if the plaintiff 1 Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593, 600 (Tenn.1999); Thrailkill v. must repay an insurer for medical payments with proceeds from a Patterson, 879 S.W.2d 836, 841 (Tenn.1994). damages award), then the losses are recoverable.18 Tennessee courts have 2 Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 419 (Tenn.2013); Overstreet v. ruled that economic damages in medical malpractice cases are also not Shoney’s Inc., 4 S.W.3d 694, 703 (Tenn.Ct.App.1999). 19 3 Frye v. Memphis State University, 806 S.W.2d 170, 173 (Tenn.1991). reduced by the plaintiff ’s receipt of workers’ compensation, Medicaid 4 payments,20 and benefits from insurance whose premiums have been paid, Restatement (Second) of Torts (1977) § 920A; Fye v. Kennedy, 991 S.W.2d 754, 763 21 (Tenn.Ct.App.1998); Jackson v. City of Cookeville, 31 F.3d 1354, 1359 (6th Cir.1994); at least partially, by the plaintiff. Cherry v. McCullough, 1992 WL 379074, at *6 (Tenn.Ct.App.1992); Donnell v. Donnell, 415 S.W.2d 127, 134 (Tenn.1967). III. Billed versus Paid Medical Expenses 5 Restatement (Second) of Torts (1977) § 920A; Howard v. Abernathy, 751 S.W.2d 432, A unique situation arises when the amount billed for medical 434 (Tenn.Ct.App.1988); Allen v. Consolidated Aluminum Corp., 688 S.W2d 64, 66 (Continued on page 11) June 2017 DICTA 9 LEGALLY WEIRD

By: Sam Louderback Egerton, McAfee, Armistead & Davis, P.C.

Flyer Beware “Man pulled from seat, dragged off oversold United flight.”1 I 2 Id. am sure you have all seen the headlines by now and maybe even some 3 Id. 4 of the videos of the incident. For the uninitiated, on April 9, 2017, a See id. 5 Daniel Victor and Christopher Drew, United Airlines Reaches Settlement With Passenger United Airlines flight departing from Chicago “was oversold and several Who Was Dragged Off Plane, (Apr. 27, 2017), https://www.nytimes.com/2017/04/27/ passengers were chosen at random to be bumped from the flight” to business/united-david-dao-settlement.html. accommodate four crew members traveling to Louisville.2 One of the 6 49 U.S.C. § 44902(b). “lucky” passengers was Dr. David Dao (“Dao”), who refused to leave the 7 Atia v. Delta Airlines, Inc., 692 F. Supp. 2d 693, 701 (E.D. Ky. 2010) (citing Williams v. plane after being told to disembark.3 After Dr. Dao’s refusal, the flight Trans World Airlines, 509 F.2d 942 (2d Cir. 1975)). 8 See Ruta v. Delta Airlines, Inc., 322 F. Supp. 2d 391, 397 (S.D.N.Y. 2004). attendants called security, who physically removed Dr. Dao from the 9 4 Id. flight. Dr. Dao “suffered a concussion and a broken nose, and lost two 10 Transportation.gov, https://www.transportation.gov/airconsumer/fly-rights (last visited teeth” in the incident, which settled a few weeks later for an undisclosed May 10, 2017). amount.5 This incident spurred various discussions as to the handling of 11 Id. similar occurrences where airlines overbook flights and remove certain 12 Bureau of Transportation Statistics, https://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/ passengers (called “denied boarding” by the airline industry), and led me files/publications/national_transportation_statistics/html/table_01_64.html (last visited May 10, 2017). down two paths: one legal, one weird. 13 I first wondered what legal authority airlines have that allows them Woman kicked off plane for berating Trump supporter in viral video, (Jan. 23, 2017), http://www.foxnews.com/travel/2017/01/23/woman-kicked-off-plane-for-berating- to remove passengers from an airplane. The Federal Aviation Act of trump-supporter-in-viral-video.html. 1958, 49 U.S.C. §§ 40101 et seq., (the “Act”), which created the Federal 14 Jim Stingl, Urgent trip to restroom gets man kicked off flight, (Apr. 26, 2017), https:// Aviation Administration (“FAA”), provides an airline “may refuse to www.usatoday.com/story/travel/nation-now/2017/04/26/urgent-trip-restroom-gets-man- transport a passenger or property the carrier decides is, or might be, kicked-off-flight/306818001/. inimical to safety.”6 The standard most frequently used by the courts in 15 Woman claims she was booted from Spirit flight for showing too much cleavage, (Feb. interpreting this portion of the Act is “that liability will not attach to a 2, 2017), http://www.foxnews.com/travel/2017/02/02/woman-claims-was-booted-from- spirit-flight-for-showing-too-much-cleavage.html. carrier’s decision to refuse air transport unless that decision is shown to be 16 Alberto Luperon, Parents: While They Got Kicked off Overbooked Delta Flight, Staff Said 7 arbitrary or capricious.” In determining whether an act is arbitrary and They Could Lose Their Kids, (May 4, 2017), http://lawnewz.com/high-profile/parents-told- capricious, courts look to all of the facts and circumstances known by the theyll-lose-their-kids-when-getting-kicked-off-overbooked-delta-flight/. decision-maker (often the pilot) at the time their opinion was formed.8 17 Alec Baldwin ‘kicked off plane’ over Words With Friends, (Dec. 8, 2011), http://www. Furthermore, the decision-maker is granted substantial discretion to bbc.com/news/world-us-canada-16063586. 18 reject a passenger if “exercised in good faith and for a rational reason.”9 See Meet the Parents, Universal Pictures, released October 6, 2000. See also U.S. v. Gonzalez, 492 F.3d 1031, 1034 (9th Cir. 2007) (where passenger was removed from a Further, the Department of Transportation (“DOT”), which is the parent plane for allegedly saying “I have a bomb”). agency of the FAA, requires each airline to give all passengers who are 19 Owner embarrassed and upset after goldfish kicked off plane,(May 19, 2016), http:// bumped involuntarily a written statement describing their rights and www.radiolive.co.nz/Owner-embarrassed-and-upset-after-goldfish-kicked-off-plane/ explaining how the carrier decides who gets on an oversold flight and tabid/506/articleID/122468/Default.aspx. Not to worry, the man and his goldfish were who doesn’t.10 I didn’t see any written statement in Dr. Dao’s hands as he reunited. was being dragged off the plane… just saying. 20 Id. Now that you know airlines can lawfully remove you from flights under a broad standard, you may be asking yourself how often this happens. According to the DOT, there are two types of overbooking: voluntary and involuntary.11 The DOT reports that in 2015 (the most recent year for which data is available), 505,000 passengers were bumped voluntarily, while 46,000 passengers were bumped involuntarily.12 I was shocked by how frequently this happens, until I learned that it is common in the airline industry to purposefully overbook a flight to compensate for customers who fail to show up for their flight. Considering the frequency of these types of events led me to my second thought: why else have people been removed from flights? This is where we get into the weird segment of the article, covering events that may best be explained by a series of headlines: “Woman kicked off plane for berating Trump supporter,”13 “Urgent trip to restroom gets man kicked off flight,”14 “Woman claims she was booted from Spirit flight for showing too much cleavage,”15 “While they got kicked off overbooked Delta flight, staff said they could lose their kids,”16 and that all happened just in 2017! Then there is perhaps the most infamous incident of being kicked off a plane: “Alec Baldwin ‘kicked off plane’ over Words With Friends.”17 Even Hollywood has spoofed this type of incident, as Ben Stiller’s character in the movie Meet the Parents learned after getting kicked off a flight for saying the word “bomb,” “you can’t say bomb on an airplane.”18 Finally, my favorite headline came out of New Zealand last year, which read “Owner embarrassed and upset after goldfish kicked off plane.”19 So, flyer beware: on your next trip to the airport, know your rights, and save yourself the hassle… leave your goldfish at home.

1 Video: Man pulled from seat, dragged off oversold United flight, http://www.cbsnews. com/news/video-man-pulled-from-seat-dragged-off-oversold-united-flight/ (last updated Apr. 10, 2017, 10:21 PM). 10 DICTA June 2017 LEGAL UPDATE

By: Regina Koho Tennessee Valley Authority, Office of the General Counsel1

CIRCUITS SPLIT ON WHETHER TITLE VII PROHIBITS DISCRIMINATION BASED ON SEXUAL ORIENTATION In March’s “Legal Update” column, I discussed an employment law changing legal landscape that has taken shape in the nearly two decades issue – whether discrimination “because of ” sex2 under Title VII includes since” it was decided.11 A motion for rehearing en banc was filed on April discrimination based on sexual orientation – that seems poised to make its 28, so it is possible that the entire court will take the opportunity to do so. way to the Supreme Court. Since the publication of my original article, And if not, a recent lower court case could provide the right vehicle developments in the federal courts make that likelihood even greater. for the Second Circuit. A few weeks after Christiansen was filed, a New The most important development is the Seventh Circuit’s decision York district court declined to dismiss a plaintiff ’s sexual-orientation in Hively v. Ivy Tech Community College, where it became the first claim under Title VII because of “the evolving state of the law.”12 The federal appeals court to hold that “discrimination on the basis of sexual court relied on both the Christiansen concurrence and the Seventh orientation is a form of sex discrimination” under Title VII.3 The en Circuit’s decision in Hively as support for rejecting the “‘illogical’ and banc court found two bases for its decision – (1) under the “comparative artificial distinction between gender stereotyping discrimination and method” and (2) under the “associational theory.” As to the first, the sexual orientation discrimination.”13 It is quite unusual for a district court court observed that if the allegations of plaintiff (a lesbian) were true,4 her to ignore circuit precedent based on “the evolving state of the law,” but employer “would not have refused to promote her and would not have the judge is clearly attempting to tee the issue up for the Second Circuit’s fired her” if she had been a man in a relationship with a woman. This, reconsideration. the court found, “describes paradigmatic sex discrimination.”5 As to the Around the same time as the developments in the Second and second, the court observed that the outcome would change “[i]f we were Seventh Circuits, the Eleventh Circuit rendered a decision that explicitly to change the sex of one partner in [the] lesbian relationship,” which again reaffirmed its precedent holding that sexual-orientation claims are not revealed discrimination based on “distinctions drawn according to sex.”6 actionable under Title VII.14 In effect, this provides a “fresh” circuit split, An integral component of the Seventh Circuit’s decision to overrule and it seems that it will only be a matter of time before the Court is asked its previous opinions was the Supreme Court’s evolving jurisprudence, to weigh in. not only in the realm of employment law, “but also in the area of broader 1 discrimination on the basis of sexual orientation,” specifically its recent Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority. decisions striking down the Defense of Marriage Act’s provision excluding 2 See 42 U.S.C. § 2000e-2(a)(1). same-sex partners from the definition of “spouse” and recognizing the 3 7 Hively v. Ivy Tech Cmty. Coll. of Ind., __ F.3d __, 2017 WL 1230393, at *1 (7th Cir. Apr. 4, constitutional right of same-sex couples to marry. Based on these 2017). decisions’ logic, “as well as the common-sense reality that it is actually 4 The case was before the court on a Rule 12(b)(6) motion. See id. at *5. impossible to discriminate on the basis of sexual orientation without 5 Id. discriminating on the basis of sex,” the court concluded that the time 6 Id. at *7. was right to overrule its prior line of cases excluding sexual-orientation 7 Id. at *8 (discussing United States v. Windsor, 133 S. Ct. 2675 (2013) and Obergefell v. discrimination from Title VII’s protective umbrella.8 Hodges, 135 S. Ct. 2584 (2015)). There have been developments on this front within the Second 8 Id. at *9. Circuit, as well. In March’s column, I highlighted Christiansen v. 9 See Simonton v. Runyon, 232 F.3d 33, 36, 38 (2d Cir. 2000). Omnicon Group, Inc., a case then before a three-judge panel that provided 10 See Christiansen v. Onmnicon Grp., Inc., 852 F.3d 195, 199-201 (2d Cir. 2017). the opportunity to revisit circuit precedent holding that “Title VII 11 Id. at 202 (Katzmann, J., concurring). does not proscribe discrimination because of sexual orientation,” only 12 Philpott v. New York, 16 Civ. 6778, 2017 WL 1750398, at *2 (S.D.N.Y. May 3, 2017). discrimination based on nonconformity with sex stereotypes.9 The three- 13 Id. judge panel determined that it was bound by this precedent, but found 14 See Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (“Evans . . . that the plaintiff sufficiently alleged a cognizable gender-stereotyping argues that she has stated a claim under Title VII by alleging that she endured workplace claim.10 A separate concurrence expressed the view that the full court discrimination because of her sexual orientation. She has not. Our binding precedent should eventually reconsider its precedent, “especially in light of the forecloses such an action.”).

PRACTICE TIPS (Continued from page 9) (Tenn.1985); Byrd v. Stuart, 450 S.W.2d 11, 13 (Tenn.1969). 25 Dedmon v. Steelman, 2016 WL 3219070, at *9 (Tenn.Ct.App.2016); Ryans v. Koch 6 Tennessee courts have allowed workers’ compensation payments to be reduced by Foods, LLC, 2015 WL 11108908, at *2 (E.D.Tenn.2015). disability benefits provided by defendant-employers when explicitly allowed in their plans 26 Dedmon, 2016 WL 3219070, at *11. (Allen, 688 S.W2d, at 66) but not when employer plans do not contain a set-off provision 27 Gutherie v. Ball, 2014 WL 5094140, at *2 (E.D.Tenn.2014); Calaway ex rel. Calaway v. (Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 151 (Tenn.1991); Williams Schucker, 2013 WL 960495, at *4 (W.D.Tenn.2013); Nalawagan v Hai v. Dang, 2010 WL v. Delvan Delta, Inc., 753 S.W.2d 344, 347 (Tenn.1988)) or when the offset would be 4340797, at *2 (W.D.Tenn.2010). short-term disability payments for permanent disability payments (Cantrell v. Electric 28 Frye, 806 S.W.2d at 173. See also Coffey v. Fayette Tubular Product, 929 S.W.2d 326, Power Board, 811 S.W.2d 84, 85 (Tenn.1991)). 332 (Tenn.1996); Sasser v. Averitt Exp., Inc., 839 S.W.2d 422, 434 (Tenn.Ct.App.1992). 7 Cherry, 1992 WL 379074, at *5. 29 Mountjoy v. City of Chattanooga, 2002 WL 707467 at *4 (Tenn.Ct.App.2002); Frye, 806 8 Blayde v. Harrah’s Entertainment, Inc., 2010 WL 5387486, at *9 (W.D.Tenn.2010); S.W.2d at 173. Barnes v. Goodyear Tire and Rubber Co., 2001 WL 568033, at *8 (Tenn.Ct.App.2001). 30 42 U.S.C.A. § 2000e; Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 680 9 Restatement (Second) of Torts (1977) § 920A; Fye, 991 S.W.2d, at 764. (6th Cir.2008); Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228, 1233 (6th 10 Fye, 991 S.W.2d, at 763. Cir.1996); Shore v. Federal Express Corp., 777 F.2d 1155, 1160 (6th Cir.1985). 11 Restatement (Second) of Torts (1977) § 920A; Fye, 991 S.W.2d, at 763. 31 29 U.S.C.A. § 621-634; Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1334 (6th 12 Id. Cir.1994). 13 Barnes, 2001 WL 568033, at *8; Jackson, 31 F.3d, at 1359. 32 Hoback v. City of Chattanooga, 2012 WL 3834828, at *13 (E.D.Tenn.2012). 14 Restatement (Second) of Torts (1977) § 920A; Fye, 991 S.W.2d, at 763. 33 29 U.S.C.A § 2601; §2617; Killian v. Yorozu Automotive Tennessee, Inc., 454 F.3d 549, 15 Tennessee Code Annotated § 29-26-119; Carter v. U.S., 2014 WL 1630824, at 556 (6th Cir.2006). *10 (M.D.Tenn.2014); McDaniel v. General Care Corp., 627 S.W.2d 129, 132 (Tenn. 34 Vawter v. E.I. Du Pont De Nemours and Company, 2016 WL 3228129, at *7 (Tenn. Ct.App.1981). Ct.App.2016); Blayde, 2010 WL 5387486, at *9; Barnes, 2001 WL 568033, at *5; Frye, 16 Tennessee Code Annotated § 29-26-119; Electro-Mechanical Corp. v. Ogan, 9 F.3d 806 S.W.2d at 173. 445,448 (6th Cir.1993); Nance by Nance v. Westside Hosp., 750 S.W.2d 740, 742 35 Maness v. Collins, 2010 WL 4629614 at *11 (Tenn.Ct.App.2010); Denney v. Lovett, (Tenn.1988). 2006 WL 1915303 at *10 (Tenn.Ct.App.2006). 17 Tennessee Code Annotated § 29-26-119. 36 Barnes, 2001 WL 568033, at *5. 18 Tennessee Code Annotated § 29-26-119; Richardson v. Miller, 44 S.W.3d 1, 31 (Tenn. 37 Maness, 2010 WL 4629614 at *11; Mountjoy, 2002 WL 707467 at *4; Frye, 806 S.W.2d Ct.App.2000); Nance by Nance, 750 S.W.2d, at 743. at 173. 19 Nance by Nance, 750 S.W.2d, at 744. 38 Barnes, 2001 WL 568033, at *5; Frye, 806 S.W.2d at 173. 20 Hughlett v. Shelby County Health Care Corp., 940 S.W.2d 571, 574 (Tenn.Ct.App.1996). 39 Borne v. Celadon Trucking Services, Inc., 2014 WL 3778743, at *22 (Tenn.Ct.App.2014); 21 Hunter v. Ura, 163 S.W.3d 686, 711 (Tenn.2005); Steele v. Ft. Sanders Anesthesia Overstreet, 4 S.W.3d at 703. Group, P.C., 897 S.W.2d 270, 281 (Tenn.Ct.App.1994). 40 Jones v. Consolidated Rail Corp., 800 F.2d 590, 592 (6th Cir.1986). 22 West v. Shelby County Healthcare Corp., 459 S.W.3d 33, 45 (Tenn.2014). 41 Jackson, 31 F.3d, at 1359. 23 Keltner v. United States 2015 WL 3688461, at *4 (W.D.Tenn.2015). 42 Maness, 2010 WL 4629614 at *11; Jackson, 31 F.3d, at 1359. 24 Hall v. USF Holland, Inc., 152 F.Supp.3d 1037, 1039 (W.D.Tenn.2016); Smith v. Lopez- Miranda, 165 F.Supp.3d 689, 691 (W.D.Tenn.2016). June 2017 DICTA 11 OUTSIDE MY OFFICE WINDOW

By: Robert E. Pryor, Jr. Pryor, Priest & Harber robertpryorjr.blogspot.com

DON’T STOP BELIEVIN’ We all have dreams. Mine, including NBA stardom and headlining heavy lifting.” He smiled and asked what key I would be playing it in. “I a Rock N’ Roll tour, died early. Pryor’s can’t jump and we have no musical have no idea what that means,” I said. He laughed. “Show me where you talent. put your fingers.” I did. Then, I took my seat, adjusted the microphone The first album I ever bought wasJourney’s Escape. I knew I had to and looked out over the crowd. Suddenly, I was where I was born to be. have it when I heard the keyboard intro on Casey Kasem’s American Top I gave an eloquent introduction, mentioning my mini-Casio keyboard 40 in 1981. I was 13. I’d listen to “the countdown” from start to finish on I got on my 13th birthday, 1981, and love. I filled the crowd with great Sundays. I was in love with two or three girls at the time, and I’d write anticipation. Talking is easy. Then, without a moment of hesitation down the name of love songs that I just had to have. After I purchased (never hesitate - commit), I began to play. the album I’d sit in the floor and playDon’t Stop Believing over and over, My introduction was flawless and partially drowned out by the wishing I knew how to play it on the piano. I fantasized of taking to the crowd exploding onto the dance floor. Those notes, written by Steve stage and my seat at the piano, adjusting the microphone, and starting Perry, produce a chemical reaction that is part nostalgia and part into that beautiful intro. My voice would pierce the crowd and roll into aphrodisiac in people of my vintage. The other piano player jumped the night, leaving my peers, and especially the girls, dumbfounded, in, the man who was supposed to be playing my piano took a seat at a starstruck and hopelessly in love. When I would jump into the second drum set, and we were off to the races. I was so focused on playing the verse…”A singer in a smokey room, the smell of wine and cheap song correctly that I didn’t sing a lick of the first verse, and it was clear perfume..” something in them would break and unalterably change, I couldn’t keep up the pace of the song. By the time we reached the making them forever mine. My best friend’s older sister, who was taking second verse I was barely playing the piano at all. It wasn’t good, but I piano lessons, helped me learn to play the song when I spent the night realized something amazing. My playing was completely inconsequential. one weekend. My family had a piano, but it was the only song I ever The sound created by the first piano and the drums completely masked learned. I never took a lesson, only playing the Journey song over and over my ineptness! I realized I could completely stop playing and it would to the annoyance of my little brother and sister. The song became a staple not effect the song. Even better was the fact everyone thought I was of American Rock music. It still has a strong presence on the radio and playing! So, quite naturally, as the time for the second verse arrived, my television, having enjoyed a revival with such shows as Glee. Journey was confidence level was sky high! I focused on appearing to play the piano just inducted into the Rock n’ Roll Hall of Fame. Whenever I hear the and leaned into the microphone, winked at a cute girl on the front row song, I smile, but I’ve long given up on living out my fantasy of becoming with her hands raised high above her head, and belted out, “A singer in a a rock star. I’m 48, can’t sing a lick, and know only the intro to one smokey room, the smell of wine and cheap perfume…” Journey song. The dream is dead. Or so I thought. When the song ended, I ran my hands up and down the keys, Jerry Rum Runners is a piano bar in Sandestin. It is filled with people my Lee Lewis style, and walked off stage to a standing ovation. I smiled at age - some married, some not, and some not sure. All come to drink, the piano player who was laughing. I now know both the exhilaration some come to dance, and most sing along with two guys playing adjacent that keeps Mick Jagger coming back and the shameful lack of guilt that pianos. The crowd includes tables of women on “girl’s trips” and bar allowed Milli Vanilli to sleep peacefully during their fraudulent run. My stools occupied by men on golf trips. The confines of that bar are a study life is now complete. Don’t Stop Believin’. of the middle-aged. The breeze coming off of the bay creeps through the open doors making the water-downed-overpriced liquor just fine and the average musical talent seem special. The place was packed the other night. I was one of the golf-trip guys on a bar stool as the two performers were going back and forth playing SEC fight songs and racking up tips. Though the place was packed, there were few on the dance floor. I told my friends I’d had enough and was going home. I really didn’t want to go to the bar in the first place, but I was the golf trip host. One friend, who I’ve known since we were kindergartners, said “I remember when you could play that Journey song.” I told him that I would always be able to play it, mistakenly inflating my musical skills, certainly not thinking that he would approach the stage and offer up $100 to the tip jar to have me play a song for the crowd. When I heard my name from the stage, fear shot through me like lightning. I certainly know that I possess no musical or singing talent, but I am also aware that I am genetically incapable of turning down an opportunity to perform regardless of the embarrassment that usually follows. It is a curse, but it sure makes me fun in a bar. I was scared to death as I approached the baby grand but displayed an outward false confidence all lawyers know from their early days in the courtroom. I leaned over to the gentleman who was seated at the occupied piano and whispered, “Listen, I only know the intro. You are gonna have to do the

12 DICTA June 2017 MANAGEMENT COUNSEL: LAW OFFICE 101

By: Catherine E. Shuck East Tennessee Children’s Hospital

WRITING A RELEASE OF CLAIMS UNDER THE ADEA? DON’T BE SURPRISED BY THE STATUTORY REQUIREMENTS There are a number of surprising things about the Age of all criteria for the lay off prior to agreeing to a release of claims.7 In Discrimination in Employment Act (“ADEA”).1 For one thing, the addition to satisfying the criteria set out above, a release must also: ADEA protects workers over 40;2 people are often surprised to find they qualify for ADEA coverage before qualifying for AARP membership. 1. Give the individual at least 45 calendar days to consider the offer; Furthermore, as amended by the Older Workers Benefit Protection Act 2. Identify the “decisional unit” from which the employer chose the of 1990 (“OWBPA”)3, everyone covered by the ADEA is entitled to persons to lay off; enhanced benefit protection in the event of a layoff or termination. As 3. Identify any eligibility factors for the layoff and severance offer, as a result, the third surprising thing about the ADEA is that, in order to well as any applicable time limits; write a separation agreement that includes a valid release of age claims 4. Identify the job titles and ages of all individuals selected for the under the ADEA, the drafter must comply with very specific provisions. layoff as well as the ages of all individuals in the same job classification or Finally, note that unlike the other laws the EEOC enforces, the ADEA organizational unit who were not eligible and/or selected for the layoff.8 inexplicably applies to employers with 20 or more employees.4 If you ask an employee to sign a release of claims in exchange for Note that although the statute refers to a “group” of employees, the a severance payment or package, the release must comply with a strict EEOC interprets that to mean two or more employees.9 For most small set of provisions to be effective in releasing claims under the ADEA firms, these requirements would not be particularly difficult to satisfy and OWBPA. And if you are terminating more than one employee, the (assuming the firm is even big enough to be covered by the ADEA). release and associated disclosures must meet an even more stringent set However, for larger organizations, identifying the appropriate decisional of criteria, as explained below. unit and disclosing ages and job titles as required can be unpalatable at best and quite burdensome at worst. However, failure to adhere strictly Release involving only one separation to these requirements can result in a court invalidating the waiver and release. As amended by the OWBPA, a release is only valid to waive claims under the ADEA if it is “knowing and voluntary,” as measured by the Conclusion following criteria: To avoid the unpleasant surprise of having a release of claims 1. It must be written in a manner calculated to be understood by the invalidated for failure to comply with the statutory requirements, be sure individual; to scrutinize any release purporting to waive claims under the ADEA 2. It must specifically refer to the ADEA and OWBPA; and OWBPA. 3. It may not waive rights or claims arising after the date the waiver is executed; 1 29 U.S.C. § 621 et seq. 4. It must be supported by consideration in addition to anything 2 5 29 U.S.C. § 631. to which the individual is already entitled. In other words, 3 Pub. L. 101-433 (1990). the employer must offer payment(s) and or benefits in addition 4 29 U.S.C. § 630. Title VII and the ADA, which the EEOC also enforce, apply to employers to whatever an employee would normally be entitled to upon with 15 or more employees. 5 separation; Ordinarily a departing employee is only entitled to wages earned through the last day worked; an offer of COBRA if the employee is on the employer’s health plan; and 5. The individual must be advised in writing to consult an attorney; a payout of unused PTO if the employer’s policy so provides. (Many employers believe 6. The individual must be given at least 21 calendar days to consider that employees must be paid out accrued, unused PTO, but in Tennessee there is the offer; and no requirement to pay out unused PTO unless the employer promises to do so in its handbook or other policy. See Tenn. Code Ann. § 50-2-103(a)(3); see also Tennessee 7. The individual must be given at least seven calendar days after department of Labor & Workforce Development, FAQs re: Wages, Fringe Benefits, execution of the waiver to rescind her agreement to the waiver.6 Paychecks & Breaks, available at https://www.tn.gov/workforce/topic/wages-benefits- breaks (visited May 8, 2017).) 6 As a best practice, any release of claims should have a separate, 29 U.S.C. § 626; see also 29 C.F.R. § 1625.22. 7 See id. See EEOC, “Understanding Waivers of Discrimination Claims in Employee clearly marked section detailing all of the rights above. Severance Agreements,” available at https://www.eeoc.gov/policy/docs/qanda_ severance-agreements.html (visited May 9, 2017). Releases where two or more employees are terminated 8 29 U.S.C. § 626; see also 29 C.F.R. § 1625.22 9 See EEOC, “Understanding Waivers of Discrimination Claims in Employee Severance Agreements,” available at https://www.eeoc.gov/policy/docs/qanda_severance- If the employer is laying off or otherwise terminating two or more agreements.html (visited May 9, 2017). employees at a time, the ADEA requires disclosure of a tremendous 10 See, e.g., Kruchowski v. Weyerhaeuser Co., 446 F.3d 1090, 1095 (10th Cir. 2006) (“The amount of information to the individuals to ensure that they are aware absence of even one of the OWBPA’s requirements invalidates a waiver.”).

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835.

June 2017 DICTA 13 LAWYER HOBBIES

By: Katheryn M. Ogle McDonald, Levy & Taylor

LAWYERS ON THE GREENS PART II Golf is a great way to get to meet and network with new business Philadelphia, both of which he notes are “awesome courses.” prospects or entertain current clients. Take a potential client out for a day Lawyers and golf have been synonymous for many years, and that of golf and you have a chance to get to know each other on a different isn’t likely to end any time soon. If you’re interested in taking up the level than the one you experience in the conference room. The conditions sport or are looking for someone to round out your foursome, there are are more personal, less formal, and probably more comfortable. Golf is always members of the KBA looking for another attorney to play. In also a great metaphor for life. As a game that brings out both the best fact, the KBA even sponsors their own annual golf tournament for local and the worst in players, you can tell a lot about a person from the way practitioners. For more information about the KBA golf tournament, they conduct themselves on the golf course. contact the KBA office. If you’re looking for an attorney to connect you Readers may recall the Lawyer Hobbies May column profiling with fellow golfers, contact the author at [email protected]. attorney Carolyn Gilliam and our shared love for the game of golf. This month’s column centers around two other practitioners who are just as fond of their time on the fairways. Local solo practitioner Robert Straight III began golfing when he was a teenager here in Knoxville. He’s played many local courses, and most frequently plays at Egwani Farms Golf Course on the Little River, as well as Ruggles Ferry Golf Club. For Bert, golfing is something that is arguably in his DNA. His grandfather, Montgomery “Bus” Harris was a longtime champion golfer at Cherokee Country Club, and his uncle Ben Harris was a golfer at The University of Tennessee. His father, Bob Straight, is also a talented linksman, who happens to be a longtime golf partner for his son. Robert recalls that when he first began playing golf, his father let him drive the golf cart on a family vacation at Hilton Head Island. It was the first time he had played golf on a course of that caliber, and the young Straight was paying more attention to his surroundings, rather than the direction of his cart. At every course where he had previously played, driving on the fairway was commonplace; however, at this particular course, that action was frowned upon. As Straight began driving up the fairway at a pretty quick pace, his father began telling him to correct the direction of the cart. He quickly overcorrected his route toward the cart path, but not before turning the cart so quickly that his father was dumped from the golf cart into a nearby sand trap. “While the golf gene may be lost on me, I do continue attempts at improving my game, and I’m great at watching professional golf,” laughs Straight. Robert enjoys watching professional golf so much that he has made two pilgrimages to the golf mecca of the Augusta National Course, which he describes as “the most beautiful place on earth.” He and his wife, Jessa, were fortunate enough to be spectators on the 18th hole of the course on Sunday afternoon of the 2014 Masters Tournament. “As soon as we arrived that day we placed our chairs on the fairway of the 18th hole, not knowing that we’d later have the opportunity to watch Bubba Watson sob his way up the fairway. It was definitely an awesome moment.” Another local attorney who can identify with Straight’s love for the links is Luke Durham of Tarpy, Cox, Fleishman & Leveille, PLLC. Luke began golfing when he was just three years old. Growing up in Nashville, Tennessee, he was a member of Richland Country Club. Like Straight, Luke’s love for golf was encouraged by his father, with whom he always played as a child. Since moving to Knoxville, Luke has continued his passion for the sport and has been a member at Cherokee Country Club for six years. He golfs every weekend, and often plays with attorneys and fellow KBA members Wade Orr, Matt Googe, and John Kizer. “Wade and Matt are both really talented golfers with 5-7 handicaps, and John and I are about the same level with a 10 handicap.” He also notes that he frequently plays with Assistant U.S. Attorney Chuck Atchley. Luke’s love for golf has also taken him to several courses out of the area. Notably, he’s played the Kiawah Ocean Course and the Trump

14 DICTA June 2017 THANKWORTHY

By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C. A CHARGE TO KEEP

Around 400 B.C., if you lived in Greece and happened to be in Twenty years later, the ABA adopted the Model Rules of Professional trouble, you wanted to find asynegoros. The synegoros was an advocate Conduct, including Rule 6.1 which informed attorneys that “a lawyer who would plead on behalf of another person if (and only if), the should render public interest legal service” “by providing professional synegoros believed in both the person and the cause.1 It was illegal to pay services at no fee or a reduced fee to persons of limited means” or by the synegoros for advocacy services and illegal for the synegoros to accept financially supporting those organizations which do.12 In 1993, Rule 6.1 payment.2 The synegoros assumed this role because they believed it was was amended to add the “aspirational goal” of providing at least 50 hours their civic duty to speak on behalf of another. They were the firstpro of legal services per year without charge (or the expectation of a charge) bono attorneys, well before the phrase pro bono publico was even coined.3 to people of limited means.13 Over the centuries, there were plenty of attorneys who gave their Tennessee’s Rule 6.1 adopts the same “aspirational goal” of 50 time and professional skills to representing people and causes without hours of pro bono service per lawyer, per year and lists a number of ways compensation. There were the cognitores, the Roman counterparts to the lawyers can achieve this goal.14 But, in 2008, the Tennessee Supreme synegoros.4 In 1495, Great Britain even enacted a law requiring attorneys Court raised the bar with its Access to Justice Initiative, establishing to provide “indifferent (impartial) justice to the poor.”5 Attorneys were the Access to Justice Commission, and tasking the Commission with assigned civil cases and were expected to represent those individuals developing a strategic plan for improving access to justice in Tennessee without a fee or risk exclusion from the bar.6 every two years.15 Since then, our Court has worked tirelessly to promote Although pro bono attorneys made their mark on U.S. history, it this initiative, and attorneys and bar associations across the state have was not until 1963 that the legal profession as a whole began making a responded. In 2015, 41% of Tennessee attorneys reported doing pro bono concerted effort to embrace and promote pro bono work as an integral work for a total of over 500,000 hours. part of the practice of law. In June 1963, President John F. Kennedy That is good news, but it begs the question: what happened to the invited 244 lawyers from across the United States to meet with him, Vice other 59%? Maybe they served and didn’t report. Maybe that aspirational President Johnson, and Attorney General Kennedy at the White House.7 goal was just an aspiration, not a goal. The purpose of this meeting was to address a very practical problem: the Recently, there has been much discussion about the federal lack of attorney influence in the civil rights movement.8 government’s proposed defunding of Legal Services Corp., a non-profit It wasn’t that no attorneys were participating in the civil rights which provides financing and other resources for legal aid organizations movement. There were many engaged attorneys, each actively doing across Tennessee and the United States. The leaders of the ABA, TBA, his or her part to represent clients on both sides of the movement. The and KBA have all been very vocal in opposing this proposal. issue was the organized bar had not taken a position on issues such as No matter where you sit on this issue, it is important to remember discrimination, segregation, and the importance of the rule of law.9 that the obligation to provide free or low-cost legal services to low- From that meeting in 1963, the Lawyers’ Committee for Civil income individuals was not placed on the LSC or legal aid organizations. Rights Under Law was born. Its stated goals were The obligation to financially support organizations which provide free or low-cost legal services was not placed on legislators. That obligation (1) to marshal the resources of the private bar, including its leadership has always rested squarely on the shoulders of the synegoros, solicitors, for public policy advocacy; barristers, attorneys, lawyers. It was an obligation the legal profession (2) to educate the public and the bar on civil rights; voluntarily undertook centuries ago, and an obligation each lawyer (3) to enlist the skills of lawyers as negotiators and mediators to help voluntarily undertakes when we join the legal profession. Those who resolve disputes; take that obligation literally and seriously are truly Thankworthy. (4) to provide pro bono legal assistance to victims of discrimination.10

With these goals in mind, attorneys across the United States got 1 Rowena Maguire, Gail Shearer & Rachael Field, Reconsidering Pro Bono: A comparative Analysis of Protocols in Australia, the United States, the United Kingdom and Singapore, 3 to work and got organized. Six years later, the ABA adopted the Model UNSW L. J. 1164, 1166 (2014). Code of Professional Responsibility, including Canon 2, EC 2-25: 2 Id. 3 Id. Every lawyer, regardless of professional prominence or 4 See id. at 1165-1167. professional workload, should find time to participate in 5 Id. at 1167. 6 Id. serving the disadvantaged. The rendition of free legal services 7 Charles T. Lester, Jr. The History of the Lawyers’ Committee for Civil Rights under the to those unable to pay reasonable fees continues to be an Law, available at https://lawyerscommittee.org/history. obligation of each lawyer, but the efforts of individual lawyers 8 Id. are often not enough to meet the need. Thus, it has been 9 Id. 10 necessary for the profession to institute additional programs See Lester, https://lawyerscommittee.org/history. 11 ABA Model Code of Professional Conduct, available at http://www.americanbar.org/ to provide legal services. Accordingly, legal aid offices, lawyer content/dam/aba/migrated/cpr/mrpc/mcpr.authcheckdam.pdf. referral services, and other related programs have been 12 Id. at Rule 6.1 (1983). developed, and others will be developed, by the profession. 13 See id. at rule 6.1 (1993). Every lawyer should support all proper efforts to meet this 14 Tenn. Sup. Ct. R. 8, RPC 6.1. 15 need for legal services.11 Tenn. Sup. Ct. R. 50.

June 2017 DICTA 15 THOUGHTS OF A JUVENILE DEFENDER ON THE 50TH ANNIVERSARY OF IN RE GAULT

May 15, 2017 marked the 50th juvenile defense lawyer should look like under But you get the point. This is all required in anniversary of the landmark Supreme Court Gault,6 and just last November released a addition to everything else that a defense lawyer decision In re Gault,1 which held that juvenile landmark report on a blueprint for juvenile needs to do well. court proceedings “must measure up to the defense delivery.7 These standards and Part of our challenge in Tennessee is essentials of due process and fair treatment”2 guidelines emphasize that every child charged figuring out how to provide this level of and guaranteed, among other rights, the right with delinquent conduct deserves to have a specialized representation in more rural areas to counsel for all children in delinquency well-resourced attorney who has specialized where there may not be enough delinquency proceedings.3 Advocates nationwide have been training on the following issues: cases for an attorney to create a practice organizing around the anniversary to celebrate dedicated to juvenile defense. However, by how far we have come in ensuring the promises • childhood mental illness; acknowledging this challenge, we must also of Gault and to reflect on how far we have left • trauma; acknowledge that it is unacceptable to rely to go. Tennessee juvenile defenders marked • race and the disproportionate on lawyers who have no specialized training, the anniversary with a year-long campaign representation of minority youth in the who merely dabble in juvenile defense, or who of activities that culminated with a defender system; meet their client the day of court. There should training, symposium and reception on April 21, • interviewing and counseling children; never be a situation in which a client pleads hosted by the University of Memphis Cecil C. • the role of counsel as a defender of the guilty to charges that will affect them the rest Humphreys School of Law Children’s Defense child (as opposed to a guardian ad litem of their natural lives because his or her attorney Clinic. who has a best interest role); believes “it’s just juvenile court” and does not Since joining the Knox County Public • dispositional advocacy, which requires in- fully understand the consequences of a juvenile Defender’s Community Law Office in 2006, I depth knowledge of not only the mental adjudication. have had the privilege of representing children health and other services available, but Furthermore, it is unacceptable that we faced with delinquency charges and helping also the appropriate level of service a child still have a high number of children waiving families navigate the scary and confusing needs and how to get those services paid counsel or going unrepresented at hearings process of the juvenile court. I have also spent for – quickly; because of the chronic judicial failure to ask a good deal of time traveling around the state • the over-arrest of disabled and minority the child if he or she wants a lawyer, instead visiting my child clients in treatment facilities children at school for disorderly conduct relying on the parents’ assertion that the child and youth development centers and talking to and assault and how to incorporate federal doesn’t need one. And it is unacceptable that defenders about challenges in juvenile courts special education law into our advocacy; we still disqualify children from having counsel across Tennessee. From this vantage point, • childhood sexual acting out, what is appointed because their families are just over I have a unique perspective into Tennessee’s normative and not normative for children, the poverty guidelines set by the court or can’t attempt to fulfillGault’s promise to children. as well as best practice approaches to afford to pay a fee for appointment of counsel. We have a long way to go to ensure due process helping children access resources and I am frustrated that we allow this to go on in and access to effective defense attorneys for navigate complex lifetime registration our courtrooms. We can and must do better for children caught up in Tennessee’s juvenile requirements if they qualify; our children. justice system. • and finally, the brain science that recent With all of these challenges in mind, I On May 20, 2016, I testified before the U.S. Supreme Court decisions (Roper,8 have four recommendations for change. Indigent Representation Task Force at the Graham,9 Miller,10 and JDB,11 among University of Tennessee College of Law as others) have relied on to hold that kids #1 STOP INQUIRING ABOUT PARENTS’ INCOME part of its “Listening Tour” of the state.4 Given are different from adults, and how this TO DETERMINE IF A CHILD GETS A LAWYER. the report released by the Task Force this past informs childhood delinquency. Lawrence – All children should be presumed indigent. April,5 it is clear to me that my testimony, Steinberg’s research is a must-read for If parents want to hire a private lawyer for their as well as the testimony of my colleagues anyone handling juvenile cases.12 Not child, they absolutely can; however, children across the state, had very little impact on only does his work look at how kids should NOT go unrepresented because of a the recommendations regarding the crisis are different from adults, but also he parent’s unwillingness to provide a lawyer or in our juvenile courts. Although the report argues that there are two “windows of because the family’s income is over the federal has some ideas I support, I don’t believe the opportunity” in a child’s life and that poverty guidelines. recommendations will be very meaningful in the experiences during infancy and early improving access to effective juvenile defense adolescence, either adverse or positive #2 ENSURE TIMELY APPOINTMENT OF COUNSEL. lawyers for children in every county in our nurturing experiences, will affect behavior – Children should have meaningful access to a state. down the road. lawyer from interrogation at the station house The National Juvenile Defender Center through the closing out of a child’s supervision has published standards on what this effective Whew. I’m sure I’ve missed something. by the State of Tennessee. In addition, before a

16 DICTA June 2017 COVER STORY

By: Christina M. Kleiser Assistant Public Defender, Knox County Public Defender’s Community Law Office

child walks into court (from detention or from 1 387 U.S. 1 (1967). 9 Graham v. Florida, 560 U.S. 48 (2010). 2 10 the lobby), the child should already have been Gault, 387 U.S. at 31. Miller v. Alabama, 567 U.S. 460 (2012). 3 Id. at 36-37. 11 J.D.B v. North Carolina, 564 U.S. 261 (2011). appointed a lawyer with enough time for that 4 See generally http://www.tsc.state.tn.us/ 12 See, e.g., Laurence Steinberg, AGE OF OPPORTUNITY, lawyer to be effective at the hearing for that IndigentRepresentationTaskForce. LESSONS FROM THE NEW SCIENCE OF ADOLESCENCE child. Presently, lawyers are appointed after 5 Liberty and Justice for All, Providing Right to Counsel (2014); see also Brief for American Psychological initial court appearances, when it is too late Services in Tennessee, Indigent Representation Task Association, et al as Amici Curiae Supporting Petitioners, Force (April 2017), available at http://www.tsc.state.tn.us/ Miller v. Alabama, 567 U.S. 460 (2012) (no. 10-9646), in the process to be a strong advocate for the sites/default/files/docs/irtfreportfinal.pdf. 2012 WL 174239 (outlining succinctly how kids are child. 6 National Juvenile Defense Standards, National different from adults). Juvenile Defender Center (2012), available at 13 See generally http://www.modelsforchange.net/ #3 COLLECT BETTER DATA. – We must keep http://njdc.info/wp-content/uploads/2013/09/ newsroom/409 & http://njdc.info/practice-policy- NationalJuvenileDefenseStandards2013.pdf. resources/state-profiles/massachusetts/. The Indigent better data on how many children waive their 7 Defend Children, A Blueprint for Effective Juvenile Representation Task Force made a site visit to right to counsel and whether judges and Defender Services, National Juvenile Defender Center Massachusetts to observe this particular defense delivery magistrates are appointing counsel to children (2016), available at http://njdc.info/wp-content/ system. 14 charged with delinquent conduct. Tennessee uploads/2016/11/Defend-Children-A-Blueprint-for- Liberty and Justice for All, supra note 5, at 23-24. Effective-Juvenile-Defender-Services.pdf. 15 Gault, 387 U.S. at 28. simply does not collect this data, which creates 8 Roper v. Simmons, 543 U.S. 551 (2005). huge gaps in truly understanding the crisis of access to defense lawyers for children.

#4 FUND A JUVENILE DEFENDER RESOURCE CENTER (OR REGIONAL CENTERS) THAT ADMINISTERS THE STATE’S JUVENILE DEFENSE SYSTEM. – Finally, I am lucky to work in one of the most well-resourced juvenile defender offices in the state, with an experienced social worker by my side and access to other specialists who can help children with school, housing, and other legal matters. But outside the larger metropolitan areas, there is no such support for front-line defenders. Tennessee should follow other successful models, such as Massachusetts,13 and fund regional juvenile defender resource centers dedicated to serving all rural and urban areas with high quality training, supervision, mentoring, and even co-counseling. The Indigent Representation Task Force recommends that a commission be set up to set standards and organize trainings.14 But this just isn’t enough. The juvenile defense function should be housed in regional centers with high quality, well-resourced, specialized counsel to cover the entire state. As we celebrate the 50th anniversary of In re Gault, I challenge all of us as a community to work together to ensure that every child charged with a delinquent act has a highly trained, adequately funded lawyer by his or her side at the earliest possible moment. Let’s work together to ensure that Supreme Court Justice Abe Fortas’ words truly do not apply to the juvenile courts in the State of Tennessee:

“Under our Constitution, the condition of being a boy does not justify a kangaroo court.”15

June 2017 DICTA 17 AROUND THE BAR

By: Debra L. House Director of Development and Compliance Legal Aid of East Tennessee JUNE OPEN SERVICE PROJECT: BEARDSLEY COMMUNITY FARM In June, the Open Service Task Force is offering a unique start their time with a tour of Beardsley and discussing Beardsley’s role in the volunteer opportunity to members of the Knoxville Bar Association. community, then open the day for volunteering. Volunteering on the farm can On Saturday, June 10, 2017, KBA members will gather at at CAC mean a lot of different things. Volunteers help with our daily farm tasks which Beardsley Community Farm to participate in a community work day. can include weeding, watering, planting, harvesting, painting, building, Beardsley Farm is an urban community farm that promotes food security shoveling, etc. All volunteers work outside for the most part, and should dress and sustainable agriculture. Since 1998, Beardsley Farm has worked accordingly”. to increase access to fresh produce in Knoxville’s food deserts through This is our first trip to Beardsley Farm. You may ask what you produce donations, educational programs, and community gardening. need to know or bring. They offer the following guidance: You should Beardsley Farm grows over 100 varieties of fruits and vegetables in bring yourself, a water bottle, clothes you can move in and get dirty, six acres of Malcolm Martin Park with the help of over 1,000 annual and closed toed shoes (no sandals). Please dress in accordance with the volunteers. weather (sunscreen, a hat, raincoat/rain pants, winter jacket etc.) We have Beardsley Farm is a program of the Knoxville-Knox County clean, running water at the farm where you can fill up your water bottle. Community Action Committee (CAC). Since 1964 CAC has We have bathrooms on site. Beardsley Farm provides all the tools and coordinated some 14 programs and services in our community that training you will need. We have plenty of gloves, but bring your own if promote family self-sufficiency and independent living for low-income you wish! and other vulnerable people. Programs include everything from Head The project with Beardsley Farm will be held on June 10th from Start to the Office on Aging, and for this opportunity, Beardsley Farm. 9:00 a.m. until noon. The Farm is located at 1741 Reynolds Street, What can you expect from this unique volunteer opportunity? First, Knoxville, Tennessee 37921. For more information about this volunteer a morning outdoors with your colleagues and friends. According to opportunity contact Deb House at 251-4956 or [email protected]. Jenna Bailey, Volunteer Coordinator at the farm, To learn more about Beardsley Farm check out their website, www. “We often have groups come to volunteer at the farm together. We would beardsleyfarm.org.

18 DICTA June 2017 barrister bullets

MONTHLY MEETINGS who donated to the Professional Clothing Drive in April! We collected Everyone is invited to attend the Barristers’ monthly meetings, which are hundreds of items that were donated to career closets at the YWCA held on the second Wednesday of every month beginning at 5:00 p.m. and Connect Ministries and to KARM. Additional thanks to the many at the Bistro by the Bijou (807 South Gay Street). The next meeting will volunteers who picked up donation boxes, sorted clothes, and delivered be held on June 14, 2017. There are many opportunities to get involved, items to our recipients! so please contact Barristers President Samantha Parris (samantha@ sparrislaw.com) or Vice President Mitchell Panter (tmp@painebickers. LAW WEEK com) for more information. The 2017 Annual Junior Judges Program was a great success, with volunteers visiting 350 Knox County third-graders to talk about ATHLETICS the Constitution and the practice of law. Volunteers and kids alike Due to inclement weather, the Barristers’ 8th Annual Corn Hole thoroughly enjoyed the program and several teachers have already asked Tournament has been rescheduled to June 22, 2017, at Bearden Beer us to come back next year. Thank you to everyone who helped make the Market. Check-in starts at 6:00 p.m. All proceeds benefit Big Brothers program a success! Big Sisters of East Tennessee. The $15 reduced rate has been reactivated until June 9. After June 9, the cost of enrollment increases to $20 per The Law and Liberty Award was presented to Marigail Mullin at the player. Registration is available online at www.knoxbar.org. Law Day Luncheon on May 3 for her work with the Knoxville YWCA. Ms. Mullin’s work in implementing the YWCA’s Victim Advocacy The Athletics Committee is currently seeking sponsors for this year’s Program, Keys of Hope Program, and After School Enrichment program charity golf tournament, which will take place at Holston Hills Country for the students of Vine Middle School warrant recognition. She truly Club on October 30, 2017. If you or someone you know is interested embodies good citizenship and is a most deserving recipient of the in sponsoring, please contact the Athletics Committee co-chairs, Luke Barristers’ highest honor. Ihnen ([email protected]) or Jeremey Goolsby (jgoolsby@ londonamburn.com). MEMBERSHIP Although the location is still TBD, the Barristers’ Summer Party will take HUNGER AND POVERTY RELIEF place on July 21. Please mark your calendars! The Hunger and Poverty Relief Committee would like to thank everyone

June 2017 DICTA 19 20 DICTA June 2017 SCHOOLED IN ETHICS

By: Alex Long Professor of Law University of Tennessee College of Law

CHEATER, CHEATER, PUMPKIN-EATER: THE ETHICS OF CHEATING ON THE BAR EXAM Starting in May and continuing into July, recent law school charges and eventually resigned. Justice Resigns in Minnesota Because of graduates, fresh from their final law school exams and graduation, will Cheating Charge, NY TIMES, March 9, 1985; Justice Accused of Cheating, glumly sequester themselves and commence studying for the Tennessee HERALD JOURNAL, Feb. 16, 1985. Bar Exam. These brave souls will eventually file into grim, cavernous Perhaps the most bizarre bar exam-cheating incident involved Laura rooms across the state and attempt to prove to bar examiners that they Beth Lamb, a lawyer for the Securities and Exchange Commission who possess the legal knowledge necessary to call themselves lawyers. But took the California bar exam in 1985. Lamb’s husband had previously sometimes how one passes the bar exam is more important than the fact failed the bar exam, so Lamb, seven months pregnant and seriously ill that one passed. at the time, dressed up her like her husband and took the bar for him. The Tennessee Board of Law Examiners’ website contains detailed Immediately after completing the exam, she entered the hospital where rules regarding the administration of the bar exam. Applicants may wear doctors induced labor. Despite all of this, Lamb earned the ninth highest sweatshirts but not hooded sweatshirts. They may have unwrapped hard score on the exam. After her deception was discovered, the State Bar filed mints, cough drops, or hard candy but not gum. Chapstick with the label disciplinary charges against her. Despite a number of mitigating factors, removed is permissible, but woe to the applicant who leaves the Chapstick the California Supreme Court disbarred Lamb. In re Lamb, 776 P.2d 765 label on. Applicants may bring “up to two tissues” for one’s nose. The (Cal. 1989). FAQ section of the website also helpfully notes that left-handed people As a final word of caution, Tennessee lawyers and bar applicants can take the exam too. should also remember that Rule 8.1 of the Tennessee Rules of What happens if an applicant breaks one of the many rules related Professional Conduct imposes a duty of candor on applicants as well as to the exam or engages in some type of misconduct during the exam? lawyers in connection with a bar admission application. Dishonesty in Obviously, a violation of exam-taking protocol may have consequences connection with the application process can and has resulted in severe for the applicant’s ability to pass the exam. But it also may raise a sanctions. See In re Jordan, 478 N.E.2d 316 (Ill. 1985) (disbarring question as to the applicant’s character and fitness to practice law. An attorney who, during the admission process, failed to include the fact that applicant taking the Ohio Bar Exam in 2014 was observed by another he had accumulated 297 parking tickets over a period of 13 months). applicant filling in bubbles on her multiple-choice answer sheet after time had been called by a proctor. The applicant admitted to having filled in one bubble on the sheet after time had been called. The Ohio Board of Bar Examiners - which apparently has some super specific rules regarding administration of the bar exam – imposed a 16.7% penalty on the multiple-choice portion of the applicant’s exam. Despite this, the applicant’s score was high enough that she passed anyway. However, the Bar Examiners also referred the applicant to the Board of Commissioners on Character and Fitness for further review. On appeal, the Ohio Supreme Court upheld the Commissioners’ conclusion that the applicant lacked the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio and denied her application. The applicant was permitted, however, to reapply at a later date. In re Application of Jia, 49 N.E.3d 1277 (Ohio 2016). That applicant at least fared better than an earlier Ohio applicant who was prohibited from ever applying for admission to the Ohio bar again after having been caught copying numerous answers from another nearby applicant and then lying about it. In re Application of Corrigan, 546 N.E.2d 1315 (Ohio 1989). It turns out that Ohio has a long a history of bar exam cheaters. Back in the 1920s, a group of ten law students who had failed the bar exam paid a court clerk to change their scores so that they would have passing grades. The conspiracy was eventually uncovered and the cheaters were disbarred. State ex rel. Turner v. Albin, 161 N.E. 792 (Ohio 1928). The bar examination process has also tripped up some practicing lawyers and judges. Justice John T. Todd of the Minnesota Supreme Court took the Florida bar exam in 1983 so that he could he practice in the state after he retired from the bench. He had previously failed the same exam the year before. Todd arranged to take the 1983 exam in a private room and decided to bring along some reference books to rely upon during the exam. He claimed he thought he was allowed to use these books during the exam. ‘’I have never cheated in my entire life,” said Todd at the time. Todd was brought up on disciplinary

June 2017 DICTA 21 ASK MCLAWYER

Question Presented: Trial courts have substantial discretionary authority in determining the propriety of final argument, and although counsel is generally given Dear McLawyer, wide latitude, trial judges must restrict any improper commentary. It is error to permit counsel of either party to present a “Golden Rule” During a jury trial, what is the function of the “Golden Rule?” argument to the jury.

Answer: What happens if you argue a Golden Rule argument in closing?

Good stories sometimes help advocates around roadblocks created “The Court finds that Plaintiff ’s counsel made an improper by the Law, but not always. For example, take the “Golden Rule” argument at the close of the liability phase of this case which followed in almost every jurisdiction. It got its name from its function. served to inflame and bias the jury, ultimately affecting the The rule forbids asking the jurors to put themselves in the shoes of one fairness of the trial, and which are curable only by granting of the parties to the action. It is called the “Golden Rule” because you a new trial. The Court finds that Plaintiff ’s counsel made are not permitted to ask the jury to do unto the parties the way they, the improper arguments to the jury suggesting they place jury, would want things done to themselves. That means that it would be themselves in the shoes of the Plaintiff, that such arguments absolutely improper in a final argument for the Plaintiff to say were substantial and an improper solicitation to the jury for application of the Golden Rule to the Plaintiffs. The Court “Well, we are asking that you award $950,000.00 for John conditionally grants the Defendant’s motion for mistrial Smith’s right arm. I know that sounds like a lot of money, and conditionally orders a new trial based on the improper but think about it for awhile. Just suppose that it would be argument of Plaintiff ’s counsel.” possible to remove your right arm without any pain at all. Which one of you would be willing to go into a doctor’s office Roberts v Federal Express Corporation, No. 02A01-9502-CV-00019, 1996 tomorrow morning and sell your right arm for $950,000.00?” WL 114489, (Tenn. Ct. App. March 14, 1996), perm. app. denied (Tenn. 1996). McElhaney’s Trial Notebook, American Bar Association, 1989.

“Ask McLawyer” is dedicated to answering questions on procedure, evidence and trial tactics in a variety of venues and subject matter. Should you have a question for McLawyer, please address the question to Ask McLawyer, c/o Marsha Watson, KBA, 505 Main Street, Suite 50, Knoxville, TN 37902 or [email protected]. Your question will then be submitted to McLawyer for potential response in this column. McLawyer is an anonymous neutral counsel dedicated to answering questions of procedure from members of the Knoxville Bar Association.

22 DICTA June 2017 LONG WINDED

By: Jason H. Long Lowe, Yeager & Brown

PROUD OF MY PROFESSION . . . AGAIN

I think that most people who know me would consider me an commander, General Telford Taylor. He argued to the general that a optimist. I tend to think that things will work out for the best, I start new trial had to be added to prosecute these members of the SS for war with the presumption that people are acting with good intent, I try to crimes. Taylor explained that resources were stretched thin and adding find the positive in most situations, and I am proud of our profession. another trial was impossible. When Ferencz persisted, Taylor told him That being said, even the most optimistic of us can be worn down over that they could add a new trial if Ferencz could prosecute it on his own, time. It has been a long year of bar service balanced with trying to keep in addition to his other duties. A twenty-seven year old attorney in a a law practice afloat and bring in new business. I have struggled to foreign country who had never tried a case in his life said “o.k.” and that find time for work, the bar and my family and I admit that I have been is how Nuremberg Trial Number Nine came into existence. discouraged a few times in the last month. Sometimes, you just need As chief prosecutor, Ferencz obtained convictions of all twenty-two someone to remind you that what we do, the grind we put ourselves Einsatgruppen commanders. Four were executed. Seventy years later, through day to day, is all worth it. Ferencz is still overcome by emotion when he talks about the atrocities he Enter Benjamin Ferencz. Sunday night, my wife and I sat down to prosecuted. Still, he does not blame the individuals, but the institution watch 60 Minutes. Mr. Ferencz was the subject of an interview by Leslie of war itself. In Ferencz view, “war makes murderers out of decent Stahl and I have to say that he provided exactly the tonic I needed. In people.” For that reason, Ferencz has spent his life advocating against case you have not heard the name, war and war crimes and trying to Benjamin Ferencz is the last living establish an international court. prosecutor of the Nuremberg Largely due to his persistence, the Trials. Now, like me, I am sure you Hague established an international are doing the math in your head criminal court in 1998. He gave right now. The trials occurred the closing argument in the first seventy years ago. Even the case prosecuted in that court, at the greenest lawyer at the time would spry age of 76. be in his mid-nineties now and He is still at it today, attending surely they would not have let a and speaking at international law brand new lawyer try some of the conventions. He has committed most important cases in the history to donating his life savings to the of the world. Well, you are right Genocide Prevention Initiative on the math. Ferencz is ninety- at the Holocaust Museum. He seven years old. He was a mere maintains an optimism that twenty-seven when he served as a is nothing short of amazing. chief prosecutor in Nuremberg Trial Number Nine. During the 60 Minutes interview, Stahl pointed out that, despite his Born in Hungary in 1920, his family immigrated to the United lifelong work, we still have war crimes, we still have genocide. She States when he was ten months old and Ferencz grew up on the Lower pointed out Rwanda and Bosnia. Ferencz told her “it takes courage East Side of Manhatten. He graduated from Harvard Law School in not to be discouraged.” He then proceeded to lecture her on all of 1943 and immediately enlisted to serve in World War II. Too small to be the advancements of society he has seen in his lifetime, including the a pilot, he served in the 115th AAA Gun Battalion where he landed on emancipation of women and same sex marriage. Ferencz was optimistic the beaches of Normandy and fought in the Battle of the Bulge. In 1945, because he sees progress. The interview ended with a smiling, optimistic he was transferred to the headquarters of Patton’s Third Army and was Ferencz explaining that, despite his age, he is still a young man and he assigned to a team that would follow troops into concentration camps to plans to stay in there fighting because he knows he is right. collect and preserve evidence of war crimes. As you can imagine, Ferencz I cannot adequately express how articulate, sincere, passionate, and saw the very worst of humanity in that position. energetic this ninety-seven year old man was. What I can do is express Later, during the Nuremberg trials, he was assigned to a team of how proud I am to be in the same profession as him. I’ll be the first to researchers in Berlin that stumbled upon a collection of documents in a admit that I can get emotional at times (not my favorite trait). Perhaps it German foreign ministry building. The documents contained reports was just the release of the stress bearing down from the week, or perhaps from the Einsatzgruppen. The Einsatzgruppen were SS units trained to it was the emotion-filled stories about the holocaust Ferencz shared, follow the German Army as it advanced on the eastern front into Russia but as the interview ended, I looked at Carol Anne. We were both and kill communists, gypsies, and Jews. The reports found by Ferencz’s speechless, and we were both crying. I like to think it was because of the team were communications detailing how many people had been killed. pride and admiration we felt for another lawyer. If you need a pick me Adding up the numbers from the various reports, Ferencz stopped up and an inspiration, do yourself a favor, google the interview and watch after he got over one million people and took the information to his it. It is, quite simply, amazing.

June 2017 DICTA 23 LIFE HACKS

By: Angelia Nystrom University of Tennessee Institute of Agriculture

THINGS TO MAKE TRAVEL EASIER WHEN THERE IS NO REST FOR THE WEARY It is almost June. I am slightly alarmed by this. The year is zipping 8. If you are traveling by airplane, pack some luggage scales. This little by, and I am wondering how I have squandered so much of the year with trick has saved me numerous times. It only took one time of having so many of my 2017 “To Do List” items still undone. It seems that the an overweight bag at airline check-in (which meant opening my Nystrom family has gone in a million different directions this year. In the suitcase to readjust and reallocate, exposing my skivvies for all the past month, Hugh has traveled to Washington, D.C. and to Nashville work to see) to learn this lesson. When we returned from Hawaii in for work, Trace visited Colonial Williamsburg with his Fifth Grade December, we had three checked bags. Each one weighed exactly 49 classmates, and I covered over 1600 miles of our beautiful state in a lbs. And we avoided overweight fees. three day stretch (which was just one of multiple trips in the past several weeks). Life seems to be happening at a more and more frenetic pace, and 9. Always have snacks and drinks. And eat local if you get the chance. I I feel a bit road weary at times. It has, however, given me an opportunity recently purchased three Diet Cokes at a hotel in Jackson, Tennessee. to hone my travel skills and learn a few tricks to make travel easier. When I got my bill at the end of the stay, I had been charged $3.50 per Diet Coke. Had I gone to the gas station that was within 1. Never pass up the opportunity to purchase gas or use a clean walking distance, I could have purchased them for $1.79 each. restroom. A large portion of my travel lately has involved trips to Although it wasn’t much, it adds up. Also, if you have the option to beautiful small towns and more remote areas. While the scenery eat at a local restaurant versus a chain, eat local. I’ve found some of is beautiful and the people are lovely, gas stations and restroom the best food comes from the little hole-in-the-wall diners in these facilities are often few and far between. If you have the opportunity small towns. Caution: after you have eaten at one of these places, to fill your gas tank and use a clean restroom, by all means take it. it might be wise to hit up the hotel health club. While the food You never know when you will get that chance again. is usually quite tasty, I am certain that it is also quite unhealthful. Almost everything that tastes good is. 2. Purchase a good scarf and keep it with you at all times. I was never much of a scarf person (I thought they were for the Europeans); 10. Never speed in Putnam County, Tennessee. Ever. Enough said. however, time and experience has changed my mind. The scarf is the Wherever your travels take you, I hope these tips and tricks are Swiss Army knife of clothing. A good scarf can dress up an outfit, useful. For now, though, in the words of Willie Nelson, “I can’t wait double as a blanket, and hide a multitude of sins (like Diet Coke to get on the road again.” down the front of your shirt).

3. Turn your suit jackets inside out and roll them up when packing. I laughed when Hugh did this on our trip to Hawaii and told him that he might be paying someone to steam his jacket when we got to Honolulu. He had the last laugh when his perfect looking jacket came out of the suitcase while my fancy dress looked like I had slept in it. If you are wondering how to do this, YouTube has great videos.

4. Use hotel laundry bags to hold your dirty clothes. When I return from a trip, I know which clothes are clean and which ones are dirty. I can dump the dirty ones in the laundry room before I ever head upstairs to unpack.

5. When packing for kids, put individual outfits in large Ziploc bags and label as to which day/time the items should be worn. I did this for Trace’s school trip, and he said it made getting dressed easier. Everything was together, and everything matched. Unfortunately for Trace, it also told me which days he did not actually wear clean clothes.

6. Use those shower caps from the hotel to cover the bottoms of your shoes in your luggage. In addition to walking through airports, parking lots, and public restrooms, my job takes me to farms and pasture fields. While I try to watch my step, things happen. Let’s leave it at that.

7. Use glasses cases to carry your phone and other chargers, as well as headphones. It is a really easy way to keep them organized, and they don’t get wound up in all of your other belongings in your bag.

24 DICTA June 2017 BILL & PHIL’S GADGET OF THE MONTH

By: Bill Ramsey Neal & Harwell Phil Hampton Founder and CEO, LogicForce Consulting

SAMSUNG GALAXY S8

We usually are very eager to be first in line to get the latest and Included on the S8 is a new feature called Bixby, Samsung’s entry to greatest gadgets when they hit retail shelves. However, when Samsung the growing digital assistant market. There is a dedicated button to bring finally released its latest smartphone model, the Galaxy S8, we were a up Bixby on the side of the phone, but the plan is for Bixby to ultimately little hesitant to purchase. We had no qualms with the glowing previews to respond to voice commands. Bixby is meant to learn the user’s habits, we had read about the S8, but we knew that acquiring the S8 meant we preferences, schedule, etc. and provide helpful information relevant to the had to give up our Galaxy S7 Edge smartphones. (We both have one, user at a particular time. This feature is obviously not fully developed along with several other phones. Actually, Bill bought the S8+.) Over as the voice recognition is not available on our S8 currently, but we the past year, the S7 Edge has been the best smartphone on the market understand that further updates will enhance the Bixby service. in our view, edging out (no pun intended) the iPhone 7 and Google Pixel Bixby is also integrated into the camera app so that you can point for smartphone supremacy. So why give up a good thing – no, a great the camera lens at an object and then click a Shopping button to shop for thing – to try something new and unproven? We were told the S8 was similar objects online. Samsung also touts a translation feature in Bixby every bit as good as the S7 and then some. We’re an easy sell, so it only that allows you to focus the camera on a document or sign and have the took a couple minutes of deliberation and we were headed home with the text instantly translated via the camera app. We had limited success in new Galaxy S8 in our bag. Would we love it? Would it catch fire, like testing these features on our S8, but we assume that the Bixby feature the Note 7? will get more robust as further updates are installed on the phone. We didn’t want to say that the S8 has made us forget the S7; but In another first, the S8 is the first phone to support the new that is exactly what has happened. First of all, the S8 is slender and sleek, Bluetooth 5 standard. What this means is that you can connect to taller than the S7 and thinner. We tend to like “taller” and “thinner,” devices via Bluetooth over a longer distance (up to 120 feet) and you can even in phones. Phone makers are continuing to pack more screen space also connect to two sets of headphones at once. Alas, no more sharing a into more compact form factors. The S8 feels smaller in your hand (and single pair of headphones while watching a movie on your phone. more accessible, especially for one-handed use); but you don’t feel like Thankfully the S8 still has the old-fashioned 3.5mm headphone you are sacrificing screen real estate in the more compact form factor. jack for those of us who still use the corded headphones. But Samsung Samsung uses what it calls an Infinity screen to create a bezel-less, did obsolete our old Galaxy power cords with the new USB-C charging slightly curved 5.8-inch display. Even the physical Home button at the port (although Samsung cordially provides a traditional USB adapter in bottom of the phone has been removed and replaced with a soft Home the box). button on the display. Aesthetically, the S8 hits all the right buttons. If Yes, we have forgotten that old Galaxy S7 model that is now sitting you are clumsy, however, you may want to buy a case for the S8. It is so on top of the recycling heap. The S8 has captured our attention and, so thin, you may lose your grip on the phone. And, since it is all glass, it is far, we really like what we are seeing. It remains to be seen how the S8 vulnerable when it is dropped from your hands. will stack up against the upcoming new iPhone release, but it is clear that One feature that we loved on our Google Pixel phone we purchased once again Samsung has moved the bar even higher. The ball is now in last year was the fingerprint reader on the back of the phone. We Apple’s court. found this placement made it much easier to unlock the phone with a fingerprint scan. Fortunately, Samsung copied this feature on the S8 and moved the fingerprint scanner to the back of the phone. Unfortunately, they placed the scanner slightly off-centered and right next to the camera lens. So, it is very easy to smudge your camera lens when trying to swipe your finger over the scanner. This is probably the only design feature on the S8 that we found to be deficient and irritating. As far as functionality is concerned, the S8 is a home run. It runs on a powerful new processor that is noticeably quicker than almost any smartphone we have tried. We are told that the S8 is the first U.S. phone that is gigabit LTE compatible. This basically means that the phone is capable of connecting to the internet at much higher speeds should the underlying provider network support those speeds in the future. The camera (which was already good on the S7) is exceptional. Taking great photos is a breeze even for amateur photographers like us. We really like the selective focus feature that allows you to focus on a particular object in the picture while blurring everything else in the background. There is a professional mode you can enable if you are an expert photographer. Selecting the various options in the camera app is much easier on the S8.

June 2017 DICTA 25 LIFE AND LAW IN HARMONY

By: Leslie L. Beale, JD Success Coach Profusion Strategies

WHEN YOU FEEL LIKE YOU’RE OUT OF YOUR DEPTH

“I can’t swim in eight feet of water,” he said. of inadequacy in the past can help us see that we’ve survived. We’ve been My son’s green eyes looked up at me and through his brimming scared, we’ve felt shaky, and we’ve made it through. We can do it again. tears, I saw fear. It didn’t matter that he’d been swimming in six feet of water (well over his five-year-old head) all summer. Recall Your Past Success. In his mind, he couldn’t swim in eight feet. It just wasn’t where he belonged. Don’t stop with just recalling your fear, however. Instead, spend I recently heard the same thing from a client who was struggling to some time focusing on your wins. overcome her procrastination at the office. Remember how you overcame adversity and achieved the goal you “What keeps you from diving in on certain projects?” I asked. were seeking. Think about how it felt to work hard and surpass your “I think it’s that they are things I haven’t done before. I just feel like I own expectations. Remind yourself that the person who tackled those don’t belong in that world. That I can’t quite keep up.” challenges and prevailed is the same person who faces a challenge today. Just like my young son, my client felt out of her depth. Just like You have won in the past, and you can win again. him, she was being asked to swim in waters where she wasn’t entirely comfortable. The fact that she was bright and successful didn’t matter. Take Action. The fact that the project was only slightly outside her comfort zone didn’t matter. In that small gap in her experience, she felt the same fears that Nothing conquers fear like action. two extra feet of water can bring to a young swimmer in a pool. For many of us, however, fear is paralyzing. When faced with a I might not be up for it. challenge we don’t feel capable of overcoming, we wait. We plan. We It seems scary and new. worry. But we don’t do. In the absence of action, however, our fear looms It might be too much for me. larger and larger. I might drown. Taking just one small action can start your momentum moving in We’ve probably all had those moments in our lives when we feel like the right direction. Doing something will remind you that you are not we’re out of depth. It could be because we’ve gotten a new promotion powerless. that comes with increased responsibilities, or a special project that pushes us out of our comfort zone. Maybe it’s even swimming into the Focus on Growth, Not Mastery. unchartered waters of networking or business development. Whatever the specific trigger, the truth is few of us escape the Once you start taking action, remind yourself that you don’t uncomfortable feeling of being asked to do something we don’t feel we have to master the skill the first time. Focus instead on getting better. are up to doing. So, how can we cope? Improvement and growth are the goal – not perfection. This shift will keep you from falling victim to perfectionism. You’ll be able to Face the Fear Honestly. expand your knowledge and skills without worrying unnecessarily about mistakes, and you’ll stay open to new skills and solutions. Too often, when we find ourselves feeling a little out of our league, Feeling out of your depth from time to time is part of being human, we struggle to admit it. We tell ourselves all kinds of other stories to but it doesn’t have to stall your success. The next time you feel like avoid facing the fact we are just plain scared. you aren’t up to the challenge you’re facing, use one or more of these Fear is a natural part of the human experience, however, and doing strategies, and you’ll find yourself able to confidently address whatever something you haven’t done before or something that stretches you a comes your way. little is a normal time to feel afraid. That being said, you don’t have to give in to your fear. Instead, do your best to put it into words. Are you afraid you will fail? Are you afraid people will mock you? Are you afraid that making a mistake doing something new will hurt your pristine track record? Whatever your fear may be, name it specifically.

Remember When You Felt This Way Before.

Regardless where you are in your career, you’ve probably faced down a fear or two in the past. You’ve pushed past your previous comfort zone. You’ve mastered a skill you thought would best you. Yet, somehow when we’re afraid, we forget those other times we’ve overcome fear. But, remembering that we’ve dealt with fear and a feeling

26 DICTA June 2017 LEGAL MYTHBREAKERS

By: David E. Long Member, McAngus, Goudelock & Courie

DOES THE THING REALLY SPEAK FOR ITSELF?

On April 5, 2017, the Tennessee Supreme Court filedEwin B. enough for a plaintiff to show that a defendant’s conduct was a possible Jenkins, et al v. Big City Remodeling, et al.1 (“Jenkins”). The case involved cause of the injury; the defendant’s conduct must be shown to be the a fire, which occurred during a remodeling project on Halloween night. probable cause.” Causation may be proven directly or circumstantially. The fire started on a back deck, which was accessible to the public. When shown by the latter, however, “…the evidence must be such that it Plaintiff sued the general contractor and two subcontractors for causation tends to exclude any other cause; in other words, it must be proven to be as well as negligence. They also alleged res ipsa loquitur against the more likely than not.”9 general contractor. After the trial court granted summary judgment to The Jenkins case is a “must read” as a primer for res ipsa loquitur. It the defendants, and the Court of Appeals affirmed in part and reversed in also tends to indirectly suggest that some sort of expert proof in some part, the case went to the Tennessee Supreme Court. The Supreme Court cases is fairly critical. While that seems an obvious statement, one should affirmed the grant of summary judgment in favor of the defendants and also focus on the methodology by which the proposed expert arrives at affirmed in part and reversed in part the Court of Appeals’ decision. her opinion. Recall that a hallmark of empirical science is the ability An interesting aspect of the case, however, is the excellent analysis to “discard,” or rule out, other potential causes in order to arrive at the by Justice Lee on the doctrine of res ipsa loquitur. We all recall the most probable cause. Simply forming an opinion of “a” cause gets one no halcyon days of “Torts 101” and Evidence in law school. We all learned to further than first base…and that should speak for itself. throw around jauntily the phrase “the thing speaks for itself ” in order to impress clients with our imagined grasp of the language of the Romans. 1 It goes over well at parties. In reality, however, “res ipsa” tends to be a bit 2017 Tenn. LEXIS 191 (Tenn. 2017, April 5, 2017). 2 Jenkins, at *4-*5; citations to other cases in the Jenkins opinion will be omitted. confusing in its application and burden of proof, etc. When does the 3 Also recall, however, one of the possible causes was arson. thing actually “speak for itself ” and what happens when it does? The 4 Jenkins, at *12. Jenkins case lays it out admirably. 5 Jenkins, at *12. 6 In Jenkins, trial experts listed a number of possible causes of the fire, Jenkins, at *13. 7 Jenkins, at *13 and *16. such as arson, improperly discarded cigarette butts (from subcontractors), 8 Jenkins, at *20. electrical issues and spontaneous combustion. Importantly, no single 9 Jenkins, at *21. cause could be established.2 Since plaintiffs had no direct proof of negligence on the general contractor’s part, they relied on the evidentiary principle of res ipsa loquitur to establish the inference of negligence. Bluntly put, the subject fire could not have occurred in the absence of negligence whether direct evidence exists or not.3 The doctrine, however, does not require an inference of negligence. The plaintiff does not get a “free pass.”4 The burden of proof does not change or shift to the defendant to rebut the assertion. The plaintiff, while not required to eliminate all other causes, must “…establish a rational basis for finding that the plaintiff ’s injury was probably the result of the defendant’s negligence.”5 Reliance on res ipsa loquitur requires plaintiff to meet three elements: (a) the event does not occur ordinarily absent negligence; (b) other potential causes must be “sufficiently eliminated”; and, (c) the negligence must be within the scope of the duty the defendant owes the plaintiff. The second element (b) can be met by “…showing that the specific cause for the event was under the defendant’s control or that the defendant was responsible for all reasonably probable causes to which the event can be attributed.”6 In the Jenkins case, the Court noted that in fire cases,res ipsa loquitur has been applied where exact causation was not known but the plaintiff could show the defendant had exclusive control of the premises or the particular instrument that caused the fire. Likewise, the Court has denied the applicability of res ipsa loquitur in fire cases where the exclusive control element was missing.7 Due to the fact that only “possible” causes were identified for the subject fire and exclusive control could not be established, the Court held res ipsa loquitur did not apply.8 In determining the negligence issue regarding the subcontractors, the Court addressed the important of establishing causation. A real “takeaway” from the case is summed up in the phrase “causation is not possibility; it is probability.” In the words of the Court, “[i]t is not

June 2017 DICTA 27 AROUND THE COMMUNITY

By: Joy Radice Associate Professor, U.T. College of Law By: Daniel Ellis Ellis & Ellis Law, P.C. ALL IN A [SATUR]DAY’S WORK ACCESS TO JUSTICE IN GRAINGER COUNTY

Even before the 9:00 start time, dozens of individuals lined the an individual can rarely afford to pay the court costs associated with a hallways of the quaint red brick church that stands behind the old charge or a conviction. Once an individual falls behind in court costs Grainger County Courthouse. The church’s pastor, Chandler Vinson, payments, his or her driver’s license is revoked, further complicating the and his congregation members welcomed them with smiles, coffee, job search, particularly in areas with little or no public transportation. and donuts, as thirteen UT Legal Clinic students, two law professors, Reinstating a revoked driver’s license can, in turn, cost hundreds of a legal secretary, and three volunteer lawyers began setting up tables, dollars. Expunging criminal charges then becomes the first step to ending powering up laptops, and organizing forms. This Saturday morning this cycle and moving toward restoring driving privileges and increasing Expungement Clinic was a collaboration between the KBA Access to employment prospects. Justice Committee, the University of Tennessee Legal Clinic, and the The process utilized by the Grainger County Expungement Clinic Tennessee Faith and Justice Alliance designed to address the problems was simple and can be easily replicated. Before the date of the clinic, encountered by individuals whose criminal records include expungeable Grainger County residents called the UT Legal Clinic’s Expungement charges and convictions. Before the day had ended, Grainger County Hotline for prescreening. Students from the clinic answered questions General Sessions Judge Lane Wolfenbarger, Court Clerk Sherry Clifton, and gathered information to enable the clerk to secure the individual’s the pro bono lawyers and students had helped dozens of people file more criminal history and court cost balance prior to the clinic. The student’s than fifty petitions to expunge charges from their criminal records and by involvement represented the first in a series of service events honoring the doing so had improved their employment potential. UT Legal Clinic’s 70th Anniversary. The Grainger County Expungement Clinic was one of five expungement clinics held in April as part of the statewide Help4Tn Day launched by the Tennessee Supreme Court’s Access to Justice Initiative. “Ensuring fair access to justice by providing legal advice to those Tennesseans who otherwise cannot afford legal representation in civil matters is the primary focus of this Initiative,” explained Tennessee Supreme Court Chief Justice Jeff Bivins in a recent speech. “Through the civil legal clinics, the citizens of our state will have a convenient place to go to get answers to their legal questions.”

After a welcome by Judge Wolfenbarger and Clerk Clifton, and a prayer by Pastor Vinson, registration began. Bill Coley, a Knoxville partner at Hodges, Doughty & Carson, and volunteer from the Tennessee Faith and Justice Alliance, explained, “Bringing legal services into churches makes sense, connecting two vocations with a ministry of service and justice who believe in second chances.” The individuals told their stories to the pro bono lawyers and students. Each one explained how he or she had made mistakes in the past, but hoped that expunging charges would offer them a new start. One man, now in his 40s, explained that although his conviction occurred when he was 19, the conviction hampered his efforts to get employment. He wanted the conviction expunged to help him be more competitive for jobs, enabling him to better support his children. One by one, the pro bono lawyers and law students identified charges and convictions that were immediately expungeable and prepared petitions for the judge to sign. Mini Expungement Clinics, like the one held in Grainger County, can end a vicious cycle. Old criminal records, including dismissed charges, hamper job-seeking efforts. During a period of unemployment,

28 DICTA June 2017 BENCH AND BAR IN THE NEWS

OFFICE SPACE AVAILABLE: This “members only” column is published • 2,870 sq ft 2nd floor office space with each month to share news and information among KBA members. Submissions should large reception area, 5 private offices, be limited to 75 words and will be edited board room, two large work-rooms/ for space and other considerations. Email offices, common rest rooms & kitchen/ submissions to [email protected] by the break room with one other tenant on the WELCOME 10th of each month. floor. Zoning C-3, Office Space Class B. NEW MEMBERS Excellent high-visibility location with views THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO of downtown Knoxville. Other tenants are a WELCOME THE FOLLOWING NEW MEMBERS: NEED GUIDANCE IN A SPECIFIC late-afternoon/evening youth music school PRACTICE AREA? downstairs (sound-isolated), and a single Charles G. Currier Charles G. Currier, Attorney-at-Law One of the best kept secrets of the Knoxville attorney. Ample parking and easy freeway Bar Association is our Mentor for the Moment access. An additional 1,500 sq ft of adjacent Garett Franklyn program. We want to let the secret out and space is available if desired. Contact Frank Moore, Ingram, Johnson & Steele, LLP make sure that our members use this wonderful Graffeo at 525-6806. resource. It’s really simple to ask a question • Furnished office space available in West Brittany L. Nestor of our helpful volunteer mentors. Log in to Knoxville. Convenient to I-40 and Nestor Law, PLLC the members’ only section of www.knoxbar. Downtown. Quiet atmosphere perfect for Jackson H. Tidwell org or check out the list in the KBA Attorneys’ sole practitioner or mediator. Contact Dana Baker, O’Kane, Atkins & Thompson, PLLP Directory and begin your search! Our easy-to- Holloway at Holloway Law & Mediation use website allows you to search by last name Center. (865) 719-1644 or (865) 643-8725 New Law Student Members or by subject area experience. New Apprentice • Office space for sub-lease at 618 S Gay St, Tammy N. Barry Mentor category now available! Suite 100. High visibility with full window Shelia V. Crosby on Gay St. Wi-fi available at no additional Anna M. Moon TLAP VOLUNTEER OF THE YEAR cost. Private office, 11’ x 10’ with large Devin Park AWARD Kara Sheridan private conference room available. Great Hannah K. Wilkins On April 8th, 2017, Knoxville attorney, John for sole practitioner or satellite office. Butler, was the recipient of the Tennessee • Corner of Westland Drive and Pellissippi Lawyers Assistance Program’s Volunteer of the Parkway. Former legal office. Excellent Year Award. The award, also known as “The condition. 3,456 Sq.Ft. Highly visible with Stephenson,” after Stephenson Todd, Kingsport Address Changes easy access to interchange. Phone system Please note the following changes in your KBA attorney and first TLAP Commission Chair, is installed. Lease or Purchase opportunity Attorneys’ Directory and other office records: given to a TLAP volunteer that has gone above available. For further information, contact and beyond the call of duty in assisting members Oliver Smith Realty (865) 584-2000. of the legal profession in crisis. Current Heather Good • A perfect office space available with signage Ritchie, Dillard, Davies & TLAP Commission Chair, Judge John Everett on Peters Road. The office has just been Johnson, P.C. Williams, had this to say about Mr. Butler renovated and ready for new occupants. BPR # 035154 606 W Main St. “John is a fine lawyer, and a credit to the legal Space offers room for two private offices Knoxville, TN 37902 profession. He is well deserving of this award.” and reception area and other area for a Ph. (865) 637-0661 Fax: (865) 524-4623 work station. The location is visible from [email protected] PARALEGAL ASSOCIATION MEETING Kingston Pike and would make a great The Smoky Mountain Paralegal Association office for an accountant, insurance agent, Julie Kuykendall will hold its monthly meeting on Thursday, Valliant, Harrison & attorney or mortgage broker, engineering Schwartz, P.A. April 13, 2017, at 12:00 pm. in the Blount firm or anyone who would like high BPR # 035219 Mansion Visitors Center. Attorney Edward H. visibility. Offers a carport for your parking 800 S Gay Street, Suite 1650 Trent of Wimberly Lawson Wright Daves & Knoxville, TN 37929 along with a paved parking lot. Carport Ph. (865) 637-0134 Jones will be presenting an Update on Overtime also has a storage closet. Rent: $900.00 per Fax: (865) 522-3525 Exemption Rules. A lunch buffet is available at month. Contact Karen Emmert at [email protected] the cost of $12/person with reservations. Please 356-5049. Will Parz contact Kati Wheatley, ACP at president@ • Office Space for Lease at 5344 N. Will Parz Law Office smparalegal.org or (865) 546-7190 for additional Broadway, Knoxville. Across from Fountain BPR # 034870 P.O. Box 7393 information and/or lunch reservations. City Park. Approximately 2,000 sq ft. Asheville, NC 28802 Present floor plan accommodates four Ph. (865) 406-3096 SEARCHING FOR A WILL offices plus a conference room and a Fax: N/A [email protected] The family of Nada Lambert Hubbs is looking reception area. Would consider dividing for the attorney who prepared her will. space. One Level. Offices on either side Zachary B. Tenry Esq. Name: Nada Lambert Hubbs The Tenry Law Firm occupied by long-term law firms. Two (2) BPR # 025724 Date of Birth: 6/23/30 Date of Death: 12/15/14 Year minimum lease required; great for 239 South Peters Road Last Known Address: 723 Metler Drive satellite office. Qualified prospects call: Knoxville, TN 37923 Knoxville, TN 37912 Ph. (865) 247-5689 (865) 805-1911. Fax: (865) 454-8363 Contact: KBA Member Bob Godwin: 688-2434 [email protected]

June 2017 DICTA 29 PRO BONO PROJECT Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee

Without the help of all of you, those of us at Legal Aid of East Tennessee would have even more on plates. This is true both of our wonderful clinic volunteers and our volunteers who accept Pro Bono cases either on a case-by-case basis or through our Pillar Law Firm programs. Now that we are about halfway through this year, which will be my first full year as Pro Bono Director, I wanted to thank all our wonderful volunteer attorneys! So far this year, the following attorneys have volunteered at our Gatlinburg Wildfire, Veterans, and Faith & Justice Alliance clinics, as well as our regular Saturday Bars in Knox and Blount counties. • Alex Johnson • Angie Snyder • Loretta Cravens • Amanda Tonkin • Barbara Johnson • Lynn Tarpy • Ashley Roberts • Ben Koyl • Mabern Wall • Benjamin Lauderback • Bennett Hirschorn • Matt Frere • Betsy Meadows • Billy Gribble • Meghan Morgan • Bill Coley • Brandon White • Michael Brezina • Brady Cody • Brenda Brooks • Michael Craig • Bryce McKenzie • Brent Snyder • Michael Davis • Chris Kawood • Brent Strunk • Michael Franz • Dale Allen • C.J. Lewis • Michael Green • David Draper • Carl Eshbaugh • Mike Hickman • David Noel • Carlos Yunsan • Mital Patel • David Yoder • Cecilia Peterson • Patrick Slaughter • Douglas Dunn • Charmaine Nichols • Paul Forsyth • Heather Banks • Cheryl Rice • Ray Lacy • Heather Banks • Chris Conner • Rick Carl • Ian Hennessey • Chris Poulopoulos • Roger Hyman • Jason Collver • Chris Ralls • Ron Rayson • Jason Long • Dan Holbrook • Roy Aaron • John Eldridge • Dan Scott • Sarah Miracle • John Lockridge • Daniel Ellis • Shannon Holland • John Routh • David Gall • Stacie Miller • John Spragens • David Luhn • Stephanie Coleman • Jonathan Blanchard • Derek Spratley • Stephen Daves • Jonathan Cooper • Donald Farinato • Stephen Garrett • Josh Ball • Eddy Smith • Steve Williams • Kaitlyn Hutcherson • Emma Drozdowski • Stewart Crane • Kati Sanford Goodner • G. Kevin Hardin • T.J. Norton • Keith Stewart • Heather Anderson • Tasha Blakney • Kenny Byrd • J. Nolan Sharbel • Ted Kern • Kevin Tonkin • James Bell • Terry Woods • Maria Gillen • Jamie Ballinger-Holden • Thomas Hale • Mark Chalos • Jeffrey Murrell • Tom Dickenson • Meagan Collver • Jennifer Morton • Troy Weston • O.E. Schow • Jeremy Miller • Virginia Couch • Rachel Hurt • Jerry Martin • Virginia Schwamm • Richard Austin • Jim Hickman • Wade Boswell • Richard Mattock • Jim Snyder • Wynne Caffey • Samantha Parris • Joel Roettger • Spencer Fair • John Elder If you don’t see your name here, there’s • Stephen Byrd • Jonathan Reed no reason it can’t be on the next list. Just call • Steve Merritt • Josh Hedrick me or e-mail me and we can find a wonderful • Tim Grandchamp • Julia Spannaus client for you to assist! • Katie Tolliver Jones And, if you see your name here, but aren’t And, thank you to all the additional • Keith Edmiston sure what case you are handling for us, you attorneys currently handling Pro Bono Project • Ken Miller probably still owe me a File Closure Report! ;-) cases for us! • Kevin Renfro Thank you all for everything you do to • Amy Hess • Larry Little help LAET and to support us!! • Andy Roskind • Lauren Strange-Boston • Andy Sneed • Lindsey Hobbs

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:[email protected] fax (865) 525-1162 30 DICTA June 2017 THE LAST WORD

By: Jack H. (Nick) McCall

Stewart, would you describe for DICTA’s readers your radio show on Q: constitutional law, Your Weekly Constitutional, and how it came about? PROFESSOR STEWART HARRIS A: Lincoln Memorial University, Duncan School of Law I happen to specialize in constitutional law. Fortunately, Uncle Bud does, too. He uses his favorite phrase, “that’s unconstitutional!” to describe pretty much anything he doesn’t like. There are many things Uncle Bud doesn’t like. And it’s remarkable how frequently the Constitution prohibits them. I bet you have an Uncle Bud, too. There are a lot of them out there, writing Letters to the Editor or posting on social media. You’ve probably chuckled at their grand pronouncements, perhaps even shaken your head in disbelief. But there’s a serious issue here. Ignorance of the law, especially our fundamental law, has consequences. It erodes our institutions. It undermines our essential values. That’s why, as lawyers, we have a duty to “further the public’s understanding of and confidence in the rule of law and the justice system.”1 Seven years ago, I noticed an opportunity to fulfill that duty in an unusual way. My local NPR affiliate, WETS in Johnson City, was changing its format from the traditional, eclectic public radio mix to a slate of news and information programs, most of which would be national – think All Things Considered and Car Talk – but some of which would be locally-produced. Hmm. That meant that WETS would need some locally-produced shows. Clearly, what WETS really needed was a locally-produced show focused upon constitutional law. A show created by me. So I sent an email message to a fellow named Wayne Winkler, the Station Manager at WETS, whose made-for-radio, basso profundo voice you’ve probably heard on your journeys east on I-40. And then I waited. After about a month, I figured I had my answer. After all, when you ask a girl to a dance, and she somehow fails to get back to you, well, you take the hint. Then, after six weeks, a miracle: Wayne sent me a reply. He liked the idea of a show focused upon the Constitution. Could I call him to discuss it? We spoke that afternoon. After several congenial minutes, Wayne asked me to come down to the station and start the development of the program. I hung up, only to realize that our brief telephone call had been my audition. Wayne needed to hear me before putting me on the air. Hey, it’s radio. A year went by, a year during which Wayne and I met nearly every week to discuss, and try out, different concepts for our new, hour-long show. I sent several demos to friends, mostly non-lawyers, whose general verdict was, at least initially, “you suck.” By the end of the year, however, we had come up with a conversational format that seemed to work. We decided to focus upon one major issue per episode, with one or two guests (no sound bites here) interspersed with shorter features to break things up. We began broadcasting Your Weekly Constitutional on March 1, 2011, with an episode entitled “The Constitutionality of Secession.” And then we were off and running, doing episodes on everything, as we like to say, from Gay Rights to Gun Rights. Within a few months, another miracle: I found an underwriter, the Robert H. Smith Center for the Constitution at James Madison’s historic home, Montpelier. I had worked with the Center’s staff on an educational program called “We the People,” so I knew its new Director, Doug Smith. Doug was enthusiastic about using radio and social media to extend the Center’s reach. Soon we started a Facebook page (over 50,000 fans and counting) and made the show available as an iTunes podcast (over 350,000 downloads last year) and, yes, like our new President, we joined Twitter. We quickly became the most popular non-drivetime show on WETS, where we are broadcast twice each week, at 3:00 PM Sunday and 8:00 PM Tuesday. Indeed we often garner more listeners than national shows like This American Life, which follows us on Sunday afternoons. Other public radio stations have picked us up, from New York to Texas. Here in Knoxville, we are broadcast on WUOT-2 on Monday evenings at 7:00 – you can listen on either HD radio (if you have one) or at wuot.org. What a ride it’s been. I’ve interviewed a United States Senator, a sitting Governor, and many other fascinating people, from law professors to public officials, to ordinary people affected by constitutional law. I’ve also interviewed a number of judges, including a fellow named Gary Wade, who told me what it was like to be the Chief Justice of Tennessee’s Supreme Court. Gary and I got on famously. In fact, we enjoyed each other’s company so much that, last year, the Judge, who is now the Dean at Lincoln Memorial University’s Duncan School of Law, offered me a job. So now I teach at LMU in Knoxville, even as I continue to make the trip each week to Johnson City to produce my radio show. I should say “shows,” because a couple of years ago, Wayne and I started producing a second, daily show, which lasts only 90 seconds and which is broadcast during the morning and evening drivetimes. Your Daily Constitutional is obviously too short to offer any depth, but it does, we hope, bring up interesting issues in a way that gets people thinking. It seems to work – many of our listeners tell us that they tune in every day – and some of them even time their commutes by our broadcasts. So if you’ve got something constitutional to discuss on the radio, drop me a line: [email protected]. I’ve got recording equipment in my office, and it’s just waiting for you to share your wisdom, your humor, and your appreciation of our Constitution. Don’t be shy – it’s fun. And it’s your duty. And maybe, just maybe, Uncle Bud will be listening.

1 Tennessee Rules of Professional Conduct, Rule 8, Preamble.

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at [email protected].

June 2017 DICTA 31 NON-PROFIT ORG. US POSTAGE PAID KNOXVILLE, TN P.O. Box 2027 PERMIT NO. 6 5 2 Knoxville, TN 37901