MAY 2014 | VOLUME 50, NO. 5 TBA.ORG

BDrO YaOU NnEEDc TO h Out? Your Law Degree is More Flexible Than You Might Think

ALSO : Be a Voice in the Coming Elections Orwell — The Best Stylebook for Lawyers and Judges Electronic Surveillance in Family Law

MAY 2014 VOLUME 50, NO. 5

COVER STORY 12 Your Flexible Law Degree These Lawyers Branched Out into Careers They Are Passionate About by Suzanne Craig Robertson

FEATURE STORIES 20 The Best Style ‘Handbook’ for Lawyers and Judges George Orwell’s Classic Essay on Writing by Douglas E. Abrams

3 PRESIDENT’S PERSPECTIVE We Must Be a Voice in the Coming Elections! by Cynthia Richardson Wyrick 4 LETTERS JEST IS FOR ALL by Arnie Glick

5 YOU NEED TO KNOW NEWS: Bivins Is New Supreme Court Justice SUCCESS! | PASSAGES | LICENSURE & DISCIPLINE 28 FAMILY MATTERS Electronic Surveillance in Family Law by Marlene Eskind Moses with Manuel Benjamin Russ 31 PAINE ON PROCEDURE The of Paul Dennis Reid Jr. by Donald F. Paine

ON THE 32 DAY ON TORTS COVER A new study indi - Tenn. Code Ann. §20-1-119 and Federal Courts cates that fewer by John A. Day lawyers are prac - ticing traditional law than ever before. 34 THE LAW LAUNCH PROJECT Nashville lawyer Terry Price is one who has chosen a 36 BUT SERIOUSLY, FOLKS! different path with When “Free Speech” Becomes an Oxymoron Take a picture of this with his writing and by Bill Haltom your smart phone and read mentoring other the Bar Journal writers. Photo by at www.tba.org Barry Kolar. 38 CLASSIFIED ADVERTISING MAY 2014 VOLUME 50, NO. 5 JOURNAL STAFF EDITORIAL BOARD SUZANNE CRAIG ROBERTSON , Editor ANDRÉE SOPHIA BLUMSTEIN , Nashville, Chair Follow us [email protected] WADE V. DAVIES, Knoxville LANDRY BUTLER , PAUL A. GONTAREK, Nashville Publications & Advertising Coordinator SCOTT GRISWOLD , Knoxville on Twitter! [email protected] SUZANNE LANDERS , Memphis KAVITA GOSWAMY SHELAT , Memphis BARRY KOLAR , Assistant Executive Director LAURA S. WOODS , Kingsport [email protected]

THE TENNESSEE BAR JOURNAL is listed in the INDEX TO LEGAL PERIODICALS . Tennessee Bar Journal , ISSN 0497-2325, is published by the Tennessee Bar Association at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219- 2198, (615) 383-7421, monthly. Periodicals Postage Paid, Nashville, Tenn. Subscription price: $60 per year. Members: $22 per year. Individual issues: $10 per copy. Back issues sold on an “as available” basis. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff. POSTMASTER : Send address correction to Tennessee Bar Journal , 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198. © COPYRIGHT 2014 TENNESSEE BAR ASSOCIATION ADVERTISING POLICY: While the Tennessee Bar Journal attempts to confine its advertising to legitimate busi - ness endeavors, the statements and material appearing in the advertisements are solely the responsibility of the advertiser. The Journal and the Tennessee Bar Association do not directly or impliedly endorse, support or vouch for the authenticity of any representation made in any advertisement appearing herein. The Journal does not intend to accept any advertising material that is false and misleading. The Journal reserves the right @TennesseeBar to refuse an advertisement it deems inappropriate. e Tennessee Bar Association provides CHANGE OF ADDRESS: If your address has changed, please notify the Tennessee Bar Association at 221 Fourth Ave. quality CLE, timely information and N., Suite 400, Nashville, TN 37219-2198, so your address will be updated for the Tennessee Bar Journal and other TBA publications. advocacy for the profession. TBA Assistant Executive BOARD OF GOVERNORS Director Barry Kolar CYNTHIA RICHARDSON WYRICK , Sevierville, President; JONATHAN O. STEEN , Jackson, President-Elect; WILLIAM L. HARBISON , Nashville, Vice Pres - tweets what you want to ident; JACQUELINE B. DIXON , Nashville , Immediate Past President; SHERIE know so you can keep EDWARDS , Brentwood, Treasurer; JASON PANNU , Nashville, Secretary; up with the profession. TENNESSEE BAR JASON LONG , Knoxville, Governor (Position 1); ANDREW ASSOCIATION ROSKIND , Knoxville, East Tennessee Governor (Position 2); GARY SHOCKLEY , Nashville, Governor (Position 1); JAMES R. CARTIGLIA , Nashville, Middle Tennessee Governor (Position 2); MICHELLE SELLERS , Jackson, Governor (Position 1); BRIAN @TennBarJournal FAUGHNAN , Memphis, West Tennessee Governor (Position 2); ERIN MCARDLE , Jonesborough, e Tennessee Bar Journal is the monthly Governor/1st District; TASHA BLAKNEY, Knoxville, Governor/2nd District; CHRIS VARNER , Chattanooga, publication of the Tennessee Bar Governor/3rd District; DONNA PIERCE , Sewanee, Governor/4th District; MARY DOHNER SMITH , Association. Its editor, Nashville, Governor/5th District (Position 1); DAN BEREXA , Nashville, Governor/5th District (Position 2); KIM HELPER , Franklin, Governor/6th District; JASON CREASY , Dyersburg, Governor/7th District; CARL Suzanne Craig CARTER , Memphis, Governor/8th District; CHARLES L. TROTTER JR. , Huntingdon, Speaker/House of Robertson, tweets news Delegates; DAVID MCDOWELL , Chattanooga, President/TBA Young Lawyers Division; STACIE and tips about writing, WINKLER , Memphis, President-Elect/TBA Young Lawyers Division; HON. JERRI BRYANT , Athens, Presi - the law and more. dent/Tennessee Judicial Conference; District Attorneys General Conference representative to be deter - mined; CAMPBELL SMOOT , Tullahoma, President/District Public Defenders Conference; PAUL NEY, Nashville, General Counsel.

@TBAMaven TENNESSEE BAR ASSOCIATION STAFF e Membership Maven is the alter ALLAN F. RAMSAUR , Executive Director; BARRY KOLAR , Assistant Executive Director; JOSIE BEETS , ego of Tennessee Bar Association’s Public Policy Coordinator; KAREN R. BELCHER , Executive Assistant; DENISE BENTLEY , Youth Court Coordinator; KAISHA BOND, CLE Coordinator; LANDRY BUTLER , Publications Coordinator; THERESE Membership Director, Kelly Stosik. BYRNE , Director of Meetings; CHRISTY GIBSON , Sections and Committees Coordinator; PAM Let’s get the most out JOHNSON NOLAN , Financial Administrator; JENNY JONES , Sections and Committees Coordinator; of membership and STACEY SHRADER JOSLIN , Media Relations and Young Lawyers Divison Director; LAUREN HOPPER LEE, CLE Coordinator; STEVE KING , A/V & Webcasting Coordinator; LINDA MURPHY , Receptionist; have some fun! LYNN POINTER , Programs Administrator; SUZANNE CRAIG ROBERTSON , Editor, Tennessee Bar Journal ; BRITTANY SIMS , Leadership Law Coordinator; KELLY STOSIK , Membership Director; MINDY THOMAS-FULKS , Director of Continuing Legal Education; ELIZABETH SLAGLE TODARO , Access to Justice and Public Education Coordinator; and TANJA TREZISE , Customer Service Coordinator/ Accounts Receivable.

2 | TENNESSEE BAR JOURNAL MAY 2014 PRESIDENT’S PERSPECTIVE BY CYNTHIA RICHARDSON WYRICK We Must Be a Voice in the Coming Elections! I am sure I do not have to tell you that judicial elections are on the horizon. After all, you see the campaign signs everywhere you look, and each day at mail call you receive additional solicitations for contributions to various judicial campaigns. Many of you give generously to support candidates who you believe will make (or continue to be) outstanding

jurists. By doing so, you tell yourself that community and make one or more you have done your part to contribute to presentations to groups about the impor - the cause of justice as it relates to the tance of a fair and impartial judiciary and Get out in the community judiciary. I would tell you that, in fact, the qualities that make someone a good making campaign contributions is only judge. Include information about the and make one or more the beginning of our obligation to ensure things that judges and judicial candidates that our citizens have access to a fair and are prohibited from doing during a presentations to groups impartial judicial system. campaign. Explain that those who don’t about the importance Sadly, the schools across our state offer follow these rules would not actually be a little in the way of civics education. You good judge because they have already of a fair and impartial would be amazed to learn just how many shown a disregard for the law. people cannot even recite the three You may be thinking that despite the judiciary and the branches of our government as a result of worthy nature of this cause, you simply do qualities that make this void. Given this lack of information not have time to gather the information about even the most basic principles of our and prepare a presentation. Fortunately, someone a good judge. government, is it realistic to think that the there is no need because the TBA has average citizen has an understanding of the already done that for you. You need only Go to tba.org, and click qualities to consider when determining go to tba.org, and click on the link to the on the link to the 2014 whether a candidate would likely to be a 2014 Tennessee Judicial Selection Informa - good judge? When people have no frame - tion Center. There, you will find every - Tennessee Judicial work by which to “judge the judges,” they thing from the qualities that make a good are particularly susceptible to messages judge, to the list of those who have signed Selection Information which unjustly criticize judges and judicial the TBA’s Tennessee Fair Judicial Code of candidates. For instance, we as lawyers Conduct, to the evaluations and recom - Center. There, you will know that it is absolutely inappropriate for mendations of the Judicial Evaluation find everything you need. a judge to announce how he or she would Commission regarding our Supreme Court rule on a particular issue as part of a Justices and Appellate Court judges. campaign; yet, it is fair to say that most Speaking of appellate court elections, members of our communities do not as a profession, we often overlook appreciate this limitation. involving ourselves in appellate court The good news is that each of us can retention elections, assuming that we do make a meaningful difference on this front not need to lend our voices to the races as with fairly limited effort, and with the the judges do not have an “opponent”. additional benefit of doing some Nothing could be further from the truth. marketing in the process. I would ask that What you may be surprised to learn is that between now and August (and even approximately 29 percent of people will before the May primaries, if possible), vote against retention just because they each of our members get out in the Continued on page 4

MAY 2014 TENNESSEE BAR JOURNAL | 3 LETTERS OF THE LAW PRESIDENT’S continued from page 3

know nothing about the judges on the He Was Always Willing to Help would sometimes even fail to file their ballot, and a significant percentage will Ramsay A. Leathers was appointed briefs before oral argument. So Ramsey not vote at all for the same reason. Clerk, a position and the court had to require all requests Whether a voter casts a vote to retain or to that included serving as clerk to all for more time to be presented to a replace, our goal must be for each of those Tennessee appellate courts, as well as Clerk member of the court. to be a fully informed vote. to the Court of the Judiciary and Clerk to Since Ramsey’s retirement in 1982 The public needs and deserves to be the Board of Professional Responsibility. He several excellent clerks have served the educated about appellate races just as retired in 1987 after more than 20 years of appellate courts and the entire bar very much as they do about local judicial races. service. He died March 28 at the age of 93. well. But Ramsey stands out in the Not nearly enough of the Tennessee elec- Read his obituary on page 9. memory of all of us who worked with torate understands how our appellate him until his retirement in 1987. He judges are selected, and evaluated after From my appearance before the was always friendly and accessible. A they are selected. It is important to let Tennessee Supreme Court at my true gentleman, he was what every members of our communities know that all swearing-in ceremony in 1965, and for public servant should be. of our Supreme Court justices and Appel- the next 22 years, I had the honor and — Landis Turner, Hohenwald, Tennessee late Court judges who will be on the ballot pleasure of interacting regularly with Bar Association president 1988-89 in August were selected after undergoing the high court’s clerk, Ramsey Leathers. vetting through a merit selection system He was always willing to help lawyers, Eating (Nonpoisonous) Crow designed to determine whether they especially young ones, when they I received the April 2014 volume of the possessed the characteristics and qualifica- needed help in complying with appel - Tennessee Bar Journal. You do an excel - tions to be a good jurist. The electorate late rules. If we had a decent reason to lent job! However, I am constrained to should also know that these judges are ask, he gave whatever assistance he point out that the picture on the cover is then evaluated by the Judicial Evaluation could when we needed extensions of of a relatively harmless boa constrictor Commission, who seeks input from the time for filing briefs. (In my early years and certainly not a “Poisonous Serpent.” lawyers who have appeared before them. of practice the clerk could grant exten - Best to you. There is no other profession as well- sions.) Some of my brother and sister — Hoyt O. Samples, Chattanooga suited as ours to educate voters about practitioners abused the privilege, and evaluating judicial candidates and casting an informed ballot. For these reasons, and many others, it is crucial for our profes- WRITE TO THE JOURNAL! Letters to the editor are welcomed and considered for publication sion to be as engaged in appellate elec- on the basis of timeliness, taste, clarity and space. They should be typed and include the author’s name, address and phone number (for verification purposes). Please send your tions as it is in those where there are comments to 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198; FAX (615) 297-8058; multiple candidates in the race. EMAIL: [email protected]. The Tennessee Bar Association has a long-standing policy of not taking posi- tions on behalf of any candidate in judicial races; however, we are all too well aware of how important it is for our individual members to be involved in the process. At the same time, the TBA takes a very active role in educating voters about the impor- tance of a fair and impartial judiciary, and also in defending the judiciary against unjust criticism. We will continue to do our part but simply must have every member participate with us. In this area, as in so many others of critical importance to the cause of justice, “Together We Make a Difference!”

TBA President CINDY WYRICK practices law with Ogle, Gass & Richardson PC in Sevierville.

4 | TENNESSEE BAR JOURNAL MAY 2014 YOU NEED TO KNOW FOR THE RECORD

TBA President Veile, Sheppeard George T. “Buck” Elected to Board Lewis, a shareholder Tennessee Bar Asso - with Baker, Donel - ciation members son, Bearman, Cald - have elected two well & Berkowitz. new members to the Board of Governors. More than 100 religious leaders and legal professionals gathered for the Tennessee Faith & Justice ELECTIONS For Middle Grand Di - Alliance Summit at Lipscomb University. The Alliance is made up of faith-based groups that commit to Kingsport Lawyer vision Governor, Posi - provide legal resources to their congregations and communities. The Rev. Edwin C. Sanders II, founder of to Lead YLD in tion 2, Franklin attor - Nashville's Metropolitian Interdenominational Church (left), summit speaker Bruce Strom, ATJ Commis - sioner Billye Sanders, who also serves as chair of the Faith-Based Initiative Committee and Rev. James 2016-2017 ney David Veile of Davis from Mt. Zion Baptist Church. Photo by Liz Todaro. Kingsport lawyer Schell & Davies LLC Rachel Ralston will fill the post for BIVINS IS NEW SUPREME ACCESS TO court require pro Mancl, an attorney the upcoming year. COURT JUSTICE JUSTICE bono reporting with with Hunter Smith & For East Grand Divi - Davis LLP, will lead sion Governor, Posi - Criminal Appeals Court Judge Jeff Bivins Plan Focuses on annual registrations the TBA Young tion 1, Knoxville attor - will be the next person to join the Analysis, Rural but emphasizes that Lawyers Division ney Sarah Sheppeard Tennessee Supreme Court, Gov. Needs, Family reporting is not a (YLD) in 2016-2017. of Sheppeard & My - Bill Haslam announced Law The Ten - gateway to manda - Mancl will take of - natt PLC will fill the April 4. Bivins will replace nessee tory pro bono service fice in June as vice position. Both will Justice William C. Koch Supreme and that the report - president, and then take office during the Jr., who is retiring July Court's Ac - ing will be strictly assume the office of TBA Annual Conven - 15, 2014, to become cess to Jus - confidential. One Hon. Jeff president-elect in tion in Gatlinburg this dean of the Nashville tice Commis - other goal is to Bivins 2015 and president June. Voting took School of Law. Bivins, 53, sion has launch 20 new faith- in 2016. She was place between Feb. was appointed to the Tennessee released a new based initiatives in deemed elected af - 24 and April 1, with Court of Criminal Appeals in 2011. He strategic plan that the next two years ter the filing dead - results tabulated by was a circuit court judge for the 21st Judi - assesses legal needs through the Ten - line passed with no an independent ac - cial District, which serves Williamson, across the state and nessee Faith and opposition. Mancl counting firm. Hickman, Lewis and Perry counties, analyzes how well Justice Alliance has been active in before his appointment to the Court of those needs are be - (TFJA). the YLD for a num - COURTS Criminal Appeals. He serves as a member ing addressed by ex - University of Ten - ber of years, serving Report: More of the Board of Judicial Conduct and is the isting programs. De - nessee College of as District 1 Repre - Special Interest moving vice president of the Tennessee veloped as a Law Dean Douglas sentative and coor - Money in Judicial Judicial Conference. A Kingsport native roadmap to guide Blaze became chair dinator of the Wills Elections Spending and Vanderbilt Law graduate, Bivins prac - the commission’s of the group April 1, for Heroes initiative by special interest ticed at Boult Cummings Conners & Berry work through 2016, and Miller & Martin in the eastern divi - groups continues to in Nashville before making his way onto the plan also identi - Chattanooga lawyer sion of the state. rise in judicial elec - the bench. He is a 1986 graduate of fies two targets for and former TBA She also is a mem - tions, accounting for Vanderbilt University School of Law. He increased services: President Marcy Ea - ber of the TBA’s cur - 27 percent of all the received his undergraduate degree, magna rural areas and fam - son became the new rent Leadership money spent on the cum laude, in 1982 from East Tennessee ily law. The plan also vice chair. Blaze re - Law class. races in 2011 and State University in political science, with a includes a recom - places Memphis minor in criminal justice. mendation that the lawyer and former continued on page 6

APRIL 2014 TENNESSEE BAR JOURNAL | 5 ABOVE: The job news for 2013 law grads was slightly Executive Director Michele Johnson takes a supporter on a tour of Tennessee Justice Center’s newly remod - better than eled offices during the March 27 Open House, stopping to admire the wall of photos honoring 13 years of the year “Mothers of the Year.” TJC hosted the event to show off the center’s updated space and to thank the before, one many volunteers, donors and friends for their support following the January flood caused by a frozen, study says. broken sprinkler pipe. The improvements include new paint and carpet, gently used furniture and tech - LEFT: Your nology updates donated by local law firms, businesses, churches and non-profits. Photo by Liz Todaro. Profes - sional Priv - ilege Tax continued from page 5 must be 2012, according to a should not be filed elec - count on new report by a Jus - subject to review in tronically by June. 1 the law tice at Stake partner post-conviction pro - organization. This is a ceedings. The case is Tennessee’s Access to Justice sharp increase from Jose Rodriguez A.K.A. Commission released its 2013 Pro the 16 percent seen in Alex Lopez v. State of PRACTICE positions at a slightly Bono Report, which indicates the 2003 and 2004 Tennessee. Professional Tax higher pace than that about 42% of attorneys elections, which held Must Be Filed Elec - those from the year licensed in Tennessee voluntarily the previous high in TBA Files Petition to tronically All profes - before, the American reported doing some pro bono outside spending. Amend Judicial Re - sional privilege tax Bar Association re - work in 2012. The report has de - cusal Rule The Ten - returns, due June 1, ported April 10. In These attorneys reported tailed information nessee Bar Associa - must be filed electron - data compiled by the 672,976 hours of pro bono about judges who tion filed a petition in ically. Taxable profes - ABA’s Section of Legal raised the most April to amend sionals holding an Education and Admis - service total — an average of money and donors Supreme Court Rule active license in sions to the Bar, 57 73.8 hours who gave the most, 10B governing the Tennessee must pay percent of the class of per attorney. and it also identifies handling of all mo - the $400 tax. 2013 — the largest funding trends. tions for the recusal or More informa - Gavel Grab reported disqualification of tion on Find the links and more details for these the news. judges. As part of this Tennessee’s stories at tba.org/ proposed amendment, professional journal_links Court Rules on the TBA recommends privilege tax is Judicial Diversion the court clarify that at www.tn.gov/ graduating class ever In a unanimous opin - the proper standard of revenue/tntaxes/ — had jobs requiring ion, the Tennessee review for any appel - proftax.shtml. bar passage compared Supreme Court in late review of the de - to 56.2 percent in April ruled that a nial of recusal mo - Employment Up 2012. Another 10.1 guilty plea expunged tions is de novo, Slightly for New percent of graduates after successful com - rather than abuse of Law Grads Law landed jobs where a For more pletion of judicial di - discretions. school graduates last law degree was an information, version is not consid - year obtained long- advantage. That is visit www.justiceforalltn.com ered a conviction, and term, full-time legal also up slightly.

6 | TENNESSEE BAR JOURNAL APRIL 2014 YOU NEED TO KNOW SUCCESS!

cruiting Committee. vice president and Former U.S. Attorney General Alberto Gonzales will be the new dean general counsel of for the Belmont University College of Law, effective June 1. The news Stephen H. Biller of Memphis Light Gas & comes on the heels of founding Dean Jeff Kinsler’s announcement that The Biller Law Firm Water Division, and he has decided to become a full-time faculty member. Gonzales joined and Timothy R. as vice chancellor at Belmont in 2012 and has taught courses in constitutional law, separation Johnson of The the University of Ten - of powers, national security law and First Amendment law. Kinsler came Johnson nessee Health Sci - to Belmont in 2009 to lead it in the process of establishing the law Law Group ence Center. school. The college received provisional accreditation from the American have an - Bar Association on June 8, 2013, and will graduate its first class May 10. nounced Stites & Harbison their affilia - has hired patent at - tion. The Biller torney Rebecca Baker Donelson re - Memphis office as of agreements and de - William E. Young of pair will Barnett as counsel cently announced counsel in the Intel - veloped physician Nashville. Other new maintain an in its Intellectual that Nashville share - lectual Property practice structures. fellows are S. Leo office at Property & Technol - holder Christy Tosh Group. A registered Arnold , Dyersburg; 1000 Ridge - ogy Service Group. Crider has patent attorney, The Tennessee Bar Lisa M. Carson , way Loop Johnson Barnett will work in been named Alexander has been Foundation inducted a Franklin; Steven A. Rd., Suite the firm’s Memphis chair of its an adjunct professor new class of fellows Dix , Murfreesboro; 305, Memphis 38120. and Nashville offices Women’s at the University of in January. TBA mem - Sherie L. Edwards , They will continue to and will focus on bio - Initiative. Memphis School of bers among them are Brentwood; Edward practice in their re - logical, chemical and Crider, who Crider Law since 2012. Jerri S. Bryant and K. Lancaster , Colum - spective areas of la - mechanical arts also chairs the firm’s Jerry N. Estes of bia; Charles L. Trot - bor and employment; patents. Prior to join - Long-Term Care In - Eileen Schoen Athens; Cynthia D. ter Jr. , Huntingdon; estate planning; civil, ing the firm, she was dustry Service Team, Githens , vice presi - Hall, Christine M. and Jack M. commercial and con - an associate with a will focus on recruit - dent and chief opera - Sell, Rheubin M. Vaughn , Kingsport. struction litigation; boutique intellectual ing, promoting and tions coun - Taylor and Joseph and product liability. property retaining female pro - sel for R. White of Chat - Burr & Forman part - firm in fessionals. The firm Hospital tanooga; Brandon ner Bryance Odell Horton Jr. , a Nashville. also recently named Corporation O. Gibson and Metheny has been partner with Wyatt, Stites & two new members to of America James I. Pente - named to the Ten - Tarrant & Combs, has Harbison its board of directors. (HCA), has Githens cost of Jackson; nessee been appointed to also re - Barnett They are Russell W. joined the faculty of Wade V. Davies, Chamber of the Board of Profes - cently an - Gray , managing the Nashville School Jason H. Long and Commerce sional Responsibility nounced shareholder of the of Law as a health M. LeAnn Mynatt of & Industry’s by the Supreme that Chattanooga office, law instructor. Knoxville; Brian S. 2014 Board Court of Tennessee. Robert C. and Tonya Mitchem Githens has served at Faughnan, of Directors Metheney Horton, who chairs Goodrich Goodrich Grindon , HCA since 1996. She Clarence Halmon for a three- Wyatt’s Diversity Jr. , a part - chair of the previously worked in and Amy M. Pepke year term. Metheny Committee, handles ner in the Nashville Securities/ private practice of Memphis; and focuses his practice governmental issues, office, has been ap - Corporate where she negoti - Frank Grace Jr., on labor and employ - corporate pointed to a four- Governance ated managed care Jeffrey S. Henry, ment in the firm’s law and liti - year term as a direc - Grindon Group. The agreements, de - Michele M. John - Birmingham, Ala., of - gation. Prior tor of the Mid-South firm also announced fended health care son, Robert S. Pat - fice. He also is the to joining Commercial Law In - that Tony Alexan - fraud cases, prepared terson, James L. firm’s hiring partner the firm, he stitute. He practices der has joined the hospital service Weatherly Jr. and and chair of the Re - served as Horton in the firm’s Credi - continued on page 8

APRIL 2014 TENNESSEE BAR JOURNAL | 7 SUCCESS! Barbara firm of Gearhiser, tains a liti - board of directors. continued from page 7 Moss has Peters, Elliott & Can - gation formed her non has named practice McAngus Goudelock tors’ Rights & Bank - Counsel. Pope prac - own law Eleanor G. LaPorte with an & Courie, a regional ruptcy Service Group. tices in the areas of firm, Elder Moss as a member of the emphasis Taylor insurance defense tax litigation and Law of Nashville, to firm. LaPorte, a grad - on defending govern - firm, has opened new Justin E. Mitchell bankruptcy. Prior to help seniors and their uate of the University mental entities in civil offices in Memphis of Memphis has relo - joining the firm, he families plan for dis - of Mississippi School rights, tort, wrongful and Oxford, Miss. The cated his office to served in the IRS Of - ability and death. She of Law, death, medical mal - firm, which is head - 1661 International fice of Chief Counsel. also will help seniors practices in practice, uninsured quartered in Colum - Place Dr., Suite 400, qualify for public ben - the areas of motorist and em - bia, S.C., has hired Memphis 38120. The Nashville law firm efits. Moss previously business ployment issues. Thomas Cassidy and Mitchell will continue of Ortale, Kelley, Her - was associated with transac - Scott Vincent for the to handle civil and bert & Crawford relo - Norris & Norris. The tions, com - LaPorte Erin Melton Shea Memphis office. Cas - business litigation, cated offices March new firm is located at mercial has joined the Mem - sidy will focus on trusts, estates and 17. The firm’s new ad - 4525 Harding Pike, leases, private foun - phis law firm of workers’ compensa - medical malpractice. dress is 330 Com - Suite 200, Nashville dations, taxation and Wiseman Bray, where tion, employment, in - merce St., Suite 110, 37205. Contact Moss estate planning. she will focus on gen - surance, transporta - Nashville lawyer Nashville, TN 37201. at (615) 852-5602, eral civil liti - tion and professional William Robert All telephone numbers barbara@elderlawof - The Knoxville law gation. Shea and premises liability Pope Jr. , a member and email addresses nashville.com or at firm of Taylor & practiced litigation. Vincent with White & Reasor, remain the same. The www.elderlawof - Knight has named with Rainey, will handle general has been elected a firm’s website is at nashville.com. Jonathan Swann Kizer, Re - and commercial liti - fellow in the Ameri - www.ortalekelley.com. Taylor a partner in viere & Bell Shea gation including pro - can College of Tax Nashville attorney The Chattanooga law the firm. Taylor main - from 2004 to 2014. fessional, premises and product liability as Attorney John T. well as workers’ com - Blankenship , with pensation defense. offices in Murfrees - boro and Franklin, is a National labor and co-author of two employment law firm chapters in the re - Constangy, Brooks & cently published book Smith has named Bel - The College of Com - mont College of Law mercial Arbitrators student Charmarcus Guide to Best Prac - Floyd Sr. as its 2014 tices in Commercial Diversity Scholars ANNOUNCEMENTS Arbitration, Third Edi - Award recipient. Floyd, tion (JurisNet LLC a second-year student 2014). Blankenship at Belmont, was rec - contributed to chapter ognized for his dedica - 4, “Arbitrator Fees tion to diversity and Expenses,” and awareness, service as Chapter 13, “Intratri - chair of the Student bunal Relations.” He Bar Association’s Di - is the first Tennessee versity Committee and arbitrator to be work with Organized elected a Neighbors of Edge - fellow of Hill, a non-profit com - RESERVE YOUR SPACE TODAY! the group munity improvement and cur - organization. Each rently year, the firm awards serves on its Blankenship a $2,000 scholarship

8 | TENNESSEE BAR JOURNAL APRIL 2014 to a law student in one lege of Law, joins the of the states where it firm’s employee bene - PASSAGES has an office. fits practice where she will focus on issues re - Knoxville lawyer ROBERT HUNTER CAGLE died March 4. He was 81. Cagle earned his law Bass, Berry & Sims lated to the Affordable degree from the University of Tennessee College of Law in 1957. After briefly practicing in recently announced Care Act. Knoxville, he relocated to Nashville to clerk for a federal district judge and later was appointed that Harry L. Gold - an assistant U.S. attorney. In 1961, Cagle returned to Knoxville to practice with the firm of smith has joined its Linda Rose of Rose Poore, Cox, Baker and McAuley. He worked there for 26 years. In 1987, he joined the firm of Memphis office as Immigration Law Firm Kennerly, Montgomery and Finley and retired in December 2004. Among his many accomplish - senior counsel after spoke at ments, Cagle served as president of the Tennessee Defense Lawyers Association, was a found - retiring as executive South by ing member of the American Board of Trial Advocates and sat on the board of directors of the vice president, gen - Southwest Association of Civil Defense Attorneys. Memorials may be made to First Presbyterian Church’s eral counsel and sec - —the Heritage, Heart and Hope Capital Campaign, 620 State St., Knoxville 37902. retary of AutoZone. largest mu - Rose Goldsmith worked at sic and tech - Longtime Memphis attorney W. THOMAS “TOM” HUTTON died March 4 at the age of 70 AutoZone for 20 nology convention in following a lengthy illness. After graduating from the University of Memphis School of Law, years. He also served the country — re - Hutton moved to Washington, D.C., where he worked for the Antitrust Subcommittee of the in the legal depart - cently in Austin, . House Judiciary Committee and then for Rep. Gerald Ford during his effort to impeach ment of Federal Ex - Rose, managing mem - Supreme Court Justice William O. Douglas. Hutton returned to Memphis and joined the law press Corporation and ber of her own firm in firm of Martin, Tate, Morrow & Marston where he practiced for 43 years in the areas of es - with two law firms Nashville, spoke on tate, probate, corporate and securities law. Among his many achievements, Hutton was a for - during in his career. Immigration Issues for mer president of the Memphis Estate Planning Council and former chair of the TBA Probate Foreign Musicians. and Tax Section. Memorials may be made to Memphis University School, 6191 Park Ave., The Knoxville law firm Her practice focuses Memphis 38119; Second Presbyterian Church, 4055 Poplar Ave., Memphis 38111; or the char - of Kennerly, Mont - on immigration work ity of the donor’s choice. gomery & Finley has in the entertainment named Kathy D. industry and other Nashville lawyer RAMSEY B. LEATHERS died March 28 at the age of 93. Leathers was a Aslinge r as a share - business-related immi - lieutenant in the Army Air Corps during World War II. He was a graduate of Cumberland holder and announced gration matters. School of Law and practiced in Nashville briefly before being appointed probate master of the she will be taking a Davidson County Court. He later was appointed Tennessee Supreme Court clerk, a position leadership role in its Compiled by Linda Mur - that included serving as clerk to all Tennessee appellate courts, the Court of the Judiciary and employee benefits phy and Stacey Shrader the Board of Professional Responsibility. Leathers retired in 1987 after more than 20 years of Joslin Tennessee Bar As - practice. Aslinger has service. In lieu of flowers, contributions may be made to St. David’s Episcopal Church, 6501 sociation members may been with the firm send information about job Pennywell Dr., Nashville 37205. since 2010. The firm changes, awards and also has hired two work-related news. Send Chattanooga attorney HAROLD A. “HAL” SCHWARTZ JR . died March 5. He was 71. new associates: Ben it to SUCCESS! c/o The Schwartz earned a bachelor of laws from the University of Pennsylvania and a master of laws Cunningham and Journal at 221 Fourth Ave. in taxation from New York University. He served as a law clerk with the U.S. Court of Claims in N., Suite 400, Nashville, Ashley Trotto . Cun - TN 37219-2198, or email Washington, D.C., and then returned to Chattanooga to join the law firm of Witt, Gaither & ningham earned his to [email protected]. Whitaker. He practiced primarily in the areas of estate planning and employee benefits. He law degree from the Submissions are subject later served as associate counsel for Interstate Life & Accident Company. During his career, University of Ten - to editing. Pictures are Schwartz held a number of leadership positions including president of the Chattanooga Bar nessee in 2011. He used on a space-available Association, president of the Chattanooga Chapter of the Federal Bar Association and director basis and cannot be re - previously served as a of the Chattanooga Tax Practioners. Memorial contributions may be made to National Parkin - turned. Electronic photos federal prosecutor in must be saved as a tiff or son Foundation, Gift Processing Center, PO Box 5018, Hagerstown, MD 21741 or to the Miller the Eastern District of jpeg (with no compres - Schwartz Fund at Mizpah Congregation, 923 McCallie Ave., Chattanooga 37403. Tennessee. He will fo - sion), minimum resolution cus on business, em - 200 dpi, and at least Memphis lawyer CHARLES A. SEVIER died Feb. 25 at the age of 78 following a protracted ployment, construction 1"x1.5" or they will not illness. A fixture in Memphis legal circles for more than 50 years, Sevier earned his law de - be used. and other civil litiga - For information on gree from the University of Tennessee College of Law and was licensed in 1962. He first prac - tion. Trotto, a 2013 paid Professional ticed with the firm of Sevier Phillips PC and then with his own firm, the Sevier Law Firm. The graduate of the Univer - Announcements, family asks that in lieu of flowers, memorials be made to the Boys and Girls Club of Greater sity of Tennessee Col - contact Debbie Taylor at Memphis, 44 S. Rembert, Memphis 38104. 800-647-1511.

APRIL 2014 TENNESSEE BAR JOURNAL | 9 YOU NEED TO KNOW LICENSURE & DISCIPLINE

Conduct 1.15, 3.3, tions, the court deter - 4.1, 5.4 and 8.4. mined diLustro failed to represent his Williamson County clients in a diligent lawyer John Jay manner, failed to keep Clark was suspended clients reasonably in - from the practice of formed about the sta - law on March 25 for tus of their cases, failing to adequately failed to promptly re - communicate with spond to numerous clients and failing to reasonable requests diligently pursue for information, forged client cases. The his client’s signature court allowed the to a parenting plan ADMINISTRATIVE SUSPENSIONS not practice law while vance approval from one-year suspension and submitted the NOW ONLINE Notice of attorneys sus - on disability inactive the Board of Profes - to be served on pro - document to the court pended for, and reinstated from, adminis - status, but may return sional Responsibility. bation so long as for approval, falsely trative violations — including failure to to the practice of law Clark engages a prac - testified under oath pay the Board of Professional Responsibil - after reinstatement by The Tennessee tice monitor, complies regarding the signa - ity fee, file the IOLTA report, comply with the Tennessee Supreme Court on with recommenda - ture on the parenting continuing legal education requirements Supreme Court. March 21 suspended tions from the Ten - plan and failed to act and pay the Tennessee professional privi - Knox County lawyer nessee Lawyers As - promptly to correct an lege tax — is now available exclusively on DISCIPLINARY Rebecca C. Vernetti sistance Program, erroneous child sup - the TBA website. Suspended for three years and pays restitution to port order. The court Visit http://www.tba.org/ On March 18, the ordered her to pay the clients and pays the found that these ac - directory-listing/administrative-suspen - Supreme Court of Ten - costs and expenses of costs of the discipli - tions violated Rules of sion-lists to see administrative suspen - nessee temporarily the disciplinary pro - nary proceeding. Professional Conduct sions imposed since 2006. suspended Michael ceeding within 90 Clark submitted a 1.3, 1.4, 3.2, 3.3 , 3.4, Lee West from the days. The court found conditional guilty plea 8.1 and 8.4. practice of law after that Vernetti made acknowledging viola - REINSTATED and a panel ap - finding that he misap - misrepresentations to tions of Rules of Pro - Compiled by Stacey The Supreme Court of pointed to hear the propriated funds to his the court and oppos - fessional Conduct 1.3, Shrader Joslin from infor - Tennessee reinstated case recommended own use and that his ing counsel, failed to 1.4 and 8.4(a). mation provided by the the law license of that the suspension continued practice law maintain disputed Board of Professional Re - Nashville lawyer Lee be dissolved. posed a threat of sub - funds in her trust ac - Disbarred sponsibility of the Ten - Michael Sprouse stantial harm to the count, used disputed Thomas Francis nessee Supreme Court. Li - on March 10. Sprouse DISABILITY public. The court also funds for her personal diLustro , formerly of censure and disciplinary no - had been temporarily INACTIVE directed West to pro - benefit, shared legal Knoxville, was dis - tices are included in this suspended on Feb. 4 The law licenses of vide the location and fees with a non-attor - barred by the Ten - publication as a member for failing to respond two Davidson County account number of any ney husband and nessee Supreme Court service. The official record to the Board of Pro - lawyers were trans - trust account over failed to maintain on March 25. In 2012, of an attorney’s status is fessional Responsibil - ferred to disability in - which he has signa - professional inde - a petition for disci - maintained by the board. ity regarding a com - active status: Frank tory authority or con - pendence. Vernetti pline was filed Current information about a plaint of misconduct. A. Woods on March trol, and enjoined him submitted a condi - against diLustro based particular attorney may be Sprouse filed a peti - 10 and Penny Jo from making any with - tional guilty plea ad - on three complaints of found on the board’s web - tion to dissolve the Mills on March 12. drawals from those mitting violations of misconduct. After re - site at www.tbpr.org/ temporary suspension Woods and Mills may accounts without ad - Rules of Professional viewing the allega - consumers/attorneysearch.

10 | TENNESSEE BAR JOURNAL APRIL 2014

COVER STORY YYoouurr FFlleexxiibbllee LLaaww DDeeggrreeee These Lawyers Branched Out Meagan Frazier uses her law degree in her career as a into Careers They Are lobbyist. Photo by Liz Todaro. Passionate About

By Suzanne Craig Robertson

Whether it’s the economy or the growing awareness that a law degree can be valuable in many career areas, attorneys are increas - ingly moving away from conventional law practices. One recent study that tracks law school graduates from the class of 2000 found that almost a quarter of them are not practicing law today. 1 That study — funded by the American Bar Foundation, the NALP Foundation for Law Career Research and Education and the National Science Foundation — has checked in with the 2000 grads regularly. Three years out of school, just 9 percent were not practicing law. In 2012, that number was 24 percent. The biggest movement is toward the business sector, where only 8.5 percent worked in 2003 and 27.7 percent worked in 2012. During the same time, the percentage of respondents in private practice was 44.1 percent in 2012, compared to 68.6 percent in 2003. The survey also has shown that the lawyers are still happy with their

12 | TENNESSEE BAR JOURNAL MAY 2014 decisions to attend law school. Asked to satisifying career and that having a law were other things I really wanted to do,” rate their satisfaction with their decision degree, fortunately, can be a big plus in he says. to become a lawyer on a 1-to-5 scale, helping you find and succeed in a wide “If something happened to me today the average was 3.92. Asked whether variety of careers, both inside traditional people would now say ‘He was doing law school was a good investment on a practice and outside of it. 3 Whether you what he was called to do.’ This is the posi - 1-to-7 scale, the average was 5.5. Asked are practicing law and loving it; prac - tion I wanted to be in. Larry was doing whether they would go to law school if ticing law and wondering what else is out that which he was called to do. I wanted they had it to do over again using a 1- there; or starting out fresh with an open to be in a similar position. That was the to-7 scale, the average was 4.91. mind about what to do, take a look at impetus for us to think about it.” A separate, unrelated study found that this sampling of Tennessee lawyers who Five months into the six-month notice, lawyers in “prestige” jobs, who had the earn their livings in nontraditional, Price was waking up in the night feeling highest grades and incomes, aren’t as inspiring ways. as if he were about to jump from a plane happy as lawyers working in public- with no parachute. His partners, with service jobs for substantially lower pay. 2 The Writer whom he had worked even before he (Judges, however, were happiest of all, the When former Tennessee Bar Association went to law school, realized they needed study reported.) “Prestige” jobs included President Larry Wilks died in August his expertise in various areas and asked lawyers working in firms of more than 2011, the legal community mourned the him if he would continue with the firm on 100 lawyers and those working in areas loss of the 56-year-old man from Spring - a contract basis. He could set his own such as corporate, tax, patent, securities, field, Tenn. Wilks’s smile and caring hours, call his own shots. estate-planning and plaintiff’s tort law. personality could fill up a room and he “It was a win-win situation and Public-service lawyers included legal-aid made a difference in many people’s lives although they didn’t know it,” he says, lawyers, prosecutors, public defenders, whether he was related to them, repre - “they handed me a parachute.” government lawyers and in-house lawyers senting them or just smiling and saying Now Price, 57, spends every Tuesday for nonprofits. hello occasionally in passing on Spring - in the law office, with occasional other Least happy were the other practicing field’s courthouse square. Crossing paths days as needed, and the rest of the time he lawyers, according to the study, in their hometown allowed Terry Price, is writing, meeting with writing clients, including those working in the fields of who also lives in Springfield, to get to editing manuscripts or planning retreats general practice, family law and private know Wilks. Though they didn’t know (such as www.westofthemoonretreat.com ). criminal defense. each other extremely well, Wilks, through He says he enjoys working with people “These data consistently indicate that a his life and death, helped to change the and “helping them find their own voice happy life as a lawyer is much less about course of Price’s life. and gain a footing to where they say ‘ I can grades, affluence and prestige than about “I had been talking about doing do this.’ ” He is also a mentor in The finding work that is interesting, engaging, things for years,” Price says of how the Writer’s Loft, a certificate program at personally meaningful, and is focused on news of Wilks’s death was a wake-up call Middle Tennessee State University. He providing needed help to others,” the for him. “Everything I heard about Larry manages a website, www.terryprice.net, as authors concluded. “The data therefore was that he was doing what he was well as another with a co-writer, also indicate that the tendency of law called to do. That’s different than what I www.thewritingspace.net. students and young lawyers to place pres - was doing.” Even by earning a master of It’s a balance to be sure, but don’t talk tige or financial concerns before their fine arts in writing from Spalding to him about work/life balance. desires to ‘make a difference’ or serve the Univerisity’s low-residency program in “As I have gotten older I see my life less good of others will undermine their 2006, Price did not feel as if he were compartmentalized. I don’t look at it as ongoing happiness in life.” doing all he was called to do. work/life . I look at it as life,” he says. “I They noted that law schools empha - Learning of Wilks’s death affected him just want life balance.” He says he makes size grades, honors and potential for such that he and his wife discussed the his daily decisions by judging how they high earnings, though those factors possibilities, ultimately telling the other line up with his priorities. “Every night I “have nil to modest bearing on lawyer partners in his firm — Guenther, Jordan think about the things that are most well-being.” Also, there was “an almost & Price in Nashville — that he would be important to me in life and if I handled meaningless correlation” between lawyer leaving in six months to pursue his dream them that day as well as I could have.” If well-being and graduating from a higher- of writing, mentoring other writers, he did, he considers it a good day. tier law school. teaching and leading retreats. Toward this He points out that the law and writing goal, he had earned a master of fine arts in have a whole lot of overlap, in two What Can You Learn from This? writing from Spalding University’s low- specific areas: words and justice. And What many lawyers have found is that residency program in 2006. “There are not just because his favorite book, To Kill there are numerous paths to finding a parts of the practice I enjoy, but there Continued on page 14

MAY 2014 TENNESSEE BAR JOURNAL | 13 Law Degree continued from page 13 Frazier set out to do. Law school was part of the plan to help her be a a Mockingbird, combines the concepts. better lobbyist. (He credits the book with why he “I’ve always had a strong interest became a lawyer … and also why he in politics,” she says, but was not became a writer.) from a “politically involved family.” “In working with legal documents like Her parents steered her away from a motions, affidavits and petitions, you political science degree, but she realize the significance of words and their never stopped wanting to be power,” he says. As for justice, he looks at involved in politics. it not just from a legal standpoint, but as While working on her degree in “ethics and morality. As attorneys we are mass communications with a polit - officers of the court and I never forget ical science minor at Middle that. I see some people who may forget Tennessee State University, she that, so caught up in the game of winning. participated in a legislative intern - My job when I walk into that courtroom ship program. “That made the is to make sure I represent my client zeal - difference,” she says. “I made some ously, but also to be open, honest and contacts and got a real look at Nashville lawyer Terry Price is also a writer, who conducts candid so the court has what it needs so state government. That solidified it workshops about creativity and writing. He often finds inspi - that the best right can be done.” for me. ration by walking a labyrinth. Photo by Barry Kolar. Price, who graduated from Nashville “When I was choosing where to School of Law in 1992, focuses on estate go to law school, I chose with planning and estate administration, which lobbying in mind,” she says from her enjoy the strategy of how to effectively he does see as part of his calling, too. “In Nashville office, across the street from communicate my clients’ positions, estate administration, I can sit with people Legislative Plaza. Although she was whether it be for or against a piece of and help them work through the process. accepted to several law schools, she says legislation. I enjoy the business of it, It’s not just legal paperwork. It’s a family she chose Nashville School of Law when committee meetings, meeting with legisla - transitioning after a major loss in life. I get she realized this would help her stay in tors — the hustle-bustle.” to help them. I can’t alleviate the pain. But Nashville and be a lobbyist in state She says about half of the registered I can say ‘Here’s how we’re going to make government. As she finished college, she lobbyists in Tennessee are women, and sure everything is taken care of.’” worked for the Tennessee Treasury only about 25 of them are lawyers. Price advises others to “step back and Department and upon graduation began “The law degree makes me more examine all the areas where you might working in the House Clerk’s office, which knowledgeable on some issues that are plug in,” if you suffer burnout or don’t gave her “real insight to the process from very important to my clients,” she says. “It feel as if your current job situation is what the inside out. Having that knowledge provides me with a perspective where I you should be doing. He points out that was very helpful.” can read a court case that may be affecting the law touches every aspect of life, every While she was in law school, Frazier pending legislation and know how to single day and there are many different began to work at Smith Harris & Carr, tackle that issue.” areas of law you can practice, in addition where she works today, 10 years later. Of She says she also has the opportunity to other jobs in which you can use your the three business partners who own the to lobby for things she cares about and do legal training. Be more proactive, he says. government relations firm, Frazier, 34, is pro bono work, including for Tennessee “It’s your life and you should live it delib - the only lawyer, but she is not the only CASA (she served on its board of directors erately; live with intention. It comes down woman. All three principals are women for the last six years) and the Tennessee to this: are you happy when you put your with children, which she says helps a lot Chapter of the ALS Association (she is head on the pillow at night and are you when it comes to work-life balance. Not president this year). “This job allows me excited when the new day arrives?” that there is any balance during the an opportunity to communicate the needs legislative session. and concerns of organizations I’m The Lobbyist “During the session, the balance is passionate about, and to help them Meagan Frazier isn’t having an “alterna - tipped toward work. It is very difficult to through the process. They really value my tive” legal career, really. She is having the balance,” Frazier, who is mother to two expertise and it means a lot to me to be law-related career she meant to have. young daughters, admits. able to give back to them.” And although you don’t hear many little That she loves her job is evident as she A legal job outside of mainstream prac - girls saying they want to be lobbyists describes what it’s like to represent her tice means you are not surrounded by when they grow up, that’s exactly what clients (she has about 12 right now). “I other lawyers every day, she notes, which

14 | TENNESSEE BAR JOURNAL MAY 2014 is why she loves being a part of another underestimated the amount of time and University of Memphis in 2007 and LL.M. group – the Tennessee Bar Association, work it takes to run a small business. from the University of Washington the where she serves on the Governmental “I quit practicing law. It was either that next year. He says he didn’t, like some, Affairs Committee and on the executive or fail at both. Since then I’ve never have a dream of always wanting to be a committee for LAWPAC. lawyer but saw it as a way to “learn how “I enjoy that camaraderie of just being Without my degree I the system works, how to get stuff done.” with other attorneys,” she says, recalling The month before he opened the a day in 2007 when she first realized this. don’t think I would have stores, an article he had written, A recent law school graduate, she had had the confidence or “‘Unpublished’ Opinions in Tennessee,” come to see one of her professors, was published in the Tennessee Bar William C. Koch Jr., be sworn in as a skills to pursue my Journal — and would later earn him the justice on the Tennessee Supreme Court. prestigious Justice Joseph Henry Award “I was surrounded by all those attorneys passion. Business is for Outstanding Legal Writing. When he and I thought, ‘I get to be a part of this people, conflict, accepted the award the following profession!’ Being an active member of summer, he was no longer practicing law the bar still gives me that same feeling of contracts and property. and was up to his eyeballs in yogurt. being among fellow attorneys,” she says. YoLo now has nine locations, and Berger “That’s why I go. It’s my chance to be We are trained in these has since founded more than a half among my comrades.” areas as lawyers and I dozen other companies. Frazier did not take a circuitous route “I knew the day after I quit I’d made to her career. Focused, she went straight use that every day. the right decision,” he says. “I remember toward lobbying and created the career — Taylor Berger sipping coffee and driving to the hardware she dreamed of. She points out, though, store at 7 in the morning thinking, ‘I don’t that no matter what direction she had have to go to the office today.’ It took a gone, she would’ve wanted a law degree looked back, even though my career has while to get used to a freewheeling way and she advises anyone who asks her that morphed several more times, just never that is more a of 24/7 on-call kind of life. I it’s a good bet. back into the private practice of law. I get to do yoga at 9:30 in the morning and “A law degree can be used in so many realized after I quit practicing that I sometimes I’m home after lunch, but diverse ways that it is very valuable — enjoyed business more than being a other times I’m working until midnight or businesses see it as valuable,” she says. lawyer, and I was probably better at it taking calls at 6 a.m. It all balances out.” “You just have to market yourself and anyway. It fit better with my personality, He sees the law degree as a tool to help your legal education into the needs of that which was not suited to a desk and suit him do the job he enjoys. Looking back, business you are interested in and and tie.” he says he wishes he had taken law school passionate about. Without a doubt go get He earned his law degree from the Continued on page 16 that law degree. It will be valued in what - ever profession you ultimately choose.” The Entreprenuer Taylor Berger says he has “always had the entrepreneurial itch.” He had ideas in high school and college that he didn’t pursue, but then would watch as others took his idea and execute them successfully. “So when I saw a self-serve yogurt shop in another city, I knew I had to be the one to open in Memphis; I couldn’t watch somebody else ‘steal’ my idea again,” Berger, 34, says. “I had been prac - ticing tax and estate planning law for a couple years when I opened two stores in August 2010, thinking they would be side projects to my legal career.” Within a week of opening YoLo Frozen Taylor Berger uses his law degree to help him in his business ventures, like YoLo Frozen Yogurt in Memphis. Yogurt he says he knew that he had Photo by Alan Howell/ Memphis Business Journal .

MAY 2014 TENNESSEE BAR JOURNAL | 15 Law Degree continued from page 15 each other’s in content and nature – yet sional distance.” During a brief hiatus, he each one of them is fulfilling a different worked as the research director of the a little less seriously. “It’s a great time to passion. And guess what? Their jobs all [Steve] Cobb for Congress Campaign. learn and explore the law without billing intersect with the law. Across town, a decision was made hours or taking on stressful liability of that helped him decide what to do after other people’s problems.” If he could do it The Executive Director that: the Nashville Bar Association again, he says he would have “tried to When Allan Ramsaur was a student at planned to make a big change and hire have more fun with it and not focus so the University of Tennessee College of its first executive director. Ramsaur was much on grades.” Law, he was introduced to legislative the man and he did that job until 1998 “Without my degree I don’t think I work through an internship program when he was hired as executive director would have had the confidence or skills to where he worked for a session with the of the TBA. In this job he assists the bar pursue my passion. Business is people, Tennessee General Assembly’s Office of leadership in developing and imple - conflict, contracts and property. We are Legal Services to draft bills and report menting policies and programs; he trained in these areas as lawyers and I use on legislative action. manages a staff of 24; and advocates that every day.” with the General Assembly and courts Earlier this year, Berger jumped into If something happened on behalf of Tennessee lawyers. another arena by adding his name to the “I work for the lawyers of Tennessee,” ballot for Shelby County Commission, but to me today, people he says. “It’s a real privilege to come to withdrew in March. In an email to the work every day to work with the best and Memphis Business Journal , he cited his busy would now say, ‘He was brightest lawyers in the state who are at schedule opening three restaurants this doing what he was the top of their game. They want to do summer, marketing consulting, some good and are willing to give time completing his real estate license, several called to do.’ This is the and energy to make that happen.” nonprofit and faith-based initiatives — Ramsaur did not always aspire to be a and the commitment he and his wife, who position I wanted to be in. lawyer, acknowledging that his degree in works, have to their two young children. — Terry Price political science didn’t give him a clear “To run this race right,” he wrote, “I’d career direction. But the law seemed like a jeopardize my family and business.” “I got hooked, using my skills as a natural extension, he says, even though he He says his job has become “making lawyer to implement policy,” Ramsaur, didn’t know at the outset if he would Memphis better through the work I do 62, says. practice law or not. This job and the jobs with business, nonprofits and govern - This is the thread that runs through his leading to it have put his law degree to ment,” focusing primarily on place and career, which for the past 16 years has work every day. He says he likes “taking a quality-of-life issues, which he says is seen him as executive director of the problem, taking it apart and looking at all crucial to Memphis’ success as a city. Tennessee Bar Association. It’s a job where sides of it, putting it back together and “Millennials are mobile, and they move to he combines his love for legislative work presenting it to folks. cities that have cool restaurants, green and policy — and one that uses his legal “As a lobbyist you need to know the paths, authenticity and positive people,” skills every day. law you’re lobbying on. You need to he says. “My mission is to make Memphis After law school he started in the legal know the subject matter and have the that way so my kids want to stay here counsel’s office of the Tennessee Depart - knowledge of how to research; combine when they grow up. If I can find a way to ment of Mental Health, as liaison to the that with the policy analysis and then continue to get paid to do this work I will legislature, drafting rules and regulations. turn it into advocacy. Lawyers are trained keep doing it.” From that vantage point — and seeing to develop the best arguments and the work of his wife, Jimmie Lynn, also present them in the most convincing just out of law school and working at fashion,” he says. “That’s the stuff I do YOUR ASSOCIATION LAWYERS Legal Aid — he realized fully the need that’s most like practicing law — I There is a huge and often-overlooked for legislative representation of legal aid consider it practicing law.” career jackpot and it is called the associa - clients. He says he was able to “talk what Since Ramsaur came to the TBA, its tion. In Tennessee, there are hundreds, is now the Tennessee Alliance for Legal membership has more than doubled, and they need smart people with many Services into hiring him full-time” to do revenues have more than tripled; the different talents and interests to make just that, so he made the move. He did Tennessee Bar Journal has grown to a them work. The Tennessee Bar Associa - this for more than seven years until he monthly offering and TBA Today puts tion is one of these groups, employing 24 “burned out” and says he lost some of his today’s legal news and appellate decisions people, four of whom are lawyers. These effectiveness. “I was too close to the in every lawyer’s hands every day on the four lawyers’ jobs are vastly different from problems,” he says. “I didn’t have profes - day they are issued. The CLE program has

16 | TENNESSEE BAR JOURNAL MAY 2014 gone from about two offerings per month followed by her infectious laugh. prevention within the district and to more than 100 live and 100 distance “I’ve always loved kids,” she says. “I oversaw more than 200 employees. and on-demand programs per year. Public figure I’m in the kid business.” It’s She had intended to be a litigator in service activities include high school obvious that she loves what she gets to the area of entertainment/intellectual mock trial competition, Youth Court do in her job as Youth Courts coordi - property. “That didn’t happen,” she says. program and annual video contest. Access nator at the TBA, which she can’t talk For a while she was a solo practitioner in to justice, ethics and professional respon - about without smiling. Knoxville, had a judicial clerkship and sibility, Leadership Law and Mentoring are The Youth Court program is for taught at the University of Tennessee all new programs that have come about young people — Bentley calls them all College of Law. during his tenure, “her babies” — who are in the Juvenile This law-related track was a second “Much of what we do is facilitating Justice System for the first time on career for Bentley, 60, which she under - public service work,” he says. “It’s not just minor offenses. These cases are adjudi - took 12 years after getting her undergrad - pro bono or indigent representation or cated by a jury of their peers, also uate degree in French from Fisk. (Did she helping the community understand the teenagers. One thing she loves about her always want to be a lawyer? “It wasn’t legal system. It’s helping institutions -- job is “this aspect of helping kids who’ve even on my list!”) helping lawyers to help institutions that gotten into trouble, who may have made “I was a housewife,” she says, but help people to thrive. a mistake — and empowering other noticed the change in a friend who had “Too often we think of only going on kids to help them.” graduated from Vanderbilt Law School. some crusade or mission as fulfilling our Since earning her law degree from “We were raised the same, as sweet little passion; often it is right here at home,” he Vanderbilt in 1988, she has worked in Southern girls. But after law school, she says. “Look for ways in which you can one “kid business” or another, including was no longer. She was very strong — a carry out your passions in what you do.” a private business work-force develop - tiger, assertive,” Bentley says. “I went to ment initiative, and in what she calls a law school for permission to be assertive The Educator “giant leap,” working for Metro and forthright. I didn’t go to be a lawyer. I The first thing people notice about Denise Nashville Public Schools in school secu - spent a whole lot of money to do that. Bentley is her huge beautiful smile, rity. There she managed violence Continued on page 18

MAY 2014 TENNESSEE BAR JOURNAL | 17 Law Degree continued from page 17

And that’s what it did for me.” As a result, she got a law degree and a divorce. “I feel like I’ve lived a grasshopper’s life,” she laughs. “I’ve had the ability to be free to be able to do whatever I want to do. That’s quite a blessing. It’s led me into some really phenomenal opportunities.” She began on a traditional law career trajectory until one of her clients, a 15- year-old boy, changed the way she thought and how she would go forward. She was appointed to represent him in a transfer hearing with a charge of felony The Tennessee Bar Association has four lawyers on staff who each do very different jobs. From left, Execu - , she recalls, explaining that this tive Director Allan Ramsaur, Public Policy Coordinator Josie Beets, Youth Court Coordinator Denise Bentley would determine if he was to be tried as and Access to Justice and Public Education Coordinator Liz Todaro. Photo by Jenny Jones. an adult or juvenile. “In my preparation for his hearing one counties. Overall, the program now aver - makes you happy. Nobody is holding you of the things I realized was that his ages a 6.8 percent re-offender rate, down there except your own ego.” schools had failed him. We as a culture from 9 percent at the start. For her, it’s simple: “Everybody is had failed this child in a lot of different There are trade-offs, she acknowledges. telling you that you ought to practice, that ways but particularly throughout his “I’m not making the kind of money that government practice isn’t a good practice. educational opportunities — or lack folks make who are in big powerful law We hear these wives tales, fables and ego- thereof.” The boy was tried as an adult. firms, and that’s my choice,” she says. She laden pressures as we come out of law This, along with her father’s death at works 70 percent, or four days a week, school that have lasting effect. All of that about the same time, caused her to which helps with a semblance of work-life is mythical. If you want work-life balance, rethink what she was doing. balance. She is still paying off her law then go to some place you can get it. You “This resulted in me determining that I school loan, however, which she admits are a lawyer. You know how to think, to wanted to meet kids before they needed probably would not be the case had she strategize, to plan, figure out what you somebody like me, before they needed chosen a more lucrative path. “I love what want. Develop your plan. Implement it.” representation.” I do so I’m not complaining,” she says. This is exactly what she does with Working with young people as she The Volunteer Youth Court. does, she sees the direction the work-life Josie Beets’s plan was to go to law school, “Before I got this job I prayed for a balance issue is going, and predicts that make a lot of money and live in a fabulous position where I wanted to go to work employers will need to become more flex - apartment. She was doing the first part, every morning,” Bentley says. “That’s what ible. “These millennial babies will cut and attending Brooklyn Law School when, I got. I want to go to work because I love run. They won’t stay. They’ll go where more than 1,300 miles away, a natural what I do and I love the people with they can get what they want. Being an disaster would change the course of her whom I’m doing it. I get to work with associate in a law firm is the last bastion of life. Seven months after Hurricane Katrina volunteers, schools, parents, judges and slavery and these babies are not going to slammed the Gulf Coast in August 2005, other lawyers, who all have a passion for put up with it,” she says. “We need to Beets took her one year of law school kids who all are supportive of youth and figure out a new ethic.” education, headed south and began who all recognize that we need to invest That her career is different from many volunteering. in youth.” of her fellow law grads is not lost on “I fell in love with public service She has been described as “a builder,” Bentley, and she is aware of the pressure work,” she says. “I knew pretty quickly which she says is what drives her. “If I can many feel to stay in a high-paying job that the traditional corporate legal career come into a situation and build it up, even if it’s not their passion. She’ll listen, that I had wanted was not what I was fortify it and stabilize, I’m just in hog but she does not have time for whiners. going to be doing.” She not only fell in heaven. I’m tickled. I feel like I’ve been “If you are stuck in a place where you love with the work, but also with Sean blessed to do that.” Since Bentley has been aren’t happy it’s your own fault,” she says. Zehtab, another law student who had director of the program, it has grown 150 “If you’re happy practicing, God bless come to help. percent, adding 12 programs in eight you. If not, do something else! Do what They volunteered with the Student

18 | TENNESSEE BAR JOURNAL MAY 2014 Hurricane Network, which placed law of civil legal issues — until Zehtab was to people who help others.” students in organizations, such as local transferred to Fort Campbell, not too far She credits her volunteer efforts with legal nonprofits, to do volunteer work. from Nashville. He is a captain, chief of helping her find her passion and give Beets mainly worked with groups that did claims with the Staff Judge Advocate. At direction to her career. “If I had watched criminal defense work, like the Public Fort Campbell, she volunteers with mili - the news in August 2005 and had not Defenders’ Office. The network also tary organizations, working with spouses been so personally offended by what was organized volunteer trips for law schools on advocacy issues. happening in New Orleans after the hurri - to the Gulf Coast to do any legal work Beets, 36, and mother of two small cane, if I had been apathetic and not felt students were allowed to do, such as children, is now public policy coordinator like I had a role to play in that, I would tracking down where 8,000 prisoners had for the Tennessee Bar Association, where not be here today,” she says. “I had the ended up when the prison flooded. This she works on legislation that primarily insane notion that I could make a differ - is what Beets did. affects the legal profession as well as ence. Then I followed this weird nontradi - “Nobody knew where anyone was or working on grassroots development tional career trajectory.” how long it had been since they had been between TBA members and lawmakers. It She points out that volunteering is how to court,” Beets says. Months after the seems like a career leap, but in her mind she changed the direction of her career storm, the students sat with stacks of lists it is related to what she has done before. path and recommends that other lawyers of inmates and looked up case statuses. “To me it’s really about the advocacy watch for opportunities. “When you react The courts didn’t reopen until June 2006, piece of it,” she says. “People don’t think to something, don’t discount that. Follow about 10 months after the nightmare their voice matters, not because they are a through and ask yourself what you can do began, she says. marginalized group but because they are to help. That will open all sorts of doors “This work showed me how with grit unfamiliar with politics. I’ve learned for you — not only in your legal career and hard work you can make a big differ - through volunteer and bar work that our but also with nontraditional paths.” ence in someone’s life,” Beets says. “It was political leaders want to hear from their so easy to get a person equity and justice constituents and especially from the ones The Humanitarian by just showing it to someone who cared. who don’t agree with them. That blows When Liz Slagle Todaro was working in I knew then I would have a nontradi - people’s minds who are not involved.” Washington, D.C. as a legislative asso - tional career.” During the session, Beets tracks a lot of ciate, fresh out of Emory with a political The stint caused her to see that she had science degree, she noticed something: So “suffered from overly idealistic ideas about Volunteering after many of the women she met there whom our justice system. My post-Katrina expe - she respected had a law degree. With her rience in New Orleans knocked me down Hurricane Katrina background as a member of her high a few notches.” But she counts that as a school and college debate teams and the positive, as she saw “amazing attorneys showed me how with encouragement of attorney mentors, she and activists working in the community to grit and hard work you had already considered law school. With make the system better.” these individuals as role models and after She admits with a sheepish laugh that can make a big differ - a few more years working in political and she benefitted “both personally and nonprofit organizations, she knew that’s professionally” from Katrina, as she and ence in someone’s life. what she wanted to do. She found a Zehtab were married in September 2008. — Josie Beets perfect fit at the City University of New After finishing law school and taking the York Law School at Queens College, Louisiana bar they settled in New Orleans, legislation. “On any given day I am expert whose mission is “law in the service of with Beets working with the Access to on something that I wasn’t the day before human needs.” Justice Program at the Louisiana State Bar because of the great information I get Today Todaro, 41, is the Tennessee Bar Association. There she worked with all from members,” she says. “The exposure Association’s access to justice and public the Legal Aid offices across the state to to every single area of law you can think education coordinator, where she uses not develop training and programs to support of is very interesting.” only skills learned in law school but in the their efforts. Her hope was to work at the All her jobs have been service-oriented varied related jobs she’s had since gradu - public defender’s office there, but her and she likes it that way. “I have gotten to ating in 2003. She worked at the Women’s husband, who was in the Army, was trans - help people, whether client or fellow Prison Association in New York with the ferred to Fort Polk, La., three hours away. lawyer. This job is no different,” she says. Incarcerated Mothers Law Project. Much She then practiced law near Fort Polk, “I love bar associations. You get to meet of her work was based at Rikers Island as a child welfare attorney and also was a the most amazing people. Who helps and other New York correctional facilities, civilian attorney for the U.S. Army, lawyers? They are the ones who help where she provided direct service advo - advising soldiers and families on a range others, but we get to provide this service Continued on page 30

MAY 2014 TENNESSEE BAR JOURNAL | 19 FEATURE STORY

George Orwell’s Classic Essay on Writing: The Best Style ‘Handbook’ for Lawyers and Judges By Douglas E. Abrams

Like other Americans, lawyers and judges most remember British novelist and essayist George Orwell (1903-1950) for his two signature books, Animal Farm and 1984 . Somewhat less known is his abiding Orwell’s essay passion about the craft of writing. It was a lifelong passion, 1 fueled approached language (as Christopher Hitchins recently described) by Orwell’s “near visceral as a tool for clear feeling for the English language.” 2 communication, an aspiration that defines Orwell’s most exhaustive commentary about writing was his 1946 essay, “Politics and the English what he called the “decay of language,” what lawyers and Language,” 3 which minced no words. and it offered six curative rules. 14 The judges do throughout “[T]he English language is in a bad diagnosis and rules still reverberate way,” 4 he warned. “Debased” 5 prose among professional writers. More than their careers. was marked by “abuse,” 6 “slovenli - 65 years later, Judge Richard A. Posner ness” 7 and a “lifeless, imitative style” 8 calls the essay “[t]he best style ‘hand - that was nearly devoid of “a fresh, book’” for legal writers. 15 Nobel Prize- vivid, homemade turn of speech.” 9 A winning economist Paul Krugman “tendency … away from concrete - recently went a step further, calling the ness” 10 had left writing “dreary,” 11 “ugly essay a resource that “anyone who cares and inaccurate.” 12 “[V]agueness and at all about either politics or writing sheer incompetence,” he said, “is the should know by heart.” 16 most marked characteristic of modern If I were a law partner employing English prose.” 13 young lawyers or a judge employing law Orwell’s 12-page essay diagnosed clerks, I would add Orwell’s essay to a

20 | TENNESSEE BAR JOURNAL MAY 2014 list of reading recommended on the way Appeals for the District of Columbia wrote Judge Elizabeth A. Kovachevich, in. If I were a young lawyer not required Circuit quoted this passage in National “severely dampen the efficacy of Plain - to read the essay, I would read it anyway. Association of Regulatory Utility Commis - tiff’s written submission to this Court. The entire essay is available for down - sioners v. United States Department of Equally unhelpful is Defendant’s one loading at http://orwell.ru/library/essays/ Energy. 22 The issue was whether the chal - sentence, conclusory response that is politics/english/e_polit. lenged agency determination violated the completely devoid of any substance. Orwell stressed that he was Nuclear Waste Policy Act of 1982, and Advocates, to be effective, must take the dissecting, not “the literary use of the parties hotly contested the case with ‘necessary trouble’ to present the Court language, but merely language as an hefty servings of alphabet soup. with coherent, well-reasoned and articu - instrument for expressing and not for On page 48 of its 58-page brief, for lable points for consideration.” 28 concealing or preventing thought.” 17 The example, the National Association “At times,” Judge Kovachevich speci - narrower scope does not deprive legal argued that “[a]lthough DOE has not fied, “the Court was forced to divine writers because Justice Felix Frankfurter disclaimed its obligation to dispose of some meaning from the incomprehen - was right that “[l]iterature is not the goal SNF, it is undisputed that DOE currently sible prose that plagued Plaintiffs’ of lawyers, though they occasionally has no active waste disposal program … written objections. Lest there be any attain it.” 18 Orwell’s essay approached The BRC is undertaking none of the confusion, the Court graciously did so language as a tool for clear communica - waste disposal program activities identi - even though it could have simply tion, an aspiration that defines what fied in NWPA § 302(d). Its existence refused to give the faulty objections any lawyers and judges do throughout their therefore cannot justify continued NWF consideration at all. The Court would careers. “The power of clear statement,” fee collection.” 23 have been equally obliged to treat said Daniel Webster, “is the great power On page 24 of its 60-page brief, the Defendant’s failure to provide mean - at the bar.” 19 agency countered that “[t]he plain ingful response as a concession of Plain - As Orwell’s title intimates, the essay language of the NWPA … provides the tiffs’ objections.” 29 included criticism of political writing Secretary [of Energy] with broad discre - done by government officials and private tion in determining whether to recom - 2. ‘Like Soft Snow’ observers. The essay’s staying power, mend a change to the statutory NWF fee Orwell held keen interest in politics, and however, transcends the political arena. … In section 302(a)(2) of the NWPA, his 1946 essay attributed “the decadence By calling on writers of all persuasions Congress set the amount of the NWF fee of our language” partly to political moti - to “simplify your English,” 20 Orwell — which is paid only by utilities that vation. 30 “[P]olitical language,” he wrote, helped trigger the plain English move - enter into contracts with DOE for the “has to consist largely of euphemism, ment, which still influences legislators, disposal of their SNF and HLW.” 24 question-begging and sheer cloudy courts, administrative agencies and law The National Association of Regula - vagueness … [W]ords fall[] upon the school legal writing classes. tory Utility Commissioners panel unani - facts like soft snow, blurring the outlines This article proceeds in two parts. mously struck down the challenged and covering up all the details.” 31 First I describe how judges, when they agency determination. Judge Laurence This passage appeared in Stupak- challenge colleagues or advocates in H. Silberman’s opinion quoted Orwell Thrall v. United States ,32 a 1996 en banc particular cases, still quote from Orwell’s and admonished the parties for decision of the U.S. Court of Appeals for plea for clear expression and careful “abandon[ing] any attempt to write in the Sixth Circuit that carried no political reasoning. Then I present Orwell’s diag - plain English, instead abbreviating every overtones. The full court remained nosis of maladies that plagued contem - conceivable agency and statute involved, evenly divided on the question of porary prose, together with his six familiar or not, and littering their briefs whether the plaintiffs’ riparian rights curative rules and their continuing rele - with” acronyms. 25 may count as “valid existing rights” to vance for today’s lawyers and judges. Other decisions have also quoted which U.S. Forest Service regulations are Orwell’s call to “take the necessary subject under the federal Michigan Today’s Judges trouble” to achieve maximum clarity. 26 Wilderness Act (MWA). The dissenter 1. ‘Take the Necessary Trouble’ In Sure Fill & Seal Inc. v. GFF Inc. ,27 for criticized his colleagues who favored “[W]ritten English,” said Orwell in his example, the federal district court affirmance of the decision below. “The essay, “is full of bad habits which awarded attorneys’ fees to the defendant interpretation of the ‘valid existing rights’ spread by imitation and which can be on its motion to enforce the parties’ language in Section 5 of the MWA to avoided if one is willing to take the settlement agreement. The court criti - mean that [plaintiff] has no rights that necessary trouble.” 21 cized both parties’ submissions. “Impre - the Forest Service is bound to respect is a In 2012, the United States Court of cision and lack of attention to detail,” Continued on page 22

MAY 2014 TENNESSEE BAR JOURNAL | 21 Style Handbook continued from page 21 formations, and the banal statements are are,” Orwell wrote, “but they demand a given an appearance of profundity by deep change of attitude in anyone who means of the ‘not un-’ formation.” 42 has grown up used to writing in the good example of the distortion of “Pretentious diction.” Orwell included style now fashionable.” 47 The rules are language decried by” Orwell’s essay. 33 words that “dress up simple statement worth contemplation from lawyers and and give it an air of scientific impartiality judges who write. Orwell’s Diagnoses and Cures to biased judgments” (such as “consti - Rule One: “Never use a metaphor, Orwell rejected the notion that “we tute” and “utilize”); and foreign phrases simile or other figure of speech which cannot by conscious action do anything that “give an air of cultural elegance” you are used to seeing in print.” about” the decline of language, 34 (such as “ancien regime” and “deus ex Orwell discussed clichés that might believing instead that “the process is machina”). 43 “Bad writers … are always entertain, divert and perhaps even reversible.” 35 The essay’s capstones were nearly haunted by the notion that Latin convince readers by replacing analysis his diagnosis of the maladies that or Greek words are grander than Saxon with labels. “By using stale metaphors, afflicted writing, followed by his six ones,” even though “there is no real need similes and idioms,” he said, “you save curative rules. for any of the hundreds of foreign much mental effort, at the cost of phrases now current in English.” 44 leaving your meaning vague, not only 1. Diagnosis “Meaningless words.” Here Orwell for your reader but for yourself.… Orwell diagnosed four “tricks by means People who write in this manner usually of which the work of prose-construction have a general emotional meaning … is habitually dodged.” 36 By calling on writers of but they are not interested in the detail “Dying metaphors.” The English of what they are saying.” 48 He urged language, Orwell wrote, sustains “a all persuasions to “scrapping of every word or idiom huge dump of worn-out metaphors” which has outworn its usefulness.” 49 that “have lost all evocative power and “simplify your English,” In 2003, concurring Judge Stephen R. are merely used because they save Orwell helped trigger the Reinhardt of the U.S. Court of Appeals people the trouble of inventing phrases for the Ninth Circuit cited Orwell’s first for themselves.” 37 He cited, among plain English movement, rule in Eminence Capital, LLC v. Aspeon others, “toe the line,” “run roughshod Inc. , a securities fraud class action. 50 The over,” and “no axe to grind.” 38 To make which still influences court of appeals held that the district matters worse, “incompatible legislators, courts, court had abused its discretion by metaphors are frequently mixed, a sure dismissing, without leave to amend, the sign that the writer is not interested in administrative agencies first amended consolidated complaint what he is saying.” 39 for failure to state a claim. The panel “Operators or verbal false limbs.” and law school legal reiterated, but rejected, the district Orwell said that these devices cloud writing classes. court’s conclusion that the plaintiffs thinking because they “save the trouble already had “three bites at the apple.” 51 of picking out appropriate verbs and Noting that the district court failed to nouns, and at the same time pad each identify or analyze any of the traditional sentence with extra syllables which give targeted art and literary criticism, and factors that would have supported it an appearance of symmetry.” 40 Among political commentary. In the former, dismissal without leave to amend, 52 the shortcuts he assailed here were “words like ‘romantic,’ … ‘values,’ … Judge Reinhardt cautioned against “the replacing simple, single-word verbs with ‘natural,’ ‘vitality’ … are strictly mean - use of cliches in judicial opinions, a phrases that add little if anything (begin - ingless.” In the latter, the word technique that aids neither litigants nor ning with “prove to,” “serve to,” and the “Fascism,” for example, had “no judges, and fails to advance our under - like); using the passive voice rather than meaning except in so far as it signifies standing of the law.” 53 “Metaphors,” he the active voice “wherever possible”; ‘something not desirable.’” 45 explained, “enrich writing only to the using noun constructions rather than extent that they add something to more gerunds (for example, “by examination 2. Cures pedestrian descriptions. Clichés do the of” rather than “by examining”); and Orwell believed that “the decadence of opposite; they deaden our senses to the replacing simple conjunctions and our language is probably curable” if nuances of language so often critical to prepositions with such cumbersome writers would “let the meaning choose our common law tradition. The inter - phrases as “with respect to” and “the fact the word and not the other way pretation and application of statutes, that.” 41 “The range of verbs is further cut about.” 46 He proposed six rules. “These down by means of the ‘-ize’ and ‘de-’ rules sound elementary, and so they Continued on page 23

22 | TENNESSEE BAR JOURNAL MAY 2014 Style Handbook continued from page 22 believe in using your own word for it. I truths to be self-evident, that all men are love words but I don’t like strange ones. created equal, that they are endowed by You don’t understand them, and they their Creator with certain unalienable rules, and case law frequently depend don’t understand you. Old words is like rights, that among these are life, liberty on whether we can discriminate among old friends — you know ’em the minute and the pursuit of happiness.” subtle differences of meaning. The biting you see ’em.” 62 Historians have praised Thomas of apples does not help us.” 54 “One of the really bad things you can Jefferson as “a genius with language” “The problem of clichés as a substi - do to your writing,” novelist Stephen whose draft Declaration resonated with tute for rational analysis,” Judge Rein - King explains, “is to dress up the vocab - “rolling cadences and mellifluous hardt concluded, “is particularly acute ulary, looking for long words because phrases, soaring in their poetry and in the legal profession, where our style you’re maybe a little bit ashamed of your powerful despite their polish.” 70 Would of writing is often deservedly the short ones.” 63 “Any word you have to Jefferson have rallied the colonists and subject of ridicule.” 55 hunt for in a thesaurus,” he says, “is the captivated future generations if instead Rule Two: “Never use a long word wrong word. There are no exceptions to he began with, “These truths are held by where a short one will do.” this rule.” 64 us to be self-evident.…”? This rule placed Orwell in good Rule Three: “If it is possible to cut Rule Five: “Never use a foreign company. Ernest Hemingway said that a word out, always cut it out.” phrase, a scientific word, or a jargon he wrote “what I see and what I feel in What if the writer says, “In my word if you can think of an everyday the best and simplest way I can tell it.” 56 opinion it is not an unjustifiable English equivalent.” Hemingway and William Faulkner went assumption that….”? Orwell proposed a One federal district court advised that back and forth about the virtues of simpler, less mind-numbing substitute: legal writers gamble when they “presup - simplicity in writing. Faulkner once crit - “I think.” 65 pose specialized knowledge on the part icized Hemingway, who he said “had no This third rule also placed Orwell in of their readers.” 71 In 2008, the U.S. courage, never been known to use a good company. “The most valuable of all Court of Appeals for the Seventh Circuit word that might send the reader to the talents is that of never using two words explained the dangers of presupposition dictionary.” “Poor Faulkner,” when one will do,” said lawyer Thomas in Indiana Lumbermens Mutual Insurance Hemingway responded. “Does he really Jefferson, who found “[n]o stile of writing Co. v. Reinsurance Results Inc. , which held think big emotions come from big … so delightful as that which is all pith, that the parties’ contract did not require words? He thinks I don’t know the ten- which never omits a necessary word, nor the plaintiff insurer to pay commissions dollar words. I know them all right. But uses an unnecessary one.” 66 “Many a to the company it had retained to review there are older and simpler and better poem is marred by a superfluous word,” the insurer’s reinsurance claims. 72 words, and those are the ones I use.” 57 said poet Henry Wadsworth Longfellow. 67 Writing for the Lumbermens Mutual Hemingway was not the only writer “Less is more,” explained British Victorian panel, Judge Posner reported that the who valued simplicity. “Broadly poet and playwright Robert Browning, parties’ briefs “were difficult for us speaking,” said Sir Winston Churchill, wasting no words. 68 judges to understand because of the “the short words are the best, and the Judges, in particular, can appreciate density of the reinsurance jargon in old words when short are best of all.” 58 this short verse by Theodor Geisel (“Dr. them.” 73 “There is nothing wrong with a “Use the smallest word that does the Seuss”), who wrote for children, but specialized vocabulary — for use by job,” advised essayist and journalist E. B. often with an eye toward the adults: specialists,” he explained. “Federal White. 59 In a letter, Mark Twain praised “[T]he writer who breeds/ more words district and circuit judges, however, … a 12-year-old boy for “us[ing] plain, than he needs/ is making a chore/ for the are generalists. We hear very few cases simple language, short words, and brief reader who reads./ That’s why my belief involving reinsurance, and cannot sentences. That is the way to write is/ the briefer the brief is,/ the greater the possibly achieve expertise in reinsurance English — it is the modern way and the sigh/ of the reader’s relief is.” 69 practices except by the happenstance of best way. Stick to it; don’t let fluff and Rule Four: “Never use the passive having practiced in that area before flowers and verbosity creep in.” 60 where you can use the active.” becoming a judge, as none of us has. Humorist Will Rogers wrote more The passive voice usually generates Lawyers should understand the judges’ than 4,000 nationally syndicated news - excess verbiage and frequently leaves limited knowledge of specialized fields paper columns, including ones that readers uncertain about who did what to and choose their vocabulary accordingly. spoke about language. 61 “[H]ere’s one whom. The active voice normally Every esoteric term used by the reinsur - good thing about language, there is contributes sinew not fat, clarity ance industry has a counterpart in ordi - always a short word for it,” he said. not obscurity. nary English.” 74 “’Course the Greeks have a word for it, Consider the second line of the Decla - Counsel in Indiana Lumbermens the dictionary has a word for it, but I ration of Independence: “We hold these Continued on page 24

MAY 2014 TENNESSEE BAR JOURNAL | 23 Style Handbook continued from page 23 Creator endowed them with”) would not rejoinder for people who chastised him have produced a result “outright for sometimes ending sentences with barbarous,” but Jefferson would have prepositions. “That,” he said, “is the sort Mutual Insurance Co ., Judge Posner sacrificed rhythm and cadence. The of arrant pedantry up with which I shall concluded, “could have saved us some passive phrase left no doubt about who not put.” 77 work and presented their positions more did the endowing, and two extra words effectively had they done the translations did not slow the reader. Conclusion from reinsurancese into everyday Orwell’s fifth rule commands, “Never Lack of clarity, Orwell’s major target, English themselves.” 75 use a foreign phrase, a scientific word, normally detracts from the professional Rule Six: “Break any of these rules or a jargon word if you can think of an missions of lawyers and judges. What sooner than say anything outright everyday English equivalent.” But Justice William J. Brennan Jr. called barbarous.” suppose, for example, that a lawyer or “studied ambiguity” 78 might serve the Orwell punctuated each of his first judge wants to write about “causation” purposes of legislative drafters who seek five rules with “never” or “always.” in tort law, which would qualify as to avoid specificity that could fracture a Lawyers learn to approach these jargon because the term “causation” does majority coalition as a bill proceeds to a commands cautiously because most legal not normally roll off the lips of final vote. Studied ambiguity might also and nonlegal rules carry exceptions laypeople. A readership of judges or tort serve the purposes of a lawyer whose based on the facts and circumstances. client seeks to feel out the other parties Conventions of good writing ordinarily early in a negotiation. Without deserve adherence because most of them maximum clarity, however, written enhance content and style most of the “Use the smallest word buck-passing may compel courts to time. They became conventions based on finish the legislators’ work, or may the time-tested reactions elicited by that does the job,” produce an agreement saddled with accomplished writers. Orwell recog - misunderstandings. nized, however, that “the worst thing one advised essayist and Similar impulses prevail in litigation. can do with words is to surrender” to journalist E. B. White. Advocates persuade courts and other them. 76 As writers strive for clear and decision makers most effectively through precise expression, they should avoid precise, concise, simple and clear becoming prisoners of language. expression that articulates why the facts Orwell’s sixth rule wisely urges lawyers will connect with the jargon and the governing law favor their writers to follow a “rule of reason,” but I easier than a readership of lay clients, clients. 79 Judges perform their constitu - would rely on personal judgment and who in turn will connect better than tional roles most effectively with forth - common sense even when the outcome teenage readers in a middle school civics right opinions that minimize future would not otherwise qualify as “outright class. To an audience of lawyers who are guesswork. barbarity.” Good writing depends on comfortable with discussing “causation,” How often today do we still hear it sound grammar, spelling, style and choosing another word might even said that someone “writes like a lawyer”? syntax, but it also depends on willing - cloud or distort legal meaning. A writer How often do we hear it meant as a ness to bend or break the “rules” when uncertain about connecting with the compliment? Judge Reinhardt put it well advisable to maintain the bond between audience can cover bases by briefly in Eminence Capital LLC : “It is long past writer and reader. Within bounds, defining the term. time we learned the lesson Orwell readers concern themselves more with This rule of reason grounded in sought to teach us.” 80 the message than with what stylebooks personal judgment and common sense say about conventions. extends beyond Orwell’s first five rules to DOUGLAS E. ABRAMS, a Orwell’s fourth and fifth rules illus - writing generally. For example, when University of Missouri law trate why good writing sometimes splitting an infinitive or ending a professor, has written or depends on departing from conventions. sentence with a preposition would co-authored five books. The fourth rule commands, “Never use enhance meaning or produce a more Four U.S. Supreme Court decisions have cited his the passive where you can use the fluid style, then split the infinitive or end law review articles. This active.” Look again at the second line the sentence with a preposition. Main - article originally appeared in Precedent, The from the Declaration of Independence, taining smooth dialog is more important Missouri Bar’s quarterly magazine. Reprinted quoted above. It contains a phrase than leafing through stylebooks that by permission. written in the passive voice (“that they readers will not have leafed through. are endowed by their Creator with”). Sir Winston Churchill, a pretty fair Notes The active-voice alternative (“that their writer himself, reportedly had a tart 1. George Orwell, Why I Write (1946).

24 | TENNESSEE BAR JOURNAL MAY 2014 (“From a very early age, perhaps the age of five Justice Act); Anthony A Gagliano & Co. v. Open - 55. Id. at 1054. or six, I knew that when I grew up I should be first LLC , 828 N.W.2d 268, 271 n.2 (Wis. Ct. 56. A.E. Hotchner, Papa Hemingway 69 a writer.”). App. 2013) (“acronyms and initials make (1966) (quoting Hemingway). 2. Christopher Hitchins, “The Importance of comprehension more, not less, difficult”). 57. Id. at 69-70 (1966) (quoting Being Orwell,” Vanity Fair , Aug. 2012, at 66. 27. 2012 WL 5199670, No. 8:08-CV-882- Hemingway); see also, e.g., Kurt Vonnegut Jr., 3. George Orwell, “Politics and the English T-17-TGW (M.D. Fla. Oct. 22, 2012). “The Latest Word” (reviewing The Random Language,” in Essays on Language and Usage 28. Id. * 3. House Dictionary of the English Language (Leonard F. Dean & Kenneth G. Wilson eds., 29. Id . (1966)), The New York Times , Oct. 30, 1966, at 2d ed. 1963). 30. Orwell, supra note 3, at 334. BR1 (“I wonder now what Ernest Hemingway’s 4. Id. at 325. 31. Id. at 333. dictionary looked like, since he got along so 5. Id. at 333. 32. 89 F.3d 1269 (6th Cir. 1996) (en banc). well with dinky words that everybody can spell 6. Id. at 325. 33. Id. at 1292 (Boggs, J., dissenting); see and truly understand.”). 7. Id. also, e.g., Grutter v. Bollinger , 288 F.3d 732 (6th 58. Susan Wagner, “Making Your Appeals 8. Id. at 332. Cir. 2002) (en banc) (Boggs, J., dissenting), More Appealing: Appellate Judges Talk About 9. Id. aff’d, 539 U.S. 306 (2003) (“[W]hatever else Appellate Practice,” 59 Ala. Law. 321, 325 10. Id. at 330. Michigan’s policy may be, it is not ‘affirmative (1998) (quoting Churchill). 11. Id. at 334. action,’” quoting Orwell’s “soft snow” 59 .Max Messmer, “It’s Best to Be Straight - 12. Id. at 325. metaphor); Palm Beach County Sheriff v. State , forward on Your Cover Letter, Resume,” Pitts - 13. Id. at 327. 854 So.2d 278 (Fla. Dist. Ct. App. 2003) burgh Post-Gazette, Nov. 29, 2009, at H1 14. Id. at 336. (quoting Orwell’s “soft snow” metaphor and (quoting White). 15. Richard A. Posner, “Judges’ Writing holding that in applying sovereign immunity, 60. 60. Robert Hartwell Fiske, The Styles (and Do They Matter?),” 62 U. Chi. L. there is no distinction between the “reimburse - Dictionary of Concise Writing: 10,000 Alterna - Rev. 1421, 1423 n.8 (1995). ment” and “recovery” to which the plaintiff tives to Wordy Phrases 11 (2002); see also, e.g., 16. Paul Krugman, “Orwell, China, and sheriff said his office was clearly entitled, and British Victorian novelist George Eliot (Mary Me,” N.Y. Times Blogs (July 20, 2013). the right to “damages” which sovereign immu - Ann Evans), quoted at 17. Orwell, supra note 3, at 335. nity precedent rejected); cf. Quartman v. Martin , www.plainlanguage.gov/resources/ 18. Felix Frankfurter, “When Judge 2001 WL 929949, No. 18702 (Ohio Ct. App. quotes/historical.cfm (“The finest language is Cardozo Writes,” The New Republic , April 8, Aug 17, 2001) (in discussion of probable mostly made up of simple unimposing 1931. cause, quoting Orwell essay that “[p]olitical words”); Irish poet William Butler Yeats, id. 19. Letter from Daniel Webster to R. M. language … is designed to make lies sound (“Think like a wise man but communicate in Blatchford (1849), in Peter Harvey , Reminis - truthful and murder respectable, and to give an the language of the people.”). cences and Anecdotes of Daniel Webster 118 appearance of solidity to pure wind”). 61. Mark Schlachtenhaufen, “Centennial (1877). 34. Orwell, supra note 3, at 325. Snapshot: Will Rogers’ Grandson Carries On 20. Orwell, supra note 3, at 336. 35. Id. Tradition of Family Service,” Okla. Publishing 21. Id. at 325. 36. Id. at 327. Today , May 31, 2007. 22. 680 F.3d 819 (D.C. Cir. 2012); see 37. Id. at 327. 62. Betty Rogers, Will Rogers 294 (1941; Douglas E. Abrams, “Acronyms,” 6 Precedent 44 38. Id. new ed. 1979) (quoting Will Rogers). (Fall 2012). 39. Id. 63. Stephen King, On Writing: A Memoir of 23. Nat’l Ass’n of Regulatory Utility 40. Id. at 328. the Craft 110 (2000). Comm’rs, Final Brief of Consolidated Peti - 41. Id. 64. Stephen King, “Everything You Need to tioners 48, 2011 WL 5479247 (2012). 42. Id. Know About Writing Successfully: in Ten 24. Nat’l Ass’n of Regulatory Utility 43. Id. Minutes” (1986), https://www.msu.edu/ Comm’rs, Final Brief for Respondent 24-25, 44. Id. ~jdowell/135/King_Everything.html. 2011 WL 5479246 (2012). 45. Id. at 329. 65. Orwell, supra note 3, at 331. 25. Nat’l Ass’n, 680 F.3d at 820 n.1; see also 46. Id. at 334, 335. 66. Cindy Skrzycki, “Government Experts Illinois Public Telcomm. v. FCC, No. 13-1059 47. Id. Tackle Bad Writing,” Washington Post , June 26, (D.C. Cir. Mar. 25, 2014) (per curiam) (order 48. Id. at 331-32. 1998, at F1 (“most valuable,” quoting Jefferson); striking parties’ briefs and ordering submission 49. Id. at 334. The Family Letters of Thomas Jefferson 369 (E.M. within two days, of briefs that “eliminate 50. 316 F.3d 1048 (9th Cir. 2003). Betts and J.A. Bear, Jr. eds., 1966) (letter of Dec. uncommon acronyms”). 51. Id. at 1053. 7, 1818) (“stile of writing”). 26. See, e.g., Delgadillo v. Astrue , 601 F. 52. See Foman v. Davi s, 371 U.S. 178, 182 67. III The Works of Henry Wadsworth Supp.2d 1241 (D. Colo. 2007) (discussing (1962) (stating the factors). Longfellow with Bibliographical and Critical confusion caused by confusing “attorney fees” 53. Eminence Capital , 316 F.3d at 1053. Notes and His Life, with Extracts from His Jour - and “attorney’s fees” under the Equal Access to 54. Id. at 1053-54. Continued on page 26

MAY 2014 TENNESSEE BAR JOURNAL | 25 Style Handbook continued from page 25 Ask the TBA nals and Correspondence (1886-1891), at 278. 68. Robert Browning, “Andrea del Sarto,” in Pictor Ignotus, Fra Lippo Lippi, Andrea Del Membership Sarto 32 (1925); see also, e.g., Something to Say: William Carlos Williams on Younger Poets Maven 96 (James E. B. Breslin ed., 1985) (“Everyone who writes strives for the same thing … To say it swiftly, clearly, to say the hard thing that Dear Membership Maven, way, using few words. Not to gum up the Last year, in June, a small group of my colleagues paragraph.”). went to the Tennessee Bar Association Convention. I was 69. Richard Nordquist, “We Can Do Better”: Dr. Seuss on Writing , http://grammar.about.com/ invited to go but decided not to attend because I’m too busy od/advicefromthepros/a/seusswrite09.htm. …and … well … things like that make me nervous. 70. Joseph J. Ellis, A merican Creation: But ever since then I have felt COMPLETELY BEHIND! I’m Out-Of-The- Triumphs and Tragedies At the Founding of the Republic 56 (2007) (genius); Walter Isaacson, Loop and UNPOPULAR! They met a bunch of smart people and they run Benjamin Franklin: An American Life 311 (2003) around “connecting” and “networking” … I feel so alone. (rolling cadences). They’ve invited me again but as much as I want to go I have a long list of 71. Waddy v. Globus Medical Inc ., No. excuses that are keeping me from taking the plunge. Please advise. 407CV075, 2008 WL 3861994 *2 n.4 (S.D. Ga. Aug. 18, 2008). Signed, 72. 513 F.3d 652 (7th Cir. 2008). Behind and Unpopular 73. Id. at 658. Dear Downy Downerson! 74. Id . 75. Id .; see also, e.g., Miller v. Illinois Cent. The first rule of survival is DON’T PANIC! Take a deep breath and pull yourself R.R. Co., 474 F.3d 951, 955 (7th Cir. 2007) together! Every year your colleagues and hundreds of other Tennessee attorneys (“Much legal jargon can obscure rather than managed to shake any excuses and they SIGN UP, SHOW UP and POWER UP . The illuminate a particular case.”); New Medium LLC v. Barco N.V. , No. 05 C 5620, 2009 WL 2014 TBA Convention schedule is full of CLE programming, guest speakers and 1098864 * 1 (N.D. Ill. Apr. 15, 2009) (Posner, social events that will boost your spirit and increase your productivity and J., sitting by designation as a trial judge) (“All ingenuity! My advice … do this today, duh. It’s the most fun you’ll ever have while submissions must be brief and non-technical and eschew patent-law jargon. Since I am enhancing your life and your career. neither an electrical engineer nor a patent The convention is June 11 through 14 and you totally need to sign up lawyer, … the parties’ lawyers must translate right now. Go to www.tba.org/info/2014-tba-annual-convention. technical and legal jargon into ordinary language.”). Friends! 76. Orwell, supra note 3, at 335. 77. See, e.g., Susan E. Rowe, “Six to Nix: JobLink is a two-way street! Remember TBA JobLink is a great place to Grammar Rules to Leave Behind,” 67 Oregon JOBLINK post your résumé and search for jobs but it’s also a tool State Bar Bulletin 37 (Nov. 2006). for employers who have jobs to post. Job posting is 78. William J. Brennan Jr., “Some Thoughts Need a job? on the Supreme Court’s Workload,” 66 Judica - Find a job? free! Go to www.tba.org/joblink to see how it’s done. ture 230, 233 (1983). XOX, 79. Henry Weihofen, Legal Writing Style 8- The Maven 104 (2d ed. 1980) (discussing these four fundamentals). To ask the TBA Membership Maven a question please 80. 316 F.3d at 1054. email [email protected] or her alter-ego, Kelly Stosik, the

TENNESSEE BAR Tennessee Bar Association’s membership director. ASSOCIATION

26 | TENNESSEE BAR JOURNAL MAY 2014 TBA Convention 2014 June 11-14 • Park Vista Hotel, Gatlinburg

Plan your summer escape to the Great Smokey CONVENTION CENTRAL The newly renovated Park Vista Mountains now to ensure that you’ll be a part Doubletree Hotel provides unparalleled views of the of the largest annual gathering of the Tennessee Great Smoky Mountains, and a convenient location near legal community when the Tennessee Bar an endless supply of shop - Association meets for the 133 rd time ping, adventure and outdoor recreation. Make your reserva - June 11-14 in Gatlinburg. tions now to get the special TBA room rate of $117 per night. The deadline to reserve You will be surrounded transition of SOCIAL you room is May 23, so either visit by natural beauty at the power from ACTIVITIES www.parkvista.com or call 800-421-7275 today. convention’s host hotel, Gov. Ray There will the newly renovated Park Blanton to also be FAMILY FRIENDLY GATLINBURG Vista Doubletree. Inside Gov. Lamar plenty of you’ll find the compelling Alexander, social activities When you’re not busy with convention activities, and insightful program - and continues so that you can visit Gatlinburg offers a wealth of activities for visitors of ming you expect at the through Friday with 12 with your colleagues all ages. As gateway to the Great Smoky TBA Convention. hours of CLE program - from across the state. Mountains National Park — the most ming that is included in Along with Bench Bar visited national park in the United PROGRAMMING your registration. and Lawyers Lunch - States — Gatlinburg is a perfect It starts with the Bench Among the programs eons , there will be an starting place for exploring the Bar Program on June 11 will be Brian exciting journey natural wonder and breathing when author and polit - Faughnan’s lively look through the Titanic sights that await. ical insider Keel Hunt at ethics issues facing Museum , where you and journalist lawyers, an examina - will experience what it You can also explore Appalachian Art John tion of how new was like to walk the hall - at the Great Smoky Mountains Arts and Seigen - laws are ways, parlors and cabins Crafts Community . Just three miles from downtown, thaler changing the of the Titanic while it hosts the largest group of independent artisans in take you “wine and surrounded by more than North America. behind shine” indus - 400 artifacts directly the tries, and a from the ship and its There are plenty more attrac - scenes to return of the passengers. Your journey tions and shopping venues bring to life popular Better Next ends with a reception, throughout the downtown the dramatic Year programming. dinner and dance. area, including Ripley’s Aquarium of the Smokies , The 2014 TBA Annual Convention the Dollywood theme park Sign Up Online Now At and the Gatlinburg Aerial Tram . www.tba.org/info/2014-tba-annual-convention

Get Away to the Smokies This Summer! FAMILY MATTERS BY MARLENE ESKIND MOSES WITH MANUEL BENJAMIN RUSS Electronic Surveillance in Family Law As everyone is aware, the use of electronic technology in business as well as people’s personal lives has grown beyond anyone’s imagination in recent years. With this rise in the use of various forms of technology, people often forget that what you use a computer for and what you store on a computer are just as relevant, and just as easily documented,

as the written or spoken word on paper communication, to say nothing of the or in conversation. This can be particu - difficulty in intercepting such commu - larly relevant in family law where child nication, lawful or otherwise. While these statutes custody and parental fitness are routine However, the above cited statutes only may seem clear cut in an questions for the court. deal with the actual interception of such For several years now, use of informa - communication while en route, not employment setting, or tion obtained on the Internet or other communications that have already been electronic media has been used in and received and stored, such as emails in an when an outside party out of court for a variety of reasons, not inbox that have already been viewed but hacks someone’s home the least of which being impeachment not erased. A more plausible scenario in material for testifying witnesses. But is a family law case would be a spouse email account, it is not all of the potential evidence obtained obtaining electronic communication through computer searches fair game, or from the other spouse’s storage device nearly so certain in a does the manner in which it was since they are still cohabitating, or they collected give rise to admissibility issues share household items like a computer. divorce situation since as well as ethical, or even criminal, In such a situation, the manner in which the adverse parties have concerns for lawyers who are advising that electronic communication was their clients on the collection of such obtained becomes a matter of evidentiary overlapping control, information? Can spouses who are still and ethical importance to the party’s married and have access to their attorney, and the attorney must consider access and ownership of partner’s various computers, cell carefully whether to use these communi - devices and, potentially, phones, emails, texts and other elec - cations depending on the manner in tronic devices take advantage of this which they were obtained by the client. 3 data as well. opportunity with impunity, or are there The Tennessee Personal and Commercial regulations, guidelines or road signs as Computer Act 4 and the United States to what is permissible and what is not? Code 5 additionally make it a criminal Tennessee and federal wiretapping offense to access stored communications laws restrict a party’s ability to intercept without the requisite authorization. electronic communications. The United While these statutes may seem clear cut States Code makes it illegal for any in an employment setting, or when an party to intentionally intercept any wire, outside party hacks someone’s home oral or electronic communication. 1 email account, it is not nearly so certain Similarly, Tennessee statute prevents the in a divorce situation since the adverse intentional interception of such parties have overlapping control, access communication as well. 2 It is unlikely and ownership of devices and, poten - that any party in a family law case tially, data as well. would be able to lawfully intercept such In a guiding case from New Jersey, a

28 | TENNESSEE BAR JOURNAL MAY 2014 wife in a divorce action had her private material? Is it possibly ineffective individual user, would be deemed investigation firm take, copy and access lawyering not to advise a client to properly obtained and admissible in emails from her husband’s email account attempt to access shared computers in court. Beyond that, it would be much that were located on the family the hopes of obtaining favorable or safer for the client, the lawyer and the computer to which they jointly had incriminating evidence against a soon to client’s case to access electronically access. The wife did not use, nor ulti - be ex-spouse? Additionally, attorneys stored information of the opposing mately did she need, the password to advising clients must also emphasize party through formal channels like the her husband’s email account to access that electronically stored evidence must discovery process. his emails wherein she located evidence not be removed or destroyed purpose - of infidelity on his part. The court ulti - fully or a court can levy highly detri - MARLENE ESKIND MOSES is the principal and mately ruled that this activity did not mental and punitive sanctions and manager of MTR Family Law PLLC, a family and infringe on either federal or New Jersey penalties for spoliation of evidence. 8 divorce law firm in Nashville. She is a past presi - wiretapping statutes, and it also ruled Scenarios such as this are presuming dent of the American Academy of Matrimonial that, since the wife had not used the that traditional discovery will be insuffi - Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the husband’s password without permission, cient to obtain all of the electronically Lawyers’ Association for Women and the but rather accessed the emails that had stored information in its original form. Tennessee Supreme Court Historical Society. been stored on a computer that she did Both the Tennessee Rules of Civil Proce - She is currently serving as a vice president of the have permission to access, there was no dure 9 and the Federal Rules of Civil International Academy of Matrimonial Lawyers. improper conduct on her part and the Procedure 10 provide for the discovery of The Tennessee Commission on Continuing Legal & Specialization has designated Moses as a communications were admissible. 6 electronically stored information. Family Law Specialist; she is board certified as a Conversely, there is a recent Florida case Certainly during the formal discovery Family Law Trial Specialist. where a wife installed a spyware process, an attorney should request, program on her husband’s computer, with specificity, that they are seeking MANUEL BENJAMIN RUSS earned a bachelor of without his knowledge or consent, disclosure of electronically stored mate - arts from Johns Hopkins University, a master of during a pending divorce proceeding, rial and tailor their request as narrowly arts from University College London, and a law degree from the Emory University School of Law. thereby obtaining emails and images as possible as unduly burdensome He is in private practice in Nashville focusing being transferred to her husband’s discovery production of electronically primarily on criminal defense. computer as they were being trans - stored information has been excluded mitted. The trial court ruled, and the from discovery requirements. 11,12 Given Notes appellate court affirmed, that since the the volume of electronic data available, a 1. 18 U.S.C. § 2510 et seq. evidence was illegally obtained by the cost-benefit analysis for the client needs 2. Tenn. Code Ann. § 39-13-601. wife in violation of the Florida wiretap - to enter into the lawyer’s thought 3. Gaetano Ferro, Marcus Lawson & Sarah ping act, the evidence was inadmissible process when making a formal request. Murray, “Electronically Stored Information: in the proceeding before the court. 7 Additionally, a client should understand What Matrimonial Lawyers and Computer Cases such as these appear to set that whatever is requested of the Forensics Need to Know,” 23 J. Am. Acad. some basic ground rules for admissi - opposing party will likely be requested Matrim. Law , no. 1 (2010), p. 3-5. bility and use of electronically stored from the client in return. In addition to 4. Tenn. Code Ann. § 39-14-601 et. seq. information from another party without formal discovery, a lawyer should advise 5. 18 U.S.C § 2701 et. seq. that party’s consent. However, they do a client to avail themselves of access to 6. White v. White , 781 A.2d 85, 344 little to instruct or help a lawyer trying all social media and other information N.J.Super. 211 (2001), pp. 87-91. to determine how to advise a client on that is open to public viewing since this 7. O’Brien v. O’Brien , 899 So.2d 1133 the potential collection of such evidence information is not protected by any (2005), pp. 1136-1138. and how to avoid running afoul of privacy right, but may well be left out of 8. Kucala Enterprises Ltd. v. Auto Wax ethical and criminal entanglements. the response to formal discovery, or the Company Inc. , 2003 WL 21230605, N.D. Illi - Clearly a lawyer who advises a client to content, intentionally or otherwise, may nois. Court ordered plaintiff’s complaint obtain information from a spouse in a be altered on a frequent basis. dismissed and plaintiff to pay attorney’s fees questionable manner is opening them - From the case law and statute, it and costs after he was discovered using a selves up for sanctions. However, the appears that a lawyer would be on safe program named “Evidence Eliminator” on his above situations were created by the grounds advising a client to access any computer prior to turning the computer over client without the knowledge or direc - and all electronic storage devices to during discovery. tion of their attorney (presumably). which they have shared access. Once 9. Tennessee Rules of Civil Procedure How should a family law practitioner possessed, anything stored on that 26.02(1). advise a client who suggests copying a device that is not protected by addi - 10. Federal Rules of Civil Procedure 26(b). spouse’s hard drive for discoverable tional, personalized safeguards of an Continued on page 30

MAY 2014 TENNESSEE BAR JOURNAL | 29 Law Degree continued from page 19 staffing of the work, like managing meet - She doesn’t regret for a minute the time ings and providing other support.” she spent earning her law degree. cacy and support for incarcerated mothers Like all TBA employees, Todaro works “People go to law school for all and individuals recently released from jail with volunteers a lot. “I have a great deal different reasons,” she points out. “There or prison. She trained volunteer attorneys, of respect and appreciation for the volun - are so many other opportunities to use social workers and staff, and coordinated teers who are so committed in the areas I those skills and pursue something you are and supported the team of pro bono attor - get to work in.” Todaro believes her law interested in.” neys who represented the clients. She led degree gives her a “shared language and support groups in the prisons and jails on experience” with the member volunteers, Notes issues and worked on individual family “even if the ways we are using our degrees 1. The study also showed major differences in law cases. At times, her work required her are vastly different.” pay based on gender, law school ranking and to inform a mother that her parental Her law degree has no doubt opened grades. The 2012 results are considered prelimi - rights had been terminated while she was doors to this variety of work. “Look for nary because researchers are still determining incarcerated. opportunities outside of the expected whether weighting the results by region or other When she moved back to Nashville path,” she advises. “The skills, resources characteristics will change the findings. More than where she grew up, she served as director and background are applicable in so many 3,000 people responded to the Wave 3 survey. of outreach at the YWCA of Nashville and different contexts.” She says her early Learn more about “After the JD,” by the American Middle Tennessee. She then was the experiences with individual clients in Bar Foundation and the NALP Foundation for Law director of the Crisis Center at Family and such dire situations was “very intense and Career Research and Education from the American Children’s Service, where she managed a oftentimes very discouraging. I love that I Bar Association at http://www.abajournal.com/ 24-hour crisis line, serving mentally ill had those experiences and appreciate that news/article/twelve_years_after_the_jd_20_percent and suicidal individuals. Most recently, they have informed my understanding of _arent_practicing_law/ she helped found and lead Nashville so many of the issues I address now. But I 2. “Lawyers in prestige positions aren’t as Debate, a local organization working to also knew that there were others who happy as those in public service jobs, study finds,” bring policy debate back into Nashville’s were better equipped to do that work. by Debra Cassens Weiss, ABAJournal.com, March public schools. Now I value having the opportunity to 17, 2014. The study was conducted by Florida When she came to the TBA in 2012, support their efforts.” State University law professor Lawrence Krieger she saw that both components of her job A mother of 7-year-old twin daughters, and University of Missouri psychology professor — access to justice and public education she admits this is not exactly how she Kennon Sheldon. http://www.abajournal.com/ — were “consistent with my concern and pictured her career, although she never news/article/lawyers_in_prestige_positions_arent focus around helping those most in need did see herself working in a law firm. “I _as_happy_as_those_in_public_service-job/ access the services and support that will thought I would be in the field of policy - 3. “Exploring Alternative Careers for Lawyers,” make their lives better.” making or lobbying or working with a by Kathleen Brady, Law Practice Today , October The variety of work she does at TBA nonprofit or legal 3services 3organization 2006. ranges from helping to plan and staff large serving domestic violence survivors. But I events to getting to work with media and never really considered any sort of tradi - SUzANNE CRAIG ROBERTSON is editor of the write. “I enjoy the behind-the-scenes tional practice setting.” Tennessee Bar Journal.

Family Matters continued from page 29         Thomas F. Bloom, J.D. 11. T.R.C.P. 26.02(1) “A party need not   provide discovery of electronically stored infor - mation from sources that the party identifies as    ! not reasonably accessible because of undue #    " burden or cost.”   "  12. F.R.C.P. 26(b)(2)(B) “A party need not  ! provide discovery of electronically stored infor - mation from sources that the party identifies as                  not reasonably accessible because of undue   burden or cost.”

30 | TENNESSEE BAR JOURNAL MAY 2014

3 3 3 3 PAINE ON PROCEDURE BY DONALD F. PAINE The Murders of Paul Dennis Reid Jr. During three months in 1997, Paul Reid murdered seven victims connected with fast-food restaurants in Middle Tennessee. On Sunday morning, Feb. 16, Reid shot Steve Hampton and Sarah Jackson as they were opening the Captain D’s on Lebanon Road in Donelson. He stole over $7,000. 1

A month later, on Sunday, March 23, at statute of limitations periods for the the end of the nightshift, Reid shot McDonald’s and Baskin-Robbins cases Ronald Santiago, Andrea Brown, and and incompetent at the time of the Reid received seven Robert Sewell in the McDonald’s on hearing in the Captain D’s case.” death sentences, all Donelson Pike in Hermitage. He Of broader impact is another holding. stabbed Jose Ramirez Gonzales, who The Supreme Court tells us that its affirmed on appeal. He feigned death and survived to testify. 2 internal Rule 20 at §11 will apply Then on the night of Wednesday, currently and retroactively to all post- decided to abandon April 23, around 10 p.m. closing time, conviction proceedings where the peti - post-conviction relief. Reid kidnapped Angela Holmes and tioner’s competency is raised. That Michelle Mace from the Baskin-Robbins section bears the title “Withdrawal of on Wilma Rudolph Boulevard in Post-Conviction in Capital Cases” and Clarksville. Their bodies were found lists criteria and procedures. with stab wounds on April 24 in the What happened to Paul Dennis Reid Dunbar Cave Natural Area. 3 Jr.? Was he executed? No. Reid died on Reid received seven death sentences, Friday, Nov. 1, 2013, in Nashville all affirmed on appeal. He decided to General Hospital at Meharry. He was 55 abandon post-conviction relief. But his years old. sister Linda Martiniano made the oppo - site decision as her brother’s “next Notes friend.” This leads 1. 91 S.W.3d 247 (Tenn. 2002). us to the recent 2. 213 S.W.3d 792 (Tenn. 2006). opinion, Reid ex rel. 3. 164 S.W.3d 286 (Tenn. 2005). Martiniano v. State. 4 4. Reid ex rel. Martiniano v. State , 396 The Supreme S.W.3d 478 (Tenn., Koch, 2013). Court held that “Ms. Martiniano DONALD F. PAINE died Nov. 18, 2013. He was a and the Office of past president of the Tennessee Bar Association the Post-Convic - and at the time of his death was of counsel to the tion Defender Knoxville firm of Paine, Tarwater, and Bickers LLP. failed to prove, by He was member emeritus to the Tennessee Bar Journal Editorial Board. He wrote his columns clear and months in advance, and as a result, “Paine on convincing Procedure” will continue through mid-2014. Read evidence, that Mr. remembrances about him at www.tba.org/news/ Reid was incompe - don-paine-legal-community-shares-thoughts- tent during the memories Paul Dennis Reid Jr.

MAY 2014 TENNESSEE BAR JOURNAL | 31 DAY ON TORTS BY JOHN A. DAY Tenn. Code Ann. §20-1-119 and Federal Courts The federal courts have misconstrued Tenn. Code Ann . § 20-1-119 (2009) for almost two decades. The Tennessee Supreme Court finally got an opportunity to set the record straight, and it did so in Becker v. Ford Motor Co. 1 Section 20-1-119 is one of the most rational, balanced tort-related

statutes in the Tennessee Code. In brief, “was not intended to apply to a plaintiff and subject to several important excep - … who, long before the defendant’s tions, it provides that if a defendant in answer to the complaint, had knowledge The bottom line: an answer or amended answer alleges that a third party be at fault for the the fault of a person not a party to the complained of injuries.” 4 When the issue Tenn. Code Ann. action, the plaintiff may add the non- was first raised in state court, the § 20-1-119 works. party as a party defendant within 90 Western Section 5 of our court of appeals days and avoid any statute of limitations followed Whittlesey . The Middle Section defense asserted by the new defendant. rejected Whittlesey in Townes v. Sunbeam It provides a way for all potentially at- Oster Co. 6 The Tennessee Supreme Court fault parties to be brought before the denied a Tenn. R. App. P. 11 application court in a state that has the shortest in Townes and recommended that the statute of limitations in the country. It Court of Appeals opinion be published. discourages shotgun complaints, The publication of the opinion made the reducing litigation expense for defen - Middle Section case controlling dants and plaintiffs alike. The bottom authority under Tennessee Supreme line: Tenn. Code Ann. § 20-1-119 works. 2 Court Rule 4(H)(2). 7 The Western One issue that raised its head in the Section of the Court of Appeals appro - early days of § 20-1-119 was whether a priately changed its view on the issue plaintiff could use the 90-day window for and followed Townes. 8 adding a party defendant otherwise Controversy closed, right? Nope. The protected by the expiration of the statute federal courts continued to ignore unam - of limitations if the plaintiff knew or biguous Tennessee law. 9 This incongruity should have known about the existence of persisted for 13 years and 32 days, until the party within the statute of limitations. March 7, 2014, when the Tennessee The potential defendants of the world said Supreme Court ruled in a case it accepted “No,” arguing the policy behind statutes on a certified question of law 10 that it of limitations generally. The potential meant what it said in 2001 when it plaintiffs of the world said “Yes,” arguing ordered publication of the Middle Section inter alia the plain language of the statute Court of Appeals opinion in Townes . did not so limit its application. Now, the law in federal court and The United States Court of Appeals state court should be the same: §20-1- for the Sixth Circuit got first crack at 119 applies “even when the plaintiff this legal issue in Whittlsey v. Cole .3 For knew of the identity of the potential unknown reasons, it elected not to tortfeasor 11 at the time of the filing of the certify the question to the Tennessee plaintiff’s original complaint but chose Supreme Court and ruled the statute not to sue the potential tortfeasor.”

32 | TENNESSEE BAR JOURNAL MAY 2014 Presumably, this opinion will not be 10. Magistrate Judge Susan K. Lee of the ignored by the federal courts. Eastern District of Tennessee is to be congratu - JOHN A. DAY is a trial lawyer in Brentwood. He lated for recognizing the inconsistency between has been irritated about Whittlesey since 1998. Notes federal law and state law on this state-law issue Now, his list of things and people that irritate 1. Becker v. Ford Motor Co., No. M2013- and certifying this issue to the Tennessee him is down to 4,374 items. His wife Joy is not on that list. 02546-SC-R23-CV, ___ S.W.3d ___, 2014 WL Supreme Court under Tenn. Sup. Ct. R. 23. 901510 (Tenn. March 7, 2014). 11. 2014 WL 901510 at *7. 2. For an extensive discussion of the law concerning this statute, consult chapter 5 of 17 John A. Day, et al., Tennessee Practice Series Tennessee Law of Comparative Fault (2013 ed.). 3. Whittlsey v. Cole, 142 F.3d 340 (6th Cir. 1998). 4. Id . at 345. The reader is encouraged to study this opinion and endeavor to understand (a) how legislative intent was relevant given the language of the statute; and (b) how the court of appeals was able to ascertain what the legisla - tive intent was. The court admitted its conclu - sion was not based on legislative history. Id. 5. Lipscomb v. Doe, 1998 WL 886601 (Tenn. Ct. App. Dec. 16, 1998) (rev’d on other grounds, 32 S.W.3d 840 (Tenn. 2000). 6. Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 452-53 (Tenn. Ct. App. 2001). 7. This rule is currently Rule 4(G)(2). The rule permits federal courts to certify questions of state law to the Tennessee Supreme Court when “there is no controlling precedent in the decisions of the Supreme Court of Tennessee.” 8. McClendon v. Bunick , 2001 WL 1660845 (Tenn. Ct. App. Dec. 28, 2001). 9. See, e.g., Schultz v. Davis , 495 F.3d 289, 294-95 (6th Cir. 2007) (the opinion references but ignores the holding Townes ).

MAY 2014 TENNESSEE BAR JOURNAL | 33 THE LAW LAUNCH PROJECT Law School by the Numbers Last fall, The Law I notice a trend among 3L’s … we have ATE UPD Launch Project become mathematicians. Well maybe not began following 15 full-fledged mathematicians, but we are members of the Class sure doing a lot of counting these days … of 2014 as they wrap most of which is counting down. I know I up law school and am as guilty of this as anyone … in just a prepare to be lawyers. few hours I will be down to 3 days of Let’s check in on showing up for classes. Notice I didn’t say what they’re saying. 3 days left … so maybe some of that Read more at “thinking like a lawyer” has sunk in over From left: Belmont University College of Law, Lincoln Memorial University Duncan http://tbalawlaunch. the last three years because I am counting School of Law, University of Memphis Cecil C. Humphreys School of Law, Nashville wordpress.com in a light most favorable to my position. School of Law, University of Tennessee College of Law and Vanderbilt Law School. This counting down has got me thinking about some things … so here goes my law I read those Laughter is so important to our survival school experience by the numbers. in life and in law school. We are so lucky to have (Please excuse my math if a few of these books that some of the most hilarious professors in school. are rounded off; after all if I could do real They make us laugh, laugh with us and I am sure, math I would have gone to medical tell you all laugh at us when we aren’t around. school … right?) • 1,003 days from the first to the last day of law school (broken down in other the secrets I can tell you where I was when I found out I got into law school. … I ways that’s 86,659,200 seconds or 1,444,320 minutes or 24,072 hours or of surviving about hit the floor and went into imme - 143 weeks (rounded down)), diate panic mode. A million questions • 33 classes your first raced through my mind. What the heck • 88 credit hours just happened being the first one. • 1,672 hours of setting in class • 418 days of classes year of law • 44 absences Was it time to take a leap out of • 1,309 hours commuting school. nursing, the only thing I had ever • 67,320 miles commuting done, and go do this crazy law school • 3 different vehicles • In excess of 500 diet Mountain Pretty much thing? Could I really go to law school Dews. (I so wish Belmont had Coke and be a lawyer? products available.) just made The answer to all of them was I am so happy to be on this side of me want to yes. these numbers, and I am glad I didn’t do the math in 2011. The reality is just now We were baby law students that [first] day we all lined beginning to sink in that Law School is puke. What up on the front steps of school for our class picture. now but days away from being an accom - Over half of us are gone now and the rest of us prob - plishment and not a goal to start one day. ably don’t look as happy and healthy as we did back had I done? I have talked and written many times then. But, we have almost made it. This is almost done. about focusing on the career after Law School even while in Law School … but In the words of the great allow me to bask in the accomplishment and to congratulate my friends and colleagues who are about to graduate. philosopher Jimmy Job Well Done! if we weren’t all crazy we would Buffett, This column is taken from BRETT KNIGHT ’s April 1 blog post on The Law Launch Project. He all go insane. So relax and laugh. will be finished at Belmont Law by the time this magazine is published.

34 | TENNESSEE BAR JOURNAL MAY 2014

BUT SERIOUSLY FOLKS BY BILL HALTOM When ‘Free Speech’ Becomes an Oxymoron I love oxymorons. My favorite is “jumbo shrimp.” Here’s a list of some of my other favorite oxymorons: Preliminary conclusion Civil war Head-butt Working vacation Tennessee Democratic Home school Low-fat Oreo cookie Party Internal Revenue Service New tradition Domestic violence Instant classic Airline food No-fault divorce Light heavyweight Bittersweet Express Mail Extended brief Budget deficit First annual Minor crisis Congressional ethics Free trade Mandatory judgment Constant change Genuine fake Mutual differences

And here’s one that I wish everyone McCutcheon argued that the cap After ‘McCutcheon,’ for would please note: most unique . This restricted his free speech, and in a 5-4 most of us poor voters, actually is my least favorite oxymoron decision, the nation’s highest court because I hear it all the time on televi - agreed. Writing for the majority, Chief “free speech” in political sion and radio commercials (“Knoxville’s Justice John G. Roberts said, “There is no most unique restaurant!”), and it drives right in our democracy more basic than campaigns will be me crazy, which, yes I know, is a short the right to participate in electing our something we just trip … and is also a fine oxymoron. political leaders.” If you don’t read anything else in this By “participate,” the chief justice wasn’t can’t afford. column, please note the following: referring to putting up yard signs or Something cannot be more unique or placing a bumper sticker on the back of less unique or most unique. Unique is an your car that says “Joe Schmoe for absolute term meaning distinctive from Congress!” No, the chief justice was anything in the world. I am not uniquer talking about speech, and in this case, not than you, and you are not uniquer than free speech, but very expensive speech. me. No, I do not write the most unique Political campaigns now cost a column in the Tennessee Bar Journal. fortune, and your typical member of And now thanks to the United States Congress spends most of his or her time Supreme Court’s recent decision in begging for money. You can spot them at McCutcheon v. Federal Election Commis - major intersections holding up signs that sion , we can soon add a new oxymoron read, “I will serve for food.” to this list: free speech. The New York Times columnist Thomas The case was brought by Shaun Friedman has suggested that members of McCutcheon, an Alabama businessman Congress should be required to dress like who enjoys exercising his free speech. NASCAR drivers. Their business suits And there is nothing free about it. should be covered with patches containing In 2012, Mr. McCutcheon the names of their major donors. contributed $33,000 to 16 candidates for Way back in 1976 when Gerald Ford federal office. He wanted to give more, was president and you could run for but he was stopped by a decades-old law Congress for say, a mere $100,000, the that put a cap on the total amount any U.S. Supreme Court issued its decision individual can contribute to a congres - in Buckley v. Valeo . The court said that sional or presidential candidate in a two- political contributions were indeed year election cycle. speech protected by the First Amend -

36 | TENNESSEE BAR JOURNAL MAY 2014 ment, but said that such contributions called “Americans for Prosperity,” may speech on TV and radio stations and may be capped in the name of soon buy a lot of free speech in newspapers across the Volunteer State preventing corruption. Tennessee this summer in an effort to this summer, Chief Justice Wade, Justice But now political campaigns have turn out of office three current members Clark and Justice Lee and their become like the famous knife fight scene of the Tennessee Supreme Court — supporters will have every opportunity in Butch Cassidy and the Sundance Kid . Chief Justice Gary Wade, Justice Connie to buy their own free speech to counter Rules in a knife fight? There are no rules Clark and Justice Sharon Lee. The group the free speech being exercised by the in a knife fight, and apparently, soon was founded by a couple of billionaires, billionaire carpetbaggers. I am sure that there will be no rules on how much “free the Koch brothers (no relation to retiring at this very moment, these judges are speech” you can buy to purchase your Tennessee Justice Bill Koch) who are calling their billionaire friends and very own member of Congress. Such engaging in not-so-free speech in polit - requesting contributions. “free speech” should not be confused ical campaigns across the nation. It is a classic example of the Jeffer - with “bribery,” which is still against the Now I’m not sure why the Koch sonian marketplace. Everyone has the law, although that too may be changed in brothers would want to buy some free right to spend millions of dollars saying a future Supreme Court decision. speech in Tennessee to influence the who our Supreme Court Justices should For most of us poor voters, “free outcome of a Supreme Court election. be. But if this happens, we may soon speech” in political campaigns will be Neither of them live here, and I don’t have another oxymoron: fair and inde - something we just can’t afford. But know what beef they have with three pendent judges . there are billionaires out there who current members of the Tennessee have the resources to buy all the free Supreme Court. BILL HALTOM is a shareholder with the firm of speech they want. But there’s nothing unfair about this. Lewis Thomason. He is a past president of the According to a recent report in the If the Koch brothers and other Ameri - Tennessee Bar Association and a past presi - Tennessee Journal , a group ironically cans for Prosperity buy a lot of free dent of the Memphis Bar Association. Read his blog at www.billhaltom.com.

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