Employment Law ■ Humor: From “Make Room for Daddy” to “Who’s Your Daddy?” SPECIAL ACCESS TO JUSTICE ISSUE • Meet the winners of this year’s Public Service Awards • Migrant farm workers’ legal rights • Help for self-represented litigants • Pro Bono Honor Roll www.tba.org ARTICLES 13 TBA ACCESSS TO JUSTICE COMMITTEE WELCOMES YOU By John Blankenship 14 UNDERSTANDING THE UNREPRESENTED By Thomas C. Galligan Jr. 18 THESE WINNERS ENSURE THAT THE LAW IS ‘ACCESSIBLE TO EVERYONE’ By Julie Swearingen 22 WHEN LESS LEGAL SERVICE MAY MEAN MORE ACCESS TO JUSTICE By Carl A. Pierce 26 ‘EQUAL JUSTICE UNDER LAW’ DOESN’T MEAN ONLY IF YOU CAN AFFORD IT By Frank F. Drowota III 30 MIGRANT FARMWORKERS’ LABOR RIGHTS PROTECTED BY SMLS By Jennifer J. Rosenbaum 32 HELP MAY BE ON THE WAY FOR SELF-REPRESENTED LITIGANTS By Elizabeth A. Sykes and Sue Allison 34 PRO BONO HONOR ROLL NEWS & INFORMATION 6 Supreme Court rule ‘presumes’ records are open 6 Increase in federal court civil filing fee effective Feb. 7 6 BPR complaints decreasing 7 U.S. Supreme Court makes federal sentencing guidelines ‘advisory’ 7 Court interpreter rules open for comment 8 Bar leaders convene for Leadership Conference 12 Actions from the Board of Professional Responsibility DEPARTMENTS On the Cover The whole idea of a 3 President’s Perspective: Sometimes, more is better system of law with a By Charles Swanson commitment to equality and freedom falls apart 5 Jest Is for All: by Arnie Glick when large numbers of people have no one to 10 The Bulletin Board: News about TBA members explain the rules to them 39 Employment Law: 10th Circuit invalidates FMLA regulation and no one to protect By Timothy S. Bland their rights. In this third annual Access to Justice 40 Paine on Procedure: Ancient documents issue, explore the Book Reviews: The Green River Killer reviewed implications of that and what you can do 42 But Seriously, Folks! By Bill Haltom about it. Cover design by 43 Classified Advertising Barry Kolar. PRESIDENT’S PERSPECTIVE Your obligation to pro bono Journal Staff Sometimes, Suzanne Craig Robertson, Editor [email protected] Landry Butler, Publications & more is better Advertising Coordinator [email protected] Barry Kolar, Assistant Executive Director reviously, the readers of this column have [email protected] been made aware of the author’s fondness for P sports and his proclivity for relating virtually Editorial Board all aspects of life to metaphors associated with athlet- Andrée Sophia Blumstein, Nashville, Chair Miles Mason Sr., Memphis ics. For example, when technological advances made it Donald F. Paine, Knoxville possible for radio broadcasters to provide live coverage Nathan D. Rowell, Knoxville of baseball games, one would think that the “powers Charles W. Swanson Jonathan O. Steen, Jackson that be” (i.e., owners, general managers, commission- President ers) would embrace the concept with open arms. In the The Tennessee Bar Journal is listed in the words of former football coach and current ESPN talking head Lee Corso, “Not Index to Legal Periodicals. The Te n n e s s e e so fast, my friend.” In fact, initially the concept of providing live, play-by-play Bar Journal, ISSN 0497-2325, is published by broadcasts of major league baseball games was met with considerable reluctance the Tennessee Bar Association at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219- by those who ran the game. Why? The thinking at that time was that if the 2198, (615) 383-7421, monthly. Period i c a l s games were available for free to those who listened to the radio broadcasts, peo- Postage Paid, Nashville, Tenn. Subscription ple who otherwise would attend the games (paying for tickets, parking, conces- price: $60 per year. Members: $22 per year. sions, souvenirs, etc.) would Individual issues: $10 per copy. Back issues choose instead to listen to the sold on an “as available” basis. Statements or “Access to justice is opinions expressed herein are those of the radio and obtain essentially for authors and do not necessarily reflect those of free that which the purveyors of significantly enhanced for the Tennessee Bar Association, its officers, baseball had hoped to sell to board or staff. P O S T M A S T E R: Send address them. In retrospect, perhaps, we those with wealth, power correction to Tennessee Bar Journal,221 Fourth Ave. N., Suite 400, Nashville, TN now may observe that the logic and education or any 37219-2198. in this way of thinking was COPYRIGHT 2005 flawed. At the time, however, combination of those TENNESSEE BAR ASSOCIAT I O N this school of thought was con- assets.” A D V E RT I S I N G P O L I C Y: While the sidered very reasonable, even per- Tennessee Bar Journal attempts to confine its suasive. The flaw in the logic, of advertising to legitimate business endeavors, course, was that the naysayers failed to take into account that when you make the statements and material appearing in the the game available to the masses over the radio waves for free, that mass audi- advertisements are solely the responsibility of ence gives the game an instant degree of national credibility and popularity, the advertiser. The J o u r n a l a n d t h e Te n n e s s e e Bar Association do not directly or impliedly thereby creating an even greater demand for tickets, paraphernalia, concessions endorse, support or vouch for the authentici- and so on. ty of any representation made in any adver- While the analogy may not be perfect, I believe that it is similarly true that tisement appearing herein. The J o u r n a l d o e s creating greater and easier access to our system of justice gives added weight not intend to accept any advertising material that is false and misleading. The J o u r n a l and credibility to that system. When all persons, governors and the governed, reserves the right to refuse an advertisement captains of industry and assembly-line workers, media moguls and children with it deems inappropriate. small voices and even smaller hope, have access to our system of justice as a CHANGE OF ADDRESS: If your address means to solve disputes, enforce rights and resolve individual differences, the has changed, please notify the Tennessee Bar system itself benefits in so many ways. Think about the criticism that so often is Association at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198, so your leveled at our profession and the judicial process. In most instances, that criti- address will be updated for the Tennessee Bar cism is rooted in the belief that the “haves” have meaningful access to that sys- J o u r n a l and other TBA publications. tem while the “have-nots” are only peeking in the windows from the outside. Although those of us who have a greater appreciation for the problems and complexities of providing a fair and unbiased system of justice recognize that Visit our web site at www.tba.org the problems are not nearly so black and white as is thought by those who have only a passing acquaintance with the system, we still must admit that access to Printed on recycled paper. (Continued on page 5) TENNESSEE BAR JOURNAL, FEBRUARY 2005 3 PRESIDENT’S PERSPECTIVE Rules of Professional Conduct, Rule 6.1 Pro Bono Publico Representation A lawyer should render pro bono pub- (1) delivery of legal services at substantially reduced fee to persons of lico legal services. In fulfilling this no fee or at a substantially reduced limited means; or responsibility, the lawyer should: fee to individuals, groups, or organ- izations seeking to secure or pro- (3) participation in activities for (a) provide a substantial portion of tect civil rights, civil liberties, or improving the law, the legal system, or such services without fee or expectation public rights, or charitable reli- the legal profession. of fee to: gious, civic, community, govern- (1) persons of limited means; or mental, and educational organiza- (c) In addition to providing pro bono tions in matters in furtherance of publico legal services, a lawyer should (2) charitable, religious, civic, their organizational purposes, voluntarily contribute financial support community, governmental, and educa- where the payment of standard to organizations that provide legal servic- tional organizations in matters that legal fees would significantly es to persons of limited means. are designed primarily to address the deplete the organization’s econom- needs of persons of limited means; and ic resources or would be otherwise The comments to Rule 6.1 can be inappropriate; found at http://www.tba.org/ (b) provide any additional services ethics/index.html. through: (2) delivery of legal services at a 4 TENNESSEE BAR JOURNAL, FEBRUARY 2005 PRESIDENT’S PERSPECTIVE (Continued from page 3) justice is significantly enhanced for lawyers is to make that illusion a realized B OARD OF GOVERNORS ■ Charles those with wealth, power and education dream. The Tennessee Supreme Court Swanson, Knoxville, President; Bill or any combination of those assets. has commendably and consistently Haltom, Memphis, President-Elect; Larry It is the responsibility of all of us who encouraged all Tennessee lawyers to fully Wilks, Springfield, Vice President; John have the honor and privilege of working engage in this business of making justice Tarpley, Nashville, Immediate Past Presi- within the system of justice not only to available to all through providing pro dent; Paul Ney, Nashville, Treasurer; improve and enhance that system but bono legal services. Their support Cecilia Barnes, Memphis, Secretary; Sam Elliott, Signal Mountain, East Tennessee also to make it universally available to extends to the adoption of Rule 6.1 of Governor; Sue Van Sant Palmer, those in need of its benefits and its pro- the Rules of Professional Conduct.