What You Need to Know Now about the Service Members’ Civil Relief Act on page 9
The Perils of E-mail - Practical Tips for the Use of E-mail in Your Office on page 11
A Monthly Publication of the Knoxville Bar Association April 2008
2 DICTA April 2008
In This Issue
Volume 35, Issue 4 COVER STORY
DICTA 12 Qualcomm v. Broadcom: The
latest e-discovery nightmare
Officers of the Knoxville Bar Association
Adrienne L. Anderson
Thomas R. Ramsey III
Samuel C. Doak
Michael J. King
Ruth T. Ellis
Immediate Past Pres.
5 President’s Message
KBA Board of Governors “ . . . and Justice for All.”
Penny A. Arning
Tasha C. Blakney 7 Attorney Profile
Cynthia L. Chapman Dawn Coppock
Wade V. Davies
Michael W. Ewell 9 Practice Tips
Hon. Daryl R. Fansler Members’ Civil Relief Act
Timothy C. Houser
Timothy A. Housholder
Hillary B. Jones CONVENTIONAL WISDOM
Gregory S. McMillan
Jon G. Roach
George T. Underwood
6 How to Keep from Getting Disbarred
Patty K. Wheeler
Exceptions to Attorney Client Privilege
DICTA is the official publication of:
10 Word Play
The Knoxville Bar Association
505 Main Street, Suite 50
Knoxville, Tennessee 37902
11 Management Counsel: Law Office 101
The Perils of E-mail
Publication Committee 14 Worth Your Time
Michael J. King Book Review: The Nine: Inside the Secret World of
Regina M. Lambert
the Supreme Court
Amye Tankersley King
Jack H. (Nick) McCall 18 Around the Bar
Christopher W. McCarty 30 Years of Notoriety: A Kaleidoscope of Lessons
Angelia Morie Nystrom from the Eastern District of Tennessee’s Biggest Fish
Suzanne K. Roten Story Ever
C. Ryan Stinnett
KBA Executive Director
Managing Editor COMMON GROUND
DICTA is published monthly (except July) by the Knoxville Bar
Association. It is designed to offer information of value to
4 Section Notices
members of the local bar association. The news and features Event Calendar
should illustrate the issues affecting the bar and its members. The
opinions expressed do not necessarily represent those of the
8 What It Means To Be A Lawyer
Knoxville Bar Association. 10 Barrister Bullets
All articles, other than Bar Notes, submitted for publication in 15 Long Winded
DICTA must be submitted in writing and on an IBM-PC compatible
disk or by e-mail attachment. Exceptions to this policy must be
17 Bench & Bar In The News
cleared by KBA Executive Director Marsha Wilson (522-6522). 21 Pro Bono Project
DICTA subscriptions are available for $25 per year (11 issues) for
23 Last Word
April 2008 DICTA 3
EVENT CALENDAR & SECTION NOTICES
There is no additional charge for membership in any section, but in order to participate, your
membership in the KBA must be current.
Alternative Dispute Resolution
I 27 Barristers Volunteer Breakfast
The ADR Section meets regularly for a CLE program on the first Monday of the month at
I 28 Ethics CLE Program
5:30 p.m. If you would like further information on the ADR Section, please contact Patty
Wheeler (546-1000) or Carol Nickle (637-6258). The CLE Calendar for the ADR Section is
available in the DICTA insert.
The Corporate Counsel Section provides attorneys employed by a corporation or who limit April
their practice to direct representation of corporations with an opportunity to meet regularly and I 2 Fee Dispute Committee
exchange ideas on issues of common concern. If you would like further information on the
I 3 McElhaney CLE
Corporate Counsel Section, please contact Leslie Beale (549-7000) or John Arnold (342-5120).
I 7 ADR Section CLE
I 8 LRIS Committee Meeting
I 9 Barristers Executive Committee
The Criminal Justice Section is comprised of judges, federal and state prosecutors, and criminal
defense attorneys. To have your name added to the section list, please contact the KBA Office
at 522-6522. If you would like further information on the Criminal Justice Section, please I 10 Lunch & Learn
I 16 Board of Governors
contact Jonathan Cooper (524-8106) or Steve Sword (215-2515).
I 24 Barristers Volunteer Breakfast
I 25 Legal Tech Expo
I 28 Guardian Ad Litem CLE
The Environmental Law Section meets regularly and presents speakers on topics relevant to
both practitioners of environmental law and lawyers with an interest in the area. For more
information about the KBA Environmental Law Section, please contact Co-Chairs: Mary
LeAnn Mynatt at email@example.com or James C. Wright at firstname.lastname@example.org.
I 1 Law Day Luncheon
I 5 ADR Section CLE
The Family Law Section meets regularly and presents speakers on family law topics or provides
the opportunity to discuss issues relevant to family law practice. Future Family Law Section
I 7 Fee Dispute Committee Meeting
meetings will be held on the fourth Tuesday of the month at noon at the LunchBox. To have
I 8 Lunch & Learn
your name added to the section list, please contact the KBA Office at 522-6522. Please contact
I 14 Barristers Executive Committee
Betsy Meadows at 540-8777 or Lucinda Albiston at 539-9002 if you would like to join this
I 16 Chancery Court Bench Bar CLE
group or if you have any questions about future programs.
Government & Public Service I 21 Board of Governors
The Government & Public Service Section is open to all lawyers employed by any governmental I 22 Barristers Volunteer Breakfast
entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If
you would like further information on the section, please contact Suzanne Bauknight at
Be sure to check the Master
Calendar online at
www.knoxbar.org for the most
Senior Lawyers Section
complete & up-to-date
The Senior Lawyers Section is open to all lawyers over the age of 50. Please contact Randy
information on important
Nichols at 215-2121 if you have suggestions for luncheon speakers or would like to volunteer to
Solo Practitioners & Small Firms
The section meets regularly and presents speakers on topics relevant to solo and small firm
practitioners. The goal of this section is to provide and encourage networking opportunities. For
more information on the Small Firm Section, please contact David Eldridge, Chair of the
Small Firm Section, at 544-2010.
4 DICTA April 2008
By: Adrienne Anderson
Kramer Rayson LLP
“ . . . and Justice for All.”
In the Pledge of Allegiance to the United States flag, we describe our completed 2,046 cases in 2007. That is an average of 5.6 cases completed
country as a nation “with liberty and justice for all.” Although all Americans per day, yet LAET estimates that it only assisted 2.9% of the eligible people
should work to ensure that the justice system is available to everyone, as who had at least one civil legal problem.
lawyers we should be especially concerned with “justice for all” because we This statistical analysis does not even address the people who earn over
are the legal system. We particularly should be concerned about people who $15,000 per year and, therefore, do not meet the LAET eligibility
cannot effectively access the legal system because they cannot afford to pay guidelines. It is hard to imagine how someone earning only $15,000 per
for a lawyer. year could possibly afford to hire a lawyer. Consider these real-life examples:
Although our justice system is the best legal system in the world, it is a
complicated system that is difficult to understand. Each of us spent years in • Married parents of five children work full time jobs, earn less than
college, law school, and the courtroom or conference room before we felt $35,000 per year, share one car, and are victims of a car repair scam that
truly competent to handle legal matters on our own. We know what usually leaves them without transportation.
happens when someone with a legal problem does not have a lawyer to • A single mother of two children works full time to support her family
represent him: he does not understand the language of the law, he cannot and faces a wrongful foreclosure when a mortgage company makes a
find or understand the rules that apply, he does not know how to navigate mistake in the terms of her promissory note.
the system, and he cannot adequately pursue his legal rights and remedies.
The need of poor people for legal representation is a societal need that None of these clients is a lazy deadbeat, but rather each is a productive
can be met only by lawyers. Only a licensed attorney may give legal advice member of society who has a legal problem and cannot afford to pay a
or represent a client in any legal matter. Legal training is not required to lawyer.
organize a clothing drive, help assemble Thanksgiving baskets, attend a The clearest avenues for providing greater access to justice are to
fundraiser for medical research -- all worthy causes -- but only lawyers can increase the number of legal aid lawyers and to increase the number of
provide legal representation. lawyers providing pro bono service.
There is a very practical reason for everyone to be concerned if people In order to increase the number of legal aid lawyers, legal aid
cannot access the legal system, that is, the “ripple effect.” If a domestic organizations must have more money. Federal funding currently provides
violence victim is unable to obtain access to the legal system to stop the only 40% of LAET’s tightly budgeted income. Very simply, the money will
violence, the victim will continue to miss work, and may lose her job. Her have to come from us. Dave Yoder, Executive Director of LAET, explained
children will miss school or fail to learn while they are in school. The victim that LAET has two natural constituencies -- poor people and lawyers.
will incur medical costs which may ultimately be paid by the taxpayers. The Although Mr. Yoder has done an excellent job of raising funds from
incidents of domestic violence increase the danger to police officers who individuals who are not lawyers and organizations that are not involved in
respond to calls about domestic violence. The lack of access to justice affects the practice of law, the non-lawyers always ask, “What are the lawyers
everyone. giving”? and react to what we are doing. Contact
he lack of access to justice affects
For persons accused of certain crimes, the
taxpayers will provide a lawyer, either a public
defender or a court-appointed attorney. With
Dave Yoder at 637-0404 or email@example.com, and
he can tell you about the variety of creative ways
that donations can be made to LAET.
respect to civil matters, however, there is no constitutional right to In order to increase the number of lawyers who will represent people
representation. We tend to rely on “legal aid societies” to represent poor who cannot pay for services, we need to have more lawyers providing pro
people in civil matters. In the East Tennessee area, the public service bono service. Please do not wait for Terry Woods, Director of the Pro Bono
organization that provides the legal representation for poor persons is the Project, to call you. Instead, contact her at firstname.lastname@example.org or 525-3425,
Legal Aid Society of East Tennessee (“LAET”). LAET provides legal and let her know what kind of availability you have for pro bono service.
services for poor persons in twenty-six counties. LAET is limited in its She will have an opportunity for you. Even if you only have a couple of
ability to serve all of the civil legal needs of poor persons. hours free every other Saturday morning, you can do a remarkable amount
First, the restrictions under which LAET operates limit the type of of good.
clients whom LAET can serve and the types of cases and matters that Dave Yoder, LAET’s Assistant Director Debra House, and Terry
LAET can handle. LAET cannot serve anyone whose household income is Woods praise Knoxville area lawyers for their generosity to LAET and their
more than 125% of the official federal poverty level. This means that a pro bono service. Both law firms and individual attorneys give substantial
single person who earns more than approximately $15,000 per year is not amounts of money to LAET. A greater percentage of Knoxville lawyers
eligible for LAET services. perform pro bono service, and do so repeatedly, than lawyers in other
In addition LAET is limited by its capacity to meet the demand it similar-sized metropolitan areas. Approximately 25% of Knoxville lawyers
faces for legal representation. The number of attorneys working for LAET donate money to LAET, perform pro bono service, or both. You are to be
is determined by the amount of funding received by LAET. The lawyers commended for your efforts to strengthen our justice system and to make it
who work for LAET include graduates of Harvard, Northwestern, and the accessible to all persons.
University of Tennessee, but LAET lawyers earn the lowest salaries of any I encourage every attorney to take pride in your role in our country’s
public service lawyers in Tennessee. Even so, there is insufficient funding to system of law and justice and to take steps to make sure that we can proudly
hire enough LAET lawyers to meet the need for legal representation of the say that in Knoxville, Tennessee, there is access to justice for all.1
These limitations on LAET’s ability to provide services mean that 1
Dave Yoder and Debra House graciously provided background information for this article. Any
there are people in the East Tennessee area whose need for legal errors in reporting the information are mine.
representation in civil matters is not met. The Knoxville office of LAET
April 2008 DICTA 5
HOW TO KEEP FROM GETTING DISBARRED
By: Tripp Hunt
BPR Disciplinary Counsel
EXCEPTIONS TO ATTORNEY CLIENT PRIVILEGE
When an attorney is sued for malpractice, the attorney may reveal
to his/her own attorney the information necessary to establish his/her
defense. See RPC 1.6(b) and Comment 11, RPC 1.6 Therefore, in
Scenario 2, Luke did not violate the ethics rules by telling his attorney
this privileged information, as long as this particular information would
assist in establishing Luke’s defense.
In Scenario 3, Troy reveals his client’s confidential information to
the attorney for a third party, despite the client’s instructions to Troy
that he not do so. RPC 1.6(b) (3) permits an attorney to disclose this
information. Comment 12 to RPC 1.6 states, “[C]harges can arise…
based on a wrong alleged by a third person, such as a person claiming to
have been defrauded by the lawyer and client acting together…
Paragraph (b) (3) does not require the lawyer to await the
1. Kirk and McCoy are partners in the same law firm. Kirk commencement of an action or proceeding that charges such complicity,
represents Scott in his divorce. Scott has told Kirk about an so that the defense may be established by respondent directly to a third
extramarital affair. Scott tells Kirk not to disclose this affair to party who has made such assertion.” Troy, therefore, did not violate
anyone, including members of Kirk’s firm. Kirk asks McCoy as to RPC 1.6.
McCoy’s advice on how to deal with this affair during the trial. There is no per se prohibition against an attorney using a cell
2. Attorney Luke has been sued for malpractice by Will. Luke phone. However, if the client instructs the attorney not to use a cell
reveals to her attorney privileged information as to Will which phone, the attorney should comply with this request. See comment 19
would help Luke’s defense. of RPC 1.6. Therefore, in scenario 4 Benjamin should not have
3. Troy is being accused by a third party of committing a fraud with discussed Wolk’s case with his paralegal.
Troy’s client. Information that is privileged would acquit Troy as
to the alleged fraud. The attorney for the third party contacts Troy
and Troy reveals this information to the third party’s attorney.
Troy’s client has not authorized this disclosure.
4. Wolk is paranoid as to secrecy and orders his attorney, Benjamin,
not to use a cell phone, when Benjamin is discussing Wolk’s case.
Benjamin calls his paralegal on his cell phone and instructs his
paralegal as to witnesses that need to be contacted in Wolk’s case.
These scenarios pertain to RPC 1.6, which deals with
confidentiality. This Rule generally does not prohibit attorneys in the
same firm from sharing privileged information about a client. However
comment 9 to RPC 1.6 states that if the “client has instructed that
particular information be confined to specified lawyers,” an attorney
must abide by that request. Since Scott instructed Kirk not to reveal
this information to other members of the firm, Kirk has violated RPC
1.6 in Scenario 1 by revealing this information to his partner.
6 DICTA April 2008
AT TO R N E Y P R O F I L E
By: Regina Lambert
Although she has a thriving adoption
practice and a busy life raising her two children,
Dawn has become a registered lobbyist and
spends her winter in Nashville trying to
persuade legislators to pass the Tennessee
Scenic Vistas Protection – a bill she drafted.
Her goal is to ban mountaintop coal removal
(or cross ridge, as it is known in Tennessee).
Dawn states that her motivations are twofold:
faith and heritage. “This is a faith issue – that’s
a no-brainer. As a Christian, it’s very clear to
me that Jesus would identify with the people
whose homes are getting flooded out and whose
wells are getting polluted . . . .” Her other
motivation is the legacy of being a lifelong
Tennessean. “It’s a heritage thing. My family
has been in Tennessee since before it was a
state. I grew up hiking and camping. My
grandfather had 60 years in scouting, so
mountains are not abstract to me – they feel
very much like family. Another thing is, I have
children and I want to pass that heritage on to
Dawn was also inspired about
mountaintop removal through her church, the
Church of the Savior, United Churches of
Christ. The youth director, the late Kathy
Lindquist, wrote a column in the church
newsletter about protecting the environment
and coined the term “creation care” to describe
Dawn Coppock is a lifelong Tennessean – Dawn’s current practice is strictly limited
this extension of her Christian faith. The last
and proud of it. She attended high school here to adoption law, and her practice spreads from
column she wrote prior to her death was about
in Knoxville at Holston and went to Nashville to the eastern edge of Tennessee.
mountaintop removal. Following a pledge by
Carson-Newman College in Jefferson City, TN, Her adoption practice has a broad focus,
her congregation to continue Lindquist’s work,
where she received her Bachelors of Science in representing birth parents, adoptive parents,
Dawn co-founded the Lindquist
Management and Business Data Processing. and occasionally agencies, and dealing with
Environmental Appalachian Fellowship
She left Tennessee briefly in the mid 1980’s to issues ranging from private and interstate
(LEAF), the primary mission of which is “... to
attend law school at the Marshall-Wythe adoption and agency, state, and international
draw attention to the scriptural call for
School of Law, College of William and Mary, adoption finalizations to termination of
Creation Care in East Tennessee’s Christian
located in historical Williamsburg, Virginia. parental rights and assisted reproduction
churches.” A further indication of her
Following her completion of law school in
1987, Dawn returned to Tennessee and started awn believes that ensuring the security of a child in his or her home
her law career at a downtown Knoxville law
firm, practicing what she refers to as "door law"
(i.e., anything that walked through the door).
A part of her practice included adoption work.
Dawn loved working in adoption law, and
D is one of the most important obligations an attorney can undertake
and feels that representing a party in an adoption is an honor.
environmental passion is that all of her work
fortunately, there was a need at that time for an technology. Dawn also provides consulting
related to this issue is pro bono.
adoption attorney in east Tennessee. services for attorneys who need assistance with
Dawn is a member of the Knoxville and
In 1993, Dawn became a mother for the complicated adoption issues. She is the author
Tennessee Bars, as well as the American Bar
first time. Motherhood motivated her to of a treatise, Coppock on Tennessee Adoption Law,
Association, and she is a frequent media source
develop a home office attached to her farm which can be found on the desks of attorneys
and speaker at CLE and public information
house in east Knox County. Aside from the and judges all across the state. She is also a
seminars on the subject of adoption. She has
obvious convenience of a home office, Dawn Tennessee Rule 31 mediator and mediates
been listed among the top 101 lawyers in
loves that the office has a wonderful view, often issues regarding termination of parental rights
Tennessee by Tennessee Business magazine. In
with deer, groundhogs, foxes, and herons. She and adoption related disputes. Dawn believes
2004, she was named an Angel in Adoption by
became a mother for the second time in 1995. that ensuring the security of a child in his or
the U. S. Congressional Coalition on Adoption.
Her daughter, Audrey, is fifteen and loves to her home is one of the most important
In her free time, Dawn enjoys spending
run track, while her son, Leo, is twelve and obligations an attorney can undertake and feels
time with her two children and sometimes
enjoys basketball and science. Family activities that representing a party in an adoption is an
(incredibly!) finds time for writing poetry, yoga,
include cooking, traveling, camping, hiking, and honor.
gardening, and reading novels.
April 2008 DICTA 7
WHAT IT MEANS TO BE A LAWYER
By: Anna Fox Hinds, Of Counsel
Stone & Hinds, P.C.
The implicit question prefacing a statement of what it means to be have been a part of some very exciting litigation and transactions. But,
a lawyer brings to mind my favorite cartoon from The New Yorker Book perhaps my most memorable moment in court (not counting when John
of Lawyer Cartoons in which the man standing in front of a mirror, while Lockridge declared to Chancellor MacDonald that my argument was
making a four-in-hand knot with his tie, practices various responses to the most “tautological” he had ever heard) was when I argued
the question: “What do you do?” successfully that my client, the plaintiff in a divorce action in Tennessee
– which does not recognize common law marriage – was the common
“I’m a lawyer.” law wife of the father of their three children and that the “marriage”
“The law.” should be dissolved with the father ordered to pay child support.
“I do law.” So, I have been not young for a long time, but I am still a lawyer.
“I practice law.” If writing my own epitaph, it would read: “She was a lawyer.”
“I’m an attorney.”
“Something legal.” *Vanderbilt
My practice before the mirror when preparing to argue a case or
make a speech resembles more the mini-fits of Karen Crowder in WHAT IT MEANS TO
Michael Clayton; nevertheless, being a lawyer for me is not simply what I
do or what I am; it is who I am. It is a calling. BE A LAWYER
When I was called to the Bar, too long ago now for me to
remember with any degree of comfort, as put by my favorite barrister, During 2008, DICTA is running a series of articles about
Rumpole of the Bailey, I quickly understood the undeniable truth spoken what it means to be a lawyer. Some lawyers may derive the
by Professor Joseph Story of Harvard University in 1829, i.e.: “ ... the meaning of being a lawyer from a particular case or project.
law is a jealous mistress and requires a long and constant courtship.” As Others may reflect on the meaning of being a lawyer by drawing
he suggested, I have given it lavish homage. from a wide variety of situations experienced throughout a long
Consider the oath taken by those being admitted to the Bar in legal career. For younger lawyers, it may be from something they
Tennessee: learned in law school or some of their initial experiences when
“ ... I will support the Constitution of the United States and
starting the practice of law.
Constitution of the State of Tennessee, (that part is easily
We are soliciting articles from all members of the Bar
understood – a given); and that I will truly and honestly demean
between 500–750 words in length. No particular style is
(think homograph number 2) myself in the practice of my
profession to the best of my skill and abilities, so help me God.” necessary. Please send your submissions to Marsha Wilson via
Is that ALL? I do not think so. For me, becoming a lawyer meant
thirty years of hard labor with but an occasional renewal of the body,
mind, and spirit at The Greenhouse in Arlington, Texas, or The Golden
Door in Escondido, California. As a full-time practitioner, I never had
the luxury of balance in my life, but I have always loved being a lawyer.
Being a lawyer has afforded me the opportunity to participate in
projects of the local, state, and national bar associations. Beginning as a
delegate from the Knoxville Barristers Club to the Young Lawyers
Division of the American Bar
...being a lawyer for me is Association in 1971, I was
not simply what I do or appointed by the YLD as
liaison to the Real Property,
what I am; it is who I am. Probate, and Trust Law Section
and served until I finally had to
admit that I was no longer young. Working with the ABA, TBA, KBA,
the Sixth Circuit Judicial Conference, and the Alumni Association of
my law school, which shall not go unnamed*, has brought to me deep
and lasting friendships which I shall always cherish.
Each of us with a License to Practice Law, has been certified by the
Board of Law Examiners to be a person of good moral character, of
proper age, and well versed in Law and its practice. To remain “learned
in the law” is something to be taken very seriously.
Being a lawyer means learning to think like a lawyer, learning to
use the tools of logic and reason; learning to listen to all sides, to be
counselors as well as lawyers; and to realize that we do not know
everything, but we do know how to look it up. It is our calling to
illuminate the facts, not to deceive, inveigle, and obfuscate. As
entertaining and instructive as Shark can be, I am still struggling with
his pronouncement that: “Truth is relative; pick one that works.”
Whether arguing before the Supreme Court of Tennessee or
pleading a case in the trial court, we lawyers often hold in our hands the
future of one or more human beings. I have witnessed some positive
changes in the treatment of previously overlooked persons and issues. I
8 DICTA April 2008
By: Heather G. Anderson
Ten-Hut! What You Need to Know Now about the
Service Members’ Civil Relief Act
Example: Service member has a credit card
with a $1,000 charged debt prior to active duty.
After going on active duty, she charges another
$2,000 in credit card charges. Only the $1,000
of the total $3,000 debt will qualify for the
interest rate reduction to 6%.
2. Leases of Premises and Automobiles.
A service member can terminate a
pre-active duty “dwelling, professional, business,
agricultural, or similar” lease entered into by or
for the service member and occupied for the
service member’s purposes or his dependents. If
a service member on active duty is required to
move due to military orders, he is covered as
well – the SCRA covers leases entered into by
active duty service members who later receive
orders for a permanent change of station or a
deployment for 90 days or more.
If a service member is called to active duty
In 1940 at the start of World War II, Congress enacted the Soldiers’ and Sailors’ Civil Relief
for a period of 180 or more days, then
Act (“SSCRA”) to protect those engaged in military service. It was revised in 1991 following the
pre-service auto leases of the service member
Gulf War, and then in 2003, significant revisions to the SSCRA occurred via the new Service
and their dependents (for business or personal
Members’ Civil Relief Act (“SCRA”).
use) may be canceled. 50 U.S.C. App. §
The SCRA protects our service members on active duty and those who are reservists and
members of the National Guard (called to active duty by the President or the Secretary of Defense
For the required acts by a service member
for over 30 consecutive days under 32 U.S.C. App. § 502(f ) to respond to a national emergency
to terminate a lease, see 50 U.S.C. App. §
declared by the President and supported by federal funds). It can be found at 50 U.S.C. App. § 501
535(c). If the service member paid rent in
et seq. With regard to the SSCRA, the United States Supreme Court reflected that it should be
advance, the unearned portion must be
interpreted liberally “with an eye friendly toward those who dropped their affairs to answer their
refunded, and only the rent for those months
country’s call.” Le Maistre v. Leffers, 333 U.S. 1, 6 (1948). No one would be surprised if the same
before termination must be paid. Any security
approach is used with the SCRA.
deposit should be refunded on termination.
Why do you need to know about the SCRA, you ask? Even if you represent no one engaged
in military service, chances are some of your clients have business dealings with active military
3. Default Judgments Against Service
personnel, and the SCRA may have substantial impact on your clients’ legal rights as well as those
Members on Active Duty.
persons directly protected by the SCRA.
Where a service member has made no
appearance in a case, before a default judgment
Either party or the court may contact the Department of Defense to determine if a party is in can be entered, a court must first determine
the military at https://www.dmdc.osd.mil/scra/owa/home. You will need a last name and social whether the party in default is a member of the
security number or birthdate. The SCRA also provides for stays which can be issued by courts. military. The plaintiff must submit an affidavit
that states “whether or not the defendant is in
military service and showing necessary facts in
support of the affidavit.” 50 U.S.C. App. § 521.
1. Interest on Debts and Mortgage Payments.
This is automatically required in detainer
Let’s say you represent a credit card company which has extended credit to a member of the
warrants and civil summonses filed in the Knox
armed forces. The member has been called to active duty. Under the SCRA, a military member is
County General Sessions Courts. You should
able to cap the interest rate (including service charges) at 6% for all obligations entered into before
make sure to include the affidavit in a motion
beginning active duty if the military service materially affects his or her ability to meet the
for default judgment. If the defaulting party is
obligations. (This includes interest rates on credit cards, mortgages, and even some student loans).
a service member, then no default can be taken
The cap begins on the first day of active military service and lasts as long as the member is on active
until the court has appointed an attorney to
duty service. Further, interest in excess of 6% must be forgiven. 50 U.S.C. App. § 527(a)(2). Of
represent the defendant to protect his interests.
course, there are hoops the service member must jump through to obtain these protections, such as
It is not clear who is to pay the appointed
making a written request and sending a copy of military orders to the creditor. 50 U.S.C. App. §
attorney. “Default judgment” is defined as “any
order, ruling or decree which is adverse to the
service member’s interest.”
April 2008 DICTA 9
By: Peter D. Van de Vate
Hunger & Poverty Relief Committee Seeks Volunteers
If you are interested in becoming involved with the Hunger & Poverty
Relief Committee or would like more information, please contact Greg
Burlison at 594-6120 or email@example.com. Volunteers are always
We usually think of this word when observing our young Mobile Meals
children in the house – out of control and in total disorder. Well, The Hunger & Poverty Relief Committee is looking for firms to
participate in a new Mobile Meals route. Local firms currently deliver
there is more to it. The word is a noun defining the crime of
lunch to elderly Mobile Meals clients every Monday and Friday, and
intentionally maiming a person. As might be expected, the word the Committee is working on plans to add an additional day to the
comes from maym, injury, around 1300. It appeared as maheym schedule. Each firm would be asked to cover the route one day per
at about 1405, which was borrowed from the Anglo-French month. For more information, please contact Nic Arning at 215-1000
mahaim. It finally gets back to the Vulgar Latin mahanare. or firstname.lastname@example.org.
The word came to be known as a means of disabling one’s Professional Clothing Drive
opponent by cutting off a finger or otherwise disabling the The Hunger & Poverty Relief Committee will be sponsoring a
enemy, even removing a tooth or putting out an eye. The removal Professional Clothing Drive from April 9 until April 18. For more
information, please contact Gianna Maio at 594-6120.
of an ear or the nose were not considered mayhem at common
law. Volunteer Breakfast
Volunteers are needed to serve breakfast at the Volunteer Ministry
The common use of the word today, as I suggested above, is first Center on the fourth Thursday of the month. Contact Andy Hebar at
recorded in 1868. 342-1040 or Patrick Horne at 546-4305 if you are interested.
10 DICTA April 2008
MANAGEMENT COUNSEL: LAW OFFICE 101
By: Chad Hatmaker
Woolf, McClane, Bright, Allen & Carpenter
“The Perils of E-mail”
Practical Tips for the Use of E-mail in Your Office
It is the twenty-first century and the Technology Age. Thanks to 3. Count To Ten Before You Hit Send.
desktops, laptops, pdas, and that little thing called the internet, many of In other words, do not send an e-mail when you are angry.
us find that our most frequent mode of communication is through Because of the speed of e-mail, the danger is that the angry message will
e-mail. The thought is e-mail is quick, efficient, and free (in theory), so be sent before a cooling off period occurs. The angry message could
it must be the best way of communicating. Of course, things are not lead to significant interoffice problems with morale and create
always as they seem, and that maxim can sometimes prove true with difficulties in working together on a going forward basis. Indeed,
e-mail communication. sarcasm or wisecracking can take on more weight than intended if
If we are not careful, communication by e-mail can become placed in an e-mail. What was meant as a minor complaint may be
inefficient, confuse the recipient as to our intent or tone, and result in perceived as a significant issue. If you are angry, cool off, review your
unintended consequences, such as disgruntled staff and clients. In order message, and consider whether to tone it down before hitting the send
to avoid those unintended results I have listed some practical guidelines button.
for you to consider when communicating by e-mail: 4. Slow Down And Reflect.
1. Have A Policy. With letters and memoranda most of us tend to review, reflect, and
All firms should have a policy which governs the use of e-mail. At revise before we have a final version. Unfortunately, the same generally
a minimum, the policy should state that the use of e-mail for personal does not hold true with e-mails. Take the attitude that your interoffice
reasons is limited and that e-mail should not be used to harass, e-mail communications are formal communications. Spell check and
discriminate, or engage in any other unlawful purpose. proofread the message before it is sent. Review the draft message, reflect
2. Should This Communication Be In The Form Of An E-mail? on it, and consider whether revisions are needed.
The first question you must ask yourself is “should this 5. Keep It Clean.
communication be by e-mail or some other form”? Because e-mail is so Do not use e-mails to communicate raunchy or off-color comments
prevalent we tend to resort to it rather than communicating the “old or jokes. In addition to violating your firm’s e-mail policy and applicable
fashioned way,” by walking down the hall to talk to someone or picking law, these types of comments may be offensive to the recipient. If you
up the phone. I submit that with respect to interoffice communications, would not include it in a letter or memorandum, do not include it in an
face to face or telephone communication is overwhelmingly the best way e-mail.
to communicate. It allows both parties to interact simultaneously, to 6. Consider Your Audience.
give and take in the conversation, and to clearly understand each other’s I know I am guilty of sending e-mails to all attorneys or all
tone and intent. Thus, use person to person or telephone computer users in our firm, and I would bet many of you are as well.
communication as the rule of thumb in your office. When you send the e-mail to a large group, however, you run the risk
Additionally, personnel matters should almost never be handled via that those who actually have valuable information to offer will ignore
e-mail. If you want to speak with another attorney or a staff member your message, or not give it serious consideration, because they believe
about his or her performance, you should have the discussion in person. that you do not really value or need their input since the message was
If you believe the personnel matter is serious enough to be documented, sent to so many people. Therefore, consider who actually needs to see
the documentation should be more formal than an e-mail, such as a the message before it is sent with the mindset of “less is more” as your
written warning, performance improvement plan, or other form of guide.
corrective action notice. 7. Keep It Brief.
Finally, think twice before communicating any matter that is highly The less said the better is a good rule of thumb with respect to the
sensitive through e-mail. Any recipient can redistribute the e-mail as length of your e-mails. Keep your message short and to the point. Use
widely and quickly as he or she wants. This potential wide only a few paragraphs and few sentences per paragraph. If you find
dissemination could result in the disclosure of confidential information yourself writing an overly long message, stop and pick up the phone or
of your client, the inadvertent waiver of the walk down the hall for an in person visit.
attorney client privilege, and a client who is 8. Assume It Will Be Forwarded.
looking for another lawyer. Moreover, as we all Assume that any e-mail you send will be forwarded, including to
know by now, e-mail seemingly lasts forever. others who you did not want to see the message. Therefore, if you write
Numerous backup copies of the e-mail will an e-mail that you do not want forwarded, at least say so, both in the
remain at the various computers and servers subject matter line and at the beginning of the message.
through which it passed after you delete it and 9. Do Not Expect An Instant Response.
under the amended Federal Rules of Civil Remember, not everyone is sitting in front of the computer with
Procedure, will be discoverable in the event of e-mail open at the time your message is sent. Some of us have not yet
litigation. For these reasons, highly sensitive developed the “crackberry” habit and will not see your e-mail until we
matters should still be discussed the old fashioned return to the office, which could be several hours or days. As a result, if
way or through more formal written communication, such as a letter or your communication is so important that you need an instant response,
memorandum. you should go and see the person or call him or her if they are out of the
About this column:
“The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his
customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good
service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on
April 2008 DICTA 11
Qualcomm v Broadcom:
The latest e-discovery nightmare
With the KBA Legal Tech Expo coming developing; failure to do so would render any • Immediately double- or triple-checked
up on Friday, April 25, it’s time for the latest such patents unenforceable in subsequent your previous discovery efforts. (You
cautionary electronic discovery case, which lawsuits. Once a company disclosed a patent, might have done this simultaneously with
includes a sanction lifted from The Simpsons. the company could grant licenses or decline to one of the first two choices.)
As every viewer knows, the show’s opening do so, in which case the standard would be Qualcomm’s lawyers again made a
sequence usually features Bart repetitively designed to avoid the patent.4 The district different decision: they deemed the messages
writing on a chalkboard as punishment for his court found that Qualcomm sandbagged: it irrelevant and let the witness testify without
latest sin.1 Imagine, though, if a judge gave you monitored and participated in the standard’s producing them. Asked whether she had read
a sentence like Bart’s: write a report describing development while concealing at least two any such e-mails, the witness said she had not.
how you erred in a case and what you will do relevant patents. But asked whether she had received any such
differently next time. Now, imagine how that The key discovery decisions e-mails, the witness truthfully disclosed the
might pit you against your client. Qualcomm first claimed it had not actually messages’ existence.5
That scenario is playing out in San Diego been on the standards committee. Broadcom Ultimately, the jury found for Broadcom
in the e-discovery drama of Qualcomm, Inc. v. responded by presenting a list of committee on the infringement claim and rendered an
Broadcom Corp.2 Before you dismiss this as a members including Qualcomm. If you advisory verdict that Qualcomm’s patents were
bizarre outlier to be expected only from represented Qualcomm, what could you have unenforceable due to waiver. Further, the
California or New York, recall how you done? You might have: district judge found “by clear and convincing
responded to the Zubulake e-discovery • Insisted that your client level with you; evidence that Qualcomm counsel participated
decisions when you first read them – rules • Double-checked your initial effort to in an organized program of litigation
imposing cost-shifting and litigation hold search e-mails and other ESI; or misconduct and concealment throughout
obligations with respect to electronically stored • Contacted the committee and inquired discovery, trial, and post-trial.”6 Among other
information (“ESI”) – and remember that the about Qualcomm’s status. things, Qualcomm produced more than
December 2006 amendments to the Federal Qualcomm and its counsel apparently 300,000 pages of relevant e-mails and ESI four
Rules of Civil Procedure effectively codified chose the ostrich option: they pretended the list months after the trial.
many of the Zubulake holdings. did not exist. The sanctions
This is not to suggest that the Rules will In written discovery, Broadcom requested Broadcom moved for sanctions, and the
someday mandate “chalkboard sanctions.” any documents or ESI that Qualcomm had in district judge referred the motion to a
Further, in fairness to the judge, the lawyers in its possession, or had ever received, related to magistrate judge who ordered 19 Qualcomm
Qualcomm made troubling decisions that any such standard-setting groups. Qualcomm in-house and outside attorneys to show cause
deserved creative castigation. But in any event responded that it had no such documents. In why they should not be sanctioned. The
the orders in this latest e-discovery milestone preparing witnesses for trial, however, attorneys engaged their own counsel and moved
merit attention; if you attend the Legal Tech Qualcomm attorneys learned that one witness’s to pierce their client’s privileged
Expo, you’ll have multiple chances to learn how computer contained 21 e-mail messages from communications so they could explain what
to avoid a similar fate. the committee. The witness claimed never to happened. The court denied the motion,
The underlying case have participated in the committee’s work or to finding that the self-defense exception to the
Qualcomm sued Broadcom for infringing have opened the messages; nevertheless, the attorney-client privilege did not apply.
its digital video compression patents, and witness had, by any reasonable definition of the
Broadcom asserted the affirmative defense of word, “received” them. Knoxville Bar Association
waiver. To shorten a long, complex story, Again, what could you have done as
Broadcom contended Qualcomm had forfeited Qualcomm counsel? You might have:
Legal Tech Expo
its patent rights by participating in an industry • Advised Broadcom counsel that you had Friday, April 25, 2008
standard-setting committee intended to pool discovered the e-mails and produced them U.T. Conference Center
resources to create greater product compatibility as soon as possible. 600 Henley Street, 4th Floor
and revenue for all participants.3 • Sought a protective order, tendered the
Guarantee your attendance at your
To join the committee, companies had to e-mails to the Court under seal, and preferred CLE program
agree to disclose any patents that could be requested a ruling on whether the Reserve your space at www.knoxbar.org
affected by the technology they were messages had been “received.”
12 DICTA April 2008
By: Chuck Young
Kramer Rayson LLP
In January 2008, the court found that documents maintained, possessed and can enhance the process with sensible ESI
Qualcomm (a) knew or should have known that used by them, (b) knowing or being search criteria – and audit your results when
the 21 e-mails were responsive and relevant; (b) able to determine all of the computers necessary.
should have immediately produced the e-mails and databases that were searched and Beyond that, the lessons of Qualcomm are
upon discovering them; and (c) should have the search terms that were utilized, conventional: follow the evidence wherever it
immediately re-checked other data to and (c) having the ability to review all leads, keep track of what you do, and
determine if additional relevant ESI existed. of the pleadings filed on Qualcomm’s communicate honestly and directly with
The court also ordered Qualcomm to pay behalf which did (or should have) opposing counsel and the court. While the
Broadcom’s $9.2 million legal bill. 7 alerted them to the fact that either the Qualcomm CREDO will be interesting reading,
Then came the Bart Simpson punishment: document search was inadequate or few of us should need a CREDO to remember
as the court referred six Qualcomm outside they were knowingly not producing that.
attorneys to the California State Bar’s ethics tens of thousands of relevant and
commission, it also ordered them to develop a requested documents.10 1
The show’s chalkboard gags are listed at
comprehensive “case review and enforcement of http://www.snpp.com/guides/chalkboard.openings.
discovery obligations” protocol, neatly yielding The notion that any attorney, in-house or html.
the acronym CREDO. The court found that otherwise, ever has “unlimited access” to a 2
No. 05-CV-1958-RMB (BLM), 2008 U.S. Dist.
the outside attorneys helped Qualcomm client’s witnesses, documents, or ESI is utopian
LEXIS 911 (S.D. Cal. Jan. 7, 2008) (hereafter,
commit discovery violations by intentionally at best.
the “Sanctions Order”).
hiding or recklessly disregarding relevant The story continues. On March 5, the
documents, ignoring or rejecting numerous district judge lifted the magistrate judge’s 3
No. 05-CV-1958-RMB (BLM), 2007 U.S. Dist.
warning signs that Qualcomm’s search was sanctions order as to the six outside attorneys, LEXIS 57136, at **12-13 (S.D. Cal. Aug. 6,
inadequate, and blindly accepting Qualcomm’s reversing the earlier privilege ruling and finding 2007).
assurances that its search was sufficient.8 that the attorneys can pierce their privileged 4
The CREDO, in the court’s view, would communications with Qualcomm because they Id., 2007 U.S. Dist. LEXIS 57136, at **14-15.
help counsel and corporate clients comply with “have a due process right to defend themselves 5
Id., 2007 U.S. Dist. LEXIS 57136, at **81-83.
ethical and discovery obligations. The attorneys … where their alleged conduct regarding 6
were directed: discovery is in conflict with that alleged by Id., 2007 U.S. Dist. LEXIS 57136, at *58.
• to identify the failures in their case Qualcomm.”11 Further hearings remained to 7
Sanctions Order at *21.
management and discovery protocol; be held as DICTA went to press.
Id. at *64.
• to craft alternatives to prevent such failures The lessons
in the future; While we await the CREDO, the 9
Id. at **65-69.
• to evaluate and test those alternatives; and Qualcomm decisions urge us to think 10
• to create a model case management systematically about e-discovery. That begins Id. at **66-67.
protocol.9 with creating at least a simple process, which 11
No. 05-CV-1958-RMB (BLM), 2008 U.S.
As she added Qualcomm’s in-house for many clients will be its own challenge. Of Dist. LEXIS 16897, at *9 (S.D. Cal. Mar. 5,
lawyers to the CREDO team, however, the course, you should create, and execute, the 2008).
magistrate judge made an observation that process with a realistic view of the case’s value
unintentionally provided comic relief: and the criteria of Rule 26(b)(2)(C). Still, if Chuck Young is a partner with Kramer Rayson
Qualcomm’s in-house lawyers were in everyone agrees to and understands their roles LLP and a frequent writer and speaker on
the unique position of (a) having and duties on the front end, risks necessarily technology and litigation issues. He serves as
unlimited access to all Qualcomm recede. Then, after performing in-person Co-Chair of the KBA’s Law Office Technology &
employees, as well as the e-mails and interviews and other factual investigation, you Management Committee.
April 2008 DICTA 13
WORTH YOUR TIME
By: Ryan Stinnett
Leibowitz & Cohen
A REVIEW OF THE NINE: INSIDE THE SECRET
WORLD OF THE SUPREME COURT
Harvard Law School graduate and best-selling author Jeffrey Toobin several justices, including Justice O’Connor through her conscious
is a well-known legal analyst on CNN and a writer for The New Yorker. attempt to force moderation on the Court to keep with her sense of the
In his most recent book, The Nine: Inside the Secret World of the Supreme American public’s views, and Justice Kennedy through his growing
Court, Toobin shines a probing light upon the inner workings of the reliance on international law as a guiding beacon for American law.
Supreme Court, the branch of our government which is probably the The Nine provides a timely and relevant read during this 2008
least understood by the American presidential campaign, as candidates
public. oobin’s work makes clear that despite the candidates’ from both major political parties will be
Toobin’s research for The Nine
included exclusive interviews with
several current and past justices and will be able to muster, during a term on the Court.
other insiders from the Court. This
T responses to such questions, nobody can be sure of how a
justice’s opinions will shift, or the level of power the justice
pressed to describe the type of justice
they would nominate to fill vacancies
on the Supreme Court. Toobin’s work
makes clear that despite the candidates’
level of detail brings a rare insight responses to such questions, nobody can
into not only the mechanical workings of the Court, but also into the be sure of how a justice’s opinions will shift, or the level of power the
political, psychological, and often personal motivations of the members of justice will be able to muster, during a term on the Court. No matter
the hallowed institution. While Toobin’s book may have particular your own personal political stripe, or judicial philosophy, Jeffrey Toobin’s
interest for lawyers, it is accessible to anyone with an interest in the The Nine: Inside the Secret World of the Supreme Court will offer you a witty
personalities and political forces that clash to interpret and frame the laws and intelligent look at the workings of the modern Supreme Court and
of this nation. an adept analysis of the powerful, if sometimes egotistical or eccentric,
Among his discussions of many key cases, Toobin casts his lens in personalities that make the Court such a fascinating institution.
significant detail on Bush v. Gore, the case arising from the Florida vote
recount in the 2000 presidential election. He offers a harsh review of the
Court’s participation in the case, in large part based on the justices’ often
politically motivated interests in the process and outcome of the disputed
election. Toobin also chronicles the internal struggle between competing
factions of judges and law clerks regarding the case, the overwhelming
departure from the Court’s usual order and procedure in hearing the case,
and the disappearance of the Court’s “public unanimity” and “veneer of
bipartisanship.” The result, according to Toobin, is an embarrassingly
partisan decision. “[T]he Court as an institution and the justices as
individuals failed” and “their performance…amounted to a catalog of
their worst flaws as judges.”
Above all else, Toobin’s captivating narrative of the personalities of
the justices, and the interactions between them, gives The Nine its unique
appeal. Among the most interesting are details of Justice Souter’s odd
nineteenth-century lifestyle, such as keeping in his home a telephone and
a fountain pen, but no television, answering machine, facsimile, cell
phone, or e-mail. Justice Thomas is described as being “ideologically
isolated, strategically marginal, and, in oral argument, embarrassingly
silent” but nonetheless “also universally adored” within the Court. The
scars and grievances of Thomas’ confirmation hearing are found lingering
in all of his actions on the Court.
Toobin also tracks the remarkable rise of Justice O’Connor, her
control over the so-called Rehnquist Court as the moderate swing-vote
during most of her career on the Court, and her resulting position as “the
most important woman in American history.” The reader is then granted
access to Justice O’Connor’s philosophical break from her once-beloved
Republican Party during the presidency of George W. Bush, and her
emotional departure from the Court to tend to her ailing husband.
Toobin offers a wide array of other interesting insights from the Court,
including details of possibly the “most influential amicus brief in the
history of the Court,” submitted by dozens of high-profile military
retirees in support of the use of affirmative action by the University of
Michigan’s undergraduate and law schools, and of the death threats
received by Justices Ginsburg and O’Connor during the well-publicized
battle over the removal of a feeding tube from Terri Schiavo. Also
included are fascinating accounts of the evolving judicial philosophies of
14 DICTA April 2008
By: Jason Long
London & Amburn
The first of April is the day we remember what we are the other 364 days a shock to many people that I do research for any of these articles – for
of the year. – Mark Twain. the record, usually I don’t do any research and just make up whatever I
April Fool’s Day is perhaps the best holiday of the year. You don’t want to write), I came across a listing on the web of all time great April
have to get cards for your significant other, you don’t have to plan a fancy Fool’s pranks. If you ever have the time to Google that search, there
dinner, and there is no stress over whether you have bought the perfect certainly have been some elaborate and interesting pranks pulled through
April Fool’s Day gift. The only person evaluating whether you have the course of the years. Personally, I made a list of my favorite five, in no
correctly celebrated April Fool’s Day is you. If you think it’s a good joke particular order:
or prank to pull on someone, then it probably is (with the caveat that In 1957, in what was generally considered the hallmark ushering in
some of us go a little too far and end up looking like jerks). an era of elaborate April Fool’s Day pranks, the BBC aired a news report
A little background: While no one is exactly sure when people first in England showing peasants pulling long strands of cooked spaghetti
began celebrating April Fool’s Day, the speculation is that it began some from treetops. The report indicated that, due to a mild winter and
time around the year 1582 in France. (Who knew the French had a reduction in boll weevil population that year, Switzerland was
sense of humor? My four years of high school study under Sister Louise announcing a bumper crop of spaghetti. Viewers were intrigued and
only taught me that Monsieur and Madame Thibaut lived at 16 Rue de many called the station or wrote letters asking how they could grow their
la Guerre and enjoyed baguettes and . . . if the pictures in my textbook own spaghetti.
were to be believed . . . I learned that French people liked to smoke A personal favorite of mine, because I was completely taken in by
cigarettes.) Up until that time, the calendar year started on April 1. the hoax, was the 1985 article written by George Plimpton for Sports
People would begin celebrating eight days earlier, on March 25, Illustrated in which he biographied the new rookie pitching sensation for
culminating in a new year celebration on April 1. Then came reforms the New York Mets, Sidd Finch. Mr. Finch had never played baseball
under Charles IX and the Gregorian calendar was adopted. New Year’s before, according to the article, but had learned the art of pitching while
Day was officially moved to January 1 when we all began celebrating it meditating in a Tibetan monastery and studying under the great
by recovering from our hangovers and wondering why the Volunteers poet-saint Lama Miaraspa. Sidd only wore one shoe to assist with his
were having a difficult time putting away the East Technical Institute for delivery and his fast ball was recorded at 168 mph. People like me cursed
Agricultural Studies. Nonetheless, back in the sixteenth century, several the Mets’ good luck at finding this unknown prospect and wondered how
Frenchmen did not appreciate in the world anyone could stop
the shifting calendars and t is better to keep your mouth shut and be him. Of course, it was all a hoax
stubbornly continued to celebrate
April 1 as New Year’s Day.
These individuals were criticized
by their neighbors for not
embracing the change and were
I thought a fool than to open it and leave no well . . . the Mets.
doubt. – Mark Twain.
often ridiculed as . . . you guessed it . . . fools. The ridicule went so far as
and the Mets continued to be . .
In 1996 Americans, particularly
those living in Philadelphia, were
shocked and appalled to find that
the Taco Bell corporation had purchased the Liberty Bell and was
to involve elaborate jokes or pranks that were played upon these fools. renaming it the Taco Liberty Bell. Personally, I think it’s a great way to
As many of you historians are aware, back in the sixteenth century it raise some revenue. We could have the Lincoln Mercury Memorial, St.
was not uncommon for France to be invaded and/or conquered. These Louis McDonald’s Arch and Old North Church’s Fried Chicken. Maybe
days, people really don’t care one way or the other what happens to President Obama will look into this for me.
France, but back then it was generally viewed as a valuable piece of real One prank seemed a bit too real to be a joke. In 1998, an article
estate. As a result, the tradition of April Fool’s Day migrated into published by the New Mexicans for Science and Reason announced that the
England and Scotland. From there, it was just a matter of time before Alabama legislature had passed a law changing the value of pi from
our forefathers brought the celebration to the colonies and April Fool’s 3.14159… to the “Biblical Value” of 3.0. That story turned out to be
Day became an American holiday as well. As I began this research, I false. It is also false that Bear Bryant has come back from the dead,
thought it would be fascinating to know how this holiday got its start. although the Alabama faithful keep hoping.
After reading the prior two paragraphs, I realize there is nothing Finally, among the many that were listed, one of my favorite April
remotely interesting or funny about this story. So there you have it. Fool’s pranks was pulled by Burger King ad executives who announced in
It is interesting to note that, around the world, April Fool’s Day is 1998 that they had developed a customer friendly “left-handed”
celebrated differently in different cultures. For example, Scotland has a Whopper. They proudly advertised that the left-handed Whopper
two day festival and the second day is almost entirely devoted to pranks contained all of the same ingredients and condiments as the normal
involving a person’s posterior region. For those of you who are Whopper; however, for the benefit of their left-handed patrons, the
interested, the tradition of the “kick me” signs arose originally from this condiments had been rotated 180 degrees. The following day, Burger
Scottish festival. It also says a great deal about people like me, who are King restaurants were flooded with requests from customers for a
Scottish by heritage, that our kinsmen can devote an entire day to left-handed Whopper as well as demands from others that their server
making fun of the butt. In Mexico, several people celebrate December assure they be given a right-handed Whopper.
28 with a fun day of pranks and trickery similar to our April Fool’s Day. I hope everyone has a fun and frivolous April Fool’s Day. It is better
The basis for their celebration? They are commemorating the slaughter to keep your mouth shut and be thought a fool than to open it and leave no
of children and innocents by King Herod. You have to hand it to doubt. – Mark Twain.
Mexico for putting a positive spin on things.
In researching April Fool’s Day for this article (I realize it comes as
April 2008 DICTA 15
Minority Law Student Reception
March 6, 2008
The Knoxville Bar Association & the U.T. College of Law would like to thank the 100 + local lawyers and law students who participated in the
Minority Law Student Reception on March 6, 2008. For more information about the law students who attended, please contact Kay Brown at the
U.T. College of Law at 974-4751.
The KBA Minority Opportunities Committee would like to thank the following firms for their participation and support:
Arnett, Draper & Hagood London & Amburn
Baker, Donelson, Bearman, Luedeka, Neely & Graham
Caldwell & Berkowitz Nickle & LaFevor
Bill Hotz & Associates Spicer, Flynn & Rudstrom
Egerton, McAfee, Armistead & Stacy, Whitt & Cooper
Davis Stone & Hinds
Eldridge & Blakney The Isaacs-Ramsey Law Firm (left to right) KBA President Adrienne Anderson, KBA
Eldridge & Gaines The Bosch Law Firm Minority Opportunities Committee Co-Chair Ursula
First Tennessee Bank The Garza Law Firm Bailey, Hon. Richard H. Dinkins of the Tennessee
Hodges, Doughty & Carson Tennessee Court of Appeals Court of Appeals, Middle Section, John Sobieski,
Holbrook, Peterson & Smith U.S. Department of Energy Interim Dean U.T. College of Law
Howard & Howard Wimberly Lawson Seale Wright Hon. Richard H. Dinkins
Knox County District Attorney & Daves – our featured speaker
General’s Office Woolf, McClane, Bright, Allen &
Kramer Rayson LLP Carpenter
Law Office of A. Philip
Law Office of Charles Torres Clarence Risen, Baker,
Donelson, Bearman, Third year law students: Bridgett Bush, Wauna
Law Office of Michael Murphy Coleman, Ashley Thomas
Caldwell & Berkowitz,
Law Office of Randall E. Reagan
1st year law student
Law Office of Timothy C. Houser Amit Patel,
Roderick Adams, 1st
Legal Aid of East Tennessee LAET Director
year law student Tiva
Leitner, Williams, Dooley & Dave Yoder and
Napolitan Gill, Knox County
Lewis, King, Krieg & Waldrop Attorney General’s Office
16 DICTA April 2008
BENCH AND BAR IN THE NEWS
This “members only” column is published The Smoky Mountain Paralegal Association
each month to share news and information monthly meeting will be held on April 10,
among KBA members. Submissions should 2008, at 12:00 p.m. at the Main Conference
be limited to 50 words and will be edited for Room at the U.S. Attorney's Office in
space and other considerations. Knoxville. The price is $10 for the lunch
buffet. The 1 hour program will be on
Construction Law and will feature R. Loy
Distance Learning Credits Waldrop, Esq. Contact - Kati Wheatley at
The Tennessee Supreme Court entered an order 865-546-7311 or email@example.com or
March 4, 2008, that amends Supreme Court firstname.lastname@example.org for additional
Rule 21, Sec. 4.08, regarding continuing legal
education distance learning. Hours that may be
information. W E LCOM E
obtained by distance learning have increased For more information on the East Tennessee
from six to eight by the order. The KBA's
online CLE courses, found at www.knoxbar-u.com
Chapter of the Tennessee Paralegal Association NEW MEMBERS
or our March events, please contact Nita THE KNOXVILLE BAR ASSOCIATION
allow participants to complete CLE seminars Gorman at email@example.com. IS PLEASED TO WELCOME THE
over the Internet with any standard Internet FOLLOWING NEW MEMBERS:
connection, 24 hours a day, 7 days a week. OFFICE SPACE AVAILABLE: L. Eric Ebbert, Baker, Donelson, Bearman,
• Law Office Space for Rent. Beautifully Caldwell & Berkowitz, P.C.
SCHOLARSHIP OPPORTUNITY –
renovated historic building near Laurie H. Hallenberg, Woolf, McClane, Bright,
SIXTH CIRCUIT JUDICIAL
I-75/Merchant’s Drive exit. Conference Allen & Carpenter, PLLC
room and receptionist available. 4610 Central Chris S. Irwin
The Sixth Circuit Judicial Conference will take Amanda P. Jarret
Avenue Pike. Established attorneys able to
place in Chattanooga, May 7-10, 2008. Any Ray H. Jenkins
refer business. $400 per month. Two offices
attorney who is admitted to practice in federal Douglas A. Lynn, Gentry, Tipton & McLemore, P.C.
remaining. Call 688-4060.
court may apply to attend the Conference. If Jhasta A. Moore, Knox County Public Defender's
• Prime office share space available downtown.
you are a CJA panel attorney, or an attorney Community Law Office
High quality tenant improvements and access
admitted to federal practice for less than five Jennifer S. O'Connor
to conf. rm, $600/mo office only, $1,300/mo
years, or a government attorney (law clerk, Darren E. Ridenour, Norton, Spangler & Cramer
w/ o/h. 800 Gay St., Ste. 1401, Knoxville, TN
Assistant United States Attorney, for example), Charlotte H. Roberts
37929 or 546-1484.
the Chattanooga Chapter of the Federal Bar
• Space is available for (1) or (2) lawyers and a LAW STUDENT MEMBERS:
Association invites you to apply for a partial
paralegal or secretary. For more information, Erin E. Jackson
scholarship to assist with the cost of registration Julianna J. Loden
contact Randy Humble at 525-0321.
for the Conference. At this time, the Sixth
• Office space is available in a beautiful historic
Circuit has not set the registration fee, but we
home off of Highland Avenue. Reasonable Managed 2000 sq. feet property includes
anticipate the scholarship amount will cover
rates, free parking, and the location is within security, parking, and cleaning. Reception
most of the registration cost.
5 minutes to the courthouse. Staff support area, conference room, 5 offices with kitchen.
To apply, go to either the United States District
and in-house mediator are available. Contact Will lease furnished or unfurnished. Please
Court, Eastern District of Tennessee web site
Terri at the Held Law Firm at 637-6550 for contact Jean Ann at 566-4003.
(www.tned.uscourts.gov, Sixth Circuit Judicial
more information. • Prime law office space available to lease for
Conference, Scholarship Application) or the
• Newly remodeled professional office space 1-6 attorneys; 5 miles west of downtown on
Federal Bar Association, Chattanooga Chapter
available at 422 S. Gay Street which includes Lonas near Weisgarber; free parking. Contact
web site (www.fedbar.org, chapters,
receptionist and conference room. Contact Garry Ferraris at 584-7720.
Chattanooga, Sixth Circuit Judicial Conference,
Lori M. Wood, (865) 522-9942 for more
Legal Professionals Association Meets Monthly • Office located at 3405A Chapman Highway Address Changes
available; 600 feet of office space, including a Please note the following updates/changes in your
The Knoxville Association of Legal directory and other office records:
Professionals was formed last year, and legal reception room and offices for a secretary and
support staff are encouraged to join and be a attorney; located directly on Chapman Michael D. Hester
part of this exciting new organization. Benefits Highway with 8-10 parking spaces; one year The Law Offices of Stanley F. Roden & Associates
include continuing education, networking with lease with option of additional year. Contact 10269 Kingston Pike
local and national law office professionals, and Robert J. Haws at 577-1716. Knoxville, TN 37922
the comraderie that comes from having contacts • Tremendous Location. Class A Law Office Phone: (865) 531-6151
anywhere in the country. The group meets for Lease, Westland Dr. & Pellissippi Pkwy. FAX: (865) 692-5296
monthly on the second Wednesday of each 3454 Square Feet, 9 offices, two conference
month. For information about joining the rooms, break room, reception, two bathrooms, Samuel K. Lee
Association, please call Lita Ferrell at and file room. Hardwood floors in two rooms Ridenour & Ridenour
215-1000. and reception. Ready to move in! Call 108 S. Main Street
Roger at 865-712-7076. Clinton, TN 33716
ETLAW: • 708 S. Gay Street, First Floor - Phone: (865) 457-0755
For its April 16, 2008 meeting ETLAW will Approximately 2,800 square feet of office FAX: (865) 457-4878
host a joint lunch meeting with the UT Law space. Attorneys offices, reception area, and firstname.lastname@example.org
Women. A panel discussion will be held conference room. Storage area available in
regarding different opportunities and forms of basement. Please call Linda V. Bailey at Samuel W. Rutherford
the practice of law. The location will be 546-3533. Kennerly, Montgomery & Finley, P.C.
announced by e-mail to ETLAW recipients or • Office Space Available - Office only or full 550 Main Street, 4th Floor
further information can be obtained from service (3814 Powers Street). Call Ted Lowe P.O. Box 442
Rebecca Franklin at email@example.com or phone at 525-5276. Knoxville, TN 37901-0442
522-2662. Please also notify Rebecca Franklin • Professional office space available for Phone: (865) 546-7311
by noon on April 15, 2008 if you plan to immediate lease. Ground floor access. FAX: (865) 524-1773
atttend. Located off of Papermill/Northshore Drive. firstname.lastname@example.org
April 2008 DICTA 17
AROUND THE BAR
By: Zygmunt J.B. Plater
30 Years of Notoriety: a Kaleidoscope of Lessons from
the Eastern District of Tennessee’s Biggest Fish Story Ever
—UT Knoxville’s “Symposium on TVA v. Hill: A 30 Year Retrospective on the Legendary Snail Darter Case,” is scheduled for
April 18, exactly 30 years after the U.S. Supreme Court arguments.
Perhaps the most dramatic national legal story ever to come out of A SNAIL DARTER TIMELINE
the Eastern District was the controversy called Hiram Hill, et al. v. 1936: Tellico site listed by TVA as one of 69 potential damsites.
Tennessee Valley Authority — the little endangered snail darter fish versus 1940-67: TVA builds more than 5 dozen dams.
the TVA’s Tellico Dam — a Tennessee lawsuit that went national and in 1959: TVA Chair Red Wagner posits a Tellico Dam to be primarily justified by
fact became famous (or notorious) around the world. The case still land development and recreation benefit claims.
echoes today almost thirty years later, in caselaw, politics, and as an 1968: TVA begins Tellico dam, based on land development for “Timberlake
ironic, iconic reference in popular culture.1 New Town” to be built by Boeing Corp.; concrete dam built, $4 million.
The UT College of Law’s April 18th symposium, “A 30-Year 1972: Farmers and environmentalists get NEPA injunction, based on TVA’s
Retrospective on the Legendary Snail Darter Case,” offers an engaging lack of EIS.
opportunity to finally put the case in accurate perspective, free of the 1973: New EIS deemed sufficient—NEPA injunction lifted.
spins, disinformation, and politicking that graced its years of notoriety, August 12: Dr. David Etnier discovers snail darter at Coytee Springs
1973-1980. shoal on Little T.
December 28: Richard Nixon signs Endangered Species Act [ESA].
For those who don’t know much about the case, [see text box for the
1975: Boeing abandons Timberlake project citing economic impracticality.
snail darter/Tellico Dam case chronology—Eds.] how, if at all, is it Citizens’ petition to DOI granted for listing of snail darter as
remembered today? Probably like this: endangered, critical habitat, under ESA §7.
— A two-inch threatened minnow, pulled out of a hat at the last 1976: District Judge Rob’t Taylor finds facts of ESA §7 violation, declines
possible moment — and the federal Endangered Species Act — injunction.
were mis-used by extremist environmentalists to block completion 1977: Sixth Circuit grants injunction.
of the economically beneficial $150-million hydroelectric Tellico 1978: April 18, 1978: oral argument in Supreme Court;
Dam. June 15, Supreme Court upholds injunction.
On the objective retrospective record, however, it turns out that 1979: Jan. 29, Cabinet-level God Committee, created by Baker-Culver ESA
Amendments, unanimously upholds snail darter injunction on
every single element of that caricature was inaccurate.2 The UT
economic grounds. Cherokees file religious freedom lawsuit; Judge
conference sessions explores this fascinating case’s twists and turns in Taylor dismisses; 6th Cir. affirms.
terms of law, science, policy, politics, and media. July-Sept.: Sen. Baker and Rep. John Duncan push appropriations rider over-ruling
THE DARTER CASE’S KALEIDOSCOPE... ESA and other laws. Pres. Jimmy Carter fails to veto override.
Consider the remarkable array of different focal points, legal and Nov. 29: reservoir completed and river impounded.
otherwise, reflected in the intricate snail darter-Tellico Dam saga — 1982: TVA proposes use of valley as toxic waste facility; citizens’ public
• Citizen standing for statutory enforcement. outcry sinks proposal.
Only in America does a legal system allow citizens from any walk 1984: TVA begins cooperation with Wal-Mart-linked developers to create
of life with no money or political power to walk into court and take on high-income resort home development.
1984: Some light industrial development locates near Hwy. 411; extensive
the role of private attorneys-general to enforce public laws. The snail
flatwater recreation around lake; several communities of high-income
darter case explicitly illuminated some remarkable changes in resort homes.; darter transplants allow downlisting of the darter to
governmental dynamics triggered by the citizen standing reforms from “threatened” status.
• Natural, historical, recreational, and cultural treasures... how do you river-based alternatives. As Committee member Charles Schulze,
value these? chairman of the President’s Council of Economic Advisers, put it:
Any society’s quality of life is built up of values ranging far beyond Here is a project that is 95% complete, and if one takes just the
marketplace economics. Although the case for the darter turned out to cost of finishing it against the benefits, and does it properly, it
be dominant in hard cash register economic terms as well, it nevertheless still doesn’t pay — which says something about the original
involved many public values that were difficult to weigh in legal process design! [Laughter.]3
terms. The “remand to Congress” effect of Endangered Species Act • Iron Triangles and the difficulties of democratic transparency.
enforcement provided an unusual forum for consideration of many of Throughout modern American government, political
these values. establishments form “Iron Triangles,” as the political scientists call them.
• Public policy-making: benefits/costs/alternatives In the darter saga, the efforts to overturn the ESA were ultimately
The legal process of public policy decisionmaking sometimes tracks carried to conclusion by a coalition of iron triangles including the Corps
basic human rationality — weighing a proposal’s true benefits, costs, and of Engineers concerned about the $4 billion Tennessee-Tombigbee
alternatives — and sometimes does not. The darter case reveals the Waterway, and other resource establishments like the Forest
internal agency pressures that make that rationality process difficult to Service/timber industry coalition, BLM/ranchers and miners, and the
implement. FERC/Edison Electric Institute establishment. All these interest blocs
• The difficulties of litigating economics in court. were extremely worried that the ESA would open their projects and
In the branches of modern government, the courtroom provides the programs to transparency and economic scrutiny.
least effective forum for scrutinizing the specific economic details of a • The Fourth Branch of Government: the Media.
complex public case. Judges in general are institutionally and personally Perhaps the most decisive element of the successful battles to dam
ill-situated to analyze the contentious and politics-laden specifics of the Little Tennessee River was the Press. The citizens assumed that, at
project and program economics. the start, the media would ballyhoo the
Ultimately it was a novel new Cabinet-level agency, the “God “silly-little-fish-against-huge-hydro-dam” caricature and the case’s
Committee” created by the 1978 Baker-Culver ESA amendments, that supposed “environmental extremism.” But we also assumed that the
dug deeply into the economics of Tellico Dam and the darter’s Press, as modern American government’s most significant source of
(Continued on Page 19)
18 DICTA April 2008
2008 High School Mock Trial
The 2008 High School Mock Trial Competition was held on February 16th and February 23rd. Eight teams competed this year, with West
High School defeating Bearden High School in the final round to win first prize. West will go on to compete in the state mock trial competition in
The Mock Trial Committee would like to thank all of the volunteers who assisted with this year’s competition. Special thanks goes to Hon.
Bruce Guyton, Howard Jarvis, Thomas Dickenson, Adrienne Anderson, Robert Murrian, Amye King, Greg McMillan, and Penny Arning for
volunteering to serve as judges of the preliminary rounds of the competition, and to Hon. Michael Moyers for presiding over the championship round.
Other KBA members who volunteered to help with this year’s competition are: Ben Jones, Hillary Jones, Mark Castleberry, Ed Meade, Michael
Stanuszek, Nic Arning, Meghan Morgan, Eric Butler, Latisha Stubblefield, Katrina Atchley, Jason Steinle, Chris Sanders, Chris McCarty, Shelley
Breeding, Ryan Stinnett, Steve Johnson, Daniel Headrick, Preston Hawkins, Matt Grossman, Matt Birdwell, Sherri DeCosta, Keith Alley, Benjamin
Mullins, Kenny Saffles, Joe Christian, Tasha Blakney, and Tim Housholder. Additionally, several members of the Knoxville Association of Legal
Professionals also assisted with this year’s competition, including Lita Ferrell, Susan Porter, Mary Lou Freeman, Tina Loflin, and Julie May.
If you are interested in coaching a local high school team for next year’s competition, or if you are interested in volunteering to serve as a judge,
scorer, or bailiff for the 2009 competition, please contact Sonda Gifford or Mike Baisley at 215-1000.
West High Mock Trial Team: Bearden High Mock Trial Team:
Erin Gormley, Carrie Cox, Reedy Swanson, Ally Diaz, Corey de Rohan, Julia Hoskins, Brittany Smith, Katie Morse, Erica Moore, Katherine Mencer,
Chancellor Michael Moyers, Noelle Harb, Amanda Swanson, Evangeline Mee, Amanda Bischoff, Jennifer Dobbins, Parker Dabbs, Sally White, and Arielle
Leo LaCamera, Laura Poland and Sammy Murrian. Carrie Cox was Best Notte. Chancellor Mike Moyers is also included in the photo.
Witness and Noelle Harb was Best Attorney
AROUND THE BAR (Continued from Page 18)
public information, would pretty quickly start digging deeper into the In an online poll of environmental law professors from across the country seeking a consensus on the
ten most important court cases in the history of environmental law, TVA v. Hill received the highest
intriguing and surprising merits of the case, and the nation would see the number of votes, almost twice as many as the two cases that placed second.
truth. But it never happened. The darter story, then and now, offers a There were more than a dozen judicial decisions in the course of the TVA campaign to build the Tellico
sobering lesson for lawyers, particularly public interest lawyers, about the Dam. See United States ex rel. TVA v. Two Tracts of Land, 387 F. Supp. 319 (E.D. Tenn. 1974)
need to shape not only the legal profile of a case, but also the media (condemnation challenge), aff’d, 532 F.2d 1083 (6th Cir.), cert. denied, 429 U.S. 827 (1976); EDF v. TVA
(I), 339 F. Supp. 806 (E.D. Tenn.) (NEPA litigation), aff’d, 468 F.2d 1164 (6th Cir. 1972); EDF v. TVA (II),
transparency that allows the public to see the real merits. 371 F. Supp. 1004 (E.D. Tenn.) (NEPA litigation), aff’d, 492 F.2d 466 (6th Cir. 1974); Hill v. TVA, 419 F.
• and further Selected Short Subjects... Supp. 753 (E.D. Tenn. 1976) (endangered species litigation), rev’d, 549 F.2d 1064 (6th Cir. 1977), aff’d,
Exploring the history of the snail darter case 30 years later opens up 437 U.S. 153 (1978); Sequoyah v. TVA, 480 F. Supp. 608 (E.D. Tenn. 1979) (Indian religious rights),
a host of other useful analytical doors: aff’d, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980).
For fuller background: see Plater, Reflected in a River: Agency Accountability and the TVA Tellico Dam
—The canons of equity and how statutes invoke a very different Case, 49 Tenn. L. Rev. 747 (1982), and WILLIAM BRUCE WHEELER AND MICHAEL J. MCDONALD, TVA
injunctive balancing process than with the common law. AND THE TELLICO DAM, 1936-1979: A BUREAUCRATIC CRISIS IN POST-INDUSTRIAL AMERICA (1986).
—The “canary-in-the-coalmine” statutory design, with sensitive See also See Kenneth Murchison, THE SNAIL DARTER CASE: TVA VERSUS THE ESA (2007). For an
endangered species acting as legal barometers of threatened human essay with slides on this case, see http://www.law.mercer.edu/elaw/zygplater.html.
welfare qualities. 2
The caricature’s inaccuracies: The project’s official design was primarily as a recreation and shoreland
—State-federal interactions, illustrated in TVA’s repulse of Gov. Winfield redevelopment project; the concrete dam itself cost only about $5 million, and most of the $150+m.
project costs were for land purchase and the cost of useful new infrastructure, roads, bridges, etc.; the
Dunn’s request for a non-dam design for the project development. project was ultimately found to have been diseconomic from the beginning; the case was brought, not
—Perspectives on legal hesitancy about Native American religions, and by extremists, but by a coalition of farmers, fishermen, history buffs, and environmentalists making the
the American Indian Religious Freedom Act, 42 U.S.C. § 1996; the river conservative argument that river-based developments were economically preferable; the citizen efforts
valley and Chota were central to Cherokee religion, and to enforce the federal Endangered Species Act began over TVA’s protests in 1974, long before most of
the project expenditures were made; and finally the fish (Percina imostoma tanasi) is a perch, not a
medicine-gathering activities by traditional medicinemen continued up to minnow, and fully 2½ inches long when mature, not just 2 inches.
the time the river died. 3
U.S. Dep’t of the Interior, Endangered Species Committee Hearing 26 (Jan. 23, 1979), at pp. 25-26,
—The evolutionary history of a federal agency’s internal dynamics, from Statement of Charles Schultze, Chairman of the President’s Council of Economic Advisors. [emphasis
idealistic innovative mission to inertial institutional persistence. added].
—Eminent domain — raising issues about government takings of private 4
Plater & Norine, “Through the Looking Glass of Eminent Domain: Exploring the ‘Arbitrary & Capricious’
family farms for re-sale to private development corporations for a profit: a Test and Substantive Rationality Review of Governmental Decisions,” 16 B. C. Envtl. Aff. L. Rev. 661
substantive due process issue,4 and “public use” issues as in the 2006 Kelo (1986).
v. New London controversy.
—Citizen organizational dynamics: how quixotic public interest crusades Zygmunt J. B. Plater, Professor, Boston College Law School. A.B., Princeton University; J.D., Yale
are built and hold together over time and stress. University; LL.M., S.J.D., University of Michigan. Professor Plater has taught on seven law faculties,
—and a great deal more.... and handled national endangered species litigation -- most notoriously six years spent on the case of
Quite a story, and quite an honor to have been associated with the citizen the endangered snail darter fish vs. TVA’s Tellico Dam in administrative and congressional proceedings
and federal litigation up through the U.S. Supreme Court.
alliance that came so close to making a big difference.
April 2008 DICTA 19
20 DICTA April 2008
Serving the Legal Community in Assisting PRO BONO PROJECT
Low-Income Persons To Navigate the Justice System
By: Terry Woods
If you have read the outstanding summary of the KBA’s history written by James S. MacDonald for the KBA Lawyer’s Pictorial Register, you are
familiar with the Fiat Justitia, which Jim aptly describes as “one of the first breaths of the pro bono movement.” But perhaps you have never had the
opportunity to examine the original 1793 essay in its entirety.
It all started with an ad appearing in the Knoxville Gazette:
The subscribers wish to inform the public, that for the future no application need be made to them for advice on any matter of law, or to
appear in any cause, either in the superior of inferior courts, without first paying the fees established by law, or giving their notes for the
The ad was signed by six Knoxville lawyers and appeared in the Gazette on page four of the March 23, 1793, edition. The next issue, published on
April 6, 1793, contained this response from one of their colleagues in the Knoxville bar:
Having adopted the above Motto, as early I had the honor of admission to the bar, I have covenanted with Thank you to all of the
myself, that I will never knowingly depart from it; and on this foundation I have built a few maxims, which lawyers who offered your time in the
afford my reflection an unspeakable satisfaction. service of others, particularly those
I. I will practice law, because it offers me opportunities of being a more useful member of society. who accepted or consulted on new
II. I will turn a deaf ear to no man, because his purse is empty. cases or participated in Saturday Bar
III. I will advise no man beyond my comprehension of their cause. or the OP Clinic since publication
IV. I will bring none into law who my conscience tells me should be kept out. of the list in the last issue of DICTA:
V. I will never be unmindful of the cause of humanity; and this comprehends the fatherless, widows, and Joy Bennett
bondage. Luis Bustamante
VI. I will be faithful to my client; but never so unfaithful to myself as to become party in his crime. Deno Cole
VII. In cases, I will not underrate my own abilities; for if my client proves a rascal, his money is better in Kimberly Cook
my hands; and if not I hold the option. Dorothy Cooper
VIII. I will never acknowledge the omnipotence of legislation; or consider their acts to be law beyond the Virginia L. Couch
spirit of the constitution. Tanya L. Crosse
IX. No man's greatness shall elevate him above the justice due my client. Tiffany L. Deaderick
X. I will not consent to a compromise where I conceive a verdict essential to my client's future reputation David M. Eldridge
or protection, for of this he cannot be a complete judge. Katie Evans
XI. I will advise the turbulent with candour, and if they will go to law against my advice, they must pardon Paul Forsyth
me for volunteering it against them. Garrad L. Fox
XII. I will acknowledge every man's right to manage his own cause if he pleases. David Gall
The above are my rules of practice, and tho' I will not (at this critical juncture) promise to finish my Maurice K. Guinn
business in person, if the public interest should require my removal from hence, I will do every thing in my Amy Hess
power for those who like them, and endeavor to leave them in proper hands if I should be absent. Catherine Kligerman
WILLIAM TATHAM. Sarah Malia
Knoxville, 21st March, 1793 Jack H. McCall
The Pro Bono Project takes this opportunity to acknowledge the many members of the Knoxville Bar who Jennifer O’Connor
share Tatham’s philosophy, especially those who turn a deaf ear to no man (or woman) because his (or her) Donald F. Paine
purse is empty. And we echo Tatham’s advice that you never underrate your own abilities when setting the Michael S. Pemberton
fee you assess those able to pay, whether they be rascal or not, since their money will surely be put to the David Raybin
greater good in the hands of one following this creed. T. Lynn Tarpy
Save the Date
Who: Greater Knoxville Area Legal Community and its supporters 4th Circuit Court
What: Pro Bono Awards Gala Lucinda M. Albiston
When: May 29, 2008 Robert A. Cole
Where: Club LeConte. W. Andrew Fox
Danny C. Garland
Sarah Swanson Higgins
Don't wait for us to ask. Call 525-3425 to volunteer.
The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 502 S. Gay Street, Suite 404 • Knoxville, TN 37902
phone (865) 525-3425 e-mail: TWOODS @ LAET.ORG fax (865) 525-1162
April 2008 DICTA 21
You are cordially invited to
e Knoxville Bar Association
Annual Law Day Celebration & CLE Program
on ursday, May 1, 2008 at Calhoun's on the River.
Schedule: "[R]emember with pride and
vigilantly guard the great
11:30 a.m. Buffet Lunch Opens at Calhoun’s on the River
heritage of liberty, justice and
12:00 noon Law Day Program including Recognition of the High School
equality under law which our
Mock Trial Teams; Presentation of the Poster & Essay Contest winners;
forefathers bequeathed to us."
Announcement of the prestigious Law & Liberty Award; and Dwight D. Eisenhower
Commemoration of the Law Week activities by the Knoxville Barristers. 1958 Law Day Proclamation
1:30 p.m. CLE Program - Approved for 1 hour of Dual CLE Credit
"The Rule of Law: Foundation for Communities of Opportunity and Equity"
Hon. William C. Koch, Jr., Tennessee Supreme Court
Justice William C. Koch was sworn in as Tennessee’s newest Supreme Court Justice on June 22, 2007,
filling the vacancy created by the retirement of Justice Adolpho A. Birch, Jr. Justice Koch was appointed
to the Tennessee Court of Appeals, Middle Section, in 1984 and he had served as presiding judge since
2003. Before his appointment, he served as Commissioner of the Tennessee Department of Personnel
from 1979 to 1981 and was Legal Counsel to Governor Lamar Alexander from 1981 to 1984. He began
his legal career on the staff of the State Attorney General in 1972, rising to the position of Deputy
Attorney General in 1977.
The buffet opens at 11:30 a.m. The Law Day program begins at 12 noon, so please plan to
arrive prior to 11:45 a.m. Calhoun’s Buffet Features:
Tables of 12 may be reserved in advance. Chicken Teriyaki over Rice;
Reservation Deadline: Thursday, April 24th Hand Pulled Hickory
Send or deliver check to the KBA Office at P.O. Box 2027, Knoxville, TN 37901-2027 or Smoked Pork;
register on-line at www.knoxbar.org. Nevia’s Potatoes;
COST: KBA Members: $35 Non Members: $50 Steamed Broccoli with Almonds;
Law Student - KBA Members: $25 Italian Cream Cake
Cancellation/Refund Policy: Reservations canceled less than 48 hours before the program are subject to the
penalty of the entire amount. Substitutions may be made. Although you are permitted to make a reservation by phone or fax, if you fail to pay the fee
to the KBA before the day of the program, you are responsible for paying the $5.00 additional fee at the door.
PROFESSIONAL CLOTHING DRIVE
Sponsored by the Knoxville Bar Association Barristers/Hunger & Poverty Relief Committee
April 9 – 18
Professional Clothing Only
Men’s or Women’s suits, shirts, pants, ties, shoes, etc
No rips, tears, holes, stains
All clothing collected will be donated to Knox Area Rescue Ministries
Collection boxes at the following locations:
Plaza Tower Riverview Tower Bank of America Building
Knox County Public Defender’s Office KBA Office Other locations around town
For more information, contact Gianna Maio at 594-6120 or email@example.com.
22 DICTA April 2008
THE LAST WORD
By: Nick McCall
Q: Your professional life has been
varied, and you've retired recently
from service as the General
Counsel of Bush Brothers. Is there
"life after law" for John Porter
and, if so, what does that mean
A: JOHN PORTER
Former General Counsel
of Bush Brothers
I graduated from UT College of Law in the spring of 1969 and myself. These include wood and metal sculpture, antique car restoration,
promptly took the $482 I had, got on my motorcycle and went directly to travel, playing the banjo, reading, boating, visiting historical places, and
the West Coast. I ended up at the FTC Regional Office in San Francisco other pursuits too numerous to mention. At the end of each day, I truly
and stayed there for the next twelve years as an antitrust/trade regulation wonder how I ever got anything done during the years I spent in our
lawyer. For the next 17 years, I was Associate General Counsel for Philips profession.
Electronics, and for the last 10 years as Vice President, General Counsel My philosophy, in a nutshell, is this: During the first quarter or so of
and Corporate Secretary of Bush Brothers & Company. I retired from our lives, we were not lawyers. The fact that we spend the next half of our
Bush Brothers in November 2007, one month before my 64th birthday. lives in the profession does not mean that we have to spend the last
The day I retired is the last day I have given any serious thought to quarter doing the same thing. If you have no other interests, develop
anything related to my former profession. This is not because I didn't them. The fact that you are good at what you do doesn't mean that you
enjoy my time as an attorney or enjoy some success over the years. The won't be equally good or better at some other pursuit that may offer you
case is quite to the contrary. The fact is that I have a multitude of more satisfaction in retirement. Leonardo da Vinci, the ultimate
interests outside the profession which I have never had time to pursue Renaissance Man, was a scientist, mathematician, sculptor, inventor,
fully. When I wake up in the morning, I am overjoyed at the thought of engineer, painter, architect, writer, and botanist. The fact that he was one
no more meetings, phone calls, multiple problems to solve, airplanes to of the greatest painters and sculptors of all time didn't deter him from
catch, depositions to attend, and hands to hold. I have, during the first pursuing multiple interests in totally unrelated fields.
four-month period of retirement, "decompressed" from the stress and I have talked with many of my colleagues who are afraid to retire
responsibility that all of us in this profession experience. because they won't know what to do with their time. For me, it is a
What do I do with my time? Fortunately, for years I have pursued a new-found freedom and the beginning of a new and exciting phase of
wide range of interests in which I have not had time to fully engage life.
“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column,
please contact Nick at firstname.lastname@example.org.
April 2008 DICTA 23
PERMIT NO. 652
P.O. Box 2027
Knoxville, TN 37901