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					What You Need to Know Now about the Service Members’ Civil Relief Act on page 9
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             A Monthly Publication of the Knoxville Bar Association     April 2008


                                                                        The latest
2   DICTA   April 2008
                                                                           In This Issue
                                                                                                                              April 2008

                    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
            President Elect

                             Michael J. King
                                                                                CRITICAL FOCUS
                             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
             Executive Editor
                                                                                the Supreme Court
                       Amye Tankersley King
             Executive Editor

                       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

                                Marsha Wilson
                                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
non-KBA members.

April 2008                                                         DICTA                                                              3

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.

Corporate Counsel
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
Criminal Justice

                                                                                                             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
Environmental Law

                                                                                                             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 or James C. Wright at

                                                                                                            I 1    Law Day Luncheon
Family Law

                                                                                                            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
                                                                                                   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
                                                                                                 PRESIDENT’S MESSAGE
                                                                                                                 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
                                                           T     everyone.
                                                                                                                    Dave Yoder at 637-0404 or, 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 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
                 By: Tripp Hunt
                 BPR Disciplinary Counsel

                                                                                 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

Dawn Coppock
                                                                                                              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.
attending church.

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
                                                                                                          PRACTICE TIPS
                                                                                                 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 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
                  WORD PLAY
                                                                      barrister’s bullets
                 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 Volunteers are always
                 “Mayhem”                                             needed.

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

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
  management issues.

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
affected by the technology they were                      messages had been “received.”

12                                                                     DICTA                                                                April 2008
                                                                                                           COVER STORY
                                                                                                                 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                                                    
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

      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
                                                                                                          LONG           WINDED

                                                                                                                  By: Jason Long
                                                                                                                    London & Amburn

                                         Foolin’ Around
      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
                                                                              Amiri-Davani, John
                                                                                                           LAET Associate
 Napolitan                                                                    Gill, Knox County
                                                                                                           Director Deb
Lewis, King, Krieg & Waldrop                                                  Attorney General’s Office

16                                                                      DICTA                                                                    April 2008
                                                                                          BENCH AND BAR IN THE NEWS

                                                      Paralegal Associations
  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 or
March 4, 2008, that amends Supreme Court     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
                                                      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                                  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.
                                                        renovated historic building near                          Laurie H. Hallenberg, Woolf, McClane, Bright,
                                                        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.
(, 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 (, chapters,
                                                        receptionist and conference room. Contact             Garry Ferraris at 584-7720.
Chattanooga, Sixth Circuit Judicial Conference,
                                                        Lori M. Wood, (865) 522-9942 for more
Scholarship Application).
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
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 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.

April 2008                                                               DICTA                                                                                     17

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.
the Sixties.
• 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
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
                                                                                                                        Project Director

Fiat Justitia
     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:

                                                   Fiat Justitia
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
                                                                                                                    Jhasta Moore
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
                                                                                                                    William Waters
                                               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
12:30 p.m.-
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"
            Featured Speaker:
            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                                                                                   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.

                  Sponsored by the Knoxville Bar Association Barristers/Hunger & Poverty Relief Committee
                                                         April 9 – 18
                                                                Items Needed:
                                                          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

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
                           for you?

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

April 2008                                                             DICTA                                                                            23
                      NON-PROFIT ORG.
                       U.S. POSTAGE

                       KNOXVILLE, TN
                       PERMIT NO. 652
  P.O. Box 2027
Knoxville, TN 37901

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