unpacking the supreme court s health reform opinions by xiangpeng


									     Legal Update: Tennessee Gift and Inheritance Tax Repeal is Truly the Gift
                       that Keeps on Giving . . . Page 13
Schooled in Ethics: Tenn. R. Civ. P. 11 - An Ethics Rule for Civil Litigators . . . Page 19

             A Monthly Publication of the Knoxville Bar Association   August 2012

                                           Cheers for charity
   The Knoxville Bar Association sponsored Cheers for Charity at the Knoxville Beverage Company on May 31, 2012. The event, which
   was sponsored by CapitalMark Bank & Trust, was attended by local attorneys and their guests. The silent auction was enthusiastically The
   supported by many donors, including some of the finest restaurants, hotels and other benefactors and raised $3,711.00 for Legal Aid of
           e                                                                                                                            The silent
   East Tennessee. KBA President J. William Coley presented a check to David Yoder, Executive Director of Legal Aid of East
   Tennessee. The funds raised will help Legal Aid of East Tennessee fulfill its mission of ensuring equal justice for elderly, abused, and
                                                                                       KBA which is chaired by David Draper and Jhasta
   low income persons. We would like to thank the members of our Functions Committee President J. William Coley presented a check to
   Moore, for all of their hard work in coordinating this event.                   The funds raised will help Legal Aid of East Tennessee
    Silent Auction Donations
    Arnett, Draper & Hagood
    Bearden Beer Market
    Bob’s Package Store
    Don & Maureen Bosch
    Café 4
    Casual Pint
    Foothills Plaza Wine & Spirits
    Independent Insurance Consultants
    Latitude 35
    London & Amburn
    Naples Restaurant
                                            The silent
    Northshore Brasserie
   KBA President J. William Coley presented a check to
The RouXbarbwill help Legal Aid of East Tennessee
    funds raised
    Seasons Café
    Smoky Mountain Brewery
    Sweet P’s Restaurant & Catering
    Tennessee Shindig Theater in Pigeon Forge
    The Orangery
    The Stokely Co.
    Tomato Head
    Union Ave Books & Melinda Meador
    Warehouse Liquors

   Event Corporate Sponsor

   Special Thanks
   Knoxville Beverage Company
   Ashe’s Wines & Spirits
   Holly’s Eventful Catering
   Stellar Vision
   2                                                               DICTA                                                         August 2012
                      Officers of the Knoxville Bar Association                                         In This Issue
                                                                                                                                        August 2012

                                                                                                               COVER STORY
                                                                                                        14     Unpacking the
                                                                                                               Supreme Court’s
                                                                                                               Health Reform
                                                                                                               Opinions: Taxes,
    President         President Elect        Treasurer               Secretary          Immediate
                                                                                                               Healthcare & Broccoli
J. William Coley     Heidi A. Barcus       Wade V. Davies        Tasha C. Blakney      Past President
                                                                                      Michael J. King
                                                                                                               CRITICAL FOCUS
                                        KBA Board of Governors                                          5      President’s Message
      Katrina J. Atchley                  Ian P. Hennessey                    Leland L. Price                  Gifts that Cannot be Repaid
      Douglas A. Blaze                    Wayne R. Kramer                     Adam M. Priest
       Joshua J. Bond                       Jason H. Long                     Shelly L. Wilson          7      Attorney Profile
     Keith H. Burroughs                 Mary Elizabeth Maddox                                                  Kyle Baisley
     Amanda M. Busby                       Debra C. Poplin
                           The Knoxville Bar Association Staff                                                 Non-Disclosure Agreements:
                                                                                                               Covering Creativity Entering
                                                                                                        11     Management Counsel
                                                                                                               Law Practice 101
                                                                                                               Unpaid Leave as a Reasonable
                                                                                                               Accommodation under the ADA
                                                                                                               Tennessee Gift and Inheritance Tax
                                                                                                               Repeal is Truly the Gift that Keeps
        Marsha S. Wilson               Melanie Connatser                 Tammy Sharpe                          on Giving.
        Executive Director            Membership Services &             CLE Administrator
                                    Communications Coordinator                                          17

                                                                                                               Governor Bill Haslam:
                                                                      Knoxville Bar Association                Profile of a Leader
                                                                           505 Main Street
                                                                                Suite 50                     CONVENTIONAL WISDOM
                                                                      Knoxville, Tennessee 37902        6      Manus en Mano –
                                                                             865-522-6522                      Hand in Hand
                                                                         Fax: 865-523-5662                     One More Tool in the Toolbox
      Tracy Stansberry                  Andrea Pappas                                                   10     Tech Tips
  Membership Services Assistant    Coordinator, Lawyer Referral                                                What They Didn’t Tell You About
                                      & Information Service                                                    that Fancy New Phone

                                   Volume 39, Issue 7                    DICTA is the official          18     Word Play
                                                                           publication of the

                                        DICTA                                Knoxville Bar
                                                                                                        19     Schooled in Ethics
                                                                                                               Tenn. R. Civ. P. 11: An Ethics Rule
                                                                                                               for Civil Litigators
DICTA is published monthly (except July) by                   Publications Committee
the Knoxville Bar Association. It is designed        Executive Editor J. Nicholas Arning, Jr.           20     Local History
to offer information of value to members of          Executive Editor Regina M. Lambert                        Christa Pike: Job Corps Murderess
the local bar association. The news and
features should illustrate the issues affecting      Executive Editor Christopher W. McCarty            21     Long Winded
the bar and its members. The opinions                                 Jamie Ballinger-Holden                   A 2012 Olympics Viewers’ Guide
expressed do not necessarily represent                                Sally A. Goade
those of the Knoxville Bar Association.                               J. Scott Griswold                        COMMON GROUND
                                                                      Daniel C. Headrick
All articles submitted for publication in                             Amye T. King                      4      Section Notices
DICTA must be submitted in writing and in                             David E. Long                            Event Calendar
electronic format (via e-mail attachment).                            William E. Maddox
Exceptions to this policy must be cleared by                          Jack H. (Nick) McCall
                                                                                                        18     Barrister Bullets
KBA Executive Director Marsha Wilson                                  Leah Walker McClananhan           23     Bench & Bar In the News
(522-6522).                                                           Angelia Morie Nystrom
                                                                      Cathy E. Shuck                    24     Pro Bono Project
DICTA subscriptions are available for $25                             Garrett P. Swartwood
per year (11 issues) for non-KBA members.                                                               25     The Last Word
                                                     Managing Editor Marsha Wilson
                                                                      KBA Executive Director            26     Around the Community
August 2012                                                             DICTA                                                                    3

section notices                                                                                           event
There is no additional charge for membership in any section, but in order to participate your
membership in the KBA must be current.
                                                                                                         I1       Fee Dispute Committee
Alternative Dispute Resolution                                                                           I3       CLE “Get in the Game”
The ADR Section meets regularly for a CLE program typically on the first Monday of the                   I8       Small Law Firm Section CLE
month at 5:30 p.m. If you have program topic or speaker suggestions, please contact Kim                  I8       Barristers Monthly Meeting
Burnette, the ADR Section Chair, at 546-7000.                                                            I9       Lunch & Learn
                                                                                                         I9       Judicial Committee
Corporate Counsel                                                                                        I 10     Barristers Summer Party
The Corporate Counsel Section provides attorneys employed by a corporation or who limit their            I 14     Professionalism Committee
practice to direct representation of corporations with an opportunity to meet regularly and
                                                                                                         I 15     Board of Governors
exchange ideas on issues of common concern. Join us for an extended CLE on August 16 and a
                                                                                                         I 16     Corporate Counsel Section CLE
social on Spetember 19. If you would like further information on the Corporate Counsel
Section, please contact the Section Chairs for 2012, Marcia Kilby (362-1391) and David                   I 21     Family Law Section
Headrick (531-6440).                                                                                     I 23     In Chambers CLE
                                                                                                         I 23     Barristers Volunteer Breakfast
Criminal Justice                                                                                         I 28     Unmet Legal Needs of Children
The KBA Criminal Justice Section represents all attorneys and judges who participate in the                       Committee
criminal justice system in Knox County. To have your name added to the section list, please              I 28     CLE Committee
contact the KBA office at 522-6522. If you would like further information on the Criminal                I 30     Guardian Ad Litem CLE
Justice Section, please contact Jonathan Cooper (524-8106) or Hon. Steve Sword (215-2508).
Environmental Law                                                                                        I5       Fee Dispute Committee
The Environmental Law Section meets regularly and presents speakers on topics relevant to                I5       Annual Supreme Court Dinner
both practitioners of environmental law and lawyers with an interest in the area. The                    I6       Gov’t Section Brown Bag Lunch
Environmental Law Section provides a forum for lawyers from a variety of backgrounds,                    I 10     ADR Section CLE
including government, corporate in-house, and private firm counsel. For more information
                                                                                                         I 11     Professionalism Committee
about the section, please contact Section Chairs LeAnn Mynatt (lmynatt@bakerdonelson.com)
or Jimmy Wright (jwright@bvblaw.com).                                                                    I 12     Small Law Firm Section CLE
                                                                                                         I 12     Senior Section
Family Law                                                                                               I 12     Barristers Monthly Meeting
The Family Law Section typically meets on the third Tuesday of each month. The section has               I 13     Lunch & Learn
speakers on family law topics or provides the opportunity to discuss issues relevant to family law       I 13     Judicial Committee
practice. To have your name added to the section list, please contact the KBA Office at                  I 14     Children’s Hospital CLE
522-6522. For more information about the section, please contact Section Chairs Elaine Burke
                                                                                                         I 18     Family Law Section
(tbpc@bellsouth.net) or Niki Price (nprice@bwmattorneys.com).
                                                                                                         I 19     Board of Governors
Government & Public Service                                                                              I 19     Corporate Counsel Section Social

The Government & Public Service Section is open to all lawyers employed by any governmental              I 25     Unmet Legal Needs of Children
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                   I 27     Barristers Volunteer Breakfast
(545-4167) or Debbie Poplin (545-4228).                                                                  I 27     Minority Law Student Reception
                                                                                                         I 28     Circuit Ct. Bench Bar CLE
Senior Lawyers

                                                                                                                   Mark Your
The Senior Section meets quarterly for lunch, and the next luncheon is scheduled for September
12 at 11:30 a.m. at Chesapeake’s. The cost is $25 for the luncheon. See page 12 for details. For

information on the Senior Section, please contact Chair Jim MacDonald at 525-0505.

Solo Practitioners & Small Firm
The goal of the Solo & Small Firm Section is to provide and encourage networking
                                                                                                                Supreme Court Dinner
opportunities and CLE. For more information on the section, please contact Section Chairs                        September 5, 2012
Marcos Garza (540-8300) and K.O. Herston (971-3757). To have your name added to the
section list, please contact the KBA Office at 522-6522.
                                                                                                                Minority Law Student
                                                                                                                September 27, 2012

4                                                                         DICTA                                                         August 2012
                                                                                      PRESIDENT’S MESSAGE

                                                                                                        By: J. William Coley
                                                                                                   Hodges, Doughty & Carson, PLLC

      Have you ever received generosity that you cannot repay?               the termination of HUD grant programs, but also as a result of a
      My mother’s last surviving sister died on July 1, 2012. She was        decrease in IOLTA grants. As a result LAET, across its service area, is
within two days of her 92nd birthday at the time of her death. A little      working to meet its mission with twelve less staff members (of which six
under a year ago she moved into the Perry County Nursing Home in             are lawyer positions) than before the cuts. I think you will agree that
Linden, Tennessee, which is the hometown of my mother’s family.              these statistics are startling. We, as local lawyers, have a responsibility to
Before that time she had lived alone in Linden. Having never married         help fill that gap. If LAET can meet its Knoxville campaign goal of
and with no children, her closest relatives were her nieces and nephews,     $200,000, the result will be that 450 families can be served in 2013 that
none of whom now live within 150 miles of Linden. I served as her            otherwise would not receive service from LAET. To quote Culver
Power of Attorney and in that capacity over the past year or so helped       Schmid, “More than any other group, we attorneys understand the
her manage her financial affairs, but I was not able to check on her as      importance of having a good lawyer. This [supporting the LAET
much as would have been possible if she had lived closer.                    campaign] is how we help everyone have a good lawyer, even when they
      During my aunt’s later years, I observed the generosity of her         cannot afford one.”
community as they filled in the gap for family and looked after many of            Financial support for agencies like LAET, which provide legal
her needs. This occurred in a variety of ways, including rides to her        services for the disadvantaged, is the unique responsibility of lawyers.
doctors by her minister, grocery and pharmacy deliveries by local            The way in which we respond to this responsibility is an indication of
businesses, transportation by church friends to the senior citizen center    the quality and character of our bar. For good reason, Knoxville lawyers
for bridge, her favorite pastime, holiday drop-ins, snow and ice removal     take great pride in our local bar, and our members can frequently be
from her steps and sidewalk, and many other courtesies by people who         heard to say that Knoxville is a more collegial, less acrimonious place to
are not related to her and had                                                                                            practice law than many others,
                                                he way in which we respond to this responsibility is even in Tennessee. Perhaps our

no other obligation to help.
On the day of my aunt’s funeral                 an indication of the quality and character of our                         self-assessment can be further
the generosity continued.                                                                                                 enhanced by our collective
Thanks to a group of ladies at
                                                bar.                                                                      response to LAET’s campaign,
First Christian Church of                                                                                                 which raises some interesting
Linden, our family enjoyed a great covered dish dinner and time for          questions: Can a legal community transform itself through its
visiting in the fellowship hall of the church after the graveside service.   generosity? Can lawyers in the Knoxville Bar Association make a
      These acts of generosity, for someone who over time was less able      recognizable difference in the Knoxville area by generously giving to the
to take care of herself, have caused me to reflect this week on my           LAET Campaign for Equal Justice? Can the Knoxville Bar become
responsibility to show generosity, to give where it is not required, and to  known not only for its collegiality but also for its generosity? The
help those who have no means to repay the gift. I am sure you are aware      answer to these questions is an emphatic “YES!” I encourage you to join
of similar situations.                                                       me in responding to the call to support the LAET Campaign for Equal
      On July 6, 2012, Legal Aid of East Tennessee launched its annual       Justice by making a contribution; one that will likely not be repaid, but
Campaign for Equal Justice. This year’s campaign, chaired by Knoxville       greatly appreciated.
attorney R. Culver Schmid, will seek to raise $200,000.00 to serve
individuals and families in our community who cannot afford to pay for       1
legal services. If you have not already, you will soon receive a pledge card
and envelope from Culver asking for a contribution to this campaign. I
urge you to respond immediately and to give generously.
      A lot has been communicated recently about the need for access to
justice in Tennessee. The Tennessee Supreme Court has made access to
justice its number one strategic priority and formally announced their
Access to Justice Initiative in December 2008.1 As a result, there has
been measureable success. In June, the Court announced that more than
46% of Tennessee attorneys reported performing pro bono legal work for
deserving Tennesseans this year, resulting in 329,285 hours of pro bono
work. That is more than twice the level of reporting than the initial
year.2 In the Knoxville Bar Association we have followed the lead of the
Tennessee Supreme Court to encourage traditional pro bono
representation and by initiating creative opportunities to encourage
lawyers to give of their services. The KBA’s Legal Legacy program and
Compassion Coalition publication are just two examples.
      In addition to giving our time, we also have a responsibility to make
a financial contribution to LAET’s Campaign to Equal Justice.
According to Dave Yoder, Executive Director of LAET, since the
beginning of 2011 Legal Aid of East Tennessee has experienced an
overall cut in funding of more than $700,000, primarily as a result of
decreases in federal funding through the Legal Services Corporation and

August 2012                                                             DICTA                                                                            5
                     MANUS EN MANO—HAND IN HAND

                   By: Melissa B. Carrasco
                   Associate, Egerton, McAfee, Armistead & Davis, P.C.

One More Tool in the Toolbox1
     The idea of resolving legal disputes outside the courtroom is not        can advise your client about what to offer or what offer to accept as a
new. The New York Chamber of Commerce was founded in 1768, in                 means of resolving the dispute. Although it is never too late, the best
part as a means to resolve business disputes between traders and              time to mediate is when you have enough information to express an
merchants,2 and President George Washington included what appears to          opinion about the case.
be an arbitration clause in his will.3 More recently, in 1988, Congress
enacted the Judicial Improvements and Access to Justice Act to address        What tools are available for those who want to become mediators or use
the large number of cases on the dockets of the Federal Courts.4 This         alternative forms of dispute resolution in their practices?
law expressly authorized Federal District Courts to adopt local rules for          For those who want to become mediators, Tennessee Supreme
the use of arbitration and to develop training programs for mediators         Court Rule 31 requires specialized training and certification.10 The
and arbitrators.5                                                             Eastern District of Tennessee has also adopted a formal mediation
     By the time Congress passed the Alternative Dispute Resolution           training program.11 One valuable tool is the Knoxville Bar Association’s
Act of 1998,6 the Eastern District of Tennessee had already adopted its       monthly meeting of the Alternative Dispute Resolution Section. This
own local rules addressing alternative dispute resolution and joined with     meeting is usually on the first Monday of the month, and it is a good
the Knoxville Bar Association to form a committee of mediators and            way to get to know others in the local bar who work in this area and
arbitrators who were specially trained in resolving disputes in federal       who can provide valuable advice on conducting alternative dispute
cases.                                                                        resolution or incorporating it into your practice.
     The Tennessee Supreme Court had also recognized the value of
mediation and arbitration in resolving cases pending in state courts. In      1
                                                                                Inspired by the following saying by Abraham Maslow, “If your only tool is a hammer,
1992, it created a commission to study dispute resolution in Tennessee,       every problem looks like a nail.”
and the results of that study gave us Supreme Court Rule 31,                  2
                                                                                The Honorable Harold Bauer, Jr., History, Process, and a Role for Judges in Mediating
establishing court-based alternative dispute resolution statewide in          their Own Cases, 58 NYU Annual Survey of Am. L. 131 (2002).
1996.7 Currently, alternative dispute resolution is voluntarily used to
                                                                                The Will of George Washington, Transcription, The Papers of George Washington,
                                                                              available at http://gwpapers.virginia.edu/documents/will/text.html. The clause states as
resolve many cases before both federal and state courts and is a              follows:
mandatory part of some types of lawsuits.8
                                 This month’s Mentor for the Moment,               But having endeavoured to be plain, and explicit in all Devises—even at
                             Mr. Harold B. Stone of Stone & Hinds,                 the expence of prolixity, perhaps of tautology, I hope, and trust, that no
                             P.C., knows the history of alternative dispute        disputes will arise concerning them; but if contrary to expectation, the
                             resolution in East Tennessee quite well. A            case should be otherwise from the want of legal expression, or the usual
                                                                                   technical terms, or because too much or too little has been said on any of
                             1951 graduate of the University of Tennessee          the Devises to be consonant with law, My Will and direction expressly is,
                             College of Law, Mr. Stone was on the                  that all disputes (if unhappily any should arise) shall be decided by three
                             original panel of mediators for the Eastern           impartial and intelligent men, known for their probity and good
                             District of Tennessee established in 1994             understanding; two to be chosen by the disputants—each having the
                             and, although he primarily works as a                 choice of one—and the third by those two. Which three men thus
                             mediator, he remains on the lists of                  chosen, shall, unfettered by Law or legal constructions, declare their
                                                                                   sense of the Testators intention; and such decision is, to all intents and
                             court-approved arbitrators and mediators.9            purposes to be as binding on the Parties as if it had been given in the
                             Although many of his colleagues focus on              Supreme Court of the United States.
resolving family, tort, or employment law disputes, Mr. Stone specializes
in mediating probate or estate-related disputes and business-related
disputes. With a degree in accounting in addition to his juris doctor, Mr.
                                                                                 Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, 102 Stat. 4642
Stone has spent his career representing small and large businesses and        (1988).
                                                                                 See id. at §§ 303, 901.
working with families to develop and implement estate plans, and he           6
                                                                                Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, 112 Stat. 2993 (1998)
brings that experience to the area of alternative dispute resolution. He      (codified as amended at 28 U.S.C. §§651-58 (2006)).
was gracious enough to share a few thoughts on this topic.                    7
                                                                                 See History of Mediation in Tennessee, available at
                                                                                 See e.g., Tenn. Code Ann. § 36-4-131 (2012) (requiring parties to most contested
What qualities make a good mediator?
                                                                              divorce cases to participate in mediation).
     A good mediator has to be able to hear, understand, and evaluate         9
                                                                                These lists are posted on the website for the Eastern District of Tennessee at
problems. A mediator must have good person-to-person contact and be           http://www.tned.uscourts.gov/mediation.php.
able to speak persuasively about the situation that the parties are trying    10
                                                                                  Information about this program can be obtained from the Administrative Office of the
to resolve. The mediator is not the judge and does not give legal advice.     Courts at the following website:
The mediator’s role is to help the parties look carefully at their            ttp://www.tncourts.gov/programs/mediation/become-rule-31-mediator.
                                                                                  Information about alternative dispute resolution in the Eastern District of Tennessee
respective cases and evaluate them objectively so that they can come up
                                                                              can be found at the following website: http://www.tned.uscourts.gov/mediation.php.
with a solution themselves.                                                   12
                                                                                  Information about the KBA’s Alternative Dispute Resolution Section and its meetings
                                                                              can be found at the following website:
When is a good time to mediate a dispute?                                     htttp://www.knoxbar.org/index.php?option=com_advancecb&view=advancecb&Itemid=1
     The timing of mediation is important. You do not want to mediate         89&fieldid=867.
a case too early because you need to know most of the facts so that you

6                                                                       DICTA                                                                          August 2012
                                                                                                AT TO R N E Y P R O F I L E
                                                                                                                By: Mike Baisley
Kyle Baisley                                                                                         Hodges, Doughty & Carson, PLLC

Associate General Counsel, Pilot / Flying J
                                                                              for The Leukemia and Lymphoma Society. He participated in the first
                                                                              annual LLS “Knoxville Man & Woman of the Year Campaign,” and he
                                                                              made a very admirable second place showing, raising over $20,000 in just
                                                                              under 8 weeks. Kyle partnered with “Woman of the Year” candidate
                                                                              Christine Bell, and together they organized a sporting clays tournament
                                                                              at Blackberry Farm’s shooting facility. I was exceptionally proud of Kyle’s
                                                                              efforts and his commitment to raising money for LLS. If fact, I think
                                                                              his participation and enthusiasm about the contest this year will prove to
                                                                              be a major factor in bringing future supporters to the LLS.
                                                                                    As another example of his civic-mindedness, Kyle serves as a
                                                                              Reserve Deputy for the Knox County Sheriff 's Office. Since joining
                                                                              KCSO in 2008, he has successfully organized the Reserve Unit’s first
                                                                              DUI Task Force, which should be hitting the streets in the near future.
                                                                              Kyle has also taken a leadership role in educating fellow deputies about
                                                                              DUI laws and best practices for law enforcement officers. One of his
                                                                              favorite things about being a part of KCSO is that he gets to train with
                                                                              professional law enforcement officers who are always striving to do a
       When I sat down to write this piece about my brother, I was            better job of detecting and preventing crime. On a more personal level,
tempted to “roast” him a little bit. I do have a lot of hilarious stories     he also likes the fact that he gets to shoot a lot. In fact, competitive
about him. Then I remembered that we have a tacit agreement between           shooting is one of Kyle’s true passions in life.
us that could be described as a type of sibling privilege.                          If you spend more than 10 minutes around Kyle, you’ll also learn
       Under the privilege, some stories cannot be disclosed, without the     that he is passionate about physical fitness. He works out five mornings
other sibling’s consent, for at least 10 years after the date of the          a week at CrossFit KTown well before the sun comes up. If you aren’t
occurrence. Other stories, which are more “sensitive” in nature, cannot       familiar with CrossFit, take my word for it: those people are serious
be disclosed until both of our parents have gone to Heaven. If either         about fitness. When Kyle recently began using the word “CrossFit” as a
sibling breaches the privilege, it is null and void in its entirety.          verb (e.g., “he/she CrossFits with me….”), I asked him if his trainers had
       With that introduction, please allow me to share with you some         forced him to drink some kind of CrossFit Kool-Aid. Based upon
non-privileged information about my brother, Kyle Baisley.                    comments I’ve heard from folks who “CrossFit” with him, Kyle excels in
       Kyle grew up in Rockwood, Tennessee, where he spent most of his        the gym. In fact, he was recently featured on WBIR's “Around Town”
free time roaming around in the woods with a rifle and two golden             program, which did a short spot about the CrossFit craze.
retrievers, on the lake, or working at the scrapyard (a scrap metal                 When he isn’t working at Pilot Flying J, raising money for charity,
recycling facility) that our grandfather owned. Kyle’s childhood might be     teaching deputies how to better protect Knox County, or “CrossFitting,”
characterized as a “battle of the wills” between him and our parents. I       Kyle spends quality time with his lovely bride of five years, Mandy, and
still remember our parents purchasing and reading a book by Dr. James         their Boston Terrier, Chloe. Mandy teaches gymnastics and cheerleading
Dobson called The Strong-Willed Child. Our mother thought Dr.                 out of her own studio in Bearden, and both she and Kyle are equestrians.
Dobson had written the book specifically about my brother. I doubt            Well, Mandy would be considered an expert equestrian, whereas Kyle is
anyone realized it at the time, but Kyle’s willpower was a good indicator     more of an “avid beginner,” at best, but I admire him for trying.
of how he was going to grow up. To this day, when Kyle sets his mind to             I could go on and on about Kyle and how special I think he is, but
accomplish something, he is rarely (if ever) deterred. He probably has        suffice it to say that I am proud to be his brother. When the 10-year
the ideal temperament for a lawyer.                                           statute expires on the sibling privilege, I’m going to ask Marsha if I can
       Kyle attended middle school at CAK, high school at Webb, and           write an updated biography on him.
then Furman University, where we “overlapped” for one year while he
was a freshman and I was a senior. He attended law school at the
University of Tennessee, where he finished near the top of his class.
       Upon completing his J.D. in 2008, Kyle joined the Knoxville office
of Baker Donelson, where he spent 3 years practicing in the areas of real
estate, finance, commercial law, and bankruptcy. By all accounts, he was
a star associate within the firm. I also know that he truly loved the folks
he worked with while practicing there. However, in September of 2011
he was offered an opportunity out of the blue to join the legal team at
Pilot Flying J and he jumped on it.
       As Associate General Counsel, he spends his time reviewing and
negotiating various contracts, assisting the company expand its
ever-growing restaurant network, and handling real estate and collection      1
                                                                                Upon information and belief, Nic Arning, the Executive Editor of DICTA, has a similar
issues. It should come as no surprise that Kyle stays very busy. After all,   agreement with his brother.
Pilot has almost 25,000 employees and 600-plus convenience stores and         2
                                                                                The rationale for this second element of the privilege is that, if any of these matters
travel centers across the United States and Canada. Since joining Pilot,      were disclosed in violation of the privilege, such disclosure might actually cause our
Kyle has made dozens of new friends. I think he also enjoys the               parents to go to Heaven, prematurely.
company’s culture, which is characterized by a strong interest in             3
                                                                                The integrity of the privilege has been sustained over the years by a combination of
community service and philanthropy, among other things.                       brotherly love and the fear of “mutually assured destruction,” which has prevented the
       Kyle’s most recent philanthropic endeavor involved raising money       eruption of nuclear war between the United States and the Russians for over 60 years.

August 2012                                                            DICTA                                                                                              7
8   DICTA   August 2012
                                                                                                      PRACTICE TIPS
                                                                                                 By: Esther Roberts Bell
                                                                            Global Intellectual Property Asset Management, PLLC

Non-Disclosure Agreements:
Covering Creativity Entering Commerce
     Creativity seeks expression. That expression may take many forms,          Subject Matter to their full investment advisory board?
including, for example, a successful business model, an innovative          5.  Scope of Use. Define the scope of allowable use of the Protected
computer program, a new hit song, or a patentable invention.                    Subject Matter. Typically, Recipients are not allowed to sell,
Creative people often collaborate with others. Sometimes the                    license, use, etc., any disclosed information without the express
collaboration serves to expand the generation of new ideas, e.g.,               written consent of the Discloser. Usually the disclosed information
botanical scientists and petroleum scientists may work together across          packet cannot be copied or transferred to another medium without
disciplinary boundaries to produce innovative biofuels. Other times, the        the express written consent of the Discloser.
collaboration provides an avenue to get the new idea out into the           6. Ownership of Disclosed Protected Subject Matter. It is imperative
marketplace through venture capital investing, licensing, etc.                  to define ownership of any disclosed Protected Subject Matter,
Creative clients can be especially vulnerable to compromised rights in          including any multiple copies, emailed computer files, etc. Having
their own intellectual property, because, in their enthusiasm over their        this section of the NDA clearly and precisely defined will often
“NBTi” (“Next Big Thing” idea), they sometimes disclose the NBTi                preclude ownership dispute matters that may arise otherwise, as
without proper legal protections in place. As attorneys, we can assist          well as help protect against misappropriation of the Protected
these clients in protecting their creative ideas via a well-drafted             Subject Matter.
Non-Disclosure Agreement. Below are some important points to                7. Ownership of any New Creative Concept. Separate and apart from
include in any Non-Disclosure Agreement (NDA):                                  ownership of disclosed protected subject matter, the NDA should
                                                                                clearly define who owns any intellectual property that may arise out
1.   Party Names. The Discloser is the owner of the creative idea,              of and/or result from the interactions between the Discloser and
     proprietary information, and/or intellectual property. The                 Recipient. Remember, creative people like to discuss their creative
     Recipient is the entity to which the proprietary information will be       ideas, and sometimes brand new ideas, concepts, and resulting
     disclosed, including all individual persons and any corporation            intellectual property arises unintentionally and unexpectedly from
     which those persons represent, whether as employees, corporate             such discussions. Ownership of any newly created intellectual
     counsel, marketing personnel, etc. Both Discloser and Recipient            property which arose out of discussions anticipated by the NDA is
     should be identified as clearly and specifically as possible.              best defined on the front-end, rather than litigated on the
2.   Identification of the Proprietary Information, also known as               back-end, of any disclosure of Protected Subject Matter.
     “Protected Subject Matter.” Clearly state the name(s) of the           8. Limitations on NDA protections. It is standard to include in any
     inventive concept(s), musical titles, trademarked designs and/or           NDA a limitation of liability for the Recipient, specifically
     phrases, etc. to be disclosed under the NDA. This will help define         addressing any protected information that becomes public
     the scope of the NDA.                                                      knowledge through no fault of the Recipient.
3.   Identification of the Purpose of the Disclosure. Some examples of      9. Severability. As with any legal instrument, it is desirable to include
     Purposes include:                                                          in an NDA a severability clause.
     a. “. . . for the limited purpose of Recipient drafting drawings       10. Jurisdiction and Venue. Again, as with any legal instrument, it is
          appropriate to the inventive concept as disclosed.”                   desirable to address jurisdiction and venue in an NDA.
     b. “. . . for the limited purpose of Recipient evaluating any          11. Signatures of Discloser and Recipient. Signature blocks should
          potential interest in purchasing and/or aiding the commercial         include the position of each party relative to their respective
          exploitation of the Protected Subject Matter.”                        companies, as appropriate. Further, signatories on an NDA should
     c. “. . . for the limited purpose of Recipient evaluating the              have agency status within their company sufficient to bind the
          Protected Subject Matter for possible collaboration, up to and        company to the terms of the NDA.
          including additional research and development.”
     d. “. . . for the limited purpose of Recipient evaluating the               A well-drafted NDA serves as the first step towards successful
          Protected Subject Matter for possible collaboration regarding     collaborations, licenses, manufacturing deals, business partnerships,
          instrumentation and orchestration.”                               recording contracts, and the like. The NDA provides a protective shield
4.   Confidentiality. Define the full scope of allowable disclosure, or     against misappropriation of creative ideas; this allows the Discloser to
     lack thereof, by the Recipient. Are corporate Recipient                discuss his/her idea completely and with candor while providing the
     representatives allowed to further disclose the Protected Subject      Recipient the benefit of learning everything about the creative idea prior
     Matter to their engineering department employees? Will venture         to investing significant additional resources.
     capitalist Recipients be allowed to further disclose the Protected

                      MORGAN JOHNSON CARPENTER & CO.

                        A PROFESSIONAL CORPORATION

                      Forensic Accountants & Consultants

 Professionals in Loss and Value Measurement

              Mark N. Henry, CPA/CFF
           555 Marriott Drive • Suite 800
               Nashville, TN 37214
     Phone: 615-231-6460 • Fax: 615-231-6463

August 2012                                                            DICTA                                                                        9
                     LEGAL MYTH BREAKERS
                    By: Taylor A. Williams
                    Paine, Tarwater & Bickers, LLP

What They Didn’t Tell You About
that Fancy New Phone
     Our firm recently purchased a new phone system. I, apparently mistakenly, was under the impression that
phone technology was an established one with minimal development. While attempting to learn an entirely
new lexicon (calls are now “parked” not “held”) and trying to understand why a phone needs a direction pad
and 24 buttons other than the standard 0-9 keypad, I discovered that my phone has the ability to record every
phone call that I take. I know this is not groundbreaking technology, but the feature gave me pause with
regard to both its legality and ethicality for lawyers.
     As for the legality, I have long heard that recording a conversation to which you are a party is not a
crime, and while I am far from a scholar in this area, a quick reading of Tennessee and Federal statutes
seems to agree. Indeed, in a rather plain statement, it is “lawful . . . for a person not acting under color
of law to intercept a wire, oral, or electronic communication, where the person is a party to the
communication or where one of the parties to the communication has given prior consent to the
interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation . . . .” of state and federal
law.1 With that said, I am certain the interpretations of these statutes are rife with a myriad of exceptions and pitfalls, so approach this
black-and-white reading with caution when deciding to record any conversations.
     Turning to the ethicality, the ABA and the Board of Professional Responsibility of the Supreme Court of Tennessee have both addressed the
issue, although some questions still remain. On August 10, 1974, the ABA Committee On Ethics & Professional Responsibility issued Formal
Opinion 337 which specifically denounced the secret recording of phone conversations by attorneys.2 The Board of Professional Responsibility of the
Supreme Court of Tennessee adopted Opinion 337 on July 23, 1981.3
     The ABA reversed Opinion 337 in 2001 by issuing Formal Opinion 422.4 Under Formal Opinion 422, attorneys are allowed to “secretly record a
conversation with a non-client where not illegal.”5 Upon recommendation by the Tennessee Bar Association, the Tennessee Rules of Professional
Conduct fell in line with Formal Opinion 422 in 2003.6
     The TBA-suggested changes added two comments on the issue of secret recordings. Comment 1 of Rule 4.4 of the Tennessee Rules of
Professional Conduct provides this guidance:

      [T]his Rule does not prohibit secret recording so long as the lawyer has a substantial purpose other than to embarrass or burden the
      persons being recorded. It would be a violation of RPC 4.1 or RPC 8.4(c), however, if the lawyer falsely or affirmatively misled another to
      believe that a conversation or an activity was not being recorded. By itself, however, secret taping does not violate either RPC 8.4(c)
      (prohibition against dishonest or deceitful conduct) or RPC 8.4(d) (prohibition against conduct prejudicial to the administration of

      Similarly, Comment 5 to Rule 8.4 states, “The lawful secret or surreptitious recording of a conversation or the actions of another for the purpose
of obtaining or preserving evidence does not, by itself, constitute conduct involving deceit or dishonesty. See Rule 4.4.” The fact that recording a
phone conversation is not “by itself ” a violation of the Rules of Professional Conduct begs the question: when does secret recording become a
      The two Comments added in 2003 do not address attorney-client communications. Curiously, the two Comments were only added to Rule 4.4 –
Respect for Rights of Third Persons and Rule 8.4 - Misconduct. No comment was added to Rule 1.7 – Conflict of Interest with Current Clients,
which contains the duty of loyalty to clients. Moreover, the language of ABA Formal Opinion 422 only condones “non-client” communications, and
the ABA Committee, while divided on the issue, ultimately suggested that secretive recording of an attorney-client communication is “inadvisable.” 7
      Secret recordings, even of third persons, can still run afoul of the Rules of Professional Conduct. For example, Comment 1 to Rule 4.4 is clear
that an attorney must have a “substantial purpose other than to embarrass or burden the persons being recorded.” Secret recordings can also violate
Rule 8.4(c) – “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation” and Rule 8.4(d) – “engag[ing] in conduct that is
prejudicial to the administration of justice” if an attorney misrepresents whether the conversation is being recorded. Similarly, it has been suggested
that an attorney may violate the Rules of Professional Conduct if he or she uses deceitful tactics to become a party to a conversation merely so that the
conversation can be legally recorded.8 One might keep this in mind for private investigators that seek to record a conversation with a person under
misleading or obfuscated pretenses. Pursuant to Rule 8.4(a), an attorney can be in violation of the Rules of Professional Conduct as a result of “the
acts of another.”9
      Finally, one should keep in mind that under Rule 8.5 of the Rules of Professional Conduct, Tennessee attorneys may be subject to another
jurisdiction’s ethical rules if the attorney is deemed to be “provid[ing] any legal services in [that] jurisdiction.” In many states, the recording of a
conversation requires two-party consent.10 As a result, the recording of conversations without the consent of the all parties in these jurisdictions may
subject an attorney to ethical review for such action.
 18 U.S.C. § 2511(2)(d); Tenn. Code Ann. §39-13-601(b)(5) (nearly identical language).
   It has been noted that Opinion 337 was curiously issued exactly one day after Richard Nixon’s resignation. Bd. of Comm’rs on Grievances & Discipline of the Sup. Ct.of Ohio, Opinion
2012-1 (Jun. 8, 2012).
   Bd. of Prof'l Responsibility of the Sup. Ct. of Tenn., Formal Ethics Op. 81-F-14 (1981). Note that Formal Ethics Opinion 81-F-14 was rescinded by Formal Ethics Opinion 81-F-14(a) on
July 18, 1986. Formal Ethics Opinion 81-F-14(a) noted an exception to the prohibition on recording conversations in criminal cases. It did not alter the prohibition on recording
conversations in civil matters.
  ABA Comm. On Ethics & Prof'l Responsibility, Formal Op. 1-422 (2001).
   Carol M. Bast, Surreptitious Recording by Attorneys: Is It Ethical?, 39 St. Mary's L.J. 661, 663 (2008).
   In re: Tenn. R. Prof’l Conduct, No. M2003-00354-SC-OT-RL (Tenn. Apr. 29, 2003).
  ABA Comm. On Ethics & Prof'l Responsibility, Formal Op. 1-422 (2001); Bast, supra note 5, at 668.
   Bd. of Comm’rs on Grievances & Discipline of the Sup. Ct.of Ohio, Opinion 2012-1 (Jun. 8, 2012).
   See also Rule 5.3 – Responsibilities Regarding Nonlawyer Assistants.
    Bast, supra note 5, at 711.

10                                                                                    DICTA                                                                              August 2012
                                               MANAGEMENT COUNSEL: LAW OFFICE 101
                                                                                                     By: Cathy Shuck
                                                                                Wimberly Lawson Wright Daves & Jones, PLLC

Unpaid Leave as a Reasonable Accommodation
under the ADA
      If you think your organization doesn’t have to worry about medical           In sum, an employer covered by the ADA must engage in the
leaves of absence because it is too small to be covered by the Family and    interactive process with respect to a request for a medical leave of
Medical Leave Act (FMLA), think again. Employers with 15 or more             absence necessitated by a disability. The leave may be unpaid, and the
employees are covered by the Americans with Disabilities Act (ADA),          employer is not required to continue benefit accrual during the leave.
which requires consideration of a leave of absence as a reasonable           The employer is also not required to continue health coverage (unless
accommodation for an employee with a disability.1                            the leave is also FMLA-qualifying), but may elect to do so if the terms
      When an employee with a qualifying disability is unable to perform     of its benefits plan permit.15 The EEOC takes the position that the
the essential functions of her job without a reasonable accommodation,       employer should hold the employee’s specific job, or if it is not possible
the ADA directs the employer and the employee to engage in an                to do so, reinstate him to an equivalent job.16 In any event, the
“interactive process” to determine what reasonable accommodation(s)          employee on leave pursuant to the ADA should be treated at least as
might enable the employee to continue in the job.2 Besides considering       favorably as an employee who has taken leave for a
physical alterations to the work environment, if circumstances warrant,      non-ADA-qualifying reason. An employer can justify more favorable
employers must also explore alterations to the work schedule, including      treatment under the ADA, but not less favorable treatment.
a reduced schedule or a leave of absence.3                                         Even given that the ADA requires a fact-specific analysis for each
      Oftentimes an employee with a disability is either unable to work a    request for a reasonable accommodation, the lack of clear guidance on
full schedule or is unable to return to work following the end of FMLA       what amount of leave is “reasonable” and when such leave poses an
leave and/or the exhaustion of paid time off. Employers regularly make       undue burden can be frustrating to employers. Recognizing that both
the mistake of thinking that their obligation to hold the employee’s job     employees and employers would benefit from additional guidance, the
ends at the point at which FMLA time and/or paid time off ceases.            EEOC held a hearing in June 2011 to receive testimony from experts
The EEOC and the courts take the view, however, that employers               on both sides of the issue. Unfortunately, the EEOC has yet to issue
should grant additional unpaid time off unless doing so would create an      any guidance or other policy statements as a result of that hearing. In
undue hardship.4 As with most analyses of “undue hardship,” courts           the meantime, employers covered by the ADA should engage in the
tend to require a fairly high showing to support a hardship, and             interactive process with any employee needing a medical leave of
generally view very long periods of leave as “reasonable.”                   absence and should carefully document the steps in that process.
      For example, in Cehrs v. Northeast Ohio Alheimer’s Research Center,5
the Sixth Circuit squarely rejected the proposition that “uninterrupted      1
                                                                                For a primer on determining whether an employee is “disabled” within the meaning of
attendance” is per se an “essential job requirement.”6 The employee’s        the ADA as amended in 2008, see “‘Disability’ Under the ADA(AA): Forget What you
doctor prescribed a medical leave of absence that stretched for close to     Always Thought You Knew,” DICTA, Dec. 2011.
four months, plus a month of reduced work schedule due to the
                                                                                See 29 C.F.R. § 1630.2(o); see also Appendix to same.
                                                                                See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship,
employee’s chronic medical condition. The employer terminated the
                                                                             No. 915.002 (2002), at Questions 16-18, available at
employee and the employee brought an ADA claim alleging, in part, a          http://www.eeoc.gov/policy/docs/accommodation.html. Courts have largely endorsed
failure to accommodate her.7 In reversing the grant of summary               the EEOC’s view; see, e.g., Cleveland v. FedEx Corp., 83 Fed. Appx. 74, 78-79 (6th Cir.
judgment to the employer, the court reasoned that unpaid leave should        2003) (unpaid leave of approximately six months could be reasonable accommodation).
be considered as a reasonable accommodation and should not “be               4
                                                                                See id.
analyzed differently from any other proposed accommodation under the         5
                                                                                155 F.3d 775 (6th Cir. 1998).
ADA.”8                                                                       6
                                                                                Id. at 782.
      Five years later, in Cleveland v. FedEx Corp.,9 the Sixth Circuit
                                                                                See id. at 778-79.
reiterated its holding in Cehrs and noted that it had “declined to adopt a
                                                                                Id. at 782.
                                                                                83 Fed. Appx. 74 (6th Cir. 2003).
bright-line rule defining a maximum duration of leave that can               10
                                                                                 Id. at 78.
constitute a reasonable accommodation.”10 Although both Cehrs and            11
                                                                                 See, e.g., Tubbs v. Formica Corp., 107 Fed. Appx. 485, 488 (6th Cir. 2004) (reasonable
Cleveland suggested that indefinite leave could be a reasonable              accommodations do not include indefinite leave).
accommodation, most courts to consider the issue, including courts in        12
                                                                                 EEOC Fact Sheet Sheet, The Americans With Disabilities Act: Applying Performance
the Sixth Circuit since Cleveland was decided in 2003, have held that        And Conduct Standards To Employees With Disabilities, Question 21 (last revised Jan.
indefinite leave is not reasonable.11 The EEOC takes this view as well;      20, 2011), available at http://www.eeoc.gov/facts/performance-conduct.html#fn76.
it states that while “employers may have to grant extended medical leave     13
                                                                                 See, e.g., Overley v. Covenant Transport, Inc., 178 Fed. Appx. 488, 494 (6th Cir. 2006)
as a reasonable accommodation, they have no obligation to provide leave      (employer “had no duty under the ADA to adjust [the employee’s] work schedule or
of indefinite duration. Granting indefinite leave, like frequent and         allow her to miss work to care for her [disabled] daughter.”).
                                                                                 See Tenn. Code Ann. § 8-50-103; Hall v. Wal-Mart Stores East, LP, 637 F.Supp.2d 588,
unpredictable requests for leave, can impose an undue hardship on an
                                                                             603 (M.D. Tenn. 2009) (“As a matter of law, an employer is not required to provide a
employer’s operations.” 12                                                   reasonable accommodation under the [TDA].”).
      Note that unlike the FMLA, unpaid leave under the ADA is an            15
                                                                                 The FMLA requires an employer to continue to provide health insurance to employees
option only for employees who are themselves disabled—such leave             on leave on the same basis as if the employee had been continuously at work. 29
need not be made available to care for a disabled family member.13           C.F.R. §825.210. An employee whose coverage ceases due to a non-FMLA unpaid
Additionally, the Tennessee Disability Act, which applies to all             medical leave would be eligible for COBRA, however.
employers with one or more employees, does not require reasonable            16
                                                                                 See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship,
accommodations.14 Thus, an employer covered only by the TDA would            No. 915.002 (2002), at Question 18.
not be required to provide unpaid medical leave pursuant to that law.
  About this column:
  “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his
  customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good
  service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on
  management issues. If you have an idea for a future column, please contact Cathy Shuck at 546-1000.

August 2012                                                            DICTA                                                                                        11

Close to fifty KBA members and their guests participated in the “CLE and Hike to Abrams Falls” held on June 15. The event was the second in the
Exploring East Tennessee CLE series planned by KBA President Bill Coley. The group enjoyed a delightful hike to Abrams Falls. After returning to
the parking lot, the group enjoyed lunch and a seminar on professionalism featuring: Hon. Sharon Lee, Hon. Gary Wade, Bruce Foster, and Ian

 KBA PLANS TO RECOGNIZE VETERANS                                                                                           THE KNOXVILLE BAR ASSOCIATION
                                                                                                                                 OVER 50 LUNCH FOR
                                                                                                                                SENIOR ATTORNEYS &
                                                                                                                                   THEIR GUESTS

                                                                                               Insights on VOL Football
                                                                                                                 Timothy A. Priest
                                                                                                    Glenn H. Reynolds
                                                                                                       Pryor, Flynn, Priest & Harber
                                                                                          Wednesday, September 12, 2012 of Law a.m. - 1:00 p.m.
                                                                                                       Professor, U.T. College
                                                                                               Chesapeake’s Restaurant - 500 Henley Street
                                                                                                       Wednesday, June 13, 2012
                                                                                                    Choose One: Alaska Salmon & Broccoli Pasta
       As we express our gratitude, we must never forget that the highest
 appreciation is not to utter words, but to live by them.                                                  Grilled Chicken & red pepper butter
                                                                                                                   11:30 a.m. - 1:00 p.m.
                                                      ~John Fitzgerald Kennedy                      Price includes Salad, entree, vegetables & beverage.
                                                                                                 Chesapeake s Restaurant - 500 Henley Street
 The KBA will recognize all of our members who have served in the                  If you have dietary restrictions, please provide us with at least 48 hours
 armed forces in the November issue of DICTA. Please contact Melanie                                                notice of your limitations.
                                                                                 Menu Options: Fried Seafood Platter    Grilled Asian Chicken over rice (Choose One)
 Connatser, Membership Services & Communications Coordinator, with                                    PRICE: $25.00 (Includes tax & gratuity)
 your name and branch of service. In response to our request on the dues                                          vegetables & beverage. If you have dietary restrictions, please
                                                                                    Price includes Salad, entree, payable to “The Knoxville Bar Association”.
                                                                                            Enclose check
                                                                                                    provide us with at least 48 hours notice of your limitations.
 renewal notice this year, we have thirty members currently on our list,                               Mail/deliver check & registration form to:
 but we know that the list is not comprehensive. We want to ensure that                                  PRICE:The $25.00 (Includes tax & gratuity)
                                                                                                                       Knoxville Bar Association
                                                                                                    Enclose check payable to AThe Knoxville Bar Association@.
 all of our veteran members are recognized in November. Please contact                                     Mail/deliver P.O. Box 2027, form to:
                                                                                   505 Main Street, Suite 50, check & registrationKnoxville, TN 37901-2027
 Melanie at 522-6522 or mconnatser@knoxbar.org to provide us with                                                   The Prepay online at www.knoxbar.org.
                                                                                                (865) 522-6522 Knoxville Bar Association
                                                                                              505 Main Street, Suite 50, P.O. Box 2027, Knoxville, TN 37901-2027
 information about your military service.
                                                                                         Previous (865) 522-6522 Prepay online at www.knoxbar.org. is limited.
                                                                                                  Senior Section luncheons have sold out. Space
                                                                                             Previous Senior Section luncheons have sold out.    Space is limited.

12                                                                       DICTA                                                                                     August 2012
                                                                                                             L E G A L U P DAT E
                                                                                                    By: Richard S. Matlock
                                                                                     Woolf, McClane, Bright, Allen & Carpenter, PLLC

Tennessee Gift and Inheritance Tax Repeal is
Truly the Gift that Keeps on Giving.
      The State Legislature has repealed the Tennessee gift tax retroactive to January 1, 2012. A Tennessee resident can now make a gift of any amount
to anyone at any time, and no Tennessee gift tax will be owed. The repeal of the Tennessee gift tax ends a long standing set of rules that required
Tennessee residents to pay as much as a 9.5% gift tax on gifts to immediate family members and as much as a 16% gift tax on gifts to more distant
family members and friends.
      While repeal of the Tennessee gift tax is immediate, the demise of the Tennessee inheritance tax will be drawn out over a few years. The
Tennessee inheritance tax is slated for repeal in 2016. Prior to 2016, there will be a substantial increase in the Tennessee inheritance tax exemption
amount. The Tennessee inheritance tax exemption will be $1.25 Million in 2013, $2 Million in 2014, and $5 Million in 2015, with a complete repeal
of the Tennessee inheritance tax following in 2016.
      These gift and inheritance tax law changes provide a significant relief to Tennessee families. With no Tennessee gift tax and no Tennessee
inheritance tax by 2016, clients and their advisors can focus more on how best to pass assets on to the next generation and be less concerned about
incurring a large tax bill to the State.
      Although the repeal of the Tennessee gift and inheritance tax has simplified estate tax planning for Tennesseans, there are a number of estate
planning issues remaining to be considered. For example, many Tennessee residents are now considering making a large non-taxable gift to their
children and/or grandchildren, either outright or in trust, in light of potential Federal gift and estate tax changes on the horizon.
      The Federal gift and estate tax exemption is currently $5.12 Million with a top tax rate of 35%. At year-end this $5.12 Million exemption will
decrease to a $1 Million exemption, and the top tax rate will increase to 55%. Many observers believe that Congress will act to maintain the current
Federal exemption and tax rate, but a potential 55% tax rate is a steep price to pay if Congress gridlocks. Meanwhile, Tennesseans can now gift $5.12
Million free from both Federal and state gift taxes to hedge against possible Congressional gridlock.
      With the potential planning opportunity come potential pitfalls. The Tennessee inheritance tax continues in effect until 2016 and so will the
“claw back” provisions of T.C.A. Section 67-8-304(3). This “claw back” provision requires that gifts made by a decedent within three years prior to
date of death be included in the decedent’s gross estate and subject to Tennessee inheritance tax.
      The potential pitfall would apply in the following scenario. A father makes a $5 Million gift to his children in 2012 with no Federal or Tennessee
gift tax to pay. The father dies unexpectedly in 2013. The $5 Million gift to his children made within three years of his death would exceed the
Tennessee inheritance tax exemption of $1.25 Million in 2013. Therefore, the father’s estate would have Tennessee inheritance tax to pay on the
difference between the $5 Million gift and $1.25 Million Tennessee inheritance tax exemption, which would be a Tennessee inheritance tax bill of
approximately $345,000. This Tennessee inheritance tax bill will be an unwelcome surprise in the event the father had a surviving spouse who could
inherit these same assets free from Tennessee inheritance taxes.
      All Tennesseans who have previously done estate and inheritance tax planning may need to reconsider that planning. For example, an estate plan
that gives the children the full amount of Tennessee inheritance tax exemption has a much different result if the death occurs in 2015 ($5 Million
passing to the children) than if the death occurs this year ($1 Million passing to the children).
      The steeply increasing Tennessee inheritance tax exemption also creates the potential for an existing estate plan seriously underfunding the assets
passing to the surviving spouse. If a married couple has established an estate plan fully funding the Tennessee inheritance tax exemption for the
children with the remainder of the estate passing outright to the surviving spouse, that surviving spouse may see substantially less of her husband’s
estate than was originally intended.
      For illustrative purposes, a husband and wife who established their estate plan in 2011 would have expected a Tennessee inheritance tax
exemption bequest to their children would pass $1 Million in assets to the couple’s children upon the husband’s death and leave the husband’s
remaining $4 Million in assets to go outright to the surviving spouse. However, if the husband dies in 2015 with that same $5 Million estate, the
surviving spouse would receive no assets from the deceased spouse’s estate because of the increased Tennessee inheritance tax exemption.
      These extreme examples of overfunding bequests to the children and underfunding the bequest to the surviving spouse may be mitigated by
Congressional gridlock. Most estate-tax-effective wills and trusts are drafted so that the bequest to the children would not exceed the Federal estate
tax exemption. If Congress allows the Federal gift and estate tax exemption to revert back to $1 Million at year-end, then the Federal estate tax
exemption will match the Tennessee inheritance tax exemption prior to this year’s changes to the Tennessee inheritance tax.
      If Congress keeps the Federal gift and estate tax exemption at $5 Million or increases that exemption, there will likely be an increase in
disclaimers by children and elective share filings by surviving spouses. A full or partial disclaimer of an interest in the estate filed by the children will
allow more estate assets to pass to the surviving spouse. If the children do not agree to file such disclaimer, the surviving spouse will be forced to file
for an elective share to mitigate against any unintended overfunding of the children’s bequest.

August 2012                                                              DICTA                                                                           13
                     Unpacking the Supreme Court’s
                        Health Reform Opinions:
                      Taxes, Healthcare & Broccoli

      Threading a rhetorical needle, on the last    hold the AIA is not a jurisdictional bar, but the     sides,18 the dissent agreed that the scope of the
day of its 2011 Term the U.S. Supreme Court         Court did not reach the jurisdictional question       AIA is distinct from the scope of the Taxing
rejected challenges to the Patient Protection       in its opinion, instead concluding that the scope     power.19 The dissent also appeared to agree that
and Affordable Care Act (“ACA”), resolving the      of the AIA and the Taxing power are not               Congress could impose a tax similar, if not
question of whether or not the administration’s     coextensive.                                          identical to, the penalty for noncompliance with
signature legislative achievement is                      The statutory AIA, the Court explained, is      the mandate.20 The dissent parted ways with
constitutional.1 The Court held that the            a “creature[] of Congress’s own creation.”6           the majority in its interpretation of what
individual mandate is a constitutional exercise     Therefore, Congress has the power to dictate          Congress actually did, however, reasoning that
of Congress’ Taxing power, even though it also      what is and is not within the ambit of the            what Congress actually did was impose a
held that the penalty for noncompliance with        AIA.7 As such, Congress’s choice to label the         penalty for violation of the law. And, the
the mandate is not a “tax” within the purview of    fee for noncompliance with the individual             dissent reasoned, “We have never held that any
the Anti-Injunction Act (“AIA”).2                   mandate a “penalty” rather than a “tax” in the        exaction imposed for violation of the law is an
      Chief Justice John Roberts’ opinion,          text of the ACA shows that the penalty is             exercise of Congress’ taxing power—even when
portions of which the four more liberal justices    something different than a “tax” for purposes of      the statute calls it a tax, much less when (as
joined to form a majority, leaves virtually the     the AIA. The Court reasoned that because              here) the statute repeatedly calls it a penalty.”21
entire ACA intact. Although both the Chief          both the Tax Code and the ACA use the terms
Justice and the four conservative dissenting        “penalty” and “tax” to mean distinct things, by       2.   Cars, Vegetables, and Health Insurance: The
justices found that the individual mandate and      choosing the term “penalty” rather than “tax,”             Commerce Clause Analysis
its associated penalty is not a constitutional      Congress intended for the penalty to be outside
exercise of the Commerce Clause power, the          the reach of the AIA.8                                      The highly-debated “significant
ACA survives that ruling since a majority of the          The Taxing Power, on the other hand, is a       cost-shifting problem” was the legislative
Court found the mandate constitutional under        creature of the Constitution.9 As such,               catalyst for Congress’ enactment of the ACA
the Taxing power.3                                  Congress’s choice of words “does not . . .            and was at the heart of the Government’s oral
      The only ACA provision the Court struck       control whether [the] exaction is within              arguments. The problem is that “everyone will
down was the threat to withhold all Medicaid        Congress’s constitutional power to tax.”10            eventually need health care at a time and to an
funding from states that refuse to join the         Rather, the Court held, the characteristics of        extent they cannot predict,” but “because state
Medicaid expansion; seven justices found that       the penalty show that it is within the Taxing         and federal laws nonetheless require hospitals to
provision unconstitutionally coercive. That         power. First, the penalty is not punitive: “For       provide a certain degree of care to individuals
ruling, which permits states to opt out of the      most Americans the amount due will be far less        without regard to their ability to pay,” many
Medicaid expansion entirely, created the next       than the price of insurance, and, by statute, it      citizens receive care they cannot pay for.22 The
front in the battle between the states and the      can never be more.”11 Second, the penalty             ACA’s individual mandate was meant as a
federal government over the ACA. Aside from         “contains no scienter requirement,” and third,        solution to this problem.
the uncertainty over Medicaid, however,             “the payment is collected soley by the IRS                  The plaintiffs characterized the mandate
implementation of the rest of the ACA will          through the normal means of taxation—except           as a regulation of the timing and method of
now move forward—at least until the                 that the Service is not allowed to use those          payment for health insurance. The
November elections.                                 means most suggestive of a punitive                   Government, on the other hand, argued that
                                                    sanction[.]”12 Moreover, the Court reasoned,          the mandate is a regulation of the timing and
1.   Although the Mandate Does Not Impose a         the penalty provision “yields the essential           method of payment for healthcare. Not
     “Tax” under the AIA, it is a Valid Exercise    feature of any tax: it produces at least some         surprisingly, the Chief Justice and the separate
     of Congress’s Constitutional Taxing Power      revenue for the Government.”13                        joint dissenters adopted the plaintiffs’ view and
                                                          The Court disposed of the plaintiffs’           opined that Congress lacks authority under the
      During oral argument on whether the           objection that the penalty is an unconstitutional     Commerce Clause to compel individuals who
AIA barred the ACA litigation, Justice Alito        direct tax by reasoning that it “does not fall        are otherwise inactive in the health insurance
observed to Solicitor General Donald Verrilli,      within any recognized category of direct tax. It      market to participate in commerce by
“Today you are arguing that the [individual         is not a capitation.”14 The Court recognized          purchasing health insurance. The liberal
mandate] penalty is not a tax. Tomorrow you         that although it may be “troubling to permit          justices adopted the Government’s view and
are going to be back and you will be arguing        Congress to impose a tax for not doing                would have held that because everyone is active
that the penalty is a tax.”4 As untenable as that   something” (i.e., buying health insurance), “it is    in the market for healthcare, Congress can
argument sounds on its face, it carried the day     abundantly clear the Constitution does not            regulate how and when individuals pay for the
in the end.                                         guarantee that individuals may avoid taxation         service they will inevitably consume.23
      The theory that the penalty for               through inactivity.”15                                      In his opinion, Chief Justice Roberts
noncompliance with the individual mandate is              The Chief Justice took pains to explain in      emphasized the novelty of the issue, stating that
within Congress’ Taxing power was the federal       his opinion—in a section that was joined by           Congress relied upon its commerce power “to
government’s fallback argument throughout the       neither the liberals nor the conservative             compel individuals not engaged in commerce to
ACA litigation. The term “tax” was avoided          dissenters—that reading the mandate “not as           purchase an unwanted product.”24 His
during Congressional deliberations, and the fee     ordering individuals to buy insurance, but rather     conclusion hinges on his view that the
is called a “penalty” in the legislation. The       as imposing a tax on those who do not” is not         individual mandate creates the commerce it
ACA does provide, however, that the penalty is      the most “natural” reading of the ACA.16              seeks to regulate, whereas “[t]he language of the
to be collected by the IRS in the “same manner”     However, the Chief Justice concluded, the             Constitution reflects the natural understanding
as taxes, although the IRS is directed not to use   question before the Court is “not whether that        that the power to regulate assumes there is
criminal prosecution.5                              is the most natural interpretation of the             already something to be regulated.”25 Rather
      The tax argument put the federal              mandate, but only whether it is a ‘fairly possible’   than regulating existing commercial activity, the
government in the tricky position of arguing        one.”17                                               Chief Justice wrote, the mandate “instead
that the litigation was not barred by the AIA,            Justices Scalia, Kennedy, Thomas, and           compels individuals to become active in
which is a jurisdictional bar to suits seeking to   Alito filed a joint dissent. In an opinion that is    commerce by purchasing a product on the
enjoin a “tax.” At oral argument the Court          rumored to have been the majority opinion             ground that their failure to do so affects
appeared intrigued by the idea that it could        before Chief Justice Roberts allegedly switched       interstate commerce.”26 In reaching his

14                                                                     DICTA                                                                   August 2012
                                                                                            COVER STORY
                                                                                            By: Alicia Cottrell
                                                                                    Hodges Doughty & Carson, PLLC
                                                                                                    Cathy Shuck
                                                                    Wimberly Lawson Wright Daves & Jones, PLLC

conclusion, Justice Roberts stated the individual    the individual mandate as constitutional under       health care a financial incentive to acquire
mandate, if found constitutional, would go           the Commerce Clause would, in the joint              insurance.”39 In her judgment, “the unique
farther than the Court’s holding in Wickard v.       dissent’s judgment, be tantamount to a holding       attributes of the health-care market render
Filburn, “perhaps the most far reaching example      that “[i]f all inactivity affecting commerce is      everyone active in that market,” and a citizen’s
of Commerce Clause authority over interstate         commerce, commerce is everything.”33                 decision to self-insure is “an economic act with
activity.”27                                               Justice Ginsburg, joined by Justices Breyer,   the requisite connection to interstate
      If upheld under the Commerce Clause, the       Sotomayor and Kagan, dissented on the                commerce.”40
individual mandate would, the Chief Justice          Commerce Clause issue, characterizing Chief                Notably, no justice concluded that
reasoned, establish that “individuals may be         Justice Roberts’ analysis and holding as a “rigid”   Congress may regulate economic inactivity or
regulated whenever enough of them are not            and “crabbed” reading34 Justice Ginsburg’s           that Congress can compel otherwise inactive
doing something the Government would have            dissent rests upon her view that “virtually every    persons to engage in commerce. In that sense,
them do.”28 For example, “Congress could             person residing in the United States, sooner or      the Court soundly rejected the opportunity to
address the diet problem by ordering everyone        later, will visit a doctor or other health-care      broaden the reach of the Commerce Clause.
to buy vegetables.”29 Moreover, the Chief            professional,” although the time for                 The difference in the justices’ opinions is
Justice found the phrase “active in the market       participation is unpredictable.35                    attributable not so much to their views as to the
for healthcare” to be of no constitutional                 In a rebuttal to Chief Justice Robert’s car    reach of the Commerce Clause but rather to
significance, comparing the analysis to car          and vegetable analogies, Justice Ginsburg wrote      their view of what was being regulated by the
shopping: “An individual who bought a car two        that although there is no certainty an individual    individual mandate—again, health insurance
years ago and may buy another in the future is       will ever buy a car or a crown of broccoli, if she   versus healthcare financing. However, the
not ‘active in the car market’ in any pertinent      did, she “will be obliged to pay at the counter      Court also passed on the opportunity to
sense.”30 In reaching his holding, the Chief         before receiving the vehicle or nourishment          significantly restrict the reach of the Commerce
Justice opined, “The Commerce Clause is not a        ... she will get no free ride or food, at the        Clause. No justice except Justice Thomas, who
general license to regulate an individual from       expense of another consumer.”36 Justice              authored a brief individual dissent, would
cradle to grave because he will predictably          Ginsburg concluded that “[r]equiring                 overturn Wickard v. Filburn, the so-called “ne
engage in particular transactions” and Congress      individuals to obtain insurance unquestionably       plus ultra of expansive Commerce Clause
is not permitted to anticipate a commercial          regulates the interstate health-insurance and        jurisprudence.”41
activity in order to regulate citizens not           health-care markets, both of them in existence
currently engaged in it.31                           well before the enactment of the ACA.”37             3.   A Choice by Any Other Name Might be
      The joint dissent’s opinion on the                   Justice Ginsburg also adopted the                   Coercion: The Medicaid Expansion
Commerce Clause issue is very similar to the         Government’s argument that the healthcare
Chief Justice’s, although it barely acknowledged     market is unique: “Unlike markets for most                 While the individual mandate was the
the Chief Justice’s opinion. Like the Chief          products . . . the inability to pay for care does    hotly-contested issue during the legislative
Justice, the joint dissent opined that although      not mean that an uninsured individual will           debate and oral arguments, the Medicaid
“[i]t is true enough that Congress needs only a      receive no care,” and those who fail to acquire      expansion issue, these authors believe, presents
‘rational basis’ for concluding that the regulated   insurance have “deleterious effects” on the          a greater challenge going forward. The ACA
activity substantially affects interstate            overall healthcare market.38 The individual          requires states accepting new funding for their
commerce,” there “must be activity affecting         mandate, Justice Ginsburg wrote, advances the        Medicaid programs to comply with its
commerce that is regulated, and not merely the       objective of reducing the number of uninsured        conditions, including adding all persons under
failure to engage in commerce.”32 To uphold          U.S. residents by “giving potential recipients of    the age of 65 with income below 133 percent of
                                                                                                          the federal poverty level.42 The federal
                                                                                                          Government funds 100% of the expansion for
                                                                                                          the first two years, and not less than 90%
                                                                                                          thereafter.43 Should the States fail to comply, or
                                                                                                          “opt out,” Section 1396c of the ACA would
                                                                                                          have authorized the Secretary of the
                                                                                                          Department of Health and Human Services to
                                                                                                          withdraw all Medicaid funding from the States,
                                                                                                          including existing funding.44 Somewhat
                                                                                                          surprisingly, seven justices found the Medicaid
                                                                                                          expansion to be an unconstitutionally coercive
                                                                                                          use of the Spending power.
                                                                                                                According to the Chief Justice, in an
                                                                                                          opinion joined by Justices Breyer and Kagan,
                                                                                                          the Court has “long recognized that Congress
                                                                                                          may use th[e Spending] power to grant federal
                                                                                                          funds to the States, and may condition such a
                                                                                                          grant upon the States’ ‘taking certain actions
                                                                                                          that Congress could not require them to
                                                                                                          take’.”45 While recognizing Congress’ authority
                                                                                                          to create incentives for States to act, Justice
                                                                                                          Roberts observed that “when ‘pressure turns
                                                                                                          into compulsion’ the legislation runs contrary to
                                                                                                          our system of federalism.”46 Chief Justice
                                                                                                          Roberts characterized the financial
                                                                                                                                     Continued on page 16

August 2012                                                             DICTA                                                                           15
COVER STORY (Continued from page 15)
“inducement” in the ACA as “a gun to the head” of the States, as                                     Chief Justice Roberts did, that the expansion constitutes a new program
non-compliance with the Medicaid expansion provision subjects States                                 because “[t]he Medicaid expansion leaves unchanged the vast majority”
to losing “not merely ‘a relatively small percentage’ of its existing                                of the existing Medicaid coverage provisions and only “adds beneficiaries
Medicaid funding, but all of it.”47                                                                  to the existing program.”55
      Because Congress reserved “the right to alter, amend, or repeal any                                  The dissenters also found that the Medicaid expansion constitutes
provision” of Medicaid when it was originally enacted in 1965, one                                   impermissible and unconstitutional coercion of the States, noting that
question for the Court was whether the ACA’s expansion was a                                         “[t]he States are far less reliant on federal funding for any other
modification or a new program.48 Chief Justice Roberts concluded that                                program,” with the exception of educational funding.56 The coercion of
the ACA accomplished “a shift in kind, not merely degree,” transforming                              the federal Government, in the judgment of the dissenters, is also
the program “to meet the healthcare needs of the entire nonelderly                                   demonstrated by the lack of a “backup scheme” for the “most vulnerable
population with income below 133 percent of the poverty level.”49 Chief                              groups in our society, those who “would be left out in the cold” if their
Justice Roberts thus found that the expanded Medicaid coverage of the                                state fails to comply and loses Medicaid funding.57 The dissenters would
ACA constitutes a new program that is severable from the “old”                                       remedy the issue by invalidating the provision altogether. While
program. Therefore, the coverage need not be stricken as                                             recognizing the severability language in the Medicaid statute, the
unconstitutional, and the opinion does not “preclude” Congress from                                  dissenters characterized the majority’s conclusion as judicial revision not
offering funds under the Affordable Care Act to expand the availability                              in keeping with the doctrine of severability.58
of health care.”                                                                                           Tennessee has not announced a decision regarding implementation
      Further, the Chief Justice stated that Congress’ “requiring the States                         of the Medicaid expansion. Approximately ten years ago, this state was
accepting such funds [to] comply with the conditions on their use” is                                required to revamp its program criteria and purge many individuals from
proper as well.50 However, “Congress is not free…to penalize States that                             TennCare because of the costs associated with maintaining expanded
choose not to participate in that new program by taking away their                                   coverage.59 While many were purged as a result of fraud and abuse
existing Medicaid funding.”51 In other words, despite holding that                                   efforts, a number included the same beneficiaries the ACA now seeks to
Section 1396c is unconstitutional “when applied to withdraw existing                                 cover.60 Tennessee will have to decide whether it can or will bear the
Medicaid funds from States that decline to comply with the expansion,”                               costs for the expanded coverage. These authors do not envy those in a
Chief Justice Roberts would not strike the entire section.52 Interestingly,                          position of making such decisions.
unlike the ACA, the Medicaid statute contains a severability clause,
which Chief Justice Roberts relied upon to leave intact the expansion
where it was not “evident” whether Congress would not “have wanted
the rest of the Act to stand, had it known that States would have a
genuine choice whether to participate in the new Medicaid expansion.”53
      Justices Ginsburg and Sotomayor joined Chief Justice Roberts’s
opinion as to the holding that the Medicaid expansion may stay intact as
an option for the states, as long as Congress does not take away existing
Medicaid funds. Thus, that decision is the holding of the Court. Justice
Ginsburg otherwise dissented as to the Medicaid expansion issue,
however, finding that the section “simply reaches more of America’s poor
than Congress originally covered” in 1965.54 Further, she did not find, as

   Nat’l Fed’n of Indep. Bus. v. Sebelius, No. 11-393 (decided June 28, 2012). This article cites    Chief Justice’s.
to the various Slip Opinions (“Slip Op.”), available at www.supremecourt.gov. For background            Id. at 18.
on the ACA and the oral arguments before the Court in March 2012, see “Health Reform:                25
                                                                                                        Id. at 19.
Supreme Court Recap” in the May 2012 issue of DICTA.                                                    Id. at 20.
2                                                                                                    27
   See Slip. Op. of the Court at 12-13. The AIA is codified at 26 U.S.C. § 7421(a) (“No suit for        Id. at 21.
the purpose of restraining the assessment or collection of any tax shall be maintained in any           Id. at 22.
court by any person.”).                                                                                 Id. at 23.
3                                                                                                    30
   Chief Justice Roberts was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan in               Id. at 25.
holding that the individual mandate is a constitutional exercise of the Taxing Power and not            Id. at 26.
barred by the AIA. See Slip. Op. of the Court at 11-15; 33-43.No justice joined the Chief’s             Slip Op. of Scalia, Kennedy, Thomas, and Alito, JJ., at 13.
opinion that the mandate is not constitutional under the Commerce Clause, although the                  Id. at 13.
Chief’s analysis is extremely similar to the joint dissent’s. Compare Slip Op. of Roberts at            Slip Op. of Ginsburg, J. at 2 and 18.
17-27 with Slip. Op. of Scalia, Kennedy, Thomas, and Alito at 5-13. No single justice authored          Id. at 3.
the dissent; it is styled as “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito,       Slip Op. of Ginsburg, J. at 21.
dissenting.” Justices Kagan and Breyer joined the Chief Justice’s opinion that the Medicaid             Id. at 24.
expansion is unconstitutional, and the four dissenters agreed. See Slip Op. of joint dissent at         Id. at 5 and 7.
46. However, the dissenters disagreed with the Chief Justice’s remedy for the constitutional            Id. at 9.
violation, but Justices Ginsburg and Sotomayor agreed with it, forming a majority. See id. at           Id. at 28.
47-48 and Slip Op. of Ginsburg at 40. (See Section 3 below).                                            Slip Op. of Scalia, Kennedy, Thomas, and Alito, JJ., at 3. Wickard v. Filburn, 317 U.S. 111
  Tr. Oral Argument at 31:13-16 (No. 11-398, Mar. 26, 2012).                                         (1942), held that an individual farmer growing wheat for his own consumption was subject to
   See 26 U.S.C. §5000A.                                                                             regulation under the Commerce Clause. Justice Thomas wrote to express his view that “the
   Slip Op. of the Court at 13.                                                                      very notion of a ‘substantial effects’ test under the Commerce Clause” is contrary to the
   See Slip Op. of the Court at 12-13.                                                               Constitution. See Slip Op. of Thomas, J. at 1-2.
   See id.                                                                                           42
                                                                                                        Slip Op. of Roberts, C.J. at 45.
  Article I, §8 gives Congress the power to “lay and collect taxes[.]”                               43
                                                                                                        Slip Op. of Ginsburg, J. at 42. See also Slip Op. of Scalia, Kennedy, Thomas, and Alito, JJ. At
   Slip Op. of the Court at 33.                                                                      45.
   Id. at 35.                                                                                        44
                                                                                                        Id. at 55-56.
   Id. at 36.                                                                                        45
                                                                                                        Slip. Op. of Roberts, C.J. at 46.
   Id. at 33.                                                                                        46
                                                                                                        Id. at 47.
   Id. at 41.                                                                                        47
                                                                                                        Id. at 51.
   Id. See also id. at 42-44 for additional reasoning.                                               48
                                                                                                        Id. at 53.
   Slip Op. of Roberts, C.J. at 31, 32.                                                              49
                                                                                                        Id.; see also id. at 54 (detailing differences in new program).
   Id. at 32 (quoting Crowell v. Benson, 285 U.S. 648, 657 (1895)).                                  50
                                                                                                        Id. at 55.
   See, e.g., “Roberts switched views to uphold health care law,” CBS News (July 1, 2012),           51
http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-healt                    Id. at 56.
h-care-law/.                                                                                            Slip Op. of Roberts, C.J. at 57.
   See Slip. Op. of Scalia, Kennedy, Thomas, and Alito at 27.                                        54
                                                                                                        Slip Op. of Ginsburg, J. at 48.
   See id. at 17-18 (“The issue is not whether Congress had the power to frame the                   55
                                                                                                        Id. at 49.
minimum-coverage provision as a tax, but whether it did so.”) (Emphases in original.)                   Slip Op. of Joint Dissent at 40.
   Id. at 18 (emphases in original).                                                                 57
                                                                                                        Id. at 43-44.
   Slip Op. of the Court at 16.                                                                      58
                                                                                                        Id. at 48.
   Technically there was no majority opinion on the Commerce Clause analysis, with the               59
                                                                                                        TennCare Timeline, available at www.tn.gov/tenncare/news-timeline.shtml.
Justices splitting 4-4-1 on the issue. However, five justices agreed that the Commerce Clause           Id. (“The definition of ‘uninsured tightened by providing a more restrictive definition of the
does not authorize the individual mandate, and the joint dissent’s analysis is very similar to the   term ‘insurance’.”).

16                                                                                            DICTA                                                                                   August 2012
                              AROUND THE BAR: SUPREME COURT DINNER PREVIEW

                                                                                                         By: Angelia Nystrom
                                                                                               University of Tennessee Foundation, Inc.

                                                                                   Young Life, a Christian ministry that reaches out to adolescents.
                                                                                   During the summers, Bill volunteered for the grassroots political
                                                                                   campaigns of Howard Baker and Lamar Alexander and gained a deep
                                                                                   understanding of the type of principled leadership needed to govern.
                                                                                         After graduating with a degree in history, Bill and Crissy married
                                                                                   and moved to Knoxville, where Bill planned to teach high school history
                                                                                   and coach basketball for a few years and then head to a Presbyterian
                                                                                   seminary to be a minister. Wanting his son to have an understanding of
                                                                                   business, Jim Haslam encouraged his son to enter the business world for
                                                                                   a couple of years. Bill had agreed, at his father’s urging, to work “for a
                                                                                   couple of years” managing his family’s small chain of gas stations. In the
                                                                                   early years, Bill recalls that he spent long days driving all over the
                                                                                   country, identifying, negotiating, and purchasing good locations for new
                                                                                   truck stops. Throughout his time at Pilot, Bill learned to allocate
                                                                                   resources wisely and satisfy customers. It was there that Bill gained the
                                                                                   essential hands-on knowledge that makes the chief executive officer of a
                                                                                   complicated enterprise successful.
                                                                                         In 1999, Bill joined Saks Fifth Avenue as the chief executive officer
      Webb School’s motto is “Princeps, Non Homines,” which is Latin               of the emerging e-commerce and catalog division.
for “Leaders, Not Ordinary Men.” Students are taught from early on                       In 2003, at the urging of many of his friends, Bill ran for and was
that they are to live selflessly and heed the call to serve the greater good.      elected mayor of the City of Knoxville. The skills he learned in the
Described by colleagues as “genuine,” “unpretentious,” and “grounded,”             private sector helped make his administration extremely effective.
Governor Bill Haslam, Webb Class of 1976, continues to live this motto             Re-elected in 2007 with 87 percent of the vote, Bill balanced seven
every day.                                                                         consecutive city budgets, tripled the Rainy Day Fund, insisted that city
      Born and raised in Knoxville to parents Jim and Cynthia Haslam,              government focus on providing services in an efficient manner, helped
Gov. Haslam learned early on that the keys to success included working             found key education initiatives, and recruited and retained thousands of
hard and treating others as he would want to be treated. He credits his            jobs to the city through development and revitalization.
parents for instilling their strong faith and work ethic in him and his                  On November 2, 2010, Bill was elected Governor of the State of
siblings, Jimmy and Ann. At the age of thirteen, Bill got a job pumping            Tennessee with 65% of the vote—winning 90 of 95 counties and
gas at a family-owned service station and quickly learned that running a           securing the largest victory of any non-incumbent gubernatorial
business took diligence and hard work. He also learned that treating               candidate in our state’s history. Samantha Edwards, who worked as an
others with kindness and respect was key to gaining customer loyalty.              intern in his campaign says, “It was an amazing experience. Bill was
      Bill applied those same lessons to the classroom. In addition to             always on the go, but he made sure that he knew everyone working on
being a stellar student at Webb, Bill was a great athlete. He ran track            his campaign. He knew everyone’s name and something about them and
and played basketball and baseball. In a hint of things to come, Bill also         would call you by name every time he saw you. I was impressed with the
served in student government. Former schoolmates recall that he always             fact that he treated everyone the same. From the lowest intern to the
remembered everyone and called them by name. He was known for                      highest staffer, he treated everyone with respect. He made sure to tell us
being genuinely kind.                                                              often how much he appreciated the work we were doing for him. When
      When Bill was 16 years old, tragedy struck his family. The sudden            he said it, you knew he meant it.”
unexpected death of his mother marked a turning point in his young                       For all that he has accomplished in business and in the political
life. Bill’s dad pulled the family together, and they leaned on each other         arena, Bill Haslam will tell you that his greatest accomplishment is his
and on their faith to get them through the rough days, with Mr. Haslam             family, and he is sustained by his faith. He and Crissy just celebrated
advising them that people were not going to feel sorry for them and that           their 31st wedding anniversary. They have also been blessed with 3
they had to continue living. The death of his mother marked a turning              children, a daughter-in-law, son-in-law, and a new grandson. For 28
point in Bill’s life. “It was a total surprise,” he has said. “Obviously, if you   years, Bill and Crissy have been members of Cedar Springs Presbyterian
lose your mom when you are 16, it causes you to step back and think,               Church (EPC) in Knoxville, and for 22 of those years, Bill has served as
OK, it’s not just about the football game this Friday night or who I am            an elder.
going to prom with. You start thinking about harder and tougher issues,                  Governor Bill Haslam has been and continues to be a respected
and realize quickly that life is hard and doesn’t work for a whole lot of          leader in business, with his family, in his church, and in the political
people.” It was this understanding and empathy that carried him                    arena. He has succeeded on every level. Those early lessons instilled in
through high school and into college.                                              him as a child continue to resonate today. He has nothing to prove, yet
      Bill entered Emory University in 1976, and on the first day of class,        he continues to serve. That is precisely what makes him a leader and
met Crissy Garrett, a young woman from Memphis, who would later                    not an ordinary man.
become his wife. While attending Emory, Bill was a volunteer leader for

August 2012                                                                 DICTA                                                                          17
                     WORD PLAY
                                                                               barrister bullets
                    By: Peter D. Van de Vate
                    Law Office of Peter D. Van de Vate                        EVERYONE INVITED TO BARRISTERS MONTHLY
                                                                              Join us for the next Barristers Meeting on Wednesday, August 8, 2012, at
                                                                              5:00 p.m. at the Bistro (807 South Gay Street). Everyone is welcome to
                                                                              attend. There are many opportunities to get involved, so please contact
                                                                              Barristers President Josh Bond at jbond@hdclaw.com for more
                       “Barbecue”                                             information. Check out the Barristers on the KBA website.
                                                                              BARRISTERS REFERRAL NETWORK
                                                                              Help fellow young lawyers expand their practices! Next time you need to
      Yes, it is the time of year for cooking out. So where does barbecue     refer a case, take the time to search the Online Attorney Directory in the
come from?                                                                    members’ only section of the KBA website. The KBA has recently added
                                                                              a new search option which allows you to sort by “Barrister” in addition to
      Most etymologists believe that barbecue derives from the word           various practice areas. This will allow members of the Barristers to
barabicu found in the language of the Taino people of the Caribbean           connect with other young lawyers in similar practice areas and to refer
and the Timucua of Florida and entered European languages in the              business. Many people will tell you that building a referral network will
form barbacoa. The word translates as "sacred fire pit." The word             often take years; that it is something you will develop over time. That, no
describes a grill for cooking meat, consisting of a wooden platform           doubt, is true. But, the fact that young lawyers have the opportunity to
                                                                              begin using a referral network within their early years of practice is
resting on sticks.                                                            significant. The relationships you develop now will only continue to grow
      Traditional barbacoa involves digging a hole in the ground and          and reap more benefits as your careers develop.
placing some meat (usually a whole goat) with a pot underneath it, so
                                                                              ACCESS TO JUSTICE COMMITTEE
that the juices can make a hearty broth. It is then covered with maguey       The Barristers' Access to Justice Committee is seeking volunteers to
(agave/century plant) leaves and coal and set alight. The cooking             serve on the committee. The Barristers' Access to Justice Committee's
process takes a few hours.                                                    mission is to facilitate and encourage the KBA Barristers in their efforts
      It has been suggested that both the word and cooking technique          (1) to ensure access to the justice system by all persons without regard to
migrated out of the Caribbean and into other languages and cultures,          income; and (2) to provide direct pro bono service to low-income persons
with the word (barbacoa) moving from Caribbean dialects into Spanish,         in our community through participation in various community initiatives.
                                                                              Volunteer for the following Saturday Bar dates by contacting Terry
then Portuguese, French, and English. The Oxford English Dictionary           Woods, Pro Bono Project Director. Knox County Saturday Bar - July 28;
cites the first recorded use of the word in the English language in 1697      August 11, 25; September 8, 22; October 13, 27; November 10;
by the British buccaneer William Dampier. However, it appears 25              December 1. Blount County Saturday Bar - August 18; September 15;
years earlier in the published writings of John Lederer in the proper         October 27; November 10; December 1. For more information about
form, barbecue, following his travels in the American southeast in 1672.      the Barristers’ Access to Justice Committee, please contact Troy Weston
                                                                              at 544-2010 or tweston@ebtlaw.com.
      On the East Coast of the United States, barbecue is generally used
as a verb describing the act of cooking out, or as a noun describing an       HUNGER & POVERTY RELIEF COMMITTEE
event related to cooking out. It is also a noun to describe the product       If you are interested in becoming involved with the Hunger & Poverty
                                                                              Relief Committee or would like more information, please contact Scott
of cooking out, in general (Buddy's Bar-B-Q). On the West Coast it            Griswold at 525-0880 or Adam Moore at 521-5274. Please see updates
has yet another meaning where it is used as a noun defining the device        below about two of the projects recently sponsored by the HPRC:
(grill, outside oven, etc.) itself.                                           School Supplies Drive:
      Where cattle ranching is probably as prevalent as anywhere on           The Knoxville Barristers Hunger & Poverty Relief Committee just
earth, Brazil, the act is described as "fire on the ground" (fogo de chao).   recently sponsored a school supplies drive to benefit the ChildHelp
                                                                              Foster Family Agency of East Tennessee and the children they serve.
"Fogo de Chao" is also the name of a fine Brazilian restaurant with           Cash/Check donations are still being accepted. Please make checks out
many locations in this country. The food there is not inexpensive, but        to KBA/Barristers and designate 'School Supplies Drive' in the memo
it is delicious and plentiful. There is one just across the street from the   line and send to the KBA Office.
World War II memorial in Washington, D.C. Visiting both locations             Clothing Drive:
would be a perfect vacation trip.                                             The Knoxville Barristers Hunger & Poverty Relief Committee conducted
                                                                              their annual Professional Clothing Drive from June 11 - 22, 2012.
                                                                              During this timeframe, BB&T; Bank of America; KBA; First Tennessee
                                                                              Plaza; Fox & Farley (Clinton); Leitner, Williams, Dooley & Napolitan;
                                                                              Mostoller, Stulberg, Whitfield & Allen (Oak Ridge); Baker, Donelson;
                                                                              and the Kerbela Shrine Temple acted as drop-off locations for men’s and
                                                                              women’s professional clothing. This drive is an annual project of the
                                                                              Barrister’s Hunger & Poverty Relief Committee. Women’s professional
                                                                              clothing was donated to Knox County Community Action Career Closet
                                                                              in Knoxville, with men’s clothing donated to Knox Area Rescue
                                                                              Ministries on Hall of Fame Drive. Clothing collected from this drive
                                                                              included suits, slacks, and collared shirts from Talbots, Anne Klein, Jos A
                                                                              Bank, M.S. McClellan, Brooks Brothers, and other fine brands. The
                                                                              charitable organizations were especially thankful for the donations, which
                                                                              filled two cars and the back of an SUV. The organizers of the event
                                                                              would like to thank everyone who participated through donation of their
                                                                              time, office space, and/or their gently used professional clothing.
                                                                              VOLUNTEER BREAKFAST
                                                                              The Volunteer Breakfast Committee would like to thank May's
                                                                              volunteers: Kati Goodner (Paine, Tarwater, and Bickers, LLP) and Alan
                                                                              Moore (Stone & Hinds, P.C.). Volunteers are needed to serve breakfast
                                                                              at the Volunteer Ministry Center on the fourth Thursday of the month.
                                                                              Contact Sheila Needles (292-0000 or sheila.needles@gmail.com) or Will
                                                                              Kittrell (546-0500 or wkittrell@emadlaw.com) to get involved.
     Hunger & Poverty Relief Committee Professional Clothing Drive

18                                                                       DICTA                                                               August 2012
                                                                                                   SCHOOLED IN ETHICS
                                                                                                              By:   Judy M. Cornett
                                                                                                                          U.T. College of Law

      In the fall semester I teach Civil Procedure I to first-semester law     support after a reasonable opportunity for further investigation or
students. When the students finally figure out that the course is about        discovery” but only “if [they are] specifically so identified.”
litigation, a few always express concern about “frivolous lawsuits.” I point         Similarly, counsel’s legal assertions must be objectively reasonable
out that the legal system contains many safeguards against so-called           under the circumstances. The Tennessee Supreme Court gave this good
“frivolous lawsuits,” the chief of which is Tenn. R. Civ. P. 11, which         advice: “[The attorney] must research the LAW, unless he is certain he
serves as a kind of ethics rule by regulating attorney conduct. Rule 11.02     knows it.”4 However, it is not a per se violation of Rule 11 to file a
provides as follows:                                                           claim that the attorney believes is barred by the statute of limitations or
      By presenting to the court (whether by signing, filing,                  res judicata, because these are affirmative defenses that may be waived
      submitting, or later advocating) a pleading, written motion,             by the defendant.5 Moreover, Rule 11 is not intended to chill an
      or other paper, an attorney or unrepresented party is                    attorney’s creativity – a legal assertion that is not “warranted by existing
      certifying that to the best of the person's knowledge,                   law” complies with Rule 11 if it is warranted by “a nonfrivolous
      information, and belief, formed after an inquiry reasonable              argument for the extension, modification, or reversal of existing law or
      under the circumstances, —                                               the establishment of new law.”
      (1) it is not being presented for any improper purpose, such                   Finally, Rule 11.02 prohibits presenting any claim or allegation to
      as to harass or to cause unnecessary delay or needless                   the court “for any improper purpose, such as to harass or to cause
      increase in the cost of litigation;                                      unnecessary delay or needless increase in the cost of litigation.” There
      (2) the claims, defenses, and other legal contentions therein            need not be direct evidence of an improper purpose. Instead, the court
      are warranted by existing law or by a nonfrivolous argument              may “surmise” an improper purpose when a plaintiff who failed to appeal
      for the extension, modification, or reversal of existing law or          earlier adverse rulings files suit again long after the statute of limitations
      the establishment of new law;                                            had expired.6
      (3) the allegations and other factual contentions have                         Again this fall, I will assure my first-semester students that
      evidentiary support or, if specifically so identified, are likely        attorneys’ compliance with Tenn. R. Civ. P. 11 is the legal system’s best
      to have evidentiary support after a reasonable opportunity               defense against “frivolous” lawsuits. Each time an attorney presents a
      for further investigation or discovery; and                              legal or factual allegation to a court, that attorney should remember the
      (4) the denial of factual contentions are warranted on the               Tennessee Supreme Court’s hope that Rule 11 will instill among
      evidence or, if specifically so identified, are reasonably based         members of the bar a sense of responsibility to prevent public perception
      on a lack of information or belief.                                      of the legal profession as one tolerant of abuse in its midst. The public
                                                                               has an interest in, and the judiciary a responsibility for, the efficient,
      A civil litigator must have Rule 11 in the back of his or her mind at    economic, and expeditious administration of justice. Baseless filing puts
all times. The Rule applies whenever the attorney files, signs, submits, or    the machinery of justice in motion, burdening courts and individuals
later advocates a pleading, written motion, or other paper. Thus, Rule         alike with needless inconvenience, expense, and delay.7
11.02 “impos[es] a continuing obligation on the part of counsel and                  My students are counting on you!
self-represented parties to verify the factual and legal basis of
presentations made to the court, in writing or orally.”1 This continuing       1
                                                                                 Evans v. Evans, 2010 WL 3715977, at *3 (Tenn. Ct. App. Sept. 22, 2010), perm. to
obligation comes into play most often when opposing counsel sends the          appeal denied, id. (Tenn. Feb. 17, 2011). The leading Tennessee case on Rule 11 is
                                                                               Andrews v. Bible, 812 S.W.2d 284 (Tenn. 1991). There the Tennessee Supreme Court
safe harbor letter required by Rule 11.03(1)(a). At that point, the
                                                                               held that Rule 11 did not impose such a continuing obligation, but the court was
attorney receiving the safe harbor letter must review and reevaluate the       interpreting the pre-1995 version of Rule 11, which triggered the attorney’s obligation
relevant pleadings and written motions and must withdraw or amend              only upon “signing.” This portion of the Andrews holding was clearly abrogated by the
them if necessary to comply with Rule 11.02's requirements.                    amendment of Rule 11.02 in 1995 to add the language “or later advocating.”
      The Rule requires a pre-filing investigation, “an inquiry reasonable     2
                                                                                 Andrews, 812 S.W.2d at 288.
under the circumstances,” into both the facts and the law. The attorney’s
                                                                                 White v. Myers, 2001 WL 1337569, at *8 (Tenn. Ct. App. Oct. 31, 2001).
                                                                                 Andrews, 812 S.W.2d at 288 (quoting Whittington v. Ohio River Co., 115 F.R.D. 201,
conduct is evaluated under a standard of objective reasonableness under
                                                                               209 (E.D. Ky.1987)).
the circumstances.2 By “presenting” factual allegations to the court, the      5
                                                                                 See Brown v. Shappley, 290 S.W.3d 197 (Tenn. Ct. App. 2008), perm. to app. denied, id.
attorney is certifying that “the allegations and other factual contentions     (Tenn. 2009); Evans, 2010 WL 3715977, at *3-4.
have evidentiary support.” As the Tennessee Court of Appeals put it,           6
                                                                                 Bell v. First Citizens Nat’l Bank, 2008 WL 4615856, at *5 (Tenn. Ct. App. Oct. 20, 2008).
“The claim must not be asserted against a defendant merely in the hope         In Bell, the plaintiff, beneficiary of a trust, was a party to an earlier suit challenging the
that discovery will turn up something against that defendant. . . . The        trustee’s proposed sale of a trust asset. Plaintiff did not appeal the adverse ruling by the
                                                                               trial court. But seventeen years later, plaintiff filed suit, once again challenging the
burden cannot be shifted to a defendant to prove himself out of the case
                                                                               trustee’s sale of the asset. According to the court of appeals, viewing the case most
after filing.”3 However, sometimes facts to support an apparently              favorably to the plaintiff, suit was filed at least seven years after the statute of
meritorious claim just aren’t available pre-filing, either because of time     limitations had expired.
constraints or because the facts are exclusively within the other party’s      7
                                                                                 Andrews, 812 S.W.2d at 292.
control. Rule 11.02 provides for this contingency by allowing an
attorney to present factual allegations that “are likely to have evidentiary

August 2012                                                              DICTA                                                                                           19
                    LOCAL HISTORY

                   By: Donald F. Paine
                   KBA President, 1983

      Christa Gail Pike is the only woman in Tennessee under sentence
of death. What crime led to that sentence?
      On Thursday, January 12, 1995, Pike (age 18) was enrolled in the
Job Corps on Dale Avenue in Knoxville. She became angry at Colleen
Slemmer (age 19) for seeking sex with Pike’s boyfriend Tadaryl Shipp
(age 17). About 8 p.m. this trio plus another female student walked
over the hill to Cumberland Avenue, then westward to a deserted area
between the Robertshaw Fulton Sylphon plant and the U.T. Agriculture
College campus. Pike lured Slemmer with a lie about a marijuana stash.
      For the next hour Christa Pike tortured Colleen Slemmer, with
occasional help from Shipp. A box cutter and miniature meat cleaver
were her weapons. Finally Pike fatally bashed in the left side of
Slemmer’s skull with a large piece of asphalt. She kept a small section of
skull as a souvenir.
      On Saturday morning Pike
                                                    ike described the

confessed at the Knoxville Police
Department. I have the audio version                killing . . . ,
and the transcript. She describes the
slicing and beating in detail.                      dancing and
      Judge Mary Beth Leibowitz           singing while holding
presided at the March 23-30, 1996,
trial. Here are some highlights I’ve      the skull piece.”
gleaned from the lengthy transcript of                                           Christa Pike on confession day
      A University groundskeeper found the corpse; “I thought it was a
dead dog.” Medical examiner Sandra Elkins explained the extensive
wounds. She said the cause of death was blunt force injury to the head.
U.T. forensic anthropologist Murray Marks reconstructed the skull, and
he demonstrated how Pike’s souvenir fit the remaining hole.
      Damning testimony came from Job Corps student Kim Iloilo.
Christa Pike had told her Wednesday night that she intended to kill
Colleen Slemmer. On Thursday night Pike described the killing to
Kim, dancing and singing while holding the skull piece.
      KPD investigator Randy York introduced the confession. A crime
scene video starring Pike and York was shown.
      The defense called only two witnesses, a psychologist and a
psychiatrist. The former opined that Pike had a borderline personality
disorder and did not premeditate the slaying.
      After the jury returned a murder verdict, proof was offered on
punishment. Pike’s aunt, father, and mother recounted the defendant’s
troubled childhood. It was to no avail. The jurors decided that
execution fit the crime.
      The Tennessee Supreme Court affirmed in 1998. See 978 S.W.2d
      But Pike wasn’t finished. In 2001 a fire at Women’s Prison caused
Pike to be placed in a holding cell with Patricia Jones, serving a life
sentence for another brutal Knoxville murder. Pike almost strangled
Jones to death with a bootlace.
      Nine women have been legally executed in Tennessee. It last
happened 164 years ago. Maybe it’s high time. . . .

  Update from June 2012 DICTA from Don Paine

     Here is more information about Henry Richard Gibson, a
  passenger who survived the New Market Train Wreck. In 1885 he
  joined a veterans group called the Grand Army of the Republic,
  claiming he had been a Lieutenant under Yankee General Hooker
  and later a Captain with the Commissary Department. In 1894 he
  was expelled from the group when an informer proved that Gibson
  had no military service whatsoever. He was a mere civilian clerk at
  the Commissary.
     We older lawyers remember when Gibson’s Suits in Chancery
  was the “bible” for pre-Rules equity procedure. It is now clear that
  this scripture was written by a liar.

20                                                                       DICTA                                    August 2012
                                                                                                         LONG WINDED
                                                                                                              By: Jason Long
                                                                                                                London & Amburn

      Congratulations to Davis Tarwater! For a moment, let me put             hillbillies. Dueling Banjoes could be played at the awards ceremony. If
aside my Catholic/Webb bias and say that I couldn’t have been more            the Olympic Committee would adopt my suggestion, Burt Reynolds
excited when I learned that Davis had made the 2012 U.S. Olympic              and Jon Voigt could win a gold medal tomorrow.
swim team. By the time this article goes to print, he will be in London            Synchronized Swimming. This is a females-only competition and
wearing one of those little berets (interesting choice of uniform for our     harkens back to the days of the great Ziegfeld productions where scores
team) and getting ready to represent his country on the world’s biggest       of women would dive into a pool and perform dance routines in
stage.                                                                        elaborate costumes. I think modern competitors should be required to
      I should say that I have never met Davis and know nothing about         wear the same headgear and costumes that those actresses from the
him, other than the fact that his father is our very own Dwight               1920s did. Honestly, I can’t think about synchronized swimming
Tarwater (I am sure Dad is rightfully swelling with pride), he graduated      without conjuring up images of Harry Shearer and Martin Short. For
from Webb School of Knoxville (again, I am going to overlook that fact        Saturday Night Live enthusiasts, you may agree that there were few skits
for this article) and he can swim (or as I like to refer to it: avoid         funnier than Shearer confidently predicting he would win gold despite
drowning) really fast. Given the rather tenuous connection, some may          the fact that men’s synchronized swimming was not an event and his
wonder at my level of excitement over Davis’ recent accomplishments. I        partner, Short, couldn’t swim.
think I am just blown away by the fact that I know someone who knows               Pentathlon. The most challenging aspect of the pentathlon is
someone who has pushed himself to become among the best in the                remembering which events comprise it. Competitors are required to
world at what he does. Suffice to say that, while I always enjoy the          engage in fencing, swimming, horse riding, shooting, and running. You
Olympics, knowing that Dwight Tarwater’s son is in the field will only        may ask yourself why this particular combination of events. Apparently,
heighten my level of enthusiasm this year.                                    the pentathlon was developed to simulate a soldier on a mission and
      In anticipation of the upcoming games, I                                                        those disciplines he or she may be required to
thought it would be helpful to provide a friendly                                                        master. A footnote in history, George Patton
viewer’s guide for those who plan to spend                                                                 (yes, that George Patton) competed in the
some time watching the events. A word of                                                                    pentathlon in the Stockholm Olympics of
warning, I only have approximately 1,000                                                                    1912.
words within which to write this article. As                                                                  Trampoline. Honestly, until I did
such, I don’t have time to focus upon the better                                                          research, I did not realize this was a sport in
known sports which viewers will enjoy regardless of                                                    the Olympics. It actually looks fairly complex, a
what I write. You won’t find commentary about                                                    combination of jumping and gymnastics. I do know
gymnastics, track and field, basketball, boxing, or the                                         the U.S. men’s team earned a “wild card” berth while the
ability to avoid drowning. Those sports receive all of the                                  women’s team secured a spot at the Olympics thanks to
media coverage anyway and I like to go against the grain. So, without         Savannah Vinsant. Yep, there is virtually nothing funny to say about
further ado, the following is a brief insight into some of the lesser         trampoline.
known sports you may enjoy while watching the games:                               Let’s face it, some of these sports are relatively “fringe” in American
      Badminton. A brief historical note: the game was invented in 1873       culture. However, I did become aware that even more fringe sports were
by English officers returning from India who played their own version         included in the Olympics at various times during its history. For
of the Indian game “poona.” They used champagne corks with feathers           example, from 1896-1932 rope climbing was an Olympic event five
stuck in them. If you throw that little tidbit out at a cocktail party, you   different times. The name pretty much says it all: competitors were
are sure to draw a crowd. Interestingly, the dominant badminton players       required to shimmy up to the top of the rope. The first one up won the
typically come from Indonesia and Denmark. I have no explanation for          gold. In terms of pure simplicity, the rope climb ranks right behind
this seemingly random pairing of countries at the vanguard of the             running for the simplest test of strength at the Olympics. In addition
world’s badminton ranks. Nonetheless, there it is. There are too many         to rope climbing, tug of war was actually a competitive event at the
good Indonesian players to list but I will say that the Danish champion       Olympics. I am in favor of bringing this one back. I can remember
is named Poul-Erik Hoyer-Larson (yes, that is the gentleman’s full            fondly, as a 10 year old, when I outweighed all of my classmates by 50
name).                                                                        pounds, that I had an unprecedented reign as anchor on the champion
      Beach Volleyball. The sport initially became popular in California      tug of war team for six straight months. These are the kind of
in the 1920s and then spread to Europe where, interestingly, it became        superficial achievements that cause long-term psychological damage, but
the main sport of French nudist colonies. There are a number of jokes         that is a topic for another day. Unfortunately, organizers of the
and comments I could make here, but nearly all of them seem                   Olympics must have gotten tired of bringing ropes to the events
inappropriate. . . . Okay, I can’t resist, I will simply say if Olympic       because, by 1920, the tug of war died out as well. Finally, for one brief
contenders started playing volleyball in the nude this would immediately      Olympics in 1908, motor boating was an event. I cannot even imagine
become the most popular sport at the Summer Olympics.                         what the rules were or what kind of motor boats were available on the
      Canoe/Kayak. Although these events are lumped together in               world scene in 1908. However, you have to ask yourself whether it was
Olympic coverage, they are two separate disciplines. In canoeing, an          a preamble to NASCAR entering the Olympics one day.
individual sits in the boat on one knee while paddling with a                      I hope you enjoy the Olympics this year as much as I do. There
single-ended paddle. In kayaking, competitors sit down fully in the boat      appears to be a wide range of events sure to interest the most casual
and use double-ended paddles. Both events involve sprints and slaloms.        observer. Even more importantly, cheer on Davis. He has made our
For me, the competition would be infinitely more interesting if               community and even our bar very proud.
competitors were simultaneously hunted by toothless backwoods

August 2012                                                             DICTA                                                                         21
New Forms Library Project Needs Your Support
      For the past several months, the KBA Judicial Committee has discussed
compiling a forms library to help KBA members practice more effectively and
efficiently. We anticipate that the forms library will be especially beneficial to
new lawyers or practitioners new to a practice area. This is where we need
your help. Please pull together forms relevant to your specific practice area
and submit them to the KBA by August 31, 2012.
      Most lawyers find themselves in a constant search for new and better
forms. Our goal is to compile a comprehensive library of forms for routine
matters in all of our local courts and include the forms library in the member's
only section of the KBA website. These forms are intended to be used by
KBA members and not for use by non-attorneys. Lawyers typically have
outstanding form libraries for pleadings, contracts or other documents that
they regularly produce. The electronic versions of the forms will be made
available for free to any KBA member.
      Here are some tips to consider:

     •    Forms or documents that have been created by individual members for their practice and they are willing to share can be included.
     •    Copyrighted materials/documents/forms may not be included in the KBA forms library.
     •    Make certain to redact all client information from any document provided.
     •    Please provide all documents in Word format if possible. PDF copies will also be accepted.
     •    The documents included in the Forms Library are provided by other KBA members, just as if they were borrowed on an informal basis. The
          forms have not been approved by anyone at the Knoxville Bar Association.

     KBA staff will prepare a master list of the forms and provide the Judicial Committee with an update at our next meeting. Members of our
Judicial Committee will reach out to our local judges to inquire what documents they recommend that we include in our forms library.
     Do you remember how it felt to prepare an order for the first time? We have hundreds of new lawyers practicing in our community who are on
their own, without mentors or firm support. Please take a few minutes to pull together some documents that you routinely use to help your colleagues
in the bar.
     Forms should be submitted to the KBA Office via email (mwilson@knoxbar.org) by August 31, 2012.

22                                                                       DICTA                                                          August 2012
                                                                                          BENCH AND BAR IN THE NEWS

                                                     CHECK OUT SEVERAL NEW ONLINE                          OFFICE SPACE AVAILABLE:
  This “members only” column is published each       CLASSIFIEDS AT
  month to share news and information among          WWW.KNOXBAR.ORG.                                      • Approximately 420 square feet available,
  KBA members. Submissions should be limited         View new attorney openings and several                  space for one to two individual offices.
  to 50 words and will be edited for space and       announcements in the Online Classifieds at              Includes high speed Internet, utilities, and
  other considerations.                              www.knoxbar.org.                                        access to conference room. Free parking.
                                                                                                             Convenient Middlebrook Pike and
                                                     MORTGAGE SETTLEMENT                                     Weisgarber location. Contact Michael
ETLAW RECOGNIZES BARCUS                              Following more than a year of investigations and        Cabage at 539-4500.
The East Tennessee Lawyers Association for           negotiations, Tennessee is participating in a
Women (ETLAW) recently named Heidi                   national mortgage settlement with the nation’s        • For Rent: Nice office with a fireplace in a
Barcus, London & Amburn, as the recipient of         top five servicers: Bank of America, J.P. Morgan        restored building located near I-75 and
its 2012 Spirit of Justice Award. Barcus joins a     Chase, Wells Fargo, Citigroup, and Ally                 Merchants Road Exit 108 (8 minutes to
very select group of past recipients of this award   Financial/GMAC. The settlement will provide             courthouse). Rent is $425/month and
including Supreme Court Justice Sharon Lee.          an estimated $25 billion in relief nationwide to        includes use of reception area, conference
The Spirit of Justice Award is given in              struggling homeowners and state governments,            room, full kitchen, janitor, utilities, and high
recognition of outstanding service to the legal      including over $140 million in estimated                speed Internet. Established attorneys able to
profession.                                          benefits here in Tennessee. In May, the                 refer business. Willing to do month to
                                                     Tennessee Attorney General’s Office hired Matt          month lease. Call 865-687-8744 or
STEVENS WINS TBA PRESIDENT’S                         Pulle to serve as its mortgage settlement               865-688-4060.
AWARD                                                coordinator. In addition to discussing the
Deborah C. Stevens, president and managing           settlement with attorneys, housing counselors,        • Stanley & Kurtz, PLLC is conveniently
shareholder at Lewis, King, Krieg & Waldrop,         and elected officials, he has also been working         located in downtown Knoxville, on Gay
P.C., was one of three winners of the Tennessee      with banks on behalf of homeowners to see if            Street in the Art Market Museum, next door
Bar Association (TBA) annual President’s             they’re eligible for relief under the national          to Downtown Grill & Brewery. Our suite is
Award, bestowed upon those who exhibit               mortgage settlement or other mortgage                   only two blocks from the Howard H. Baker
exceptional service to the legal profession. The     assistance programs. Please contact Matt by             Jr. Federal Courthouse and the Tennessee
award was presented in recognition of Stevens’       phone at 855-690-4899 or by email at                    Supreme Court. The space is surrounded by
outstanding work on the Task Force for Women         Matt.Pulle@ag.tn.gov if you have any questions          shopping, retail, restaurants, hotels, and office
in the Profession. As chair of the task force,       or to report problems your clients have incurred        buildings. We offer large or small office
Stevens helped create the Glass Ceiling              by these five servicers.                                space with large windows, hardwood floors,
Initiative that examined the structural barrier                                                              high ceilings, reception area, two conference
hampering women from advancing in the legal          NEED GUIDANCE IN A SPECIFIC                             rooms, restrooms, kitchen, flexible terms, and
profession. The committee looked at practical        PRACTICE AREA?                                          rates. $500-750/mo.
ways to increase the number of women rising to       One of the best kept secrets of the Knoxville Bar
partner in their firm and how to improve             Association is our Mentor for the Moment              • Office space available in The Regions Bank
economically in the field.                           program. We want to let the secret out and              Building, Suite 500. Reasonable rates which
                                                     make sure that our members use this wonderful           include: phone, Internet, and receptionist
NEW FEES FOR KNOX COUNTY                             resource. It's really simple to ask a question of       services, etc. About one block from the
CHANCERY CT. TOOK EFFECT JULY 1                      our helpful volunteer mentors. Log in to the            courthouse. Please contact Danny at
Please go to the News section of the KBA             members' only section of www.knoxbar.org or             524-2934 for more information.
website to view the new fee schedule for Knox        check out the list in the KBA Attorneys’
County Chancery Court pursuant to                    Directory and begin your search! Our
amendments to T.C.A. §67-4-601.                      easy-to-use website allows you to search by last
                                                     name or by subject area experience.                   Address Changes
AMENDMENTS TO TRCP                                                                                         Please note the following changes in your KBA
                                                     BE PART OF A HUMANITARIAN NEED                        Attorneys’ Directory and other office records:
On January 13, the Tennessee Supreme Court
adopted amendments to the Tennessee Rules of         Centro Hispano provides a free legal clinic one
Civil Procedure to take effect on July 1, 2012.      Saturday per month to honest, hard-working,
                                                     low-income, Spanish speaking immigrants who            George T. Underwood         O
Perhaps most noteworthy of those amendments                                                                 BPR: 013077
is the additional language that is now required      cannot otherwise obtain legal help. Please
                                                                                                            Underwood Law Office
in subpoenas issued pursuant to Rule 45.01 for       donate an early Saturday morning to this               Twelve Oaks
attendance of witnesses. Amendments were also        humanitarian project to make a difference in the       5401 Kingston Pike, Ste. 520B
made to Rules 5, 7, 8, 11, 12, 45.04, and 67.        lives of these families. Interpreters are provided.    Knoxville, TN 37919
                                                     Contact Mercedes Strollo via e-mail at                 Ph: (865) 450-9819
                                                     mcstrollo@charter.net. Visit the Centro                FAX: (865) 450-9822
KBA DEVELOPS DEPS EQUIPMENT                                                                                 george@underwoodjustice.com
VIDEO                                                Hispano website at www.centrohispanotn.org.
In conjunction with staff at the U.S. District
Court - Eastern District of Tennessee, the KBA       AFFILIATED ORGANIZATION
Judicial Committee developed a "how to" video        The Smoky Mountain Paralegal Association
on using the DEPS equipment in Federal               meets the second Thursday of each month at
Court. The short eight minute video provides         noon in the Main Conference Room of the U.S.
an explanation of how to display evidence using      Attorney's Office in the Federal Courthouse
the DEPS equipment in easy to understand             (corner of Main & Locust). The speaker for
language. The link to the video is on the KBA        our August 9, 2012 meeting will be Judy
website at www.knoxbar.org. The KBA hopes            Cornett, Esq. from the University of TN Law
that this is a valuable resource to all attorneys    School presenting the topic of Ethics for a 1.0
who practice in Federal Court.                       hour program. Lunch buffet is available with
                                                     reservations. Email president@smparalegal.org
                                                     to reserve a lunch.

August 2012                                                              DICTA                                                                              23
                  PRO BONO PROJECT                                                                 Serving the Legal Community in Assisting
                                                                                                   Low-Income Persons To Navigate the Justice System
                 By: Terry Woods
                 Project Director

  Create a Signature Pro Bono Program

      Several local firms have designed their own way to participate in the Pro Bono Project by making a fully revocable commitment to handle specific
legal issues in a way that avoids some of the administrative inconvenience of accepting individual referrals through the Pro Bono Project’s regular
referral process. Here are some of the latest Signature Programs:

     Lynn Tarpy arranged for Hagood, Tarpy & Cox to handle Chapter 7 bankruptcies. Lynn created a screening system by which the Pro
     Bono Project identifies clients who meet the eligibility criteria established by the firm. The Pro Bono Project then sends the client a
     form created by the firm, which gives the firm information in the format it needs to complete a petition.

     Kelly Frere committed Guyton & Frere to review all of the applications the Pro Bono Project receives from minors who want to be
     emancipated. Kelly developed a referral form that helps us screen applicants and helps applicants understand what the court will
     consider before approving a petition for emancipation. If the applicant is not a good candidate for emancipation, Kelly explains why;
     and if the child is likely to present a successful application, Kelly submits the petition.

     Kelli Thompson developed the Signature Program for Baker, Donelson, Bearman, Caldwell & Berkowitz in which the firm represents
     people who need to obtain a conservatorship for disabled parents or adult children.

     Eldridge, Blakney & Trant agreed to help people remove expungeable charges from their criminal records. The Pro Bono Project
     screens the applicant’s record to determine if s/he is eligible for expungement before forwarding the file to the firm.

     These programs allow the participating firms to identify the types of pro bono work they want to do, which usually prevents us from bugging
them to accept less desirable files. We email the names of potential clients, and the firm’s contact person lets us know whether there is a conflict before
we transmit the file. This process has dramatically streamlined the Pro Bono Project’s administrative burden, and we hope it has made pro bono
service more satisfying for the participating firms.

     NOTE: Just because we have lawyers who will handle areas embraced by these Signature Programs, we do not want to exclude other lawyers who
     want to accept referrals of these files; so don’t hesitate to tell us what type of pro bono work you want to do.

     If you are interested in creating your own Signature Program, let me know at twoods@laet.org.

 Thank You to all of the lawyers who offered your time in the service of others, particularly those who accepted or consulted on new cases or
 participated in Saturday Bar, the OP Clinic, Detainer Court, mediation, or in any other way since publication of the last list in DICTA:

  Ali Abdelati                          Amelia Crotwell                        Katherine Goodner                     Chris Ralls
  Sheri DeCosta Alley                   Maria Danker                           Billy Gribble                         Chuck Sexton
  Jim Bondurant                         Wade Davies                            Bruce Hill                            Brent Snyder
  Chris Capps                           John Eldridge                          Rachel Hurt                           Brent Strunk
  Rick Carl                             Sarah Ellsworth                        Dan Kidd                              Kelli Thompson
  Will Carver                           Jackson Fenner                         R. Grant Lewallen                     Doug Toppenberg
  Kristina Chuck-Smith                  Monica Franklin                        Ashley Lowe                           Shelby Ward
  Peggy Comstock                        Kelly Frere                            Ken Miller                            Steve Williams
  E. Catherine Cox                      David Gall                             Meghan Morgan
  Loretta Cravens                       Larry Giordano                         Harry Ogden

        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

24                                                                      DICTA                                                                August 2012
                                                                                                      THE LAST WORD
                                                                                                 By:   Jack H. (Nick) McCall

Q:                         Why did you go to work at the Knoxville Chamber, and how do you apply the
                           skills you learned in law school?

A:                        JENNIFER D. EVANS
                          Knoxville Chamber

      When I was making the decision to go back to school after working in Washington D.C. and China, I decided on law school for a few reasons. I
never intended on practicing law in a traditional sense, but was convinced by several business leaders that the skills and prestige earned through the
rigor of law school would be well worth the effort. I followed the transactional track at the University of Tennessee College of Law. Towards the end
of law school, I was introduced to Mike Edwards, CEO of the Knoxville Chamber.
      At our first meeting, I simply expected to have a short conversation with him about the industrial landscape of Knoxville and hopefully identify
business opportunities I could pursue with my skill set. If you know anything about Mike, you know one of his passions is education. So it didn’t take
long before he started talking about the failures of public education and how those failures could ultimately impair area companies’ ability to grow and
compete globally, and make it particularly hard for us to recruit new companies to the area. I was appalled, as most people are, when they hear the
startling statistics he shared with me, so I started doing some part-time research for the Chamber while I finished out my last semester of law school.
      Five years later, I am the Vice President of Workforce Development & Education at the Knoxville Chamber. I was attracted to the work of
education reform because of the enormity of the challenge. I was intrigued that the Chamber recognized and was willing to invest in my skills and
background to tackle this challenge. Having the ability to identify issues, weigh the pros and cons of current policies and proposed solutions, and
communicate a position are all valuable skills that I learned in law school and still use on a daily basis. While I do not have individual clients per se, I
feel that I represent the business community, and my arguments about why we should improve education are driven by that point of view. Improving
education is a good thing to do and we should all care about the kids that are slipping through the cracks every day, but I am focused on making sure
all children succeed because we are going to need every one of them to be productive, tax-paying citizens who are qualified for the jobs of tomorrow.
      The reason I have stayed at the Chamber is two-fold. First, there is still a lot of work to be done to ensure that we have the workforce to meet
current and future employer needs. We have made a lot of progress at the local and state level, but our community must continue to demand better
outcomes, provide support where we can, and hold elected officials and educators accountable.
      The second reason is that the Chamber has been an incredible place to work. People work hard here but it’s not about the billable hours; it’s about
results and outcomes. The Chamber has encouraged me to grow professionally and provided me with the flexibility I have needed to also grow my
family. Shortly after I joined the Chamber full-time I married a fellow UT Law classmate. Over the next three years, we had four children. We now
have a two-year old and ten-month old triplets. I am able to do my job effectively and enjoy it because I am afforded the autonomy to get things done
when I need to. I realize that I can’t “have it all” on any given day, but I would argue that the Chamber and I both benefit from working together to
make us both successful.

    “The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column,
    please contact Nick at nick.mccall@gmail.com.

August 2012                                                             DICTA                                                                           25
                     AROUND THE COMMUNITY

                   By: Charles Swanson
                   City of Knoxville Law Director

Exploring East Tennessee:
Paradise In Your Backyard: Meades Quarry
      What do you love about being an hour away from the Great Smoky          tip-top physical condition, you will want to stop and “admire the view”
Mountains, with all the outdoor opportunities presented by destinations       multiple times during the climb! Also, during the summer months
like Cades Cove, the Chimneys, Charlie’s Bunyon, and so many others?          especially, you will want to stick pretty closely to the trail as some of that
Scenic vistas? Sheer mountainsides? Groomed trails surrounded by lush         lush greenery you are traversing comes in the form of poison ivy.
greenery and wildly varied vegetation? The juxtaposition of beautiful               Once you have ascended the heights of the western side of the
mountains and gorgeous lakes? Exactly! Were you aware that all those          lake, you will proceed on the trail with occasional glimpses of the lake
things are available without having to venture more than five minutes         through the surrounding trees and foliage. Then, a little more than
from downtown Knoxville? As the ‘Ole Coon Hunter, iconic politician           halfway along that side, you will come upon a rampart constructed of
Cas Walker, used to say, “It’s the unvarnished truth that can be backed       rocks which is about four feet high and is located near the edge of the
up in court!” (Except, this really can.) As we headed towards the             bluff. From that point you are afforded a remarkable panoramic vista
entrance to Meades Quarry, I asked Pam to time it from the South              which includes the lake, the opposite shore, and, as your gaze rises, an
Knoxville Bridge (the one east of the Gay Street Bridge). Literally, it       amazing view of the Great Smoky Mountains including, on a clear day,
took five minutes from bridge to parking area. After crossing the river,      an outstanding view of Mt. LeConte. Proceed on down the trail from
take the first exit labeled as the “Sevier Ave. Exit.” At the top of the      there and on the way around the north end of the lake you come across
exit ramp, turn left onto Hillwood Drive. Stay on Hillwood until it           a final place to spend a very interesting few minutes: the Stanton
dead ends into Island Home Avenue, where you turn right. Using the            Cemetary. There are always interesting stories in old cemeteries and this
Ijams Nature Center signs, follow Island Home until you pass the main         is no exception. The oldest grave in the cemetery dates back to 1870
entrance to Ijams Nature Center, which will be on your left. Go .3            while the most recent is 1939. You will learn the sad story of Edgar
miles and, just after crossing the railroad track, turn right into the        Sams, who died of illness at the age of 13 and whose boy scout troop
parking area.                                                                 served as his pallbearers. Formerly known as the “Dempsey Johnson
      Owned by Knox County, Meades Quarry is managed by Ijams                 Cemetery,” Mr. and Mrs. Johnson were laid to rest here with their graves
Nature Center, and is part of a beautiful 275 acre natural area, the          head to head facing east and west denoting that the Johnsons were
central focus of which is a breathtakingly beautiful 25 acre lake, fed by a   divorced in life, if not in death!
natural spring and formed by marble quarrying activities which were                 It is wonderful to live in a part of the world where nature’s
conducted on the site continuously from the 1880’s until 1978. Meades         wonders are so common that you can have them right in your back yard
Quarry is served by a nice-sized parking area which is the point of           and not even know about them. Meades Quarry is just such a place.
origin for six different public recreation areas, including hiking trails,    Check it out when you have an opportunity.
picnic and canoeing facilities, and mountain biking trails. It has a
changing area which is convenient if you are coming directly from your
downtown office but, a word to the wise, it does not have public
restrooms (which are available just .3 miles to the west at the Ijams
Visitor Center).
      Upon arrival, just to get your bearings and to begin to appreciate
the unique beauty and history of the place, I recommend that you go
toward the lake and follow the Pink Marble Trail which leads along the
eastern side of the lake all the way to the end. There are a number of
short paths from this trail which take you to the lake’s edge providing a
marvelous view of the lake. Close up the water is crystal clear but, from
a distance, it appears to be a beautiful emerald green. Across the lake
you can observe sheer marble bluffs dotted with caves which I believe to
be former mine shafts. At the end of Pink Marble Trail, you will find
multiple flights of wooden steps leading you down to water’s edge where
there is located a hydraulic ram water pump which sends water from the
lake up to a storage tank where it can be utilized for irrigation. For
those of you who like to stay in touch with your inner geek, there is an
interpretive sign which tells you all about how the pump works.
      Now that you are warmed up, retrace your steps enough to go a
short distance uphill where you join the Tharp’s Trace trail, a path of
slightly more than a mile, which loops around the lake. My personal
preference is to take this trail clockwise around the lake. This route
allows you to encounter early-on the steepest and most difficult portion
of the trail, which goes sharply uphill for about 350 yards or so. Even in
this steepest portion, the trail is well-groomed but, unless you are in

26                                                                      DICTA                                                                 August 2012
August 2012   DICTA   27
                                                                                                NON-PROFIT ORG.
                                                                                                 U.S. POSTAGE

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

                      e Annual Supreme Court Dinner
                      is an opportunity for our entire legal community to gather
                               as colleagues in the profession of law and
                          to honor the service of our Supreme Court Justices.

                                                                Join with us.
                                                          Knoxville Bar Association
                                                      Annual Supreme Court Dinner
                                                                     Wednesday, September 5, 2012
                                                                      Cash Bar Reception: 6:00 p.m.
                                                                                  Dinner: 7:00 p.m.
                                                              Ballroom, Knoxville Convention Center

                                      Tickets are $50 each and t ables of 10 may be reserved in advance.
                                                      Please mail check to the Knoxville Bar Association at
                                                              P.O. Box 2027, Knoxville TN 37901-2027.
    Governor                                                          Register online at www.knoxbar.org .
   Bill Haslam

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