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									                                                                                                                •    VO LU M E 1                 •   ISSUE 3                  •     SPRING 2006


   YLD Election Filing Results
           oung lawyers desiring to hold                            Pickett, Putnam, Van Buren, Warren,                                  a plurality (the greatest number) of votes.

   Y       elected positions in the 2006-2007
           bar year filed nominating petitions
   in April. Pursuant to the YLD bylaws, can-
                                                                    White counties)
                                                                    • District 8 Representative
                                                                    (Macon, Smith, Sumner, Trousdale,
                                                                                                                                         In the event of a tie vote of the member-
                                                                                                                                         ship, the YLD Board elects the candidate.
                                                                                                                                         In the event of a tie vote of the board, the
   didates unopposed for a position are                             Wilson counties)                                                     YLD president breaks the tie. Balloting
   deemed elected on April 1. Congratula-                           • District 10 Representative                                         will be held for the contested position of
   tions to the following unopposed                                 (Cheatham, Dickson, Houston,                                         West Tennessee Governor. Two candi-
   candidates who have been elected:                                Humphreys, Montgomery, Robertson,                                    dates qualified for the post. They are:
      • President: Lisa Richter of Springfield                      Stewart counties)                                                       • Jeff McGoff of Memphis
      • President-Elect: Jason Long                                 • District 12 Representative (Ben-                                      • Andrew Sellers of Jackson
         of Knoxville                                               ton, Carroll, Crockett, Dyer, Gibson,
      • Vice President: Michelle Sellers                            Henry, Lake, Obion, Weakley counties)                                   For a brief overview of the candidates
         of Jackson                                                                                                                      see page 3.
      • Secretary: Effie Bean of Memphis                        Contested Election                                                          If you have questions about the election
      • Treasurer: Sarah Henry of Nashville                     Contested elections are decided by secret                                process, please contact TBA YLD Director
      • Assistant Treasurer:                                    ballot at the division’s annual meeting in                               Stacey Shrader at,
         David Thompson of Nashville                            June. A successful candidate must receive                                615-383-7421 or 800-899-6993. ■
      • East Tennessee Governor:
         Tasha Blakney of Knoxville
      • District 14 Representative:
         Brian Faughnan of Memphis                                 Legal Services for Tornado Victims

   Open Seats                                                                      any of our fellow Tennesseans
   Vacancies exist in the following offices.                                       suffered complete devastation
   Under the bylaws, the president-elect must                                      from the tornadoes and vio-
   appoint a nominating committee to nomi-                         lent storms that ripped through Gibson
   nate a candidate or candidates to fill the                      and Dyer counties in early April. Multi-
   position by May 1. Voting on the nominated                      ple tornadoes in middle Tennessee just a
   candidate will occur at the annual meeting.                     week later also left victims in need of
      • Middle Tennessee Governor                                  basic legal resources. The TBA is recruit-
      • District 2 Representative                                  ing lawyers to provide legal services to
      (Anderson, Campbell, Claiborne, Cocke,
                                                                   these victims. Volunteer your services at
      Fentress, Grainger, Jefferson, Scott,
                                                                   h t t p : / / w w w. t b a . o r g / t o r n a d o e s /
      Sevier, Union counties)
      • District 4 Representative (Bledsoe,                        volunteer.html. If you know someone who
      Blount, Bradley, Loudon, McMinn,                             needs legal assistance, a new toll free hot-
      Meigs, Monroe, Morgan, Polk, Rhea,                           line has been set up at 866-336-8276. ■
      Roane counties)
      • District 6 Representative (Clay,
      Cumberland, DeKalb, Jackson, Overton,

                       •   President’s Corner . . . . . . . . . . . . . . . .   2   •   Mock Trial Results . . . . . . . . . . . . . . . . . 6   •   USERRA . . . . . . . . . . . . . . . . .   ..   .   .   .   .   13
                       •   Candidates for West Tennessee Governor               3   •   Computer Networking Basics . . . . . . . . 9             •   Erin McArdle Coughlin Honored               .   .   .   .   .   14
  INSIDE               •   Face of the Young Lawyer . . . . . . . . . . .       4   •   CLE Calendar. . . . . . . . . . . . . . . . . . . . 11   •   Public Service Day . . . . . . . . .       ..   .   .   .   .   15
                       •   Notice Requirements Applicable                           •   2006 Convention . . . . . . . . . . . . . . . . 11       •   Upcoming Events . . . . . . . . . .        ..   .   .   .   .   16
                           to Probate Proceedings . . . . . . . . . . . . .     5   •   Vanderbilt Modernizes Legal Education 12
                                 T     E     N      N      E     S     S     E     E          Y     O      U      N      G           L     A     W       Y     E     R

America is Diversity:
We Came Here in Different Ships but We’re in the Same Boat Now
By Danny Van Horn
         he title of this article is nearly a                   come this built-in bias, we

T        direct quote from Fred Gray, the
         legendary civil rights lawyer who
represented Rosa Parks and others in the
                                                                have to be aware of it and
                                                                actively work to change it.
                                                                We have to force our-
civil rights movement. Gray spoke at a                          selves to get outside of our
Diversity Summit sponsored by the Ten-                          comfort zones.                                                                                         Danny Van Horn is the
                                                                                                                                                                       current YLD president.
nessee Bar Association at the National                              At first blush, you may
                                                                                                                                                                       He practices law at Butler Snow
Civil Rights Museum in Memphis on                               be wondering what you as                                                                               O'Mara Stevens & Cannada in
April 1. The goal of the summit was                             a young lawyer can do to                                                                               Memphis and can be reached at
twofold: to discuss the challenges keeping                      be part of the process of                                                                    
Tennessee’s legal profession from being as                      ending racism and sexism,
diverse as it could be and to identify con-                     thus increasing opportu-
crete steps that can be taken to increase                       nities for all. The truth is,
diversity. The summit was not meant to be                       young lawyers can play a
a solution to all the problems we face, but                     huge role. Gray had been
rather a concerted first step in a long jour-                   practicing law for just one
ney toward equal and greater opportunity                        year when he represented Rosa Parks and                                                  • If you have children, talk to them
for women and persons of color in the                           others in the Montgomery bus boycott.                                                    about racism and sexism. Make sure
legal field.                                                    Several of the attorneys representing Dr.                                                they are exposed to children of other
    Gray spoke of making diversity some-                        Martin Luther King in federal court with                                                 races and genders.
thing you feel down deep in your bones.                         regard to the Memphis sanitation workers’                                                • When you see racism, stand up
He challenged Tennessee lawyers to move                         strike were young lawyers. Many of the                                                   against it.
beyond words and platitudes to a deep                           early pioneers of the women’s suffrage and                                               • When you hear racist comments,
abiding commitment to change how we                             women’s rights movements also were                                                       speak out.
live life. He posited a simple test to deter-                   young lawyers. These heroes show us that                                                 • Get involved with programs at your
mine whether one is living a life of                            young lawyers not only can be part of the                                                law school alma mater to help increase
diversity. Look around at work, where you                       process, but also can lead it.                                                           the number of minority candidates
live, worship and play. If the vast majority                        Certainly becoming a leader and a pub-                                               entering the school and the number of
of the faces there look like you, then your                     lic voice for equal opportunity is a great                                               jobs available to minority candidates
life is not really that diverse. Gray made it                   way to help increase diversity in our pro-                                               upon graduation.
clear that the test applies to all races and                    fession. However, there are countless                                                    • Agree to serve as a mentor to
to both men and women. Realistically,                           smaller, but no less important, things that                                              another young lawyer, whether they
most of us fail that test. It is a fact of life                 you can do today to increase diversity.                                                  are a person of color or a lawyer of a
that people consciously or subconsciously                           • Invite someone of another race                                                     different gender.
chose to surround themselves with those                             or gender to have lunch with you or to                                               • Learn Spanish — our state is
who are most like them. In order to over-                           have Sunday dinner at home with                                                      becoming increasingly
                                                                    your family.                                                                         more Hispanic in popu-
                                                                    • Actively seek out and build a                                                      lation.
Staff                                                               friendship with someone who                                                          • If your employer
➤   DANNY VAN HORN, PRESIDENT                                       doesn’t look like you.                                                               does not
                                                                                                                                                                                                         PHOTO BY BARRY KOLAR

                                                                                                         Legendary civil rights attorney
                                                                                                              Fred Gray addresses the
                                                                                                       TBA-sponsored Diversity Summit
                                                                                                                            in Memphis.
             TENNESSEE BAR
             A S S O C I A T I O N

    page 2                       A q u a r t e r l y p u b l i c a t i o n o f t h e Te n n e s s e e B a r A s s o c i a t i o n Yo u n g L a w y e r s D i v i s i o n
                                                             T   E   N   N   E   S   S   E   E          Y      O      U         N   G   L   A    W   Y   E   R

                                                                             ELECTION 2006
                                                                             Candidates for
                                                                             YLD West Tennessee Governor

                             have a diversity committee, work to
                             develop one.
                             • Volunteer to serve as an attorney
                             coach for an inner city high school
                             mock trial team.
                             • Encourage minority lawyers to get
                             involved with the bar and to apply for
                             the Tennessee Bar Association Leader-
                             ship Law program.
                             The actions set forth above are not
                          meant to be an exhaustive list of things to do                                                                                           Sellers
                          but some suggestions to jumpstart your
                          thinking about this issue. We must continue        Candidate: William Jeffrey McGoff                                  Candidate: Andrew Vincent Sellers
                          talking about diversity, but also must start       Hometown: Memphis                                                  Hometown: Jackson
                          taking action. As young lawyers we can             Firm: Burch, Porter & Johnson PLLC                                 Firm: Waldrop & Hall
                          make a tremendous difference. We can lead          Law School: University of Memphis                                  Law School: University of Memphis
                          on this issue — whether as a vocal leader or       (2003)                                                             (1998)
                          someone who leads by example. Are you                  A Memphis native, Jeff McGoff prac-                               Born in Madison, Tenn., Andrew Sell-
                          ready to take action? Are you ready to make        tices law at the Memphis firm of Burch,                            ers practices law at the Jackson firm of
                          diversity a way of life so that you feel it down   Porter & Johnson PLLC. He attended the                             Waldrop & Hall. He graduated from
                          deep in your bones? If so, there’s no time like    University of Memphis and earned a                                 Nashville’s David Lipscomb University in
                          today to start that journey. ■                     B.B.A. in 1998, an M.S. in 2000 and his                            1993 with a B.S. in business manage-
                                                                             law degree in 2003. While in law school                            ment/organizational communications and
                                                                             he served as a staff member of the Univer-                         a minor in marketing. He earned his law
                                                                             sity of Memphis Law Review and received                            degree from the Cecil C. Humphreys
                                                                             the Cecil C. Humphreys Law Fellowship.                             School of Law at the University of Mem-
                                                                             In 2004 he completed an LL.M. at the                               phis in 1998.
                                                                             University of Florida and was admitted to                             At Waldrop & Hall he practices gen-
                                                                             the Tennessee bar. McGoff is a member of                           eral civil and commercial litigation, with
                                                                             the American Institute of Certified Public                         an emphasis on insurance defense in per-
                                                                             Accountants, and the Memphis, Ten-                                 sonal injury cases, workers’ compensation,
                                                                             nessee and American Bar Associations.                              medical malpractice, employment law,
                                                                             He practices in the areas of estate plan-                          product liability and civil rights. Sellers
                                                                             ning, business and personal tax planning,                          chairs the Tennessee Bar Association
                                                                             mergers and acquisitions, business trans-                          YLD’s Communications Committee and
                                                                             actions, corporate governance and                                  serves as editor of E-DICT, the division’s
                                                                             federal/state/local taxation.                                      electronic newsletter. He also fills one of
                                                                                                                                                three young lawyer seats in the TBA
                                                                                 Contested elections are                                        House of Delegates. He previously held

                                                                                                                                                the position of Jackson-Madison County
                                                                                 decided by secret ballot                                       Bar Association liaison to the TBA YLD,
                                                                                 at the division’s annual                                       served as district representative to the
                                                                                 meeting in June.                                               TBA YLD and was a member of the TBA’s
                                                                                                                                                inaugural Leadership Law program. ■
                                                                                 If you have questions about the
                                                                                 election process, please contact TBA
                          One of several breakout groups at the sum-             YLD Director Stacey Shrader at                                 Editor’s Note: Biographical sketches were
                          mit discusses how to make a difference for
                                                                       , 615-383-7421 or                            compiled by TBA staff based on publicly
                          minorities in the legal profession.
                                                                                 800-899-6993.                                                  available information.

                                                                                                 w w w. t b a . o r g / y l d                                                      page 3
                             T     E     N      N      E     S     S     E     E          Y     O      U      N      G           L     A     W       Y     E     R

Face of the Young Lawyer
By Rae Oliver
    nterviewing David Johnson of

I   Nashville’s Miller & Martin PLLC
    was a bit of a daunting task. He’s got
quite a sense of humor … but then he’s
got this other side. For instance, he just
made partner and he’s a new father. I
guess I just wasn’t sure which side to
focus on. So I did my research and
                                                                                                                                           David Johnson is a member in the Nashville law
explored the obvious resources at my fin-
                                                                                                                                           firm of Miller & Martin. He is proof that lawyers
gertips: the other members of the YLD.
                                                                                                                                           can do serious work while maintaining a sense
And from there the story possibilities                                                                                                     of humor.
were endless.
   Our David Johnson grew up in
Knoxville’s “Big Orange Country” and
he’s somewhat of a legacy there. David
didn’t go to UT, but he can’t help being a
fan. His grandfather played football there
back in the 1920s. David left his family’s
sports heritage behind to pursue the law,
becoming the only lawyer in his family
since Baxter Cato, a 1907 graduate of                       inflammatory letter from one judge to                                              lawyers just getting settled in the profes-
Vanderbilt Law School. David found the                      another. And then there was the incident                                           sion. “Get involved and don’t just focus
law by way of a clerkship, well, actually                   in law school when Johnson was asked to                                            on the business before you. Get involved
three clerkships. He clerked for judges                     leave a “haunted forest” of some sort —                                            in something that will enhance you as a
whom he describes as “excellent men-                        presumably a charity event — for attempt-                                          person.” Outside of his bar activities,
tors.” This gave me the opening for what                    ing to relieve himself in the forest. It turns                                     Johnson serves on various projects for the
would become my first Barbara Walters                       out people carry flashlights at these things.                                      American Cancer Society.
moment when I asked Johnson to com-                         Who knew? I don’t make the facts folks. I                                             Finally, I gave David an opportunity to
ment on the rumor that a Court of                           just report them.                                                                  comment on the YLD’s current adminis-
Appeals judge has a shirtless picture of                       The last time I authored the “Face of                                           tration. “Three words describe Danny Van
him in her office. Johnson’s stammering                     the Young Lawyer,” Bass Berry posted the                                           Horn’s presidency: drunk with power.
and final reply of, “Well … you’d have to                   article on its web site. Something tells me                                        Every time President Bush thinks about
ask the judge” did not deter me. I                          this issue will not make it into the hall of                                       his low approval rating, he turns his mind
repeated my question. Perhaps it was                        fame at Miller & Martin. But frankly, it                                           to Danny’s rating and smiles. It’s a good
Johnson’s fear that my source would come                    should, because David Johnson has made                                             thing that Van Horn’s tenure is almost up
forward, or perhaps it was fear that the                    some worthwhile contributions to the                                               or we’d be looking at an impeachment.”
picture itself would surface that prompted                  bar. He has served as chair of the state                                           Puzzled, I asked, “Aren’t you and Danny
him to explain, “Well, the judge’s daugh-                   mock trial competition — no small task                                             close friends”? He replied, “Oh, yeah, we
ter was a fan of mine.” So, apparently,                     — and in 2004 he received the TBA                                                  met a long time ago in law school. Well,
David allowed himself to be pho-                            YLD’s Outstanding Service Award. In                                                actually, we met on the Internet.” After
tographed shirtless with a fake tattooed                    addition, David has been quite involved                                            getting permission to print that, my job
heart containing the girl’s name. Cute.                     in the American Bar Association. Of his                                            was complete. ■
But I have to wonder, where is this girl                    involvement in bar work, Johnson says,
now? And is she reading this?                               “I’ve enjoyed getting to know other
   The interview was filled with many                       young lawyers across the state and across                                          Rae serves in the Office of the U.S. Attorney
awkward pauses in which I asked a ques-                     the country.” He went on to say how                                                for the Western District of Tennessee. The
tion and David scrambled for an answer.                     exciting it has been to see his colleagues                                         Face of the Young Lawyer is designed to fea-
Readers should know that there were sev-                    pursue higher positions, such as Ed                                                ture young lawyers embracing unique aspects
eral questions Johnson refused to answer                    Stanton, who is currently running for                                              of life. If you know someone who would make
and other answers he cautioned me about                     U.S. Congress.                                                                     for an interesting profile, please contact Rae at
publishing. He did ’fess up to some things                     As for his choice of profession, David                                 or April Berman at
in his past, like the practical jokes played                says he relishes the strategy of practicing                              
on members of our judiciary. In one gusty                   law and likens it to a “chess match.” And
move, Johnson drummed up a false and                        he has some good advice for young

  page 4                     A q u a r t e r l y p u b l i c a t i o n o f t h e Te n n e s s e e B a r A s s o c i a t i o n Yo u n g L a w y e r s D i v i s i o n
                                T   E   N   N   E   S   S   E   E          Y      O      U         N   G   L   A    W    Y   E   R

The Actual Notice Requirements Applicable To Probate
Proceedings In Tennessee
By Vanessa M. Cross
          eath does not eliminate an indi-          representative, at such creditors’ last                        sent an installment payment on Guyton’s

D         vidual’s debts.1 Instead, the
          decedent’s estate becomes liable
for settling remaining debts.2 Historically,
                                                    known addresses. Such notice shall not
                                                    be required where a creditor has
                                                    already filed a claim against the estate,
                                                                                                                   judgment to his attorney. It contained a
                                                                                                                   letter stating that Jenkins had died and his
                                                                                                                   will was being probated. Installment pay-
the notice standard applicable to estate            has been paid, or has issued a release of                      ments were sent for four subsequent
creditors was designed to expedite estate           all claims against the estate.                                 months, but no further action to “notify”
settlement by imposing non-claim statu-                                                                            Guyton as a known creditor was provided.
tory bars against claims not brought               Additionally, the general rule in Tenn.                         Guyton called the co-executor when he
within the statute’s timeframe. For most        Code Ann. § 30-2-307(a)(1) provides that                           did not receive a fifth installment pay-
state probate statutes, constructive notice     all claims are barred unless filed within                          ment. Guyton was informed that no
by publication to creditors was sufficient.3    four months of the published notice to                             further payments would be sent because he
In Tulsa Professional Collection Services v.    creditors,12 absent application of the                             had not filed a claim within the then six-
Pope,4 however, the United States               exceptions set forth in §§ 30-2-                                   month period provided in Tenn. Code
Supreme Court extended the actual               307(a)(1)(A)-(B) discussed below.                                  Ann. §§ 30-2-306(c) and 30-2-307(a)(1).
notice standard articulated in Mullane v.          As demonstrated by Tennessee case law,                              Guyton filed his claim on May 3, 1993.
Central Hanover Bank and Trust Co.5 to          actual notice may be something other than                          On May 25, the co-executors filed an
known or reasonably ascertainable estate        an exact copy of the published notice to                           exception to the claim alleging that the
creditors when the state non-claim              creditors outlined in Tenn. Code Ann. §                            six-month period beginning with publica-
statute is not self-executing.6 The so-         30-2-306(c) but must, at a minimum,                                tion of the notice to creditors in the
called self-executing statutory provision       include (1) information of commence-                               Nashville Business Journal had lapsed, thus
simply “act[s] to cut off potential claims      ment of probate proceedings and (2) the                            barring the claim. The probate court
against the decedent’s estate by the pas-       specific time period for the particular cred-                      allowed the claim and the intermediate
sage of time” without court intervention.7      itor to file.13 Though literally in                                appellate court affirmed.
The Pope case was clearly a victory for         compliance with the statute, notice that                               The issue before the Supreme Court of
estate creditors, but added investigatory       gives erroneous information of the time                            Tennessee was whether the letter sent by
responsibilities to the personal represen-      period to file a claim is no more acceptable                       the co-executor to Guyton informing him
tative. In Tennessee, post-Pope case law        than a notice with no information con-                             that (1) Jenkins had died and (2) his will
has brought to light that even when a           cerning the time period.14                                         was being probated constituted the requi-
personal representative sends actual                                                                               site “actual notice” under Tenn. Code Ann.
notice, the content of the notice must be       Minimal Content to Effect                                          § 30-2-306(c) and thus limited the period
sufficient to meet due process clause           Actual Notice                                                      for filing claims to six months following
demands.8 This article explores the actual      In Estate of Jenkins v. Guyton,15 the                              publication of notice. Guyton was indis-
notice requirements under Tennessee’s           Supreme Court of Tennessee articulated                             putably a known creditor of the estate. The
non-claim statute set forth at Tenn. Code       the content that is minimally required to                          court noted that the letter sent to Guyton’s
Ann. § 30-2-305, et seq.9                       satisfy the actual notice standard to estate                       attorney did not include a copy of the
   The personal representative must, at a       creditors. The claimant, Thomas L. Guy-                            notice to creditors published in the
minimum, send or deliver to known or rea-       ton, domesticated a foreign judgment in                            Nashville Business Journal pursuant to the
sonably ascertainable creditors a copy of       Davidson County, Tenn. against Richard                             requirement of Tenn. Code Ann. § 30-2-
the published notice to creditors of the        H. Jenkins. On Sept. 15, 1992, an agreed                           306(e). The executor argued that Guyton’s
commencement of probate proceedings.10          order was entered in the court awarding                            attorney should be presumed to know the
The Tennessee statute11 provides, in            Guyton an enforceable judgment of                                  law and should have been put on inquiry
relevant part:                                  $141,781 against Jenkins. Installment pay-                         notice from the Oct. 21, 1992 letter and
   [I]t shall be the duty of the personal       ments were negotiated and an order to stay                         that the actual notice standard had been
   representative to mail or deliver by         execution was effectuated. Jenkins died                            met. The court rejected the executor’s
   other means a copy of the published or       testate on Sept. 25. On Oct. 1, Jenkins’                           attempt to establish a “different standard of
   posted notice as described in subsec-        will was offered for probate in Davidson                           ‘actual notice’ for those well-versed in pro-
   tion (c) to all creditors of the decedent    County Probate Court. The probate clerk                            bate law, such as attorneys, and those not
   of whom the personal representative          published a notice to creditors in the                             so well informed.” The court reasoned, inter
   has actual knowledge or who are rea-         Nashville Business Journal on Oct. 12 and                          alia, that such analysis would “run afoul of
   sonably ascertainable by the personal        19. On Oct. 21, a co-executor of the estate                                                 continued on page 8

                                                                    w w w. t b a . o r g / y l d                                                        page 5
                                                        T     E     N      N      E     S     S     E     E          Y     O      U      N      G           L     A     W       Y     E     R

                           YLD IN THE COMMUNITY
                           The Verdict Is In:
                           Knoxville West High Wins State Mock Trial Tournament
                           By Adam O. Knight
                                   ixteen teams from across the state                  Kris Harris, a civil suit involving a tour bus                                        At the conclusion of four preliminary

                           S       competed in the 2006 Tennessee Bar
                                   Association State High School
                           Mock Trial Competition March 17 and 18
                                                                                       and pedestrian accident that occurred while
                                                                                       tourists were trying to catch a glimpse of a
                                                                                       popular country singer. Teams presented
                                                                                                                                                                          rounds, Knoxville West High School and
                                                                                                                                                                          St. Mary’s Episcopal High School of Mem-
                                                                                                                                                                          phis were the top finalists. After a
                           in Nashville. To reach the state competi-                   their best arguments as to whether the bus                                         well-fought championship round, presided
                           tion, teams had to win district competitions                driver or the pedestrian was at fault.                                             over by Tennessee State Supreme Court
                           by playing the roles of attorneys and wit-                     Each of the four rounds saw fierce com-                                         Justice Cornelia Clark, Knoxville West
                           nesses in a fictitious case developed by the                petition from every team present, with                                             High School emerged victorious as the
                           TBA Young Lawyers Division. This year,                      considerable movement in the rankings                                              2006 Tennessee Bar Association High
                           teams presented the case of Dale Evans v.                   throughout the first three rounds. Indeed,                                         School Mock Trial champion.
                                                                                       the standings were so close that a mere ten                                           The YLD Mock Trial Committee would
                                                                                       points separated the second from the third                                         like to thank the 200 volunteers who served
                                                                                       place team.                                                                        as scorers, bailiffs and presiding judges dur-

                           Competition Chair Jordan Keller announces                   Knoxville’s West High School gathers around Supreme Court Justice Cornelia Clark to celebrate
                           the results of the championship round.                      their victory.

                             Individual Award                                           Dobyns-Bennett High School                                                       Oak Ridge High School
                             Winners                                                    Josh Mosley                                                                      Erin Wendt
                             Best Plaintiff Advocate                                    Family Christian Academy                                                         Ravenwood High School
                             Tracey Hancock of Gallatin High School                     Ethan Hargraves                                                                  Robert Gardner
                             Best Plaintiff Witness                                     Gallatin High School                                                             St. Mary’s Episcopal School
                             Paige Hamby of Gallatin High School                        James Butler                                                                     Jenny Guyton
                             Best Defense Advocate                                      Germantown High School                                                           Seymour High School
                             Jennifer Camfield of West High School                      KC Young                                                                         Marcus Baker
                             Best Defense Witness                                       Harpeth Hall                                                                     South Greene High School
                             Harry Watson of Ravenwood High                             Claire Burks                                                                     BJ Short
                             School                                                     Haywood High School                                                              Webb School
                                                                                        Trista Wade                                                                      Kelsey Lewis
                             Most Valuable Players                                      Hume-Fogg Academic High School                                                   West High School
                             Cookeville High School                                     Maggy Randels                                                                    Ian Orr
                             Rachel Steidl                                              McCallie School
                                                                                        Shayne Woods

                             page 6                     A q u a r t e r l y p u b l i c a t i o n o f t h e Te n n e s s e e B a r A s s o c i a t i o n Yo u n g L a w y e r s D i v i s i o n
                                  T   E   N   N   E    S   S   E   E          Y      O      U         N   G   L   A   W   Y   E   R

                                                                                                                  2006 Championship
                                                                                                                  Round Available on
                                                                                                                           re you planning to coach a mock

                                                                                                                  A        trial team next year? See what it
                                                                                                                           takes to make it to the champi-
                                                                                                                  onship round. The final round of this year’s
                                                                                                                  competition features West High School
                                                                                                                  and St. Mary’s Episcopal School battling
                                                                                                                  for the first place trophy. Videos are just
                                                                                                                  $10 and can be purchased by contacting
                                                                                                                  Stacey Shrader at the Tennessee Bar Asso-
                                                                                                                  ciation at 615-383-7421, 800-899-6993 or

ing the competition. Without your help the            ABOVE: Where the
event would not be as successful as it is each        magic happens: Mock
                                                      Trial committee
year. Additionally, the committee offers
                                                      members Scott Rose
congratulations and praise for a job well             (right) and David
done to the competitors, coaches, faculty             Thompson (left) take
sponsors and family members who worked                a break from power
so hard on this year’s case.                          matching as rounds
   Stay tuned for next year’s problem,                get underway.
which will be a criminal matter. Competi-
tors can expect to see some familiar names            RIGHT: St. Mary’s
in the problem and a whole lot of twists              team members
and turns. ■                                          present their side of
                                                      the case.

Adam served as vice chair of the state mock
trial competition this year and will assume the            2006 TRIAL
chairmanship for the 2007 competition. He                 MOC ION
                                                      TBA PETIT
can be reached at                   COM

  Final Rankings                                  6th place                                                       12th place
  1st place                                       Ravenwood High School                                           South Greene High School
  West High School                                Brentwood                                                       Greeneville
  Knoxville                                       7th place                                                       13th place
  2nd place                                       McCallie School                                                 Seymour High School
  St. Mary’s Episcopal School                     Chattanooga                                                     Seymour
  Memphis                                         8th place                                                       14th place
  3rd place                                       Gallatin High School                                            Dobyns-Bennett High School
  Family Christian Academy                        Gallatin                                                        Kingsport
  Chattanooga                                     9th place                                                       15th place
  4th place                                       Harpeth Hall                                                    Oak Ridge High School
  Hume-Fogg Academic High School                  Nashville                                                       Oak Ridge
  Nashville                                       10th place                                                      16th place
  5th place                                       Haywood High School                                             Cookeville High School
  Webb School                                     Brownsville                                                     Cookeville
  Bell Buckle                                     11th place
                                                  Germantown High School

                                                                       w w w. t b a . o r g / y l d                                                   page 7
                            T     E     N      N      E     S     S      E     E          Y      O      U     N      G           L     A     W       Y     E      R

The Probate Proceeding Actual Notice Requirements Applicable to Estate Creditors
continued from page 5

the Mennonite court’s injunction that                       rejecting the claim. Additionally, the                                                   decedent’s date of death.
‘actual notice’ shall be made available to                  estate attorney expressly asserted that
‘any party, whether unlettered or well-                     even if Ward were a creditor a claim                                                  The Supreme Court of Tennessee
versed in commercial practice, if its name                  would be barred “because [he] did not file                                         agreed with the appellate court. Instruc-
and address are reasonably ascertainable.”                  such claim with the probate court as                                               tively, the court intimated that
After holding that Guyton had not                           required by law within [the then] six                                              communication to this creditor should
received actual notice because of the defi-                 months after the first publication of the                                          have included not only a copy of the pub-
ciency of the contents in the letter, the                   notice to creditors.” The estate attorney                                          lished or posted notice to creditors but a
court then looked to Tenn. Code Ann. §                      included a copy of the published notice to                                         copy of the statute which sets out the
30-2-307(a)(1)(B), which effectively                        creditors with the letter.                                                         various time limits and a statement of the
imposes a one year limitation period where                      Ward was advised by an attorney that                                           date of the decedent’s death.
a known or reasonably ascertainable credi-                  he had twelve months from Bowden’s
tor receives no notice. The court noted                     death to file a claim, but should file                                             The 12-Month Absolute
that although an exact copy of the pub-                     immediately. In a letter to the estate                                             Bar on Claims
lished notice to creditors may not be                       attorney dated Dec. 30, Ward forwarded                                             As seen in Bowden v. Ward, if the credi-
required, at the very least, information of                 documents pertaining to the sale of the                                            tor never receives notice or gets actual
the probate proceeding’s commencement                       airplane and advised the estate attorney                                           notice less than 60 days before the date
and the time period requirements for filing                 of his intent to file a claim. Ward filed a                                        that is 12 months from the date of the
a claim are required.                                       claim on Feb. 11, 1997.                                                            debtor’s death, the creditor has the full
                                                                The trial court found that Ward had                                            12 months from date of death to file a
Communicating an                                            become a known creditor on Nov. 20,                                                claim.19 The question becomes, does the
Accurate Time-Period                                        1996, and was entitled to actual notice.                                           12-month bar really mean 12 months in
to Creditors                                                Further, the court found that actual notice                                        all situations. By way of illustration, if
In an opinion delivered by Justice Birch                    to Ward was effectuated when Ward                                                  D’s probate proceeding is instituted 24
in Bowden v. Ward,16 the Tennessee                          received the letter and a copy of the pub-                                         months after the decedent’s death, are
Supreme Court addressed the issue of                        lished notice to creditors from the estate                                         all claims forever barred? In Estate of
whether notice to an estate creditor that                   attorney on Dec. 6. Accordingly, the trial                                         Luck v. FDS/Goldsmith,20 the Tennessee
does not correctly communicate the time                     court held that the letter started the 60                                          court made clear that 12 months from
period for filing a claim is equivalent to                  days from receipt of actual notice statutory                                       the date of death is in fact the absolute
no notice at all.                                           period for filing a claim, pursuant to Tenn.                                       last date an estate creditor may file a
   Jones Elmer Bowden died on March 27,                     Code Ann. § 30-2-307(a)(1)(A). Under                                               claim in all circumstances. The 12-
1996. On April 9, his daughter qualified as                 this analysis, the trial court held that Ward                                      month statute of limitations applies
executrix. On April 12, the clerk published                 could have filed a timely claim by Feb. 6,                                         regardless of whether the creditor knew
the notice to creditors. The executrix                      1997. The court barred the claim because                                           the debtor was dead, received any type of
delivered notice of the probate proceedings                 it was not filed until Feb. 11.                                                    notice of the debtor’s death or received
to creditors ascertained from the decedent’s                    The appellate court reversed and con-                                          notice to file a claim. ■
records. This did not include Larry E. Ward                 cluded that the notice to creditors Ward
because the executrix found no record of                    received did not constitute actual notice
decedent’s debt to Ward.17 On Oct. 28, the                  under the statute because it “contained a                                          Vanessa is a third year law student at
executrix recognized Ward’s name in an                      time period that had since expired and                                             the Cecil C. Humphreys School of Law at the
address file and attempted to call him on an                failed to contain, at a minimum, the                                               University of Memphis. She will graduate in
unrelated matter, but Ward was out of the                   applicable time period in which he had to                                          spring 2006. She can be reached at
country. In a conversation with Ward’s                      file his claim.” Accordingly, the appeals                                
daughter, the executrix was advised of a                    court held that the 12-month self-execut-
debt owed by the decedent to Ward from                      ing limitation period applied, making the
an installment note from the sale of a busi-                filed claim timely. The relevant provi-                                            Notes
ness and airplane.                                          sion18 provides:                                                                      1. Tenn. Code Ann. § 30-2-305 provides
   Upon returning to the United States                          If a creditor receives actual notice less                                      that “every debtor’s property, except such as
and learning of Bowden’s death, Ward for-                       than sixty days before the day, which is                                       may be specifically exempt by law, is assets for
warded a letter identifying himself as an                       twelve months from the decedent’s date                                         the satisfaction of all the debtor’s just debts.”
estate creditor and explaining the status of                    of death or receives no notice, such                                              2. Id.
the installment loan. On Dec. 2, the                            creditor’s claim shall be barred unless                                           3. See Continental Ins. Co. v. Moseley, 100
estate’s attorney sent a letter to Ward                         filed within twelve months from the                                            Nev. 337, 338, 683 P.2d 20, 21 (Nev. 1984)

  page 8                     A q u a r t e r l y p u b l i c a t i o n o f t h e Te n n e s s e e B a r A s s o c i a t i o n Yo u n g L a w y e r s D i v i s i o n
                                      T   E    N   N    E    S   S   E   E           Y     O      U         N   G   L   A    W   Y   E   R

                                                            TECHNOLOGY AND THE LAW
(Moseley II) (the first case requiring that estate
creditors receive actual notice instead of publi-           Computer Networking Basics
cation notice in probate proceedings)                       By Bill Edwards
    4. Tulsa Professional Collection Services v.
                                                                        hile most young lawyers feel                        constructing firewalls for professional

Pope, 485 U.S. 478, 491, 108 S.Ct. 1340, 1348
(1988) (examining Oklahoma’s non-claim                                  fairly comfortable with desk-                       offices I believe in the scorched earth pol-
statute and establishing the standard for deter-                        top and laptop computers, few                       icy: nothing should get in. While standard
mining whether a estate creditor is entitled to             are well-versed enough in the basics of                         software packages are sufficient for most
actual notice pursuant to the Due Process                   computer networking to understand how                           users, they probably are not strong enough
Clause of the Fourteenth Amendment)                         networking (of the non-client develop-                          for professionals with a need to protect
    5. Mullane v. Central Hanover Bank & Trust              ment variety) can be of vital importance                        privileged or confidential information.
Co., 339 U.S. 306, 108 S.Ct. 1340 (1950) (at a              to a one’s law practice. Most folks view                        Most folks would never consider a $2
minimum due process requires notice and an                  computer networks as a spaghetti monster                        combination lock to protect their child’s
opportunity for a hearing before deprivation of             of wires connecting magic black boxes                           bicycle, but are willing to trust a $49 soft-
life, liberty, or property)                                 that miraculously work, or, when they fail                      ware firewall/virus protection package (or,
    6. See Pope, supra, at 487 (where the state plays       to work, the source of a enormous                               worse, one downloaded for free) to protect
no other role outside of enacting the statute, such         headaches and gargantuan repair bills                           data that took years to accumulate and if
a “limited involvement in the running of the time           from the IT witch doctor who charges                            lost would spell financial ruin. Purchase a
period generally falls short of constituting the            more by the hour than the average                               good firewall with a maintenance con-
type of state action required to implicate the pro-         plumber (or lawyer, in some cases.). The                        tract and keep it updated.
tection of the due process clause”)                         good news is that network systems have
    7. Pope, supra, at 483, 1344. See also Texaco           become increasingly simpler as they have                        Wireless Network
v. Short, 454 U.S. 516, 533, 102 S.Ct. 781, 794             developed, but the jargon surrounding                           Many consumers today try to eliminate
(1982) (“it is essential to recognize the differ-           them has made understanding their                               the switch and cables by installing a wire-
ence between the self-executing feature of the              workings more difficult. Much like the                          less network. While this is an attractive
statute and a subsequent judicial determination             legalese you learned to speak in law                            idea, it is one that should be approached
that a particular lapse did in fact occur”)                 school, however, the language of com-                           with extreme caution by lawyers because
    8. U.S. Const. Amend. XIV § 1. See Estate               puter networking can be learned.                                of security concerns. Wireless networks
of Jenkins v. Guyton, 912 S.W.2d 134 (Tenn.                                                                                 are slower than cabled ones and can pose
1956) and Bowden v. Ward, 1999 WL 144933                    Switch and Router                                               a security risk to client information,
(Tenn. Ct. App. 1999), aff’d, 27 S.W.3d 913                 A computer network’s function is to con-                        which may be vulnerable to interception
(Tenn. 2000)                                                trol and share information. The                                 by others, especially if the network is
    9. Tenn. Code Ann. § 30-2-307                           centerpieces of a network are the switch                        unsecured. At a minimum, one should
    10. Tenn. Code Ann. § 30-2-306(c) (the                  and router, the devices into which every-                       employ a secure network and monitor the
general requirement that notice by publication              thing else is plugged. A network switch is                      security of that network for weaknesses.
should be provided upon opening an estate)                  a long black box covered on one side with                       Another weapon against unlawful inter-
    11. Tenn. Code Ann. §30-2-306(e)                        plugs for CAT-5 cable. These are known                          ception is encryption software, which can
    12. Tenn. Code Ann. § 30-2-307(a) (“all                 as RJ-45 jacks. In lay terms, a CAT-5 cable                     provide at least some protection against
claims against the estate arising from a debt of            is one that looks a lot like a telephone                        either purposeful or accidental intrusion.
the decedent shall be barred unless filed within            line, only bigger, and an RJ-45 jack looks                      The bottom line, however, is that you
the period prescribed in the notice published or            like an oversized telephone plug. The net-                      should be careful what you send and
posted in accordance with § 30-2-306(c))                    work switch controls the flow of data from                      receive on a wireless system.
    13. See generally, In re Estate of Jenkins v.           one computer to another on the network,
Guyton, 912 S.W.2d 134 (Tenn. 1995)                         or to a network device such as a server or                      The Computer
    14. See generally, Bowden v. Ward, supra, at 916        network printer. The network switch con-                        Computers are the residents of the net-
    15. Guyton, supra, at 134                               trols the flow of information within the                        work. Entire books have been written
    16. Bowden v. Ward, supra, 1999 WL                      network and the router controls the flow                        dolling out advice about how much com-
144933 * 2                                                  of information between the network and                          puter to buy, but one simple rule holds
    17. Id.                                                 the rest of the world.                                          true: you get what you pay for. If you need
    18. Tenn. Code Ann. § 30-2-307(a)(1)(B)                                                                                 a $700 system to do the job, and you
    19. Id.                                                 Firewall                                                        spend $399 you have not saved $300,
    20. Estate of Luck v. FDS/Goldsmith, No.                Routers often have built-in “firewalls,”                        rather, you have wasted $400.
W2004-01554-COA-R3-CV,                2005       WL         but stand-alone firewalls are preferable. A
1356448 (Tenn. Ct.App. 2005)                                good router and switch combination can                             Before purchasing new computers for
                                                            cost as little as $125, but a good firewall                     use in a legal environment, consider the
                                                            may cost $400 to $500. When it comes to                                               continued on page 10

                                                                             w w w. t b a . o r g / y l d                                                        page 9
                               T     E     N      N      E     S     S      E     E          Y      O      U     N      G           L     A     W       Y     E      R

Computer Networking Basics
continued from page 9

following: as more courts adopt electronic
filing, computer system requirements will
have to change to accommodate these new
rules. A computer purchased today should
have one gigabyte (1GB) of memory and a
discrete graphics card. Memory, often
called “RAM” is not the same thing as
storage. Storage is hard drive and flash
memory. Buy as much hard drive as you
want, go wild with it, have fun, but don’t
expect it to speed up your system as the
hard drive size has nothing to do with how
fast the computer processes data.
    By contrast, a discrete graphics card
will speed up your system. Don’t be fooled
by the term “integrated graphics,” which
also goes by a lot of really cool, feel-good,
high-tech names depending on the man-
ufacturer. What it really means is the
absence of a discrete graphics card. With-
out a discrete card, your main processor                      It is possible to have a server with a single hard drive, but I never recommend that as a solution
                                                              as this setup lacks any redundancy. When the hard drive crashes (and believe me, it will), all data
and memory are tasked with doing all the
                                                              will be lost and years of work can go down the drain.
chores of managing and manipulating
graphic images (like all those PDF files                       be stored in more than one place in case one                                       the market. The most common are Win-
you are or soon will be sending and                            part fails, and that, as often as practical,                                       dows Server, Windows Small Business
receiving), making the entire system                           parts that tend to fail should have backups                                        Server, Novell and Linux. The latter two
move more slowly.                                              in place. Scalability is the idea that a great                                     often are recommended by IT professionals
                                                               deal of money is going into this equipment                                         familiar and comfortable with their use.
Server                                                         and the user should be able to update it later                                     Both are quite powerful and functional. If
The final major component of a network is                      to lengthen its lifespan.                                                          the user is not familiar with these systems
the server. Servers are intimidating devices                       There are six crucial components to a                                          and wants to be his or her own server
that sound extremely expensive (they can                       server:                                                                            administrator, Windows Small Business
be) and complicated (often true). After                            Processor. For a server processor, users                                       Server works well. However, be aware that
you read this article you will not be able to                  have two basic choices: the familiar “Pen-                                         it does have limitations. For example, it
configure a server, but you will be able to                    tium” chip or a chip with the intimidating                                         must be the first server on the network and
identify the server features that are impor-                   name of “Xeon” (which simply means that                                            it will not host more than 75 users.
tant to your practice.                                         it is a Pentium chip that has been designed                                           Hard Drive. This is where things can
    There are two types of servers: the gen-                   to work in the same computer as other                                              begin to get tricky. It is possible to have a
eral server, which serves multiple                             Pentium chips). By adding more chips one                                           server with a single hard drive, but this
functions, or the specifically-dedicated                       can increase the server’s ability to do mul-                                       setup lacks redundancy. When the hard
server that hosts specific functions such as                   tiple tasks simultaneously and, thus,                                              drive crashes (and believe me, it will) all
websites, email, applications and files. The                   increase effective speed. Intel recommends                                         data will be lost. More sophisticated servers
general-purpose server is most common in                       one processor for every 20 to 25 users.                                            use hard drives known as RAID arrays.
law offices, typically functioning as the                          Memory. Server memory also is easy to                                          RAID stands for “redundant array of inde-
file, email and application server.                            figure out: buy as much as you can afford.                                         pendent disks.” With RAID, two or more
    Configuring a server is a lot like configur-               Two gigabytes (2GB) is a good start,                                               hard drives are working as a team to store
ing a desktop computer, as most of the parts                   although a small firm may not need that                                            data. When one crashes, all is not lost.
are the same. When configuring a server you                    much. Most servers allow for memory                                                   Storage Device. Don’t forget to pay
must examine the operating system, the                         upgrades, and I recommend you buy a con-                                           attention to the storage devices on a server.
memory, the hard drive and the permanent                       figuration that leaves memory slots open                                           A desktop system typically has a floppy
storage. In addition, there are two concepts                   for future expansion.                                                              drive and/or a CD-RW drive to back up
to keep in mind: redundancy and scalability.                       Operating System. A multitude of                                               data. A similar device is needed for a server
Redundancy is the notion that data should                      server operating systems are available on                                          as well. However, most servers quickly out-

  page 10                       A q u a r t e r l y p u b l i c a t i o n o f t h e Te n n e s s e e B a r A s s o c i a t i o n Yo u n g L a w y e r s D i v i s i o n
                                             T    E     N    N     E    S     S    E     E           Y     O      U         N   G   L   A     W    Y   E   R

                                                                                                                                        Join Us for the
  Continuing Legal Education from the
                                                                                                                                        125th Annual TBA
  Tennessee Bar Association Young
                                                                                                                                        Convention in
  Lawyers Division
  As a service to our members, we are pleased to announce the following YLD-sponsored                                                   Memphis,
  courses in 2006. Each seminar will be offered in Chattanooga, Knoxville Memphis and
  Nashville on the same day. All are accredited for two general CLE credits and are followed                                            June 14 – 17
                                                                                                                                               ince the beginning of the bar associ-
  by a happy hour. For more information contact Stacey Shrader at or
  register online at

                                                                                                                                        S      ation in 1881, its members have seen
                                                                                                                                               the importance of gathering together
                                                                                                                                        to learn from each other, share knowledge
  The 4L Series, designed for new lawyers in their first year of practice, includes:                                                    and experiences, and work together to
  Basics of Business Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .May 18        improve the legal system. This summer, the
  Setting up a Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .July 20       TBA convention caps off a year in which
  Wills, Uncontested Divorces & Basic Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . .Sept. 21                       lawyers from across the state have been
                                                                                                                                        standing up and delivering on President
                                                                                                                                        Bill Haltom’s mission of educating the pub-
  Designed for young lawyers in their first two to six years of practice:
                                                                                                                                        lic on the importance of the rule of law and
  Writing Better Briefs & Drafting Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .June 7
                                                                                                                                        the American Legal System. Thousands of
  Finding & Challenging Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Aug. 2
                                                                                                                                        Tennesseans have heard this message in
  Choosing & Evaluating a Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Oct. 4
                                                                                                                                        presentations and broadcasts, and have
  CONVENTION OFFERINGS                                                                                                                  seen Tennessee lawyers stepping up and
  On Friday, June 16 the YLD will present four courses as part of the TBA’s annual conven-                                              putting their beliefs into action with pro
  tion in Memphis. All sessions will be held at the Peabody Hotel.                                                                      bono and other volunteer work.
                                                                                                                                            Like any good celebration, the 2006
  Mastering the Art of Opening Statements & Closing Arguments . . . . . . . .8:30 a.m.                                                  TBA Convention promises a full-sized por-
  Featuring Bill Ramsey of Neal & Harwell and Charles Grant of Baker, Donelson, Bearman,                                                tion of fun. Highlights include:
  Caldwell & Berkowitz PC                                                                                                                   • Opening night reception atop the
                                                                                                                                            Peabody Hotel
  Developing the Theory of a Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9:15 a.m.
                                                                                                                                            • Reception and dinner at the Mem-
  Featuring Parke Morris of the Cochran Firm; Frank Holbrook of Butler, Snow, O’Mara,
                                                                                                                                            phis Zoo’s new $23 million Northwest
  Stevens & Cannada; and Ken Bryant of Miller & Martin
                                                                                                                                            Passage exhibit
  Hot Topics in IP Law for the Non-IP Practioner . . . . . . . . . . . . . . . . . . . . . .10:30 a.m.                                      • The ever-popular lawyers luncheon
  Featuring Jack Waddey of Waddey & Patterson and Grady Garrison of Butler, Snow,                                                           • Reception at the Rock ’n’ Soul
  O’Mara, Stevens & Cannada                                                                                                                 Museum
                                                                                                                                            • Redbirds and Rendezvous BBQ at
  Ethics Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 – 4 p.m.           AutoZone Park
  Featuring ethics expert Lucian Pera as Alex Trebek and TBA President Bill Haltom as                                                       • The YLD-sponsored 5K Race Gestae
  a contestant
                                                                                                                                          And don’t forget, on Friday, June 16 the
                                                                                                                                        YLD holds its annual membership meeting
                                                                                                                                        and elections at 4:00 p.m. CST.
grow the storage capacities of CD or even                           offsite backup, it will not matter how many                            For more details and a complete sched-
DVD. The answer: an external tape back                              hard drives were in the server or how many                          ule of events visit the TBA website at
up unit (TBU). Be sure to get one that is                           desktops stored copies of files.                           ■
large enough to backup all available hard                               Power Supply. Next to a hard drive
drive space minus programs and the operat-                          failing, the most likely source of mechani-
ing system. There is no need to back these                          cal failure on a server is the power supply.
up; the original discs can be stored in a safe                      Redundant power supply is preferable if                                 to “find your way to the courthouse.” If
place off-site. I am often asked, “Why get a                        available. And don’t forget to invest in a                              not, do what lawyers do all the time … call
TBU if the hard drives are redundant to                             battery backup/surge suppression device.                                an expert. ■
each other?” The answer goes to the over-                           Many $10,000 servers and a lot of $2,400
all plan of the network. It is important to                         servers have been lost to spikes in electri-
back up data often and store it offsite in                          cal current because they were plugged                                   Bill is a third year law student at the Nashville
case the entire network is destroyed or lost.                       directly into a wall socket.                                            School of Law and a student member of the
Floods and fires happen and burglars steal                              Hopefully, this article has provided a                              TBA. A self-proclaimed computer geek, he can
computers. Once gone, if there is not an                            basic understanding of computer networks                                be reached at

                                                                                             w w w. t b a . o r g / y l d                                                          page 11
                              T    E     N      N      E     S     S      E     E          Y      O      U     N      G           L     A     W       Y     E      R

Vanderbilt Dean Seeks to Modernize Legal Education
By Jay Campbell & Jake Kraemer
       egal education has remained rela-                     regulatory and international aspects of the                                            Dean Rubin also is seeking to change

L      tively unchanged since the late 19th
       century — a Socratic education
seeking to impart legal doctrine through a
                                                             modern practice.
                                                                 Second, citing medical school (where
                                                             by the third year students actively are
                                                                                                                                                the way second and third years are struc-
                                                                                                                                                tured. “The problem [with second and
                                                                                                                                                third year curriculum] is that there is no
steady diet of appellate decisions. While                    working in hospitals) and business school                                          structure, it’s just a bunch of courses,” he
most law school curriculum remains                           (where students engage in group study),                                            says. To address this issue, the faculty has
rooted in centuries-old tradition, the body                  Rubin argues that the passive education of                                         been organized into teams, tasked with
of law attorneys must navigate has                           law school is not in line with the active                                          designing relevant concentrations for
evolved from common law recorded in                          learning environments of other graduate                                            upper-level courses. Students will be able
opinions to a complex system of interre-                     programs. He believes that active learning                                         to choose one of these curriculum tracks to
lated sources — statutes, regulations,                       opportunities must be incorporated into                                            focus on a particular area of law. Currently,
treaties and, yes, cases — many of which                     the curriculum.                                                                    Vanderbilt offers a business law concentra-
scarcely get mentioned, much less studied,                       Third, Rubin believes that law school                                          tion and hopes to add concentrations in
during law school. If Vanderbilt Univer-                     should reflect the norms of current prac-                                          litigation and dispute resolution, interna-
sity Law School’s new dean has his way,                      tice, rather than legal doctrine handed                                            tional law, constitutional law, regulatory
however, the legal education at Vander-                      down by appellate courts. When the law                                             law and public interest law. Rubin also
bilt will receive an extreme makeover.                       school model was created there was no way                                          envisions increased counseling at the end
    Dean Edward L. Rubin came to Vander-                     to study social practice, and law was                                              of the first year to aid students in choosing
bilt with the belief that the current                        merely doctrine. Rubin notes this is why                                           a concentration.
curriculum at most major law schools could                   students study contract adjudication rather                                            Dean Rubin is the first to admit that he
be enhanced to better serve the legal com-                   than contract formation. Believe it or not,                                        cannot make these sweeping changes
munity. His vision is to transform legal                     many first year contracts courses do not                                           alone. He credits the present faculty with a
education to reflect more accurately the                     give students the skills to read a contract,                                       passion for educating and embracing
modern practice of law. Having taught and                    much less draft one. Rubin plans to utilize                                        change and the Vanderbilt University
practiced law, Rubin is ideally situated to                  the tools of modern economics and sociol-                                          administration, namely Chancellor Gor-
bring this change to fruition. Prior to being                ogy to design courses that better reflect                                          don Gee and Provost Nick Zeppos, with
named dean in July 2005, Rubin served on                     modern practice.                                                                   extraordinary encouragement.
the faculty of University of Pennsylvania                        Upon arriving at Vanderbilt, Dean                                                  There is a role for Tennessee lawyers in
Law School and Boalt Hall School of Law                      Rubin immediately took steps to begin                                              Dean Rubin’s new curriculum. Rubin
at the University of California, Berkeley.                   this curriculum evolution. Under his                                               would like to see an increase in the num-
He began his legal career as a clerk for Judge               direction, Vanderbilt is approaching the                                           ber and variety of outside-the-classroom
Jon O. Newman of the U.S. Second Circuit                     first year of law school differently than the                                      opportunities for students to engage in the
Court of Appeals and was an associate with                   second and third years. In the first year,                                         active, experiential learning model. Rubin
the law firm of Paul, Weiss, Rifkind, Whar-                  students are given a foundation to work                                            is seeking partnerships with judges, regula-
ton & Garrison in New York, where he                         from, while the second and third years                                             tory officials and lawyers in private
practiced entertainment law.                                 provide opportunities for deeper study in                                          practice who would be willing to provide
    Dean Rubin identifies three main prob-                   particular areas of law. Collectively, the                                         such opportunities to law students. With
lems with modern legal education. First,                     faculty is working together to revamp the                                          the support of the faculty, student body,
he posits that the current education model                   first year education to incorporate the                                            university administration and alumni,
is outdated. The modern legal education                      changes needed to modernize the curricu-                                           Dean Rubin is working to ensure that Van-
model was created in the 1870s for a legal                   lum. Dean Rubin’s goal for the first year is                                       derbilt Law School continues to create
world that did not have today’s regulatory                   to introduce law students to “law of the                                           lawyers who are prepared for the chal-
state, global interdependence or sheer vol-                  Twenty-First Century” and give them a                                              lenges of modern legal practice. ■
ume of legal transactions. Rubin, a former                   “basic legal literacy.” This introduction
transactional lawyer himself, notes that an                  will include areas of law that schools often
almost exclusive emphasis on common law                      overlook in current first year curricula: the                                      Jay is a third year law student at the Vander-
during law school does not make sense in a                   regulatory state, the increasingly global                                          bilt University Law School and can be reached
world where one-third of lawyers will                        nature of law, and transactional law.                                              at Jake is in his
rarely read a case in their daily practice.                  Rubin says his goal is that “At the end of                                         second year and can be reached at
Rather than focusing on case law, Rubin                      the first year, students should be able to                                Both serve
would like to see a legal curriculum that                    read a case, a contract, a lease, a statute, a                                     as law student liaisons to the TBA YLD.
emphasizes the litigation, transactional,                    regulation [and/or] a treaty.”

  page 12                     A q u a r t e r l y p u b l i c a t i o n o f t h e Te n n e s s e e B a r A s s o c i a t i o n Yo u n g L a w y e r s D i v i s i o n
                                  T   E   N   N   E   S   S   E   E           Y     O      U         N   G   L   A     W   Y   E   R

The Uniformed Services Employment and Reemployment
Rights Act of 1994
By Cynthia J. Cutler
         he United States continues to            tarily take military leave to perform duties                            qualified; or

T        deploy troops and other military
         personnel in Iraq, Afghanistan and
other places around the world. Since Sept.
                                                  (including training) in the Army, Navy,
                                                  Air Force, Marine Corps, any armed forces
                                                  reserve units or national guard unit, or
                                                                                                                        • the nature of the civilian employ-
                                                                                                                          ment is for a brief, non-recurrent
                                                                                                                          period and there was no reasonable
11, 2001, over 525,000 National Guard             other categories designated by the presi-                               expectation of continued employ-
and military reserve troops have been             dent in time of war or emergency, must be                               ment for a significant period (e.g.,
mobilized, and more than 390,000 have             promptly reemployed by their employer                                   seasonal or temporary jobs).
been released from active duty.1 This has         upon completion of their leave and are
led to many employees being forced to             entitled to immediate continuation of                                 Employees also are protected against
leave civilian jobs to honor military obli-       benefits, provided the following condi-                            discharge, except for cause, after reemploy-
gations and employers struggling to deal          tions are met:                                                     ment. This actually changes the
with their absence. While away, and upon             • the employee held a civilian job                              employment relationship from that of at-
return, these employees are entitled to a                with the employer;                                          will employment. The protection lasts for
number of protections under the Uni-                 • the employee gave advance notice                              one year if the military leave was over 180
formed Services Employment and                           that he or she was leaving for duty                         days. If the leave was between 31 and 180
Reemployment Rights Act of 1994                          in the uniformed services;                                  days, employees are protected from dis-
(USERRA). As summarized below,                       • the employee’s cumulative leave did                           charge without cause for 180 days after
USERRA prohibits employers from dis-                     not exceed five years;                                      they return to work. Employees taking
criminating or retaliating against men and           • the employee was not separated                                leave of less than 31 days do not receive
women who serve in the uniformed serv-                   from service under dishonorable                             any additional “termination for cause
ices, establishes rights to reemployment                 conditions; and                                             only” protection.
upon return from duty and provides cer-              • the employee reported back to the                                Earlier this year, new regulations making
tain benefits protection.                                civilian employer in a timely                               several important clarifications to the act
    The act applies to all public and private            manner (specific timelines are                              were adopted.2 These included (1) confirm-
employers, regardless of size. While no                  dependent on the length of leave).                          ing that reinstatement should almost always
employer wants to be perceived as discrimi-                                                                          occur within two weeks, (2) spelling out the
nating against military personnel, many              Employers must return eligible employ-                          obligations of an employer to accommodate
employers are not prepared to meet the            ees to the same or similar position (with                          disabilities and (3) clarifying benefit con-
requirements of USERRA or are unclear             corresponding seniority, pay and benefits)                         tinuation issues for employees on leave. The
how to do so. Employers struggle with the         that they would have held but for the mil-                         regulations imposed no new obligations.
business necessities of filling positions         itary service. This is known as the
vacated by workers on military leave and          “escalator principle.” Determining how to                          Enforcement
how to reemploy returning employees, par-         comply with this requirement may result                            Individuals claiming violations of
ticularly given the longer tours of duty that     in significant analysis and employers                              USERRA may follow administrative
are now common and the possibility of             should consult with counsel before deter-                          enforcement mechanisms, but also may file
changed business circumstances. Managing          mining the reemployment position.                                  a lawsuit in state or federal court without
staffing issues and ensuring that benefit poli-   However, there are statutory defenses to                           exhausting administrative remedies. Plain-
cies do not run afoul of USERRA has placed        reemployment that may be applicable.                               tiffs who prevail on a USERRA violation
an extra burden on many employers. For the        They are:                                                          may obtain substantial verdicts — the act
lawyer counseling either a business client or        • circumstances have changed so as                              allows for reinstatement; recovery for front
service member it is helpful to understand              to make the reemployment                                     and back pay, lost benefits, attorneys’ fees,
the basics of this important statute.                   impossible or unreasonable (e.g.,                            expert’s fees, court costs; and liquidated
                                                        the company underwent a reduction                            damages for willful violations.
Overview of Important                                   in force that would have affected                                The damages in a successful USERRA
Provisions                                              the employee);                                               case can be substantial, as evidenced by the
Employers may not discriminate in the                • reemployment would impose an                                  verdict in a recent Colorado district court
employment or reemployment of an indi-                  undue hardship because the return-                           lawsuit.3 The case involved a Marine
vidual on the basis of military service or              ing employee is not qualified for the                        reservist who was employed as a design
membership, nor may employers refuse to                 position due to disability or other                          consultant with a technology company.
grant a military leave of absence to cov-               bona fide reason and the employer                            The employee was called up for active duty
ered employees.                                         has exhausted reasonable efforts to                          on two occasions. When he returned from
   Employees who voluntarily or involun-                help the employee become
                                                                                                                                            continued on page 14

                                                                      w w w. t b a . o r g / y l d                                                       page 13
                             T     E     N      N      E     S     S      E     E          Y      O      U     N      G           L     A     W       Y     E      R

The Uniformed Services Employment and Reemployment Rights Act of 1994
continued from page 13

his second tour of duty, he promptly was                     ers either need to fill these positions or shift                                   able job that is equivalent in seniority, sta-
reinstated at work with the same pay and                     the departing employee’s work to other                                             tus, pay and benefits and for which the
benefits. However, the nature of his duties                  employees. Because the employee is enti-                                           employee is or can become qualified to
and responsibilities had changed. He was                     tled to his or her job (or similar one) upon                                       perform. Finally, if no such position is
instructed to work on a new project rather                   return, many employers hire temporary                                              available, or the efforts to help the
than in his prior role as the primary con-                   workers to fill the vacancies. It is best to be                                    employee become qualified for the job
sultant for one of the business groups as the                honest with these employees about their                                            have failed, the employer should offer a job
company felt it would be too disruptive to                   long-term prospects in the position — even                                         the employee is qualified to perform and
replace a primary consultant. The company                    though an employer may not ask a depart-                                           most nearly approximates the same status,
also was in the process of reducing its oper-                ing service member if he or she intends to                                         pay and benefits as the prior position. The
ating budget. Due to financial pressures and                 return to the company after active duty.                                           statute provides an exception to these
negative performance appraisals of the                       USERRA provides no protections for                                                 obligations if efforts to accommodate truly
employee, the employee was terminated                        employees hired to fill temporary vacan-                                           constitute an undue hardship, but proving
approximately four months after he                           cies. Handling shifting personnel is an area                                       this defense is a high burden for employers.
returned. The court held that the employer                   that employers should think about care-                                               Finally, employers are required to notify
violated USERRA by (1) placing the                           fully, particularly if there are union                                             employees of their rights under USERRA.
employee in a “diminished status” upon his                   contracts in place that may apply to the                                           This requirement can be met by posting the
return, (2) failing to give the employee a                   newly-hired individual.                                                            U.S. Department of Labor’s poster: “Your
fair opportunity to resume his duties before                    Another challenging issue is how to                                             Rights Under USERRA.” The poster may
being evaluated and (3) terminating him                      deal with a returning employee who is now                                          be downloaded at
for reasons that did not constitute “cause”                  disabled. Employers must remember that                                             programs/userra/poster.htm. ■
within the intent of the statute. The                        the ADA applies if the employee meets
employee was awarded lost wages and ben-                     the appropriate definitions to receive pro-
efits of more than $380,000 plus interest.                   tection as a qualified individual with a                                           Cynthia practices law in the Nashville firm of
The court held that liquidated damages                       disability (or otherwise) under that act.                                          Baker, Donelson, Bearman, Caldwell &
were not appropriate in the case.                            USERRA does not contain its own defini-                                            Berkowitz PC. She can be reached at
                                                             tion of disability, but does require                                     
Challenges for Employers                                     employers to undertake a number of steps
USERRA poses a number of challenges for                      to return a disabled employee to work.
employers. Finding replacement workers to                    First, the employer must make reasonable                                           Notes
fill positions vacated by employees called                   efforts to accommodate the disability in                                              1. Numbers accurate as of December 19,
up for active duty is a particular problem.                  trying to place the employee back in the                                           2005
Before Sept. 11, most reservists received                    position he or she would have been in                                                 2. 20 C.F.R. § 1002.1 et seq.
job protection under USERRA for time                         absent the military leave. If the efforts to                                          3. Duarte v. Agilent Technologies, Inc., 366
needed for training or short-term assign-                    accommodate are not successful in making                                           F.Supp.2d 1039 (D. Colo. 2005)
ments. Now many employees are leaving                        the employee qualified for the position,
their job for 18 months at a time. Employ-                   the employee should be offered an avail-

                                          Erin McArdle Coughlin Honored by Boy Scouts
                                                  ingsport lawyer, Erin                               highest honor the council can

                                          K       McArdle Coughlin,
                                                  was honored with the
                                          Silver Beaver Award by the
                                                                                                      bestow on a volunteer. McAr-
                                                                                                      dle Coughlin received the
                                                                                                      award for her work as chairper-
                                                                                                                                                                   Erin is the Assistant General
                                                                                                                                                                   Counsel for the Tennessee
                                                                                                                                                                   Department of Children’s Ser-
                                          Sequoyah Council of the Boy                                 son of the Northeast Tennessee                               vices in Bristol. She currently
                                          Scouts of America at their                                  Regional Mock Trial Competi-                                 serves as secretary of the Ten-
                                          Annual Eagle Scout & Leader                                 tion, which often involves up                                nessee Bar Association Young
                                          Recognition Banquet March                                   to 16 teams competing for                                    Lawyers Division, a post she has
                                          13. Established in 1931 and                                 three slots at the state compe-                              held since 2002. She also is the
                                          presented for distinguished                                 tition. Since 1996, she has                                  immediate past president of the
                                          service to young people, the                                worked with the Sequoyah                                     Northeast Tennessee Young
                                          Silver Beaver Award is the                                  Council to develop a team. ■                                 Lawyers Association.

  page 14                     A q u a r t e r l y p u b l i c a t i o n o f t h e Te n n e s s e e B a r A s s o c i a t i o n Yo u n g L a w y e r s D i v i s i o n
                                 T   E   N   N   E   S   S   E   E           Y     O      U         N   G   L   A    W   Y   E   R

Public Service Day to be Observed by Young Lawyers
Throughout the State
By Jenny Rogers

        ach year in conjunction with Law             District 5                                                       District 10

E       Day, young lawyers across the state
        participate in projects designed to
serve the public. Many of this year’s proj-
                                                     Valerie Richardson; 423-425-7000
                                                     Continuing with a two-year campaign
                                                                                                                      John Holt; 615-382-2929
                                                                                                                      Raising funds to provide children
ects reflect the YLD’s commitment to                 to recruit volunteers for CASA.                                  taken into custody by the Department
CASA (Court Appointed Special Advo-                                                                                   of Children’s Services with essential
cates) and “Answering the Call” (the                 District 6                                                       items through its “Backpack Program.”
ABA-YLD’s outreach program for people                Rachel Moses; 931-528-7436
living with HIV and AIDS). Following is a                                                  District 11
list of each district’s public service project       Holding a fundraiser for CASA and                                Wes Bryant; 931-388-4022
for this year. Please contact your district          fielding a team for the Cookeville                     
representative for more details and infor-           March of Dimes walk.                                             Hosting a golf tournament to raise
mation about participating in these events.                                                                           money for a new Maury County
                                                     District 7                                                       CASA agency.
   District 1                                        Evan Cope; 615-893-5522
   Myers Massengill; 423-764-1174                                                       District 12                      Working on a Habitat for Humanity                                Dean Dedmon; 731-286-2401
   Co-hosting a pancake breakfast                    House.                                                 
   fundraiser for CASA at the Rush                                                                                    Working on a Habitat for Humanity
   Street Grill in Kingsport on May 6.               District 8                                                       House.
                                                     Jeff Cherry; 615-444-7222
   District 2                                                                          District 13
   Chuck Buckholts; 865-482-4466                     Hosting a legal clinic for seniors and                           Anna Banks; 731-423-5800                            low-income individuals (April 29) and                  
   Working on a Habitat for Humanity                 sponsoring a doctors v. lawyers softball                         Raising funds for the Madison County
   House in Anderson County.                         game to benefit the Wilson County                                CASA program and painting their
                                                     Child Advocacy Center (May 6).                                   building on April 22 from 10 a.m. –
   District 3                                                                                                         2 p.m.
   Michael Brezina; 865-546-9611                     District 9                               Shannone Raybon; 615-277-0702                                    District 14
   Working on a Habitat for Humanity                                                   Mary Beard; 901-434-8061
   House in Knox County.                             Participating in the fourth annual                     
                                                     Dining Out for Life — a fundraiser for                           Partnering with the Memphis Bar
   District 4                                        HIV and AIDS services organization                               Association to do repair work at Hope
   Kristie Luffman; 423-472-2179                     Nashville CARES. On April 25,                                    House, an HIV AIDS service organiza-                               sales at Merchants Restaurant (401                               tion for children, on May 6 from 9
   Assisting the Chattanooga Bar Associ-             Broadway) will be donated to the                                 a.m. – 12 p.m. ■
   ation’s YLD with a free legal clinic on           organization.
   April 22.
                                                                                                                    Jenny is chair of the YLD Public Service
                                                                                                                    Committee. She can be reached at

                                                                     w w w. t b a . o r g / y l d                                                    page 15
Upcoming Events
Public Service Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Projects scheduled April 22-May 6 (see list on page 13)
Law Day Celebrated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .May 1
Deadline for Open Seat Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .May 1
YLD CLE: Basics of Business Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .May 18
Law Day Art & Essay Contest Winners Announced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .June 1
YLD CLE: Writing Better Briefs & Drafting Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .June 7
TBA Annual Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .June 14-17
The Peabody Hotel, Memphis
YLD CLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .June 16
Mastering the Art of Opening Statements & Closing Arguments                                                                                                                                8:30 – 11:45 a.m.
Developing the Theory of a Case
Hot Topics in IP Law for the Non-IP Practioner
The Peabody Hotel, Memphis
YLD CLE: Ethics Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .June 16
The Peabody Hotel, Memphis                                                                                                                                                                   2 – 4 p.m.
YLD Annual Meeting & Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .June 16
The Peabody Hotel, Memphis                                                                                                                                                                     4 p.m.
YLD CLE: Setting Up a Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .July 20
YLD CLE: Finding & Challenging Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Aug. 2
YLD CLE: Wills, Uncontested Divorces & Basic Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Sept. 21
YLD CLE: Choosing & Evaluating a Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Oct. 4

 Young Lawyer
                                                                                                                                                                                           US POSTAGE
                                                                                                                                                                                           Nashville, TN
       The Tennessee Bar Association                                                                                                                                                     Permit No. 929
       221 Fourth Avenue North, Suite 400
       Nashville, TN 37219

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