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					                                                                                                               •    VO LU M E 3                 •     ISSUE 1                   •     FALL 2007




A Q U A R T E R LY P U B L I C AT I O N O F T H E T E N N E S S E E B A R A S S O C I AT I O N YO U N G L A W Y E R S D I V I S I O N

YLD IN THE COMMUNITY
Golf Tournament Raises Funds                                                                                                                    2007 TBA
for Child Advocacy                                                                                                                              Convention Report

                                                                                                                                                T
                                                                                                                                                       he Young Lawyers Division met
                                                                                                                                                       for its annual membership meet-
                                                                                                                                                       ing and elections on Friday, June
                                                                                                                                                15 in Nashville as part of the annual
                                                                                                                                                Tennessee Bar Association convention.
                                                                                                                                                Young lawyers joined seasoned col-
                                                                                                                                                leagues, judges from across the state, and
                                                                                                                                                members of the Tennessee Trial Lawyers
                                                                                                                                                Association and Tennessee Lawyers
                                                                                                                                                Association for Women to celebrate the
                                                                                                                                                role the organized bar has played in this
                                                                                                                                                state for 125 years. On Thursday night,
                                                                                                                                                convention guests gathered on the lawn
                                                                                                                                                of Andrew Jackson’s home for a catered
                                                                                                                                                dinner and candlelight tours of the Her-
                                                                                                                                                mitage. On Friday night, the YLD and
                                                                                                                                                alumni of the Tennessee Bar Associa-
Justin Martin lines up a putt as (clockwise) Keith Alley, Sherri DeCosta and Matt Haralson look on.
                                                                                                                                                tion Leadership Law program co-hosted
                                                                                                                                                a late night dance party at the Global


YLD
                       District 4 Representative                    Golf Tournament. Teams from Knoxville,                                      Café with Kung Pow! — a fabulous 80s
                       Justin R. Martin of                          Maryville, Sevierville and Chattanooga                                      tribute band. Additional highlights of
                       Maryville hosted the dis-                    navigated this challenging golf course                                      the weekend included:
trict’s first annual charity golf tournament on                     designed and developed by Greg Norman.
Sept. 24 to raise money for child advocacy                          The event raised significant funds, and sep-                                Election Results
organizations in the surrounding area. The                          arate grants of at least $1,000 each will be                                At the YLD annual meeting, members
event was held at the Tennessee National                            made to New Hope, Blount County Chil-                                       elected Nashville attorney David
Golf Club in Loudon. Martin writes about                            dren’s Advocacy Center (CAC) and Court                                      Changas as vice president of the organi-
the tournament for TYL:                                             Appointed Special Advocates (CASA) of                                       zation. He will take over as YLD
        The fairways and greens of Tennessee                        East Tennessee. Both organizations work                                     president in June 2009. Votes were also
    National Golf Club rose from the lazy river-                    with the state Department of Human Ser-                                     cast for the contested positions of secre-
    banks of the Tennessee River in Loudon,                         vices and applicable criminal, investigative,                               tary, treasurer and District 11
    when early in the afternoon of Sept. 24,                        prosecutorial, court and adoption systems to                                Representative. For a complete list of
    lawyers, engineers, bankers, accountants,                       assist in the rehabilitation of abused and                                  board members, see page 4.
    counselors, businessmen and others con-                         neglected juveniles.                                                                              continued on page 9
    vened to golf, volunteer and otherwise                                                   continued on page 3
    participate in the First Annual Charity



                         • President’s Corner . . . . . . . . . . . . . . . . 2     • CLE for the 2007 - 2008 Bar Year . . . . . 7                •   Practice Tips . . . . . . . . . .   .   .   .   .   .   .   .   .   .   .   10
  INSIDE                 • Section 409A: An Early New Year’s
                           Resolution for Employers . . . . . . . . . . . . . . 4
                                                                                    • Young Lawyers Produce First Online
                                                                                      CLE Course. . . . . . . . . . . . . . . . . . . . . . 7
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                                                                                                                                                      Barely Legal . . . . . . . . . .
                                                                                                                                                      YLD People . . . . . . . . . . .
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                         • Face of the Young Lawyer . . . . . . . . . . . 6         • 2007 - 2008 YLD Board . . . . . . . . . . . . 8             •   Member Benefit Spotlight            .   .   .   .   .   .   .   .   .   .   15
                                 T     E     N      N      E     S     S     E     E          Y     O      U      N      G           L     A     W       Y     E     R




THE PRESIDENT’S CORNER
A Source of Inspiration
By Jason Long

        ast issue, my wife wrote that my deci-                  in the former category. They

L       sion to practice law was a direct
        result of participating in the YLD
mock trial competition 20 years ago. (Has
                                                                possess a self-assurance and pas-
                                                                sion for the practice that it
                                                                worthy of adulation. For the
                                                                                                                                                                      Jason Long is the 2007 –
                                                                                                                                                                      2008 YLD president. He
it really been that long?) In fact, that is                     most part, they exude an ideal-                                                                       practices law in Knoxville
only a partial truth. Like all great writers,                   ism and enthusiasm that is                                                                            with London & Amburn PC
she takes a little literary license. True,                      infectious, raising the bar to                                                                        and can be reached at
mock trial peaked my curiosity about the                        lofty heights. These are people                                                                       long@latlaw.com
law, but I did not entertain the notion of                      who were born to be lawyers and
entering the practice until much later.                         we need them.
Actually, I didn’t seriously consider apply-                       For the rest of us, maintain-
ing for law school until I realized that no                     ing the enthusiasm to practice law well                                            of them make me swell with pride at being
one was going to pay me a living wage as a                      can be a grind. We struggle with our cho-                                          a lawyer. They are volunteers who have
political scientist. I still am not sure who                    sen profession more than others outside                                            committed themselves, some in small ways
even hires political scientists.                                the practice will ever know. From con-                                             and some on a grand scale, to bettering our
    Upon college graduation, I was up to                        tentious clients to overly aggressive                                              profession. We are an oft-maligned profes-
my ears in student loans so, like many                          opposing counsel to frustrating limitations                                        sion, but there are not many jobs around
young lawyers, I decided the best thing I                       on our ability to resolve issues, the road-                                        where you can associate with so many fine
could do was take out another loan and                          blocks to being a “happy” lawyer are                                               people. Whether it is participating in
delay the inevitable job search by continu-                     numerous. We have bills to pay and that                                            mock trial, producing a CLE, working on a
ing my education in law school. I believed                      might mean sacrificing family time to log                                          public service project or attending annual
those who told me that a doctor of                              more hours or stressing over whether                                               convention, the TBA and its Young
jurisprudence would be an invaluable tool                       another client will walk through the door                                          Lawyers Division have never failed to re-
no matter what field I entered. And so it                       with a case we won’t like. Be honest: how                                          energize my batteries and improve my
was, even as Joe King badgered me in class                      many “dog” files are sitting in your office                                        “happiness” quotient.
with ridiculous tort hypotheticals and Joe                      right now? We have to stay current in our                                              I realize that bar involvement is not
Cook dismissed my attempts to explain                           education and resources (even though the                                           everyone’s cup of tea. Regardless of where
complex contracts quandaries, I still did                       technology designed to make our practice                                           one finds inspiration for the practice, I
not think I would ultimately practice law.                      easier results in making us work more). All                                        firmly believe that interacting with and
It was only upon graduation that I realized                     the while, as these stresses demand more                                           socializing with our peers in some form is
my best chance to earn a living was in the                      and more of us, we question whether or                                             an absolute necessity to maintain sanity
practice, and so my career began.                               not we made a good career choice. It is                                            and take pleasure in the profession. In this
    I tell you this anecdote because I believe                  enough to make Atticus Finch withdraw                                              era, it is too easy to become isolated.
that there are those who are “called” to                        from representing Tom Robinson.                                                    Working out of the office, communicating
practice law and there are those who enter                         Is that a soapbox I see? Well, please                                           by e-mails, rarely seeing the inside of a
the practice with hesitation and trepida-                       allow me to stand on it (and stay with me                                          courtroom. Such isolation can lead to frus-
tion. God bless those who find themselves                       here). My greatest source of inspiration                                           tration and depression for even the most
                                                                and motivation to practice law has been                                            enthusiastic young lawyers. As Professor
                                                                involvement with professional associa-                                             Fred LeClercq told us upon graduation:
Staff                                                           tions. I have been involved in several and                                         “We are all brothers and sisters in the law,
➤   JASON LONG, PRESIDENT
                                                                I am a better lawyer and a happier person                                          are we not?” Yes, we are professor
➤   MASON WILSON, CO -EDITOR
➤   HANSON TIPTON, CO -EDITOR
                                                                because of those experiences. Here at the                                          LeClercq, and that fellowship should be
➤   STACEY SHRADER, YLD DIRECTOR                                Tennessee Bar Association, I have met                                              nurtured and cherished.
➤   LANDRY BUTLER, DESIGN & PRODUCTION                          exceptional lawyers (and even some not so                                              Throughout the year in this column, I
                                                                exceptional) from all walks of life and at                                         will be encouraging you to nurture that fel-
                                                                different points in their careers. Some                                            lowship. I believe in it that strongly. If you
                                                                have made me laugh at the absurdity of our                                         want to get involved, you are always wel-
                                                                profession while others have made me sad                                           come. It could be just the thing to
                                                                over the injustice they seek to redress. All                                       re-energize YOUR batteries. ■


             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
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Golf Tournament Raises Funds for Child Advocacy
continued from page 1




                                                                                                                   Left: Players take on one of the many bunkers
                                                                                                                   of Tennessee National.
                                                                                                                   Below: Justin Martin (left) and Charles Fisher
                                                                                                                   enjoy lunch catered by the Tennessee National
                                                                                                                   clubhouse.




    The day kicked off at 10 a.m. with golf        In the end, though,
product demonstrations provided by Call-        everyone was a winner as
away Golf, who also served as a donor of        each golfer received a
golf equipment for the silent auction. Fol-     complimentary $50 gift
lowing lunch and the auction, the players       card to Callaway Golf
took the greens for the afternoon.              and a coupon for a free
    First place was claimed by golfers Marc     custom fit golf club.
Upchurch, Gene Kine, Tom Johnson and               The       tournament
Steve Howard, who played on the Kramer          would not have been
Rayson team from Knoxville. Lawyers             possible without spon-
Charles Fisher, Thomas Mann, Chris              sors’ donations and
Maxwell and Jeff Jackson of Grant, Kon-         volunteers’ time. Special
valinka & Harrison in Chattanooga               thanks goes to members of the Tournament
turned in a solid second-place finish. Slid-    Committee: Debbie Black, legal adminis-                             Save the Date!
ing into third were Bill Lee, Wayne             trator for Young, Williams, Kirk and Stone;                         The 2008 tournament is already sched-
Baker, Dan Caldwell and Rick Amburgy            Carolyn Doty, executive director of                                 uled! Mark your calendar for May 5,
who golfed for Cornerstone of Recovery.         CASA of East Tennessee; Trudy Hughes,                               2008. For more information about
    In addition to awards for the top three     executive director of New Hope; Leigh                               the tournament, contact Justin
teams, golfers also enjoyed four opportuni-     Ann Lawrence, training services represen-                           Martin at (865) 980-1629 or
ties to win hole-in-one merchandise that        tative for Harmony Adoptions; and                                   jmartin@kizer-black.com.
included a Moomba Ski boat and a set of         Kathryn Scourby, legal administrator for
irons manufactured by Callaway Golf.            Hunton & Williams. ■
Although no shots were scored on qualifying
holes, Gene Kine with Kramer Rayson, Bill
Kelso with Lattimore Black Morgan & Cain        Justin works in the Maryville office of Kizer &
and Danny Cross, an optometrist from            Black Attorneys PLLC and holds the YLD
Oneida, each won a $75 gift card to the Ten-    District 4 Representative seat. He can be
nessee National Pro Shop for their “closest     reached at jmartin@kizer-black.com.
to the pin” and “longest drive” shots.




                                                                    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



Section 409A: An Early New Year’s Resolution for Employers
By Adam C. Flock

Introduction                                                 earned during one taxable year that may be                                         traded.8 If the company is not publicly
The IRS has provided all employers with                      paid in another taxable year.6 The expan-                                          traded, then a disbursement is permissible
an early 2008 New Year’s resolution —                        sive language of Section 409A thus                                                 on the day the employee separates from
compliance with the final regulations of                     encapsulates a broad array of employee                                             service. However, if the company is pub-
Section 409A of the Internal Revenue                         compensation plans, including (1) elective                                         licly traded and the employee is a “key
Code. Section 409A applies to nonquali-                      or non-elective plans, (2) employment                                              employee,” then there is a mandatory six-
fied deferred compensation plans (NQDC                       agreements, (3) severance plans, (4) bonus                                         month waiting period before a
plans) and will affect many employee com-                    plans and (5) discounted employee stock                                            disbursement may be made.9 In most cases,
pensation agreements.1 In April, the IRS                     options. For example, a bonus that is                                              a key employee is defined as one of the top
issued final regulations for compliance                      earned under a bonus plan in one taxable                                           50 employees in the company. Further, a
with Section 409A and later marked Dec.                      year but is not paid until the next is subject                                     separation from service does not include
31, 2008, as the deadline for NQDC plans                     to Section 409A unless it falls within the                                         military leave, sick leave or other bona fide
to become fully compliant with the final                     short-term deferral exemption as discussed                                         leaves of absence as long as the employee
regulations. After the deadline, good faith                  below. Therefore, close attention must be                                          retains a right to reemployment.10
compliance will not provide a safe harbor.2                  paid to the permissible disbursement                                                   Similarly, a disbursement for a “disabil-
Although the deadline for full compliance                    events of Section 409A for any plan that                                           ity” is narrowly defined under the final
is more than a year away, and NQDC plan                      presents the possibility of deferring com-                                         regulations.11 A disbursement from a
that fails to meet the requirements of Sec-                  pensation from one year to the next.                                               NQDC plan for a disability is only allowed
tion 409A by the deadline will subject the                                                                                                      for two types of disabilities: (1) a disability
employee covered by the plan to addi-                        Permissible Disbursements                                                          expected to result in death or (2) a disabil-
tional taxes under Section 409A.                             For NQDC plans to be compliant with                                                ity expected to last for 12 months or
    The effect of Section 409A is to place a                 Section 409A, permissible disbursements                                            longer. The final regulations do, however,
set of timing rules on NQDC plans that                       are limited to the following six events:                                           provide some comfort for a disabled
severely limit when disbursements may be                        • separation from service;                                                      employee whose disability is expected to
made.3 Additionally, Congress broadly                           • the date the participant becomes                                              last more than 12 months. Such employee,
drafted Section 409A so that it is poten-                          disabled;                                                                    as described above, may begin receiving
tially applicable to all types of employee                      • death;                                                                        disbursements after the third month of dis-
compensation agreements other than qual-                        • a specified time (or pursuant to a                                            ability if the employee has been receiving
ified plans and exempt plans.4 For purposes                        fixed schedule) specified under the                                          replacement benefits under an accident
of the statute, qualified plans are limited to                     plan at the date of the deferral of                                          and health plan for at least three months.12
nine specific plans such as 401k plans and                         such compensation;                                                               The final regulations also provide a spe-
simple retirement accounts.5 Exempt plans                       • a change in ownership or effective                                            cialized definition for an “unforeseeable
include, but are not limited to, short term                        control of the corporation, or in                                            emergency.”13 The final regulations nar-
deferrals, welfare benefit plans, limited                          ownership of a substantial portion                                           rowly define an unforeseeable emergency
separation pay plans, fair market value                            of the assets of the corporation; or                                         as a severe financial hardship arising out of
stock options and restricted stock.                             • the occurrence of an unforeseeable                                            events beyond the control of the
Employee plans, other than qualified plans                         emergency.7                                                                  employee.14 Further, the regulations state
and exempt plans are subject to Section                                                                                                         that even where the specialized definition
409A. In light of the statute’s sweeping                        The regulations provide specialized def-                                        is satisfied, a disbursement from a NQDC
applicability, all employers, regardless of                  initions for disbursements based on (1)                                            plan is not allowed “to the extent that
size, should review their employee com-                      separation from service, (2) disability, (3)                                       such emergency may be relieved through
pensation plans to ensure compliance with                    unforeseeable emergencies and (4) change                                           … liquidation of the service provider’s
Section 409A.                                                in control. In some cases these definitional                                       assets … to the extent liquidation …
                                                             requirements narrowly define the permissi-                                         would not cause severe financial hard-
Scope of Section 409A                                        ble disbursement event. Therefore, close                                           ships.”15 Thus, before a disbursement may
Because deferred compensation is broadly                     attention must be paid to the definitions in                                       be made from a NQDC plan without trig-
defined for purposes of Section 409A,                        the final regulations to ensure compliance.                                        gering the additional taxes, the employee
compliance problems loom in almost every                        For a disbursement under the “separa-                                           will have to first exhaust other resources.
type of employee compensation plan,                          tion from service” event, compliance with                                          Further narrowing the scope of “unforesee-
including plans where the deferral of com-                   Section 409A depends on three factors:                                             able emergency” are the exclusions of
pensation is not contemplated. The final                     (1) when the payment was actually made,                                            certain events from the definition. For
regulations define deferred compensation                     (2) the position held by the employee and                                          example, the payment of college tuition
to include any compensation that is                          (3) whether the company is publicly                                                and the purchase of a home are excluded.16


  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




                                                                                                                    types of employee plans. This article pro-
                                                                                                                    vides an overview of the most prevalent
                                                                                                                    exemptions. The exemptions covered by
                                                                                                                    this article include (1) the short-term
                                                                                                                    deferral exemption, (2) certain welfare
                                                                                                                    benefit plans, (3) fair market value stock
                                                                                                                    options, (4) restricted stock and (5) lim-
                                                                                                                    ited separation plans.
                                                                                                                        Short-Term Deferral. The short-term
                                                                                                                    deferral exemption is particularly impor-
                                                                                                                    tant in preventing many year-end bonuses
                                                                                                                    from being subject to Section 409A.23
                                                                                                                    Under the short term deferral exemption a
                                                                                                                    payment does not fun afoul of Section
                                                                                                                    409A if the plan does not provide for a
                                                                                                                    deferred payment and the service provider
                                                                                                                    receives the payment within 2.5 months
                                                                                                                    following the close of the taxable year in
                                                                                                                    which the payment vests.24 For example, if
                                                                                                                    an employee bonus vests with the
                                                                                                                    employee in 2007 but is not actually paid
                                                                                                                    until 2008, the service recipient will be
                                                                                                                    able to invoke the short term deferral
                                                                                                                    exemption where the payment is made
    As with the definition of “separation        the additional taxes under Section 409A.                           within 2.5 months after the close the 2007
from service,” “disability” and “unforesee-                                                                         taxable year. The 2.5 month-period is cal-
able emergency” the final regulations            Additional Taxes                                                   culated from the later of the close of the
provide a specialized definition for             As mentioned earlier, the additional taxes                         employee’s taxable year or the close of the
“change in control.” Under the final regu-       for noncompliance with Section 409A are                            employer’s taxable year.25
lations, three events may trigger a change       severe. Further, the additional taxes are                              For purposes of the short-term deferral
in control: (1) a change in ownership, (2)       borne by the employee and not the                                  exemption, an amount becomes vested
a change in effective control of the corpo-      employer even though the employee has                              when it is no longer subject to a substantial
ration or (3) a change in the ownership of       no little or no control over when a dis-                           right of forfeiture.26 Employee compensa-
a substantial portion of the assets of the       bursement will be made or whether the                              tion is subject to a substantial right of
corporation.”17 All three events have their      plan is in compliance. The effect of the tax                       forfeiture where the employee’s right to the
own special definition. For example, a           is to subject the employee to a “triple tax”                       compensation is conditioned upon either
change in ownership occurs when a person         on all past and present deferred compensa-                         (1) performing substantial future services
or group acquires ownership of 50 percent        tion.21 The “triple tax” is composed of (1)                        or (2) the occurrence of a condition related
or more of the corporation’s voting stock.18     the tax that would normally be imposed if                          to the purpose behind the compensation.27
Also, a change in effective control occurs       the compensation were included in gross                            For example, if an employee is entitled to a
when a person or group acquires 30 per-          income plus (2) an interest equivalent on                          bonus upon completion of five years of
cent or more of the ownership of the             the deferred tax plus (3) a penalty equal to                       service, the employee’s right to such com-
voting stock of the corporation within a         20 percent of the amount of compensation                           pensation does not vest until after year five
12-month period.19 Further, a change in          being taxed.22 Additionally, this accelera-                        when the substantial right of forfeiture has
ownership of a substantial portion of the        tion occurs regardless of whether or not                           lapsed. The short-term deferral exemption
assets of the corporation occurs where a         the compensation is actually paid to the                           would therefore be applicable for 2.5
person or group acquires 40 percent or           employee. Thus, failure to comply with the                         months after the close of the taxable year
more of the total gross fair market value of     statute will result in the employee forfeit-                       in year five.
the corporation’s assets.20                      ing a substantial portion of deferred                                  Welfare Benefit Plans. Another
    Because the regulations narrowly define      compensation in additional taxes.                                  exemption is for certain welfare benefit
the scope of permissible payments under                                                                             plans.28 Welfare benefit plans include plans
Section 409A, employers must adopt and           Exemptions                                                         covering bona fide vacation leave, sick
integrate these definitions to be in full com-   There are a few bright spots, however, in                          leave, compensatory time, disability pay
pliance with the statute. If the specialized     the fight to comply with the disbursement                          and death benefit plans.29 Archer Medical
definitions are not incorporated and fol-        limitations of Section 409A. The final reg-                        Savings Accounts and Health Savings
lowed, then the employee will be subject to      ulations provide exemptions for several                                                    continued on page 15


                                                                     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



FACE OF THE YOUNG LAWYER
Lessons From Another Era
By Anna Banks

        t first glance, you must think the                   beach looking out into the ocean. He was

A       guy in the black and white is truly
        the nerdiest young lawyer in Ten-
nessee (except for Adam Knight, of
                                                             wondering how in the world he would pro-
                                                             vide for his family when he returned home.
                                                             He thought to himself that if his brothers-
course.) Although he still is a big nerd, you                in-law could do OK practicing law, then he
are looking at the face of a young lawyer,                   could do so too. He knew nothing of the
circa 1970. This is my dad, Larry Banks.                     legal profession, but it was then and there
You are probably wondering why I am writ-                    that he decided to give law school a try.
ing an article about my dad when this                           I’m sure many of us remember the rest-
section is designed to highlight a young                     less night of sleep before the first day as a
lawyer. No, he did not just graduate from                    1-L, dreaming of the terror that awaited
law school and fall into the notorious “old                  us. We went to that first class with our
but still young” category. I am writing                      textbooks, our Emmanuel’s, at least two
about my dad because he was at one time a                    legal pads, 6 different colored highlighters
young lawyer, but a young lawyer in a legal                  and of course our briefs that we agonized
environment much different from what we                      over for hours. Not my dad. He showed up
experience today. If we can catch a glimpse                  with a smile. The first victim the professor
of that environment, we just might be able                   terrorized was my dad. When asked about
to incorporate the spirit of that time into                  his brief, dad looked at the professor with
our own practice.                                            a blank stare as if to say “What’s a brief                                          The author’s father, Larry Banks, circa 1970.
    My dad was born in Brownsville, Tenn.                    and what would I brief?” Needless to say,
in 1941. Neither of his parents had a formal                 he left class and headed to the bookstore                                          child that year and funds were tight. But
education. My dad literally drove a tractor                  to buy supplies. He went on to graduate in                                         dad came to the conclusion that he was
to high school, where he was the epitome of                  the top of his class and he and my mom                                             going to have to work, and work hard, if he
the popular football player. Football landed                 moved to Brownsville.                                                              wanted to be successful.
him a scholarship at Vanderbilt and ROTC                        Former Supreme Court Justice Lyle Reid                                              But what Reid did for daddy was invalu-
covered the rest. Upon graduating and mar-                   was in general practice in Brownsville at                                          able. He taught him. That’s it. He taught
rying my mother, dad was required to serve                   the time. He was kind enough to take my                                            him. Reid took the time to teach my father
in the Army. They first lived in Germany                     dad under his wing and pay him less than                                           how to practice law. He didn’t stick dad
before he was deployed to Vietnam.                           minimum wage. That was then Dad real-                                              behind a desk with a Westlaw password
    When I asked him what made him want                      ized that law school taught him nothing                                            and a deadline. He didn’t require a certain
to become a lawyer, dad told me that as his                  about practicing law. And he didn’t know if                                        number of billable hours per month. He
tour of duty ended he was sitting on a                       he could make it. My mom had her first                                             did not encourage my dad to be that unco-
                                                                                                                                                operative attorney who is despised by the
                                                                                                                                                rest of the profession.
                                                                                                                                                    Reid let my dad make his own mistakes
                                                                                                                                                and answer for them. He gave dad advice.
                                                                                                                                                He took time not to give an answer, but to
                                                                                                                                                point dad in the right direction so he could
                                                                                                                                                find his own answer. He took the time to
                                                                                                                                                tell my dad his war stories, and to intro-
                                                                                                                                                duce dad to other legal veterans. He made
                                                                                                                                                my father want to become a good lawyer.
                                                                                                                                                An honest lawyer. A man of his word. And
                                                                                                                                                a man the world could respect.
                                                                                                                                                    My father started out practicing law in
                                                                                                                                                an era where attorneys and judges would
                                                                                                                                                sit around and “chew the fat.” Deals were
                                                                                                                                                sealed with a handshake. Dad and his peers
                                                                                                                                                would hate hard in the courtroom, but
                                                                                                                                                would leave and laugh about other cases
Author Anna Banks with her parents following her graduation from the University of Memphis
                                                                                                                                                over a cold beverage. It was the good ol’
Cecil C. Humphreys School of Law.


  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




CLE for the 2007 - 2008 Bar Year
The Tennessee Bar Association Young               Hear from practitioners as they discuss                        This daylong program introduces new
Lawyers Division has an active schedule of        how to prepare and examine expert wit-                         attorneys to the nuts and bolts of practicing
continuing legal education programming            nesses, including deposing opposing                            law, and provides opportunities to interact
planned for the 2007-2008 bar year. Here’s        witnesses and effectively using their testi-                   with senior associates, partners and judges.
the line up:                                      mony, as well as technology, in pre-trial                      With an emphasis on skills development,
                                                  hearings. Interact with a panel of practic-                    the program features sessions on litigating a
Dec. 14, 2007                                     ing litigators and sitting judges as they                      case, building a transactional law practice,
Trial Practice for Today’s Litigator:             share their own methods, or those they                         handling conflicts and maintaining confi-
Prepare, Persuade & Prevail in (and               have observed, for effectively communi-                        dentiality. Interactive components include
out of) the Courtroom                             cating with juries. And learn how to                           a peer-to-peer panel with senior-level asso-
❖ Chattanooga, Knoxville, Memphis                 handle post-trial issues such as collecting                    ciates sharing their experiences about
   and Nashville                                  damages, initiating an appeal and manag-                       working with administrative staff, keeping
❖ 1 to 4:20 p.m. local time                       ing client expectations.                                       and billing time, managing networking
Want to sharpen your litigation skills?                                                                          expectations and pleasing multiple part-
Then this three-hour seminar is for you.          Feb. 15, 2008                                                  ners. In the afternoon, participants select a
Whether your practice involves time in            The New Lawyer Experience:                                     corporate or litigation track for a more in-
the courtroom or preparing for cases that         Bridging the Gap Between Preparation                           depth look at their chosen field. The day
ultimately settle or are resolved by motion,      and Practice                                                   ends with a session on balancing life and
this program will equip you with practical        ❖ Knoxville, Memphis and Nashville                             work, avoiding burn out and achieving pro-
tools to enhance your litigation skills.          ❖ 8 a.m. to 5 p.m.                                             fessional and personal success in the
                                                                                                                 practice of law. ■

 Young Lawyers Produce First Online CLE Course
 Web-based seminar focuses on the ethics of technology                                                               Save the Date!
 If you’re looking for guidance in applying Tennessee’s Rules of Professional Con-                                   Save the date for the following two
 duct to the technology you use in your daily practice, this course is for you. The                                  seminars. Details on times and loca-
 interactive text format offers a lively learning experience, with scenarios that relate                             tions will be announced as they
 to the challenges you face.                                                                                         become available.

 Authored by Springfield attorney Marisa Combs and Knoxville attorneys Stephen
 Johnson and Kimberly Pride, and edited by former YLD President Jonathan O.
                                                                                                                     April 25, 2008
                                                                                                                     Transactional Practice
 Steen, the course provides one hour of ethics and professionalism credit.
                                                                                                                     This six-hour seminar provides basic
 Take the course, Ethics Issues for Lawyers Using Technology to Enhance the                                          information and resources for non-liti-
 Practice of Law, at your convenience by visiting:                                                                   gating attorneys. Topics include
 https://www.tnbaru.com/CLE/catalog_course_details.php?course=50                                                     contract drafting, estate planning,
                                                                                                                     mediation, intellectual property, real
                                                                                                                     estate transactions and business entity
                                                                                                                     formation.
Lessons From Another Era continued from previous page
Atticus Finch days back then.                     gone before you. They can teach more                               May 16, 2008
   What Reid did for my dad, my dad is            than any book, case, article or seminar.                           Ethics Forum: Demystifying the
now doing for others. Because of dad, my          Slow down. Love the law and the act of                             State Disciplinary Process
brother and I both became lawyers. My dad         practicing law. Embrace it. Respect it.                            In this three-hour course, participants
offered me a position me in his big               Respect those who practice it. And live.                           will learn about the state disciplinary
Brownsville “law firm” but suggested that I       Be to the law students of today what the                           process, common mistakes that trip up
find my own way. He told me with sad eyes         young lawyer of 1970 has been to us. ■                             lawyers and the role malpractice insur-
that the practice of law isn’t what it used to                                                                       ance plays in the profession. Speakers
be. He told me it’s now all about the bot-                                                                           include attorneys representing the
tom line, hours, cases, clients. People don’t     Anna is an assistant district attorney in the                      Board of Professional Responsibility —
take the time to get to know one another,         Office of the 26th District Attorney General                       the state entity that investigates alle-
to help one another. It’s cutthroat. Hand-        in Jackson. She also serves as the District 13                     gations of attorney misconduct — and
shakes have no meaning anymore.                   Representative to the YLD Board. She can be                        attorneys who represent those accused
   I write in appreciation of my dad to say       reached at ambanks@tndagc.org.                                     of wrongdoing.
this: get to know the lawyers who have


                                                                  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




2007 - 2008 YLD Board
The YLD board is here to serve you. Feel free to contact us. Our phone numbers and emails are available on the TBA Web site at
http://www.tba.org/YLD/YLD_officers.html.

Officers                                                     District 9 Representative Kristal Hall                                             Additional Board Members
President Jason Long of Knoxville                            Boone                                                                              ABA Liaison
                                                              Davidson County                                                                    David Johnson of Nashville
President-elect Michelle Sellers of Jackson
                                                             District 10 Representative Ray Runyon                                              E-DICT Editor
Vice President David Changas of Nashville                     Cheatham, Dickson, Houston, Humphreys,                                             Hillary Jones of Knoxville
Secretary Effie Bean of Memphis                               Montgomery, Robertson and Stewart counties
                                                                                                                                                Historian
Treasurer Sarah Henry of Nashville                           District 11 Representative Patrick Carter                                           April Berman of Nashville
Immediate Past President Lisa Richter                         Bedford, Giles, Hickman, Lawrence,
                                                              Lewis, Lincoln, Marshall, Maury, Moore,                                           Meetings Coordinator
of Springfield
                                                              Perry, Wayne and Williamson counties                                               Ben Jones of Knoxville
                                                             District 12 Representative Wes Shumate                                             Tennessee Young Lawyer Editor
Division Governors                                            Benton, Carroll, Crockett, Dyer, Gibson,                                           Mason Wilson of Clarksville
East Tennessee Governor                                       Henry, Lake, Obion and Weakley counties                                           Tennessee Young Lawyer Assistant Editor
 Tasha Blakney of Knoxville                                                                                                                      Hanson Tipton of Knoxville
                                                             District 13 Representative Anna Banks
Middle Tennessee Governor                                     Chester, Decatur, Fayette, Hardeman,
 Jason Pannu of Nashville                                     Hardin, Haywood, Henderson, Lauderdale,
West Tennessee Governor
                                                                                                                                                Affiliates
                                                              McNairy, Madison and Tipton counties                                              Chattanooga Bar Association YLD
 Chad Dickson of Memphis                                     District 14 Representative Emily Landry                                              Celeste Bradley, President
                                                              Shelby County                                                                     Jackson-Madison County Bar Association
District Representatives                                                                                                                          YLD
District 1 Representative Myers Massengill                   Committee Chairs                                                                     Mary Petrinjak of Jackson, President
 Carter, Greene, Hamblen, Hancock,                           Annual Meeting Committee
                                                                                                                                                Knoxville Barristers
 Hawkins, Johnson, Sullivan, Unicoi and                       Cynthia Cutler of Nashville
                                                                                                                                                  Penny Arning, President
 Washington counties                                         Children’s Issues Committee
                                                                                                                                                Maury County Young Lawyers Association
District 2 Representative Katrina Atchley                     Wes Bryant of Columbia
                                                                                                                                                  John Clark of Columbia, President
 Anderson, Campbell, Claiborne, Cocke,                       Continuing Legal Education Committee
 Fentress, Grainger, Jefferson, Scott, Sevier                                                                                                   Memphis Bar Association YLD
                                                              Candice Reed of Brentwood
 and Union counties                                                                                                                               Shannon Toon, President
                                                             Communications Committee
District 3 Representative Sonda Gifford                                                                                                         Nashville Bar Association YLD
                                                              Hillary Jones of Knoxville
 Knox County                                                                                                                                      Rocky McElhaney, President
                                                             Disaster Relief Committee
District 4 Representative Justin Martin                                                                                                         Northeast Young Lawyers Association
                                                              Ray Runyon of Clarksville
 Bledsoe, Blount, Bradley, Loudon,                                                                                                                Carter Massengill of Bristol, President
                                                             Law School Outreach Committee
 McMinn, Meigs, Monroe, Morgan, Polk,                                                                                                           National Bar Association,
                                                              David Bates of Columbia
 Rhea and Roane counties                                                                                                                        Ben F. Jones Chapter
                                                             Long Range Planning Committee
District 5 Representative David McDowell                                                                                                          Elbert Jefferson of Memphis, President
                                                              David Changas of Nashville
 Hamilton County                                                                                                                                National Bar Association,
                                                             Membership Committee
District 6 Representative Rachel Moses                                                                                                          Napier-Looby Chapter
                                                              Lee Bowles of Lewisburg
 Clay, Cumberland, DeKalb, Jackson,                                                                                                               Andrea Perry of Nashville, President
 Overton, Pickett, Putnam, Van Buren,                        Mock Trial Committee
                                                              Colleen Sweeney of Nashville                                                      National Bar Association,
 Warren and White counties
                                                                                                                                                S.L. Hutchins Chapter
District 7 Representative Amelia Luna                        Mock Trial Long Range Committee
                                                              Adam Knight of Nashville                                                            Celeste Bradley of Chattanooga, President
 Cannon, Coffee, Franklin, Grundy, Mar-
 ion, Rutherford and Sequatchie counties                     Public Service Committee                                                           TBA YLD Fellows Liaison
                                                              Jenny Rogers of Knoxville                                                           Jay Johnson of Springfield, YLD Liaison
District 8 Representative David Veile
 Macon, Smith, Sumner, Trousdale and                         Publications Committee                                                             Tennessee Lawyers Association for Women
 Wilson counties                                              Ben Reese of Chattanooga                                                            Sherri DeCosta of Maryville,
                                                                                                                                                  YLD Liaison. ■
                                                             Voter Awareness Committee
                                                              Tara Aaron of Nashville




  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




2007 TBA Convention Report
continued from page 1




                                                                                                                 The first Bon Aqua Springs Hotel (ca. 1870's).
                                                                                                                 which burned down in 1888. A second and
                                                                                                                 later a third hotel — was built at the same
                                                                                                                 location in Bon Aqua Springs, Tennessee about
                                                                                                                 40 miles southwest of Nashville.
                                                                                                                     The Bon Aqua Springs resort spa was in
                                                                                                                 existence for 100 years until the 1940's when
                                                                                                                 the last building was torn down. Among the
                                                                                                                 historical events that occurred there was the
                                                                                                                 first convention of the Tennessee Bar Associa-
                                                                                                                 tion on July 4, 1882.




Award Recipients                                  Robb Bigelow, member of the Mock                               Fellows of the TBA YLD
On the last day of the convention, then           Trial Committee                                                The Fellows of the Young Lawyers Divi-
YLD President Lisa Richter presented the          Candi Henry, member of the Mock                                sion held their annual meeting on June 15
2007 Young Lawyers Division President's           Trial Committee                                                and inducted three new members: Joe
Award to Cynthia Cutler of Baker, Don-            David L. Johnson, member of the                                “Jay” Johnson of Springfield who has
aldson, Bearman & Caldwell PC in                  Mock Trial Committee                                           served the YLD for many years as chair of
Nashville for her extraordinary work as           Jordan S. Keller, member of the Mock                           the Disaster Relief Committee and a local
chair of the Continuing Legal Education           Trial Committee                                                mock trial coordinator; Jordan Keller of
Committee. The award recognizes those             David G. Thompson, member of the                               Nashville who served as chair of the 2006
who exhibit tireless dedication to the            Mock Trial Committee                                           state mock trial competition and authored
improvement of the legal profession and to        Rachel Moses, producer of the                                  the case that year; and Andrew V. Sellers
the TBA YLD. Richter also presented spe-          Cookeville Trial Practice CLE                                  of Jackson who has held a variety of posi-
cial recognition awards to Katrina                                                                               tions within the division including district
Atchley of Sevierville for her excellent          Fourth Quarter                                                 representative, West Tennessee governor,
work as district representative and David         Marissa Combs, co-author of the                                E-DICT editor and young lawyer delegate
McDowell of Chattanooga for his work              YLD’s first online CLE                                         to the TBA House of Delegates. The Fel-
revitalizing the YLD’s programs and pres-         Kimberly Pride, co-author of the                               lows also elected leadership for the new
ence in Chattanooga.                              YLD’s first online CLE                                         bar year. Officers include: President Bill
   In addition, Richter named the “star”          Stephen Ross Johnson, co-author of                             Coley of Knoxville, President-Elect
board members for the year’s third and            the YLD’s first online CLE                                     Jonathan O. Steen of Jackson, Secretary
fourth quarters. They are:                        Jenny Rogers, chair of the Public                              Rob Montgomery of Blountville and
   Third Quarter                                  Service Committee                                              Treasurer Scott Carey of Nashville. Out-
   Adam Knight, chair of the Mock Trial           Mason Wilson, vice chair of the Public                         going president Keith Frazier presided
   Committee                                      Service Committee                                              over the meeting. ■
   Colleen Sweeney, vice chair of the
   Mock Trial Committee




                                                                  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




PRACTICE TIPS
Play Nice
By Chad A. Dickson
    am writing on a subject most young

I   lawyers forget applies to us. If you are a
    lawyer you are in management. No,
really. You may not think of yourself as a
manager, but you are. “Wait a minute, I am
the young associate. I am at the bottom of
the hill, and you know what rolls down
hill,” you say. Your relative newness to the
practice of law only means that you do not
have any lawyers reporting to you. If you
are the newest associate you probably still
have office staff that assist you. You may
not have the power to hire or fire them,
but you control their work schedule and
their workload.
    As a young lawyer — and I am assum-
ing most of you reading this are, since this
is the Young Lawyer Division’s publication
— you are probably new to managing peo-
ple. Two seconds ago you were a student                      things for you as a boss. It means that you                                        even so? It is such a small thing to do, and
and now you have somebody with years of                      should treat everyone with courtesy, polite-                                       yet it means so much.
work experience reporting to you.                            ness and kindness. You do not have to be                                               Nobody reading this needs to raise a
    I have seen too many lawyers behaving                    Snow White or Prince Charming every day                                            hand, but I’ll bet every one of you works
badly. Some lawyers get out of school and                    — we all have bad days — but even on bad                                           (or once worked) in a place with a ruth-
think their body odor — or whatever —                        days you have no right to blow a gasket or                                         less boss. I’ll even bet that many of you
doesn’t stink, and they begin to treat the                   be rude. Show a little self-control.                                               have exchanged horror stories about what
office staff worse than you would treat                          Work on communicating effectively                                              that boss did. “Do you remember the time
your dog. Then other lawyers come along                      (this means listening too). When assigning                                         that so-and-so did this or that?” You may
and see that behavior and think it is ok.                    work to staff personnel, be clear about your                                       even laugh about it now, but I’ll also bet
Well, it isn’t.                                              expectations. Employees hate capricious-                                           you that it was not a bit funny when you
    How many of you want to be the bad                       ness. If you are clear about your                                                  were sitting across the desk from so-and-
boss? A few of you might, but I imagine the                  expectations and they are not met, the                                             so, and they were screaming at you, or
bulk of us think the fit-throwing, hard-                     staff member may not like the talking to                                           they were telling you that they would be
drinking, foul-mouthed, ogre-partner type is                 that they get, but they will understand. If,                                       disbarred if they signed that, or they
passé and ineffective. Anybody can scare                     however, you fail to communicate your                                              couldn’t even remember your name, or
people into doing just the minimum amount                    expectations clearly, and then discipline                                          they threw a stack of paper at you that
of work to avoid getting fired, but not every-               an employee when they fail to meet those                                           said only “try again” in red ink. No, it
body can inspire people to produce high                      hidden expectations, you have lost that                                            wasn’t funny. It was awful.
levels of discretionary effort. Being the bad                employee’s trust and loyalty. When listen-                                             Now, how many of you want to grow up
boss may make some people feel like a big                    ing to staff personnel, never speak over,                                          to be so-and-so? How many of you are so-
shot, but it is counter-productive.                          butt in or cut them off.                                                           and-so right now? Trust me. That is not
    What makes a bad boss? This should not                       Praise your staff more often than you                                          where you ought to be. You will be univer-
be a hard question to answer. But it must                    criticize them. Too many bosses fail to pro-                                       sally reviled, and rightly so. We can’t all be
be, since there are so many tyrannical                       vide any kind of rewards or recognition,                                           Atticus Finch, but it can’t hurt to try. ■
bosses still storming away out there. Let me                 but are quick to pounce when an employee
tell you how to answer the question: not                     makes a mistake. Even the small stuff mat-
only are you a manager, but you are also an                  ters. You know, and the staff personnel                                            Chad is an attorney in the Memphis office of
employee too. Think of how you want to be                    know that you are the profit center and                                            FedEx Trade Networks and can be reached at
treated at work, and then demand no less of                  they are cost center. And you both know                                            chad.dickson@fedex.com. He currently serves
yourself in your role as a manager.                          they are going to type that document for                                           as the YLD’s West Tennessee Governor as
    Every employee wants to be treated with                  you or transcribe that tape. But would it                                          well as the West Tennessee young lawyer rep-
dignity and respect. This means lots of                      kill you to say “please” and “thank you”                                           resentative to the TBA House of Delegates.


  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




The TBA’s new Complete Membership provides Tennessee
lawyers more of the services you need every day in the
practice of law. Free online legal research, prepaid CLE
programs, effective advocacy in the legislature and the
courts, and concise and informative writing delivered
through TBA Today and the Tennessee Bar Journal are
just a few of the services.



   Real services for real savings
   Take advantage of just a few of these services and the value is evident. We’ll even do the math:
   Three hours of CLE                                                                             $120 value
   Unlimited online legal research                                                                 $99 value
   TBA advocacy on Capitol Hill and in the courts                                                  $31 value
   Tennessee Bar Journal                                                                           $35 one-year subscription
   TBA Today daily email service                                                                  $120 one-year subscription

   Total value to members                                                                         $405




                                                      Learn more about the TBA
                              THE                     To learn more about the Tennessee Bar Association’s

COMPLETE                                              Complete Membership, contact TBA Membership Direc-
                                                      tor Sarah Stair at sstair@tnbar.org or by phone
                 MEMBERSHIP                           at 800-899-6993, in Nashville 615-383-7421.




                                                           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




BARELY LEGAL
Deus Ex Machina
By Brian S. Faughnan



I
  have been swamped, and was unable to crank out a new column by my deadline. I’ll do better next time. I promise. In the mean-
  time, below is an e-mail exchange (and yes, I have client consent to share it) that I hope will give you a sense of the important
  legal matters that occupy my time.

            From: god@gmail.com
            Sent: Friday, September 14, 2007 3:32 PM
            To: brian.faughnan@arlaw.com
            Subject: Chambers v. God, Docket 1075, Douglas County, Nebraska District Court

            Brian,
               I know you have seen the stories by now (http://www.msnbc.msn.com/id/20827350). Thanks to some
            state senator even I have never heard of, I was sued today in Nebraska state court. (And I’m not all that
            impressed that he’s a “senator,” given that Nebraska still has that whole unicameral legislature thing
            going on.) This Chambers character wants a permanent injunction against me, claiming that I have
            caused numerous catastrophes and terrorized people throughout the ages. I had given some thought to
            defending the case pro se, but you know what they always say about how he who represents himself has
            a fool for a client. . . . Ha! I’m sure you have seen the t-shirts and heard the saying “God don’t make no
            fools!” Only partially true though by the way, I do make fools, then I make sure they get elected to the
            Nebraska state senate! Ha, ha!
               Anyway, extremely roundabout way of getting to my point: I need a lawyer to defend me and I hope
            you will be in a position to be of assistance. Attaching a copy of the complaint filed against me. I know
            you are in the office at the moment, so I trust that you will respond quickly.

               P.S. This should go without saying, but I’ll pay standard rates if that is the issue. I am not looking for
            you to take this on pro bono or anything, although it would not hurt for me to owe you a solid, if you know
            what I’m saying.

               — I Am Who I Am
             ...............................................................................
            From: god@gmail.com
            Sent: Friday, September 14, 2007 3:33 PM
            To: brian.faughnan@arlaw.com
            Subject: Complaint
            Attachments: chamberssuit.pdf

               Ugh. Sorry. Forgot to add the attachment before hitting send. Complaint should be attached this time.
            (Hey, maybe we can use this as a basis for challenging the allegations of omniscience? Kidding, kidding.)
             ...............................................................................
            From: brian.faughnan@arlaw.com
            Sent: Friday, September 14, 2007 4:12 PM
            To: god@gmail.com
            Subject: RE: Complaint

               Wow! Just wow. Needless to say, your email was completely unexpected. I want to ask, why me? But
            I went to Catholic school, so I know the whole drill about how I can’t be expected to understand the why
            and all that.

               I very much appreciate your thinking of my firm and me. Provided that we can clear all the conflict
            hurdles, I would be happy to be of assistance. I have taken the quickest of looks at the complaint and
            have some initial thoughts on whether it makes more sense to move to dismiss or file an answer, but we
            can talk about that later.


 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




                                                                                   on a few of these allegations? (2) I’m thinking we need to add an
    Do I need to run any names for conflicts other than yours (and                 additional affirmative defense or two — surely the statute of limi-
given the whole three-in-one concept, I will just go ahead and run                 tations has run on a lot of these “catastrophes,” right?
all parts of the Trinity in our database) and Senator Chambers?
 ..........................................................                           Also, I have another idea we should talk about. I’ll call you
From: god@gmail.com                                                                tomorrow.
Sent: Friday, September 14, 2007 5:10 PM
To: brian.faughnan@arlaw.com                                                          — I AM
Subject: RE: Complaint                                                              ..........................................................
                                                                                   From: brian.faughnan@arlaw.com
  Go through the motions if you need to, but I know your conflict                  Sent: Thursday, September 20, 2007 2:30 PM
check will come back all clear! (Yet another reason I was kidding                  To: god@gmail.com, yahweh@yahoo.com
about challenging the allegations on the omniscient issues.)                       Subject: Chambers — final version of answer
                                                                                   Attachments: answer.final.doc
   Work up a draft answer, and let’s plan to talk Monday.
                                                                                       Sending this to both addresses just to be safe. After our talk a
   — I AM                                                                          few days ago, I had an associate run your question to ground.
 ..........................................................                        You will not be surprised to know that our research did not really
From: brian.faughnan@arlaw.com                                                     turn up anything directly on point. But, the bottom line is that I
Sent: Sunday, September 16, 2007 4:48 PM                                           think that regardless of the merits of any third-party complaint
To: god@gmail.com                                                                  we could file against the devil, I still think that would look bad
Subject: Chambers case — draft answer                                              from a public relations standpoint. I think the same considera-
Attachments: answer.v1.doc                                                         tions would mean we should not add any defense regarding
                                                                                   failure to join a necessary party.
   Attached is a draft of an answer for your review and com-
ment. A couple of points of note: (1) we are going to need to find                    Let me know if I have your permission to file the attached
local Nebraska counsel to sign off on this; (2) I think we have to                 final version.
admit personal jurisdiction; and (3) some of these I would nor-                     ..........................................................
mally like to respond to by saying we are without sufficient                       From: god@gmail.com
knowledge or information in order to be able to respond, but I                     Sent: Thursday, September 20, 2007 3:16 PM
think that really is not an option under the circumstances, agree?                 To: brian.faughnan@arlaw.com
                                                                                   Subject: RE: Chambers — final version of answer
   Once you have had a chance to look over the attached, let
me know your thoughts.                                                                After some mulling and soul-searching (pun intended!), I
 ..........................................................                        agree with your analysis; please file this in the morning.
From: god@gmail.com
Sent: Sunday, September 16, 2007 4:49 PM                                              I want to follow this up quickly with a motion for summary
To: brian.faughnan@arlaw.com                                                       judgment. You will find my affidavit in your desk drawer.
Subject: Out of Office AutoReply: Chambers case — draft answer
                                                                                      — I AM
    I am currently out of the office. I rest on Sunday; everyone                    ..........................................................
knows that. I will respond to your message when I return to the                    From: god@gmail.com
office on Monday.                                                                  Sent: Thursday, September 20, 2007 10:12 PM
 ..........................................................                        To: brian.faughnan@arlaw.com
From: yahweh@yahoo.com                                                             Subject: Chambers — never mind
Sent: Monday, September 17, 2007 3:12 PM
To: brian.faughnan@arlaw.com                                                          Thanks for all your hard work, but it looks like someone may
Subject: RE: Chambers case — draft answer                                          have already taken care of this for me:
                                                                                   http://www.action3news.com/Global/story.asp?s=7100749.
    Having trouble with my gmail, so am sending this from my new                   Please stand down for now and let’s just see if this works. ■
Yahoo! account. Was inspired by all the alliteration in the com-
plaint (“fearsome floods, egregious earthquakes, horrendous
hurricanes, terrifying tornados,” blah blah blah). I think the draft               Brian is a partner with Adams and Reese LLP in Memphis. He is
is pretty good, but a couple of quick thoughts: (1) I hate to sound                NOT certified as a specialist in the law of deities. You can contact him
like a Doubting Thomas, but don’t we need to demand strict proof                   at brian.faughnan@arlaw.com.


                                                                    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



TYL PEOPLE
News From Tennessee’s Young Lawyers

 Editor’s Note
 Welcome to a new feature for a new bar year. TYL People will run each issue and highlight job moves, promotions
 and career achievements of young lawyers in Tennessee. Please send news items to TYL Editor Mason Wilson at
 mason.wilson@cityofclarksville.com. The editors reserve the right to alter submissions for length, content and format.


   Cynthia J. Cutler has joined the Brent-                  after working as an associate at Butler,                                           degree from the University of Tennessee
wood firm of Koerner & Associates Inc. as                   Snow, O’Mara, Stevens & Cannada                                                    College of Law in 1997. She currently
an attorney search consultant. She previ-                   PLLC in Memphis for three years. Wilson                                            serves as chair of the Young Lawyers Divi-
ously practiced law with Baker, Donelson,                   graduated from the University of Mem-                                              sion’s Public Service Committee.
Bearman, Caldwell & Berkowitz PC in                         phis Cecil C. Humphreys School of Law
Nashville and Fowler, Measle & Bell LLP                     in 2004 and presently serves as editor of                                             Lisa Sherrill Richter, the immediate
in Lexington, Ky. Cutler is a 1997 gradu-                   this publication.                                                                  past president of the TBA Young Lawyers
ate of the William and Mary School of                                                                                                          Division, was recently appointed the new
Law. Koerner & Associates Inc. is a full                       The Knoxville firm of Howard &                                                  child support referee for the 19th Judicial
service attorney search firm serving clients                Howard has announced that Kelli Braud                                              District. She took the bench in Clarksville
throughout the country.                                     Guinn has joined the firm as an associate.                                         on Aug. 8. Formerly with the Law Offices
                                                            Guinn received her law degree from the                                             of Larry D. Wilks in Springfield, Richter
   The Chattanooga law firm of Patrick,                     University of Tennessee College of Law                                             maintained a general practice with an
Beard, Schulman & Jacoway PC has                            in 2005. Prior to joining Howard &                                                 emphasis on family law. ■
named L. Blair Bennington a member,                         Howard, she served as law clerk to Judge
effective July 1. Bennington joined the                     Charles D. Susano Jr. of the Tennessee
firm as an associate in 2003 after earning                  Court of Appeals. Guinn will focus her
a law degree from the University of Ten-                    practice in the areas of real estate, com-
nessee College of Law in 2001. She                          mercial and business transactions and
                                                                                                                                                    MEMBER BENEFIT SPOTLIGHT
focuses her practice on general civil cases,                related civil litigation. She also serves on                                            YLD Announces
including personal injury, commercial and                   the YLD board as vice-chair of the Public
construction litigation. She also currently                 Service Committee.                                                                      New Mentoring
serves as co-chair of the Young Lawyers
Division’s Children’s Issues Committee.                         Katrina J. Atchley has joined the
                                                                                                                                                    Program

                                                                                                                                                    N
                                                            Knoxville office of Lewis, King, Krieg and                                                      ew to the practice of law in
   Sarah F. Henry has taken a position as                   Waldrop PC as an associate attorney. She                                                        Tennessee? Trying to choose
senior attorney with FedEx Express in                       will focus her practice on construction                                                         an area of concentration? Just
Memphis, where she will focus on                            litigation, landlord/tenant disputes and                                                need some career advice? Then this
employment litigation. Henry previously                     general civil litigation. Atchley received                                              program is for you. Whether you are a
served in the Civil Rights and Claims                       her law degree from Syracuse University                                                 law student, in your first few months
Division of the Tennessee Attorney Gen-                     College of Law in 2005. She currently                                                   of practice or reevaluating your career
eral’s Office in Nashville – a position she                 serves as the District 2 Representative for                                             after several years, we can help you
held for five years. Henry graduated from                   the Tennessee Bar Association Young                                                     make the most of your professional
the University of Memphis Cecil C.                          Lawyers Division.                                                                       life. The YLD now offers a mentoring
Humpreys School of Law in 2000 and                                                                                                                  program that can be designed to meet
presently serves as the treasurer to the                       On Sept. 1, Jenny Coques Rogers                                                      your individual needs. Take the first
Young Lawyers Division.                                     joined the Greeneville firm of Rogers,                                                  step: Download an application from
                                                            Laughlin, Nunnally, Hood & Crum PC as                                                   http://www.tba.org/YLD/mentoring_
   Mason Wilson was recently appointed                      an of counsel member. She will focus her                                                application.pdf ■
to the post of City Attorney in                             practice on personal injury litigation and
Clarksville. He took office on October 1,                   appellate work. Rogers earned a law




  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




Section 409A
continued from page 5

Accounts are also exempt.30 Thus, any dis-       from New York University School of Law in
bursement from the above mentioned               2007. He can be contacted at aflock@baker-
welfare benefit plans will not trigger the       donelson.com.
additional taxes of Section 409A.
   Fair Market Stock Options &
Restricted Stocks. Fair market value             Notes
stock options and restricted stock are also          1. IRS Notice 2007-86.
exempt from Section 409A.31 Fair market              2. Prior to the issuance of the final regula-
value stock options are options that have        tions, plans were considered compliant with
an exercise price equal to or above the          Section 409A if a good faith attempt was
fair market value of the stock on the date       made to comply with the statute.
the option is granted. Additionally, to              3. I.R.C. § 409A(a)(2)(A).
qualify for the exemption the number of              4. Treas. Reg. §1.409A-1.
shares subject to the option must be                 5. Treas. Reg. §1.409A-1(a)(2).
fixed.32 If a stock option has an exercise           6. Treas. Reg. §1.409A-1(b).
price below its fair market value on the             7. I.R.C. § 409A(a)(2).
date of grant, then Section 409A will                8. Treas. Reg. §1.409A-3(i)(2).
apply. Restricted stock is stock that is             9. Treas. Reg. §1.409A-3(i)(2) refers to
issued at fair market value but does not         Treas. Reg. §1.409A-1(i)(1) defining a key
vest until a later date.33 For example,          employee as a service provider that meets the
restricted stock includes stock that is          requirements of I.R.C §416(i)(1)(A)(i), (ii)
issued in one year but requires the              or (iii).
employee to work an additional three                 10. Treas. Reg. §1.409A-1(h)(1).
years before the stock is no longer subject          11. Treas. Reg. §1.409A-3(i)(4).
to a substantial right of forfeiture.                12. Id.
   Limited Separation Plans. Another                 13. Treas. Reg. §1.409A-3(i)(3).
exemption is for limited separation plans.           14. Id.
Limited separation plans include (1) col-            15. Id.
lectively bargained separation34 plans that          16. Id.
provide for separation pay only upon                 17. I.R.C. § 409A(a)(2)(A)(vi).
involuntary separation and (2) separation            18. Treas. Reg. §1.409A-3(i)(5).
plans covering involuntary separation of             19. Treas. Reg. §1.409A-3(i)(5)(vi)(A).
service up to certain limits, generally two          20. Treas. Reg. §1.409A-3(i)(5)(vii)(A).
times an employee’s annual pay.35                    21. William Drennan, “Enron-Inspired
                                                 Nonqualified Deferred Compensation Rules: If
Conclusion                                       you don’t know where you’re going, you might
Because the potential impact of Section          not get there.” 73 Tenn. L. Rev. 415, 482
409A is severe, all employee compensation        (Spring 2006).
agreements should be carefully reviewed              22. I.R.C. §409A(a)(1)(B).
for compliance. If employee plans are not            23. Treas. Reg. §1.409A-1(b)(4).
in compliance with the final regulations             24. Treas. Reg. §1.409A-1(b)(4)(i).
after Dec. 31, 2008, employees will be               25. Id.
forced to forfeit a large portion of their           26. Treas. Reg. §1.409A-1(d).
deferred compensation as additional taxes,           27. Treas. Reg. §1.409A-1(d)(1).
regardless of whether or not a disburse-             28. Treas. Reg. §1.409A-1(a)(5).
ment has been made. ■                                29. Id.
                                                     30. Id.
                                                     31. Treas. Reg. §1.409A-1(b)(5).
Adam is an attorney with Baker Donelson              32. Treas. Reg. 1.409A-1(b)(5)(i)(A).
Bearman Caldwell & Berkowitz PC in Mem-              33. Id.
phis where he focuses on tax law. He earned          34. Treas. Reg. 1.409A-1(b)(9)(ii).
his law degree from the University of Arkansas       35. Treas. Reg. §1.409A-1(b)(9)(iii).
School of Law in 2006 and a Master of Laws


                                                                     w w w. t b a . o r g / y l d                                   page 15
Tennessee
 Young Lawyer
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                                           PAID
                                       Nashville, TN

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